Findings Of Fact Maurice Hedge, M.D., is licensed by the Board of Medical Examiners of the State of Florida as a medical doctor and was so licensed at all times relevant hereto. Mrs. Renate Hall was a patient of Respondent from late 1977 until early 1979 during which time she saw him approximately bi-monthly. During this period Mrs. Hall, who was born in Germany and came to America as the wife of a U.S. serviceman, was widowed, out of work, and in poor financial circumstances. Respondent was very gallant, often kissed Mrs. Hall's hand and stroked her arm or hair when she came to his office. Several times he offered to take her to dinner, which offer she did not accept. He did not bill her for the visits. Her last visit to Respondent's office was to have her son's flu virus treated. After examining Mrs. Hall's son, Respondent came out of the examining room and told Mrs. Hall to come into his office while he wrote a prescription. He closed the door to the office, came close to Mrs. Hall, grabbed her breasts and made moaning and groaning sounds. She pushed him away and departed the office, very upset; never to return. No evidence was presented that Respondent is or was in any way mentally impaired. During the period 6-29-79 through 4-17-80 Respondent called in 12 prescriptions to Walgreen's Drug Store, Cocoa, for Class IV controlled substances, Fastin, Talwin, Valium and Premarin for patient Mabel DeVoe (Exhibit 6). A lady known at Walgreen's as Mabel DeVoe picked up these prescriptions. Mabel DeVoe and Geneveive Hodge, the wife of Respondent, are the one and the same person. Exhibit 20 is a list of prescriptions written by Respondent for his wife for controlled substances, primarily Fastin and Talwin, during the first nine months of 1980. These prescriptions were filled at Campbell's Pharmacy, Rockledge, Florida. In the affidavit of Mabel DeVoe (Exhibit 7) she states that she works for Dr. and Mrs. Hodge, and picked up prescriptions made out to Mabel DeVoe and turned the drugs over to Mrs. Hodge. The fact that Respondent was writing prescriptions for Fastin and Talwin for Geneveive Hodge at the same time he was calling in prescriptions for Fastin to be issued to Mabel DeVoe, either a fictitious person or an alias for Mrs. Hodge, shows an intent to deceive by Respondent while participating in this charade. During an audit of Respondent's controlled substances record by the Federal Drug Administration inspectors some two thousand tablets of controlled substances dispensed by Respondent were unaccounted for. Respondent stated to the inspector that most of these unaccounted-for drugs had been dispensed by him rather than administered. When advised of the shortages Respondent made no effort to show that these drugs had been administered, by providing the patients' records to whom he may have administered the drugs. In view of Respondent's admission that these drugs had been dispensed by him, his argument at the hearing that these missing drugs may have been administered and the inspector would have so found had he reviewed all of Respondent's patient records, is without merit. Linda Lomax has been known in police circles in Cocoa and the vicinity for the past ten years or longer as a drug abuser. At various times until late 1980 she was addicted to Demerol. She was successful many times in going to the emergency rooms of hospitals complaining of back pain, earache, and other problems and getting prescriptions for Demerol and other controlled substances. She has a criminal record for assault with a deadly weapon and forgery of prescriptions. In July 1980 Ms. Lomax was apprehended by the police in Rockledge on the basis of a warrant issued in Melbourne for the offense of using forged prescriptions. She was accosted in a drug store while attempting to get drugs on a forged prescription. When the policeman identified himself as such she immediately asked to leave the drug store to "talk". Without ever being placed under arrest by the police, without promises of leniency, of police dropping of charges or other inducement Ms. Lomax asked if the police were interested in learning who committed recent drug related robberies and when the policeman said "Yes" proceeded to tell him about prior unsolved robberies in the area and of a forthcoming planned robbery. The information given by Ms. Lomax proved reliable. She also knew the drug abusers who were getting drugs from which doctor and agreed to assist in getting evidence against these doctors. Ms. Lomax subsequently was introduced to John Spanogle, an investigator for Petitioner, and agreed to assist in getting evidence against Respondent. She had gone to Respondent's office in mid-June 1980 and had obtained Demerol without a physical examination and without a medical reason for having the drug. She had received information from other drug abusers that she could get Demerol from Respondent. When Respondent asked her during the June visit who sent her to him she told him Karen Schaffer and Karen Pritchard. After giving her a prescription for Demerol, Respondent told her to come back. On this visit she stole some blank prescription pads from Respondent's office. Ms. Lomax's next visit to Respondent was in mid-July 1980 and on this visit she presented him with a prescription for 50 Demerol she had forged on one of the blanks she had stolen and told him the pharmacist would not fill it. Respondent tore up that prescription and issued her a valid one for 50 Demerol. During these visits Respondent kissed Ms. Lomax and called her "Baby". When Ms. Lomax told Spanogle the substance of her visit to Respondent he asked if she would return with a "bugging" device on her person, to which she agreed. On July 30, 1980, Ms. Lomax visited Respondent's office carrying a radio transmitter in her purse which was monitored and recorded by Spanogle and the police. At this visit Ms. Lomax told Respondent's nurse that she had an earache. When she met Respondent in the examining room he greeted her with a kiss on the mouth. She told him she didn't have an earache but wanted something for sleep. He asked if Valium would be okay. She said "Yes". When he asked if she wanted 24 or 30 she replied "30". After the greeting kiss Respondent unzipped the front of her dress and played with her breasts. She showed him bruises on her leg and he lifted her dress and remarked that she had sexy underwear and good-looking legs. Her testimony of the events that transpired on this July 30 visit is corroborated by the transcript of the tape of the conversation between Respondent and Ms. Lomax (Exhibit 13). Respondent again agreed to take care of the prescription she had forged from the stolen prescription pad. She made an appointment to return 5 August and left with the prescription. At a prearranged meeting place she turned over prescriptions for 30 Valium, 5 mg. and 24 Dalwane, 30 mg. (Exhibit 8) to Spanogle. On 5 August 1980 Ms. Lomax again visited Respondent's office carrying a "bugging" device. During this visit she was kissed several times by Respondent. They discussed his sexual exploits, or rumors thereof, with other patients. Respondent unzipped his pants to expose his penis and asked Ms. Lomax to look at it and touch it, and he kissed and fondled her breasts. No other physical examination was performed. Ms. Lomax told Respondent she wanted something to help her sleep. While in the office Respondent gave her a Valium injection and upon her departure he gave her prescriptions for 60 Librium, 10 mg. and 24 Nodular, 300 mg. These prescriptions were delivered to law enforcement officers by Ms. Lomax and were admitted into evidence as Exhibit 9. On 12 August 1980 Ms. Lomax made a final visit to Respondent's office again carrying a "bugging" device through which their conversation could be monitored and recorded. During this visit Respondent again fondled and kissed Ms. Lomax's breasts, unzipped his pants and requested oral sex from Ms. Lomax, which she declined. She complained that some of the drugs he gave her last time were ineffective and that she wanted something stronger. Also, she wanted something to keep her awake for the night job she was going to start and sleeping pills so she could sleep during the daytime. She stated she preferred Valium over Librium. When she left the office she had prescriptions for 50 Talwin, 50 mg.; 50 Valium, 5 mg.; 30 Ionamin, 30 mg.; and 50 Dalmane, 30 mg., which she delivered to law enforcement officers (Exhibit 10). On none of these visits was she billed by Respondent for medical services.
The Issue Whether there was just cause to terminate Respondent’s annual employment contract during the term of the contract.
Findings Of Fact Petitioner is the duly authorized entity responsible for the operation, control, and supervision of all public schools (grades kindergarten through 12) in Charlotte County, Florida, and for otherwise providing public education to school-aged children in the county. Art. IX, § (4)b, Fla. Const.; § 1001.32, Fla. Stat. (2016). During all times relevant hereto, Petitioner employed Respondent as a classroom teacher working pursuant to an annual contract. Between the years 1986 through 2000, Respondent worked as an educator for the School District of Hillsborough County, Florida. During the late 1990s, Respondent had multiple surgeries on her lungs and jaw. Respondent was prescribed various pain medications following her surgeries, and unfortunately she became addicted to the medication. Around 1998, Respondent’s addiction to pain medication caused her to engage in criminal activity (i.e. attempting to obtain a controlled substance by fraud), which resulted in her arrest. Respondent, at the time of her arrest in 1998, was employed as a teacher by the Hillsborough County School District. As a result of her arrest, Respondent resigned from employment with the Hillsborough County School District. Additionally, the Florida Department of Education (DOE) was notified of Respondent’s arrest and as a result thereof suspended Respondent’s teaching certificate for two months, imposed a two-year probationary period, and required Respondent to submit to substance abuse treatment. Respondent left the teaching profession in 1998 and did not return to the profession until 2014, when she became employed by Petitioner. When Respondent returned to the profession in 2014, she still needed to complete the two years of probation imposed against her teaching certificate by DOE. As part of her probation, Respondent was required to submit to two years of random drug testing. For the 2014-2015 and 2015-2016 school years, Respondent passed each of her randomly imposed drug tests and has subsequently been released from probation by DOE. Respondent has suffered from migraine headaches for several years and would often miss work due to migraine-related symptoms. Although Respondent missed several days of work during the 2016-2017 school year as a result of migraine headaches, her absences did not rise to the level to where it became necessary for her school principal to speak with her regarding the issue. On the morning of January 3, 2017, which was a teacher planning day, Respondent awoke with a migraine headache. Teachers are expected to report to work by 6:35 a.m. on teacher planning days. Respondent and Lisa Pellegrino were colleagues and friends. On January 3, 2017, at 7:16 a.m., 7:20 a.m., and at 10:29 a.m., respectively, Respondent called Ms. Pellegrino, who was at work. Respondent’s calls were not answered by Ms. Pellegrino because at the time, Ms. Pellegrino did not have her phone in her possession. At 9:01 a.m., on January 3, 2017, Respondent sent a text message to Ms. Deb Capo, who is the school’s secretary. The text message states: “Woke up with a headache . . . will be in ASAP.” At 10:36 a.m., Ms. Capo responded to the text message asking: “Are you here yet. Lou needs to see you.” Respondent replied and stated, “Not yet . . . I’ll be there by noon. All ok?” Ms. Capo then replied, “Yes. See you then.” At approximately 10:50 a.m., Ms. Pellegrino retrieved her cellphone and noticed that she had missed three calls from Respondent. Fearing a possible emergency, Ms. Pellegrino immediately called Respondent. Ms. Pellegrino testified during the final hearing as follows: I just called her because I wanted to see what was going on. I figured I had three missed calls; maybe there was an emergency. And when I spoke with her, she informed me that she had a really bad migraine, she didn’t think she was going to be able to make it, or she was trying to get pain pills because she couldn’t get her Imitrex prescription for a couple of days, and she was having a hard time getting to work to get her grades completed by the end of the day. And she asked me for pain pills or if I had any, and I said no.[1/] Within an hour or so of speaking with Respondent, Ms. Pellegrino and a few of her colleagues were preparing to leave for lunch when the question was asked, “did Lori [Respondent] come in yet?” One of the teachers in the lunch group was Amy Haggarty, who is the chairperson of the school’s math department and was aware of Respondent’s history of addiction to pain medication. Ms. Pellegrino, in response to the question about Respondent’s whereabouts, mentioned to Ms. Haggarty that she had just gotten off the phone with Respondent and that it was a weird conversation because Respondent said, according to Ms. Pellegrino, “that she has a bad migraine headache and she can’t fill her pain medication,” and asked her [Ms. Pellegrino] “if she had any pain medication.” Ms. Haggarty, because she knew of Respondent’s history with addiction to pain medication, became alarmed by Ms. Pellegrino’s statement and she immediately arranged to meet with the school principal, Mr. Long, to discuss what she had been told about Respondent. During her meeting with Mr. Long, Ms. Haggarty informed him of what she had been told by Ms. Pellegrino. Mr. Long, upon concluding his meeting with Ms. Haggarty, then met with Ms. Pellegrino. Upon questioning by Mr. Long, Ms. Pellegrino confirmed that she had spoken with Respondent that morning and that Respondent asked her for pain medication. Mr. Long then contacted the school board’s office of human resources to report what he had been told by Ms. Pellegrino. Mr. Long was advised by a representative from the office of human resources that Dave Carter would report to the school on the morning of January 4, 2017, to “possibly place Ms. Lorenz on administrative leave.” Dave Carter is a “human resources investigator” for the Charlotte County School Board and he reports to, among others, Mr. Chuck Breiner, assistant superintendent for the school board. According to Mr. Carter, his job responsibilities include conducting “personnel investigations based on allegations of misconduct or violations of school district policies, rules, or the Department of Education code of ethics.” During his testimony, Mr. Carter explained that when Mr. Breiner, or others as appropriate, believes that reasonable suspicion exists to subject an employee to drug testing, he [Mr. Carter] will go to the employee’s worksite, perform “an on- scene concurrence evaluation” of the employee, and, if necessary, transport the employee to the drug testing facility. Mr. Carter testified that an on-scene concurrence evaluation consists of him “interview[ing] the principal, call[ing] the employee down, [and] mak[ing] a physical observation of [the employee].” Mr. Carter testified that upon completion of the concurrence evaluation, if he believes that reasonable suspicion does not exist for drug testing, he will contact Mr. Breiner who will then make the final determination of whether the employee should be subjected to drug testing. Respondent arrived at the school around 6:15 a.m. on the morning of January 4, 2017. Soon after arriving at the school, Respondent saw Mr. Long who informed Respondent that he needed to meet with her during the “second hour” of the day, which is her planning period. A reasonable inference from the evidence is that Respondent taught her first-period class before meeting with Mr. Long and Mr. Carter at 8:10 a.m. There is no evidence indicating that Mr. Long took any steps to observe Respondent’s “performance, appearance, or behavior” in preparation for his January 4, 2017, meeting with Respondent and Mr. Carter, or that Mr. Long reasonably believed that Respondent was under the influence of drugs such that she should be prevented from teaching her class.2/ At about 8:00 a.m. on the morning of January 4, 2017, Mr. Carter reported to Port Charlotte High School for the purpose of interviewing Respondent as part of an investigation into an unrelated matter. When Mr. Carter checked in at the school, he met with Mr. Long who informed him of the allegations concerning Respondent’s solicitation of pain medication from Ms. Pellegrino. Mr. Carter immediately contacted Mr. Breiner and informed him of the allegations against Respondent. Mr. Breiner, when he spoke with Mr. Carter, was not aware of Respondent’s history of drug addiction and, consequently, this was not a factor that he considered when ordering that Respondent be drug-tested. Mr. Breiner, based on the information that Respondent allegedly solicited pain medication from Ms. Pellegrino, as reported by Mr. Long, and the fact that Respondent, like a number of other employees, had multiple absences from work, directed Mr. Carter to terminate the investigation into the unrelated matter and to proceed with taking Respondent to an authorized facility for reasonable suspicion drug testing. At no time prior to directing Mr. Carter to subject Respondent to drug testing did Mr. Breiner instruct Mr. Carter to personally interview Ms. Pellegrino regarding her conversation with Respondent. Additionally, at no time prior to Respondent’s drug test did Mr. Carter even attempt to question Ms. Pellegrino about her conversation with Respondent and the circumstances related thereto. It was only after Respondent had been drug tested that Mr. Carter interviewed Ms. Pellegrino. Mr. Carter, after receiving direction from Mr. Breiner, and with the assistance of Debbie Anderson, who works as a personnel analyst in Respondent’s department of human resources, met with Respondent and explained that she was required to submit to drug testing pursuant to the school board’s drug-free workplace policy. Reasonable Suspicion Indicators Petitioner uses a form titled “Reasonable Suspicion Indicators Checklist” (checklist), when evaluating employees for suspicion of violating Petitioner’s Drug and Alcohol Free Work Environment Policy. The checklist provides as follows: Manager/Supervisor: This form is to be used to substantiate and document the objective facts and circumstances leading to a reasonable suspicion determination. After careful observations of the employee’s performance, appearance or behavior, please check all the observed indicators that raised the suspicion that the employee may have engaged in conduct which violates the Drug- and Alcohol-Free Work Environment Policy. Incident or reason for suspicion Apparent drug or alcohol intoxication Nausea or vomiting Abnormal or erratic behavior Evidence of possession, dispensation, or use of a prohibited substance Industrial accident requiring medical attention Physical altercation or assault Odors and/or Appearance Odor of alcohol (on breath or person) Distinctive, pungent aroma on clothing Excessive sweating or skin clamminess very flushed very pale Jerky eye movements Unfocused, blank stare Dilated or constricted pupils Dry mouth, frequent swallowing or wetting lips Bloodshot or watery eyes Behavior and Speech Slurred or incoherent speech Breathing difficulty or irregularity Loss of physical control, dizzy or fainting Unsteady walk, poor coordination Euphoric, fidgety, agitated or nervous affect Shaking hands/body, tremors, twitches Extreme fatigue or sleeping on the job Lackadaisical, apathetic attitude Irritable, moody, belligerent or aggressive demeanor Nausea or vomiting Suspicion of others; paranoia; accuses others Physical and/or verbal abusiveness Rambling, loud, fast, silly or repetitious speech Talkative, cursing, other inappropriate speech Diminished (or lack of) concentration Delayed or faulty decision making Impulsive, unsafe risk-taking Inappropriate response to instructions Mr. Carter and Ms. Anderson each completed a checklist. None of the indicators listed above were checked by either Mr. Carter of Ms. Anderson as it pertains to their evaluation of Respondent. There is, however, an “indicator” appearing on the respective forms that is different in substance when comparing the form completed by Mr. Carter with the one completed by Ms. Anderson. On the form completed by Mr. Carter, there is a marked indicator that reads “Colleague disclosed that employee solicited ‘pain medication’ (controlled substance) during a teacher work day.” By comparison, the form completed by Ms. Anderson notes a different indicator which states “Employee discloses that he or she has consumed alcohol, used or ingested a controlled substance during or immediately prior to duty.” Neither party offered an explanation regarding the differences between the forms. Nevertheless, both Mr. Carter and Ms. Anderson attached a narrative to the checklist regarding the circumstances surrounding Ms. Pellegrino’s statement about Respondent allegedly soliciting Ms. Pellegrino for pain medication. Mr. Carter and Ms. Anderson each completed their respective checklist on January 11, 2017, which coincidentally, was the same date that Respondent’s lab results from her drug test were received by Petitioner.3/ The evidence does not explain why both Mr. Carter and Ms. Anderson waited several days to complete their respective checklists. Mr. Carter testified that when he performed his concurrence evaluation of Respondent on January 4, 2017, the only indicator present for subjecting Respondent to reasonable suspicion drug testing was the statement of Ms. Pellegrino indicating that Respondent solicited pain medication from her on January 3, 2017. Ms. Anderson did not testify at the final hearing. Mr. Breiner, who made the ultimate decision to subject Respondent to reasonable suspicion drug testing on January 4, 2017, testified that two factors drove his determination: the first being Ms. Pellegrino’s statement, and the second being Respondent’s history of absenteeism from work during the 2016- 2017 school year.4/ On cross-examination, however, Mr. Breiner admitted that in Respondent’s notice of termination he made no reference to absenteeism being a factor in his decision to subject Respondent to reasonable suspicion drug testing. Morphine and Imitrex Respondent admits that on January 3, 2017, she took morphine in order to get relief from her migraine headache. Respondent testified that she typically takes Imitrex to treat her migraines, but when that drug is ineffective she takes morphine for relief of her symptoms. According to Petitioner, she has been taking Imitrex since about 2007 and she suffers no side effects from the medication. Respondent testified that she typically takes morphine about once or twice a year “when the Imitrex [is not] working” and that the effects of the morphine last “[a]nywhere from four to six hours, sometimes eight, but nothing after that.” Petitioner did not rebut Respondent’s statement and offered no evidence regarding the effects of morphine and the period of time after ingestion that a person is typically under the influence of the drug. According to medical records from Peace River Medical Center, Respondent was discharged from the hospital on August 23, 2007, following treatment for: 1. “[c]hest pain, myocardial infarction protocol; 2. [p]leuritic pneumonia; [and] [m]igraine.” At the time of release from the hospital, Respondent was “discharged home with Morphine 60 mg p.r.n.” According to Respondent’s unrefuted testimony, the morphine pill that she took on January 3, 2017, was part of the batch of pills that she received when discharged from the hospital in 2007. Petitioner, when first interviewed by Respondent on January 13, 2017, denied soliciting pain medication from Ms. Pellegrino.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Charlotte County School Board enter a final order finding that there was no just cause to terminate Respondent’s employment during the term of her 2016-2017 annual contract with the School Board. DONE AND ENTERED this 14th day of July, 2017, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 2017.
The Issue The issues in this case are framed by the Notice to Show Cause issued by the Petitioner, the Department of Alcoholic Beverages and Tobacco (the Department), on or about October 9, 1991. The Notice to Show Cause contains a total of 32 counts. Twenty nine (29) counts accuse the Respondent, Bernard Jordan, d/b/a Club Zanzibar, of permitting an agent, servant, patron, or employee to unlawfully possess, sell or deliver a controlled substance (cocaine) to an undercover informant or law enforcement officer on the licensed premises in violation of Sections 893.13(1)(a) and 893.13(1)(f) within Section 561.29(1)(a), Florida Statutes. One count accuses the Respondent of permitting an agent, servant, patron, or employee to unlawfully possess, sell or deliver five (5) liters of non tax paid whiskey (moonshine) to an undercover informant or law enforcement officer on the licensed premises in violation of Sections and 562.451 within Section 561.29(1)(a), Florida Statutes. 1/ One count accuses the Respondent of unlawfully keeping or maintaining the licensed premises for the illegal keeping, using, selling or delivering of substances controlled under Chapter 893.03, in violation of Sections 823.10 and 893.13(2)(a)(5), within Section 561.29(1)(a), Florida Statutes. Finally, the last count accuses the Respondent of failing to exercise due diligence in supervising the licensed premises, allowing it to be used by agents, servants, patrons, or employess for the purpose of possessing, selling, delivering and using illegal substances controlled under Chapter 893.03 (coccaine) and 562.451 (moonshine), 2/ in violation of Sections 823.10 and 561.29(1)(c), Florida Statutes.
Findings Of Fact The Respondent, Bernard Jordan, has owned and operated the Club Zanzibar, located at 2132 Main Street, Tampa, Hillsborough County, Florida, for approximately nine years. He holds alcoholic beverage license number 39-00839, series 4-COP, issued by the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, authorizing the sale of alcoholic beverages for consumption on the premises. (He also operates a package store on the premises.) When the Respondent began operating under his license in 1983, there was much less drug activity in the vicinity than there is now. The clientele of the Club Zanzibar was mixed, in the sense that it included the community's professional and blue collar workers, and also law enforcement employees; but the clientele generally was a stable and settled crowd. Supporters of a local community boys' club regularly met at the Club (and continued to meet there up to the time of the emergency suspension on October 10, 1991.) During the early years of the Club, the package store part of the business had two entrances, and the less controlled access to and egress from the premises did not present a problem for the Respondent. There was relatively little loitering and drinking on the street in front of the Club. Notwithstanding the relatively stable environment, the Respondent did not ignore the potential for unlawful activity on the premises. He utilized an Employee Handbook that all new employees had to read and, after completing a month of probationary employment, sign. Among other things, the handbook informed the employees: If a customer is suspected of performing any unlawful acts in this business, the police will be contacted. . . . Do not accuse a customer of any unlawful acts, if not seen by the employee of the establishment. If the employee is using, has or obtaining [sic] drugs, they will be dismissed immediately. (PLEASE READ NOTICE CONCERNING DRUGS). * * * DUE TO RECENT SUSPICIONS OF DRUGS AND OTHER ILLEGAL MATTERS BEING BROUGHT ON THESE PREMISES, ANYONE ENTERING THIS ESTABLISHMENT IS SUBJECT TO BEING POLITELY CHECKED, AS A MEASURE TO PROTECT THE OPERATION OF THIS BUSINESS. WE OFFER OUR DEEPEST APOLOGIES, BUT POSITIVELY NO DRUGS OR ANY OTHER ILLEGAL SUBSTANCES ARE ALLOWED. * * * No one is allowed to LOITER on the grounds of the establishment and no one should be standing in front of door exits or entrances. 4/ Club employees also were informed on a regular basis that no illegal drugs were allowed on the premises and that employees should keep them out if they could or, if not, should notify the Respondent, who either would take care of it himself or call the police. The Respondent also would "bar" anyone caught with or strongly suspected of having, illegal drugs on the premises. The "bar" was permanent or until lifted by the Respondent. The employees are told to enforce the "bar," and if someone who has been barred ignores an employee's enforcement measures, the employee is supposed to tell the Respondent, who enforces it himself or, if necessary, calls the police. But the Respondent did not hold regular, formal meetings to remind the employees of Respondent's prohibition against the possession, use or sale of illegal drugs and of their responsibility with respect to patrons violating the policy. He did not require his employees to complete employment applications or be screened. Nor did he polygraph his employees. The Respondent also posts five-by-seven inch placards in conspicuous places throughout the premises informing customers and employees alike: Illegal Activities Warning: This establishment is firmly against any illegal behavior! . . . Drugs: Drugs are positively prohibited on these premises! Anyone seen or reported with any form of Narcotics will IMMEDIATELY be reported to the police without warning! (A similar message is related as to dangerous weapons.) Although the Respondent makes efforts to enforce the basic "no drugs" policy, he does not always follow the letter of his warnings and announced enforcement measures. He does not, for example, report drug violators to the police "immediately" and "without warning," as the placards state. Indeed, there is no evidence that the Respondent ever reports drug violations to the police or asks for police or Department assistance to address the issue of drugs on the premises. In recent years, the environment around and in the Club Zanzibar has changed drastically. In recent years, crack cocaine has become a serious problem in the vicinity. Crack is sold predominantly by a crowd that is younger than the historical Club Zanzibar clientele. This younger crowd now mixes with the historical Club clientele. It also loiters around in the street in front of the Club and in the general vicinity. Street sales of crack are so frequent in the area that the street has been likened to a drug supermarket. Anyone, anywhere in Tampa, can come to Main Street in this part of the city and buy crack with almost no wait. The problem has become so bad that the Tampa Police Department has opened a sector office nearby; yet, the drug problem in the area persists despite the greater police presence. Because of changed circumstances in the neighborhood, the Respondent has altered the premises to eliminate one of the two entries to the package store to make it a little easier to monitor those going in and out of the package store. The Respondent also has placed a mirror in the premises to allow whoever is tending bar to monitor the foyer of the Club for possible loitering or illegal activity from a particular vantage point near the cash register. But he did not take steps to improve the lighting in the licensed premises. Nor did he vigorously police his establishment. The Respondent did not hire a manager or adequate security guards to police the licensed premises. The Respondent has volunteers who work for him on weekends and, to some extent, watch for illegal activities on the premises. But these volunteers are retirees who are not particularly effective and their primary function seems to be to collect the cover charge for the Respondent. Even assuming that they were actively policing the establishment, they were not capable of doing the job that should have been done. In response to apparent complaints, the Department sent an undercover special agent and an undercover confidential informant (the CI) into the Club Zanzibar on or about May 31, 1991. (An undercover Tampa Police detective also went as a back-up.) The CI and Agent Murray entered the Club and took a seat at the bar. In a short while, a black male known to the CI as a drug pusher who went by the initials "C.C." walked up to them. (C.C. also had told the CI that he (C.C.) was the Respondent's brother, but the evidence did not prove that C.C. was in fact the Respondent's brother.) The CI told C.C. he wanted to buy "a 20" ($20 worth of crack cocaine.) C.C. left for the men's room and returned with a plastic baggy. He held it up waist high or higher to show them that the baggy contained crack cocaine. He removed some of the crack from the baggy and gave it to the CI. 5/ After examining the crack, the CI told Agent Murray to pay C.C. the $20. There were about 15 people in the Club during the transaction on May 31, 1991. The participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants. 6/ No extraordinary effort was made to hide the transaction on May 31, 1991. /7 But neither was the transaction done in an open manner for all to see. The evidence was not clear whether anyone in the bar during the transaction on May 31, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On June 7, 1991, Agent Murray and the CI again entered the Club. There they talked to Wayne Fowler, who gave them the impression that he was employed at the bar as a manager or bouncer. (However, the evidence did not prove that Fowler was ever employed by the Respondent in any capacity.) The CI asked for C.C. Fowler told him that he (Fowler) was "holding C.C.'s stuff" and asked if they wanted to buy from him or wait for C.C. The CI said they would buy from Fowler, and Fowler passed some crack to the CI's lap, under the level of the bar (but not actually underneath the bar counter top). Agent Murray similarly passed a $20 bill to the CI, who passed it to Fowler. There were about 20 people in the Club during the transaction on June 7, 1991. But the evidence was not clear whether anyone in the bar during the transaction on June 7, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On June 12, 1991, the CI and Agent Murray, together with a backup from the Tampa Police Department, again went to the Club. This time, they did not see anyone in the Club to buy drugs from, and the CI and Agent Murray were leaving when Fowler came in and met them in the foyer, which was not visible from throughout the Club's interior. Fowler immediately asked them if they wanted to buy crack. They said yes, and Fowler sold them "a 20." The whole transaction took no more than four or five seconds. The participants in the transaction on June 12, 1991, spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone passing through the foyer at the time. Although there ordinarily are people entering and leaving the Club through the foyer at fairly regular intervals, it was not proven that anyone passed by during the couple of seconds the drug deal lasted. 8/ The evidence was not clear whether anyone in the bar during the transaction on June 12, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On June 14, 1991, the CI and Agent Murray again went to the Club Zanzibar to make a drug buy. Shortly after they entered and sat down at the bar, Fowler came in and went over to them at the bar and asked if they wanted to buy crack. They told him they did, and Fowler left the premises. He returned a short while later and walked up behind the empty stool between them and shook some crack out of a handkerchief onto the empty stool. (The bar stools had a back; and the seats were below bar level.) The CI picked up the crack and gave it to Agent Murray, who gave Fowler a $20 bill. There were about 15 people in the Club during the transaction on June 14, 1991. The participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants. No extraordinary effort was made to hide the transaction on June 14, 1991. But neither was the transaction done in an open manner for all to see. The crack was blocked from general view by the bar on one side, by the bar stool back and Fowler on the opposite side, and by the CI and Agent Fowler on either side of the empty stool. The whole transaction took only about five seconds. Although there were people moving about in the Club, as usual, the evidence did not prove that anyone in the bar during the transaction on June 14, 1991, observed the drug deal. On June 18, 1991, the CI, Agent Murray and their backup undercover detective from the Tampa Police Department returned to the Club Zanzibar to make drug buys. Although there were about 15 people in the premises, apparently no one was selling drugs to them, and the CI left to try to find Fowler. The CI found out that a man named Don Vanderhorst was holding Fowler's crack and would sell some to them. Vanderhorst returned with the CI to the Club. There, Vanderhorst showed them a plastic bag containing crack, holding it in a partially concealed manner between waist and chest height, sold them $10 of crack and left. After buying from Vanderhorst on June 18, 1991, the three law enforcement personnel stayed on the premises. A short time later, Fowler came in and went directly over to the CI and Agent Murray to see if they wanted to buy some more crack from him. Fowler passed to the CI, at waist level, a piece of crack folded up in a torn piece of brown paper the size of a quarter coin. Fowler said he would sell it to them for $10. He changed a $20 bill for them and made the sale. There were about 15 people in the Club during the transactions on June 18, 1991. The participants in the transactions spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants. No extraordinary effort was made to hide the transactions on June 18, 1991. But neither were the transactions done in an open manner for all to see. View of the Vanderhorst transaction was blocked from the back and sides by the three participants. Although customers generally move around and about inside the Club on a fairly regular basis, these transactions took place on the side of the "U"-shaped bar opposite the entrance to the Club, between the bar and the right hand perimeter wall of the premises, near the corner where one end of the bar "dead-ends" on that side into the front perimeter wall of the inside of the premises. There generally is much less traffic in this area since it is a "dead end." An unidentified female bartender might have been able to observe the transactions, but the evidence was not clear whether anyone in the bar during the transaction on June 18, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On June 19, 1991, the CI and Agent Murray returned to the Club Zanzibar. This time, Fowler was seated at a table inside. After they were seated at the bar, Fowler approached them and asked them what they wanted. Agent Murray answered that they wanted "a 20." Fowler told them quietly and privately that they would have to wait because of the customer seated next to Agent Murray. When the customer left, Fowler proceeded to take out a folded up torn piece of brown paper. Holding it at waist level, he showed them the crack that was in it. He took two pieces and passed them to the CI, who passed them to Agent Murray, who gave the CI a $20 bill to give to Fowler. There were about 15 people in the Club during the transactions on June 19, 1991. The participants in the transaction spoke in a quiet tone in the presence of the customer seated next to Agent Murray but otherwise in a normal conversational tone. The juke box was playing, as usual, and the normal conversational tone probably could be overheard only by someone sitting immediately adjacent to the participants. No extraordinary effort was made to hide the transaction on June 19, 1991. But neither was the transaction done in an open manner for all to see. The participants partially blocked the view from the back and sides. The evidence did not prove that anyone in the bar observed the drug deal on on June 19, 1991. On June 24, 1991, Fowler and Vanderhorst were outside talking when the CI and Agent Murray arrived at the Club Zanzibar. Shortly after they entered, Fowler came in and approached them to ask them if they wanted to buy crack. Fowler said that Vanderhorst was "holding my stuff." He left and went to the back of the bar (where the bathrooms are). (Apparently, Vanderhorst also had entered the Club with Fowler and went to the back of the premises, perhaps to the bathroom.) Fowler returned with two pieces of crack which he passed to the CI. Agent Murray gave Fowler $20. There were about ten people in the Club during the transaction on June 24, 1991. No extraordinary effort was made to hide the transaction. The evidence was not clear whether anyone in the bar during the transaction on June 24, 1991, other than the participants, observed the drug deal or heard any of the related conversation. When the CI and Agent Murray arrived at the Club Zanzibar on July 1, 1991, once again Fowler and Vanderhorst were outside on the street. Fowler followed the two inside and approached them to ask if they wanted crack. They said they did, and Fowler passed some crack to the CI for $20. There were about 20 people in the Club during the transaction on July 1, 1991. The participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants. No extraordinary effort was made to hide the transaction on July 1, 1991. But neither was the transaction done in an open manner for all to see. This transaction also took place on the part of the bar near the corner where it "dead-ends" into the front perimeter wall of the inside of the premises. See Finding of Fact 22, above. The evidence was not clear whether anyone in the bar during the transaction on July 1, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On July 5, 1991, the CI and Agent Murray entered the Club Zanzibar to buy drugs but did not see anyone to sell to them. The CI had to go outside looking for Fowler. He found Fowler, who told him he (Fowler) was waiting for his "supply," i.e., the person supplying him with cocaine. The CI brought Fowler back into the Club with him. There, Agent Murray asked Fowler for "some play," i.e., some crack to buy. Fowler told her he would have to "cut" it, i.e., convert it to crack, and left. About five minutes later, Fowler came back in and passed a piece of crack to the CI. There were about 10-15 people in the Club during the transaction on July 5, 1991. The Respondent and his sister were working on the premises on July 5, 1991. No extraordinary effort was made to hide the transaction on July 5, 1991. But neither was the transaction done in an open manner for all to see. This transaction also took place on the part of the bar near the corner where it "dead-ends" into the front perimeter wall of the inside of the premises. See Finding of Fact 22, above. The evidence was not clear whether anyone in the bar during the transaction on July 5, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On July 8, 1991, Fowler again was outside on the street when the CI and Agent Murray arrived at the Club. Fowler followed them inside. The Respondent was tending bar. Fowler quietly and privately told the CI and Agent Murray that they would have to watch out for the Respondent. Fowler left them and returned in a minute or two. Fowler kept a close eye on the Respondent and, about three or four minutes later, got an opportunity to do the drug deal without the Respondent seeing it. While keeping a close eye out for the Respondent, Fowler passed two pieces of crack to the CI, who passed the crack to Agent Murray. Murray passed $20 back to Fowler through the CI. Besides the Respondent, there were about 10 people in the Club during the transaction on July 8, 1991. Except when they were lowering their voices so the Respondent would not hear them, the participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants. Except for the efforts to keep the Respondent from seeing it, no other extraordinary effort was made to hide the transaction on July 8, 1991. But neither was the transaction done in an open manner for all to see. This transaction also took place on the part of the bar near the corner where it "dead-ends" into the front perimeter wall of the inside of the premises. See Finding of Fact 22, above. The evidence was not clear whether anyone in the bar during the transaction on July 8, 1991, other than the participants, observed the drug deal or heard any of the related conversation. When the CI and Agent Murray arrived at the Club on July 16, 1991, they again saw Fowler outside on the street. Fowler followed them in but stopped in the foyer area and beckoned them to come to the foyer. There, Fowler informed them that the Respondent had barred him from the Club and that they would have to do the deal on the street. The CI protested that he did not want the police to see him. Fowler left, and the CI and Agent Murray returned to the Club. When they left the Club some time later, Fowler met them in the foyer. Within a matter of five to ten seconds, Fowler had passed a single piece of crack to the CI, and Murray passed $20 to Fowler. Although there ordinarily are people entering and leaving the Club through the foyer at fairly regular intervals, it was not proven that anyone passed by during the couple of seconds the drug deal lasted. The evidence was not clear whether anyone in the bar during the transaction on July 16, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On July 18, 1991, Fowler was sitting outside on the street when the CI and Agent Murray arrived at and entered the Club. Fowler did not follow them in. Vanderhorst was inside, and they asked him for crack, but he did not have any to sell. Eventually, they left. Fowler apparently had been waiting for them in the street and, as the CI opened the door to exit the premises, Fowler met him and kept the door propped open while he offered to sell them crack. Fowler passed crack to CI, and Murray gave the CI $20 to give to Fowler. People were walking by on the street, and it would have been possible for someone in the street or walking into the foyer to observe the drug deal that took place on July 18, 1991. But it was not proved that anyone in the bar during the transaction on July 18, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On July 22, 1991, Fowler stopped the CI and Agent Murray before they could even get into the Club. Again dealing in the doorway with the door propped open, Fowler passed crack to the CI (in a manner such that Murray herself, who was not looking directly at the transaction, was unable to observe it). The CI passed the crack to Murray, who gave Fowler $20. Again, as on July 18, people were walking by on the street, and it would have been possible for someone in the street or entering the foyer to observe the drug deal that took place on July 22, 1991. But it was not proved that anyone in the bar during the transaction on July 22, 1991, other than the participants, observed the drug deal or heard any of the related conversation. The next day, the CI and Agent Murray returned to the Club Zanzibar. They didn't see Fowler or Vanderhorst. The CI saw someone named Eddie Hall, who was known to the CI to be a "watch dog" for drug pushers. The CI approached him and asked for Fowler and Vanderhorst. Hall left looking for them and returned to tell them that the Respondent had barred Fowler from the Club and that he couldn't come in. Hall told the CI that Fowler was outside and would sell them "a half a packet" (apparently, four pieces of crack) for $20. Just then, Fowler appeared just inside the entrance to the Club and beckoned the CI and Murray to come to him. In all, Fowler was inside the Club for just a matter of seconds (four to five). Fowler met them in the foyer, and the CI told him that they declined the offer to sell "a half a packet" because they were looking for a full "packet." Fowler became irate, apparently at the illogic of their refusal to buy anything. He yelled and screamed and carried on for thirty seconds to a minute until they were in the street. Eventually, the CI and Agent Murray relented in their dubious position and bought a "half a packet" for $20 on the street in front of the Club. 9/ Except for Fowler's yelling and carrying on in the foyer and in the street, the participants in the transaction on July 23, 1991, spoke in a normal conversational tone. The juke box was playing, as usual, and the conversational tone probably could be overheard only by someone sitting immediately adjacent to the participants. As for the Fowler's yelling and screaming, it might have been heard by the bartender, a female named Brunette, and she did not do anything about it before they all moved into the street, but the evidence did not prove that she would have been able to tell that Fowler's yelling and screaming necessarily involved a drug deal. The evidence did not prove that anyone in the bar during the transaction on July 23, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On July 25, 1991, the CI and Agent Murray again went to the Club Zanzibar. The Respondent was behind the bar. His sister was working there, too. After a time, the Respondent left, and Eddie Hall approached them. He told them that the Respondent was gone and that Fowler wanted to see them outside. The CI objected to doing the deal in the street and went to the front door of the Club and called out to Fowler to come in. Fowler went as far as the foyer and met them there. No employees were nearby. In conducting the transaction, Fowler accidentally dropped a white crack "rock" on the foyer floor. He nonchalantly bent down as if he were tying his shoe and picked it up. 10/ Fowler passed the crack to CI, who passed it to Agent Murray, who gave the CI $20 to give to Fowler. Other than Fowler's effort to pick up the crack he had dropped without attracting attention, no other extraordinary effort was made to hide the transaction on July 25, 1991. But neither was the transaction done in an open manner for all to see. It was conducted in the foyer where no employee saw it. Indeed, there is no evidence that anyone saw the transaction other than the participants. There is no evidence that anyone in the bar during the transaction on July 25, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On July 26, 1991, the CI and Agent Murray returned to the Club Zanzibar. As they were about to enter, they saw Vanderhorst just outside. Vanderhorst followed them in. The CI went over to Vanderhorst to ask about crack. Vanderhorst said Fowler was waiting to get some from his girl friend. He left to look for them. Later, Vanderhorst returned and told the CI and Murray that Fowler had some crack and would meet them in the foyer. They went to meet Fowler and bought $20 of crack from him. The participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants. No extraordinary effort was made to hide the transaction on July 26, 1991. But neither was the transaction done in an open manner for all to see. It was conducted in the foyer where no employee saw it. Indeed, although there were 10-15 people in the Club at the time, there is no evidence that anyone in the bar during the transaction on July 26, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On August 2, 1991, Vanderhorst followed the CI and Agent Murray into the Club Zanzibar. Vanderhorst approached them and told them his crack was in his car. Vanderhorst left and returned with a $10 piece of crack. The drugs and money passed inside the bar. There were about 10-15 people in the Club during the transaction on August 2, 1991. The participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants. No extraordinary effort was made to hide the transaction on August 2, 1991. But neither was the transaction done in an open manner for all to see. This transaction also took place on the part of the bar near the corner where it "dead-ends" into the front perimeter wall of the inside of the premises. See Finding of Fact 22, above. The evidence did not prove that anyone in the bar during the transaction on August 2, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On August 14, 1991, the CI and Agent Murray went to the Club Zanzibar and apparently found no one to sell them drugs. The CI went outside to find someone named "Dragon," who was leaving when they came in. The CI returned with someone named James Royal, who had "some dubs" and sold them "a 20" of crack. Royal passed the crack to the CI at chest height (i.e., above the bar). Holding it between his two fingers, the CI showed it to Murray for a few seconds (three or four) before giving it to her. Murray gave Royal $20 for the crack. There were about 15 people in the Club during the transaction on August 14, 1991. No extraordinary effort was made to hide the transaction on August 14, 1991. This transaction also took place on the part of the bar near the corner where it "dead-ends" into the front perimeter wall of the inside of the premises. See Finding of Fact 22, above. The evidence did not prove that the two female bartenders on duty--Pat and Lena--or anyone in the bar during the transaction on August 14, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On August 26, 1991, the Respondent was working in the package store when the CI and Agent Murray entered the Club Zanzibar. Lena was tending the bar. A man known as Adelbert Cliatt or Al Clyde (Clyde) came up to the CI, who asked if Clyde was "still in the business." Clyde said he was but that someone else was holding his "stuff" to reduce the chances that he would get caught. During the conversation between Clyde and the CI, the Respondent came into the Club to try to fix the juke box. The Respondent was kneeling with his back to the bar, about 8-10 feet away from where they were sitting at the bar. While the Respondent was still working on the juke box, someone named Toby Adams came in and joined them. Clyde told Adams, apparently the person holding Clyde's crack, that the CI had asked for "a 20" and to go get. Adams gestured towards the Respondent, afraid to discuss it further or to deal while the Respondent was there. Clyde and Adams then left the Club. When they returned with the drugs, Clyde and Adams just stood behind where Murray and the CI were seated at the bar and waited until the Respondent was finished with the juke box and returned to the package store. Then Clyde took out a piece of crack on a piece of paper to display it to the CI at about chest level. Twice during the five or seven seconds Clyde was displaying the crack to the CI, the CI told Clyde in hushed tones to lower the crack so that it would not be as easy for others to see. The CI also complained that it was not "a 20," but Clyde insisted that it was, pointed out that he was also selling the "shake," i.e., the loose crack particles, that was on the paper. Clyde then folded the paper and gave it to the CI. While the Respondent did not return to the bar area while the transaction was taking place on August 26, 1991, Lena was in the vicinity the whole time and was able to see what was happening, but she showed no interest and did nothing to stop it. It was not proven that the Respondent or any other of the 15 or so people in the Club, other than the participants, observed the drug deal or heard any of the related conversation. Two days later, on August 28, 1991, Agent Murray and the CI returned to the Club Zanzibar and met Fowler on the street outside the Club. As the three headed towards the entrance, Fowler reminded them that he was barred from the Club, and Fowler passed crack to Murray in the foyer. There was no evidence that anyone other than the participants saw the transaction or knew that drugs had been passed. Agent Murray and the CI then continued into the Club. Although Fowler had not yet been paid for the crack, he did not follow them but stopped at the end of the bar nearest the entrance. The Respondent saw Fowler and went over to talk to him. The evidence was not clear what was said, but no more than a minute later, Fowler left. 11/ While the CI and Agent Murray were inside the Club, someone named Clements came in and approached them to tell them that Fowler was "waiting for his package," i.e., his $20. The CI told him, "later," and Clements left. A little while later, Fowler came back into the Club, went up to the CI and Murray at the bar near the entrance, and began to yell at them for not giving Clements Fowler's money. The CI or Murray apparently told Fowler to keep it down, because Fowler informed them that he had seen the Respondent leave, apparently to assure them that it was safer now (even though Brunette still was there). While Agent Murray handed Fowler the money, the CI explained to Fowler that they were not sure Clements would give Fowler the money and that they wanted to give it to him personally. This seemed to satisfy Fowler. Brunette was able to hear Fowler arguing loudly with Murray and the CI and did not intervene or try to find out what the argument was about. But the evidence did not prove that Brunette could hear or could tell what it was that they were saying. The CI and Agent Murray were back at the Club on September 10, 1991. Apparently, there was no one inside to sell them drugs, so the CI went outside. On his return, he told Murray that Fowler was outside "doing a deal." A while later, Fowler came into the Club and joined them. He held a small brown bag up to about chest level to show them the crack inside and then gave it to them. Agent Murray gave Fowler $20. During the conversation between the CI and Fowler on September 10, 1991, the CI asked if Fowler was "back in with " the Respondent, to which Fowler answered that he was. The evidence was not clear whether the CI meant, or that Fowler understood, anything by the question other than that the CI thought Fowler was barred from the Club and was surprised to see him back inside. The CI also asked Fowler if Fowler worked at the Club. Fowler glanced back at the CI, making a face as if to ask, "are you crazy?" and answered, "no way." The CI then asked, "you mean [the Respondent] wants to bar you but still wants you to do favors for him?" and Fowler answered, "yes." However, again, the meaning of this exchange was ambiguous. There were about ten people in the Club during the transaction on September 10, 1991. No extraordinary effort was made to hide the transaction. The Respondent was not there. The bartender on duty, Debra, was new and did not work at the Club very long before her employment was terminated. The evidence was not clear whether she witnessed the transaction or heard the conversation, or heard or saw anything suspicious (although it is possible that she did.) The transaction took place on the side of the bar opposite the entrance to the Club, between the bar and the right hand perimeter wall of the premises, half way to the corner where the "U"-shaped bar "dead-ends" on that side into the front perimeter wall of the inside of the premises. Although customers generally circulate fairly regularly throughout the premises, there generally is much less traffic in this area since it near the "dead end." See Finding of Fact 22, above. There were people playing dominos at a low table in the corner behind the bar where the transaction occurred, but it was not proven that the transaction could have been observed from the domino table. The evidence did not prove that anyone in the bar during the transaction on September 10, 1991, other than the participants, observed the drug deal or heard any of the related conversation. The CI and Agent Murray returned to the Club on September 13, 1991. The Club was crowded; there were 20-25 people there. Lena was tending bar; the Respondent's wife was in the package store; the Respondent himself was not there. At one point, while the CI and Murray were seated at the bar, a man called "Big John" Polite walked up to them, and the CI told him that Murray wanted "a 20." Polite asked if they wanted to do the deal in the Club, and the CI said, "yes." Polite left to go to the men's room, where he said his crack was, and returned to where they were sitting. He walked up between them and passed the crack to the CI under bar level. The CI passed it to Murray, who put it on a napkin on the bar counter top, wrapped it up, and put it in her pocket. Murray then passed $20 to Polite. The man sitting next to Murray at the bar on September 13, 1991, easily could have seen the crack, but the evidence did not prove that he did, or that he would have known what it was. Others also could perhaps have recognized that a drug transaction was occurring, but the evidence did not prove that anyone else in fact knew it was happening. With the juke box playing, and the crowd making noise, probably only someone actually involved in the conversations with Polite would have been able to hear them. When the CI and Agent Murray were in the Club on September 17, 1991, it was again crowded, with about 25 people inside. Brunette and a man named Carl were tending bar. There was confusion in the testimony as to who Carl was. The CI understood him to be the Respondent's cousin, Carl Jordan. The Respondent testified that he had no cousin named Carl Jordan. He admitted he had a cousin name Carl Warmack, who sometimes accompanied him to the Club, but said his cousin Carl was severely retarded and incapable of tending bar or doing anything other than simple menial chores. The CI and Agent Murray did not seem to think that the person they identified as Carl Jordan was retarded. Seated at the bar on September 17, 1991, on the side where there is less traffic circulating, 12/ Murray and the CI observed an unidentified female patron holding three crack "rocks" in her open palm while fingering them with her other hand. She did this in the open so that others seated on that side of the bar also would have been able to see. But it was not proven that anyone else in fact saw what she was doing or knew she had crack in her hand. A little later, Clyde walked up to them, and Murray asked for "a 20." Clyde left and returned shortly to pass some crack to Murray under bar level. Murray put the crack in her pocket and passed $20 to Clyde. "Carl" did nothing about the drug deal between Clyde and Murray. Much of the time while this transaction was taking place, "Carl" was talking to the CI within about three feet from where Murray was sitting. He could have seen the transaction but the evidence did not prove that "Carl" in fact saw it or knew it was taking place. Nor did the evidence prove that Brunette saw the transaction or knew it was taking place. On September 19, 1991, Agent Murray and the CI again went to the Club. Lena was tending bar. The Respondent's daughter also was there. It was crowded, with about 25 people inside. During the time they were there, Murray saw Clyde and asked him for "a 20." Clyde pulled a small brown bag out of his shirt pocket, took out three pieces of crack, and passed them to Murray below the level of the bar where they were sitting. Murray then passed Clyde $20. There were people sitting all around the bar, but the evidence did not prove that anyone saw the transaction to that point. Then, Murray held the crack up for Lena to see and asked her if it was "hard white," a common illegal drug dealing slang intended to describe the potentially dangerous kind of crack that is "cut" with baking soda. Lena lit a cigarette lighter to see it better, looked at it for a moment and answered, "it looks beige to me." Crack that is "cut" in the acceptable manner has a beige-like color and is referred to as "beige" in illegal drug dealing slang. It is found that Lena was using the drug dealing slang. On September 26, 1991, Agent Murray and the CI were at the Club sitting at the bar. The CI called over to a man named David Glover, a/k/a Jake, who was playing dominoes. Glover came over and sat in the bar stool next to the CI. There, Glover sold the CI crack for $25. There were 15-20 people in the Club on September 26, 1991. No extraordinary effort was made to hide the transaction. But neither was the transaction done in an open manner for all to see. This transaction took place on the side where there is less traffic circulating. See Finding of Fact 61, above. However, after the deal, the CI called the bartender, Debra, over and asked for a napkin. He put the crack on the napkin on the bar counter top and asked her if she knew what it was. She looked at it and, knowing what it was, simply said, "you better get it off the bar." Debra was terminated shortly afterwards for reasons not disclosed by the evidence. (The Respondent said only that "she didn't work out.") According to the evidence, Agent Murray's last visit to the Club Zanzibar was on October 8, 1991. She and a backup sat at the part of the bar closest to the domino table. Clyde walked up, and Murray asked for "a 20." She gave him $20, and Clyde went to the domino table to talk to someone and then left. The unidentified person with whom he had spoken came over and told Murray that he could get whatever she wanted if Clyde couldn't. Murray told him that Clyde had just left with her money and that she hoped Clyde had what she wanted. A little later, Clyde returned and passed Murray a crack "rock" at the bar under bar level height. After the deal with Clyde, the Respondent walked behind and past where Clyde and Murray were, but the evidence did not prove that the Respondent saw anything suspicious occurring. After the drug deal with Clyde, Murray beckoned to the unidentified male with whom she had spoken earlier. He gestured acknowledgement and came over shortly. Murray asked him for $10 worth of crack. He said he would get it and returned shortly to say it would have to be "a 20." Murray said, "OK," and passed him a $20 bill. He passed her the crack at waist level as he walked past her. There were about 15 people in the Club on October 8, 1991. The Respondent was there. Brunette and "Carl" were behind the bar. No extraordinary effort was made to hide the transaction. But neither was the transaction done in an open manner for all to see. From where Murray was sitting, her back and Clyde's back were between the transaction and the domino table. The unidentified pusher sneakily slipped the crack to Murray as he walked past between her and the vantage from the domino table. The evidence did not prove that anyone in the bar during the transaction on October 8, 1991, other than the participants, observed the drug deal or heard any of the related conversation. The Respondent testified that he later barred Clyde for drug activity. On or about October 10, 1991, the Club Zanzibar was raided by Tampa Police, arrests were made, and an Emergency Suspension Order issued by the Department was served. The Club has not been in operation since then. There is no evidence that the Respondent ever asked the Division or the Tampa Police for help in controlling illegal drug use on his premises. He did not ask the police to send undercover agents into the area and his establishment to make cases against customers who broke the drug laws or to "test" his employees. There is no evidence that the Respondent gave the Tampa Police intelligence information regarding the source of illegal drugs in the area. Nor did he work as closely or as diligently with local community leaders as he could have. Since the Club Zanzibar has been closed, illegal drug activity in the immediate vicinity has decreased markedly. This is a common occurrence for some period of time after a police raid. Longer periods of decreased drug activity also can be explained by the arrest of some of the participants in the illegal activities and by the fewer number of people in the area, which translates to fewer potential drug buyers in the area. The extended duration of decreased illegal drug activity after the raid in this case (almost two months, through the time of the final hearing) is somewhat unusual.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order suspending the Respondent's license for six months from entry of final order and fining the Respondent $1,000. RECOMMENDED this 21st day of February, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 21st day of February, 1992.
Findings Of Fact At all times relevant hereto, William E.P. Shaw was licensed as a pharmacist in the State of Florida, having been issued license number 0008802. On January 21, 1986, Respondent, in the United States District Court for the Northern District of Georgia, pleaded guilty and was convicted of the offense of conspiracy to obtain drugs at a low purchase price under false and fraudulent pretenses and representations to various drug manufacturers that drugs were for use in Palms of Pasadena Hospital, St. Petersburg, Fla., which drugs were then diverted from said hospital use and resold at substantial profit, this being done by use of interstate Wire Communications and the U.S. Mail - all in violation of Section 1343, and 1341 and 2 - Title 18, and 371 - Title 18, U.S.C., as charged in the within indictment. (Exhibit 1). At the time of the alleged offense, Respondent was a staff pharmacist at Palms of Pasadena Hospital. Prior thereto he headed a company or group which managed several hospital pharmacies including that of Palms of Pasadena. His contract with Palms of Pasadena Hospital expired in 1984 and was not renewed. Drug manufacturers sell drugs to hospitals at a much lower price than they sell to wholesalers. Respondent set up an account on which the hospital comptroller had check writing authority, and as a pharmacist ordered specific drugs under the hospital's drug account number to be delivered to the hospital. Upon arrival at the hospital these drugs were immediately reshipped to a contact in Miami, who was a licensed drug wholesaler, or to a contact in Atlanta, who was not so licensed. To the hospital's price for the drugs, which was paid by the hospital's comptroller from the account established by Respondent, Respondent added ten percent. This sum was remitted to him by these two purchasers and the account from which the supplier was paid was reimbursed. Respondent testified that he was unaware that his scheme was in violation of the law; however, Respondent was aware that he was defrauding the drug companies and violating the hospital's agreement with these companies to dispense all drugs purchased only to hospital patients. Drugs so ordered and resold by Respondent were primarily prescription drugs slow-K and nitro patches. Following his conviction in the U.S. District Court Respondent was sentenced to three years imprisonment the execution of which was suspended and Respondent was placed on probation for three years, ordered to pay a fine of $7,500.00 and perform 400 hours of community service work (Exhibit 1). At the time of this hearing, Respondent had satisfied the sentence but for the unexpired probation. Respondent has been a licensed pharmacist since 1958 and, but for the federal charge and conviction, has enjoyed a good reputation in the field of pharmacy and in the community in which he lived.
Findings Of Fact 1. Respondents Janet and Leonard Spivak acquired Hel- Len's Culinary Den II while they were still married, and their joint ownership persisted even after their divorce. Their marriage was dissolved some two or three years before the hearing. 2 During the month of October, 1979, Mr. Spivak was working as an accountant five days a week and helping out at the restaurant on weekends. On October 12, 1979, he was busy at the pizza oven 30 or 40 feet from Janet Spivak when he heard a disturbance and looked up to see Mrs. Spivak being arrested. She had just sold drugs, including 100 tablets of methaqualone, to an undercover deputy sheriff. Leonard Spivak had had no prior knowledge of his former wife's involvement with illicit drugs. At the time of Mrs. Spivak's arrest, Joseph Williams, the Broward County deputy sheriff to whom Mrs. Spivak sold the drugs, also arrested one Goldsmith, who had arranged the transaction at Williams' behest. Before his conversation with Goldsmith on October 12, 1979, Williams had no reason to suspect that drugs were being sold at Hel-Len's Culinary Den II. After her arrest, Mrs. Spivak produced all other pills and medications in her possession, upon instructions to do so. Among the pills were black capsules containing phentermine, a stimulant sometimes prescribed for weight loss, and blue diazapam tablets, which are sold under the trade name of Valium. Both of these drugs Mrs. Spivak kept for personal consumption.
Recommendation It is, accordingly, RECOMMENDED: That petitioner revoke respondents' license. DONE and ENTERED this 13th day of August, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: James Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 George Yochmowitz, Esquire Suite 906, Dupont Plaza Center Miami, Florida 33131 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue The issue is whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statute (2003); and, if so, what is the amount of attorney's fees and costs that are recoverable by Petitioner.
Findings Of Fact Based on the oral and documentary evidence presented at hearing and on the entire record of this proceeding, the following Findings of Fact are made. The Department, through its Bureau of Statewide Pharmaceutical Services (formerly the Bureau of Pharmacy Services), is and was at all times relevant to this proceeding, the state agency responsible for administering and enforcing the Florida Drug and Cosmetic Act, Chapter 499, Florida Statutes (1997), which includes the regulation of the manufacture, promotion, and distribution of prescription drugs. In late 1990, the Department began investigating the unlawful advertising, manufacture, and distribution of prescription drugs that are not approved in commerce by the United States Department of Health and Human Services, Food and Drug Administration (FDA), of an establishment located at 29949 State Road 54 West, Wesley Chapel, Florida. The establishment was the primary business address of several closely held corporations owned and operated by James T. Kimball, and his wife, Josephine Kimball. The Department initiated an Administrative Complaint in August 1993 (1993 Administrative Complaint), while in the middle of its investigation and after participating in a federal and state force of agencies that executed a search and seizure of the Kimballs' business establishment and their home located in Wesley Chapel, as well as other locations. The search and seizure took place on May 12, 1993, pursuant to federal warrants. The Kimballs' business establishment was located at 29949 State Road 54 West, in Wesley Chapel, Florida. The 1993 Administrative Complaint was issued to Discovery Experimental & Development, Inc. ("DEDI"), and related to that company's alleged sale of drugs that were not approved by the FDA. DEDI was located at 29949 State Road 54 West, Wesley Chapel, Florida. After the 1993 Administrative Complaint was filed, the Department continued to investigate the activities of DEDI. Deborah Orr (Agent Orr) began working for the Department as a drug agent in or about 1993 and was assigned to investigate the underlying case until the case culminated. During the investigation, Agent Orr and others in the Department reviewed documents and other evidence seized during the search of the business establishment and the home of the Kimballs that tied both Mr. Kimball and Mrs. Kimball to several corporations that appeared to be connected to the manufacture and sale of certain unapproved drugs. Among the documents seized, pursuant to the 1993 warrant, was Global Health's letterhead. During the investigation and prior to 1997, Agent Orr visited the Global Health office. Global Health had one of the smaller offices, about 8x8 or 9x9, at "HQ," 15310 Amberly Drive, Suite 250, Tampa Palms in Tampa, Florida. In the Global Health offices were pamphlets put out by Global Health called "Silver Solutions" that promoted the colloidal silver products of DEDI, and later ASTAK, Inc. (ASTAK), and made medicinal claims despite the Department's previous warnings to Mr. Kimball and Mrs. Kimball that this was unlawful. It appeared that Global Health distributed these pamphlets. Among the documents found and seized from the Kimballs' home, pursuant to the 1993 warrant and reviewed by Agent Orr, was the financial statement of "James and Josephine Kimball," dated April 14, 1992. According to that document, "James and Josephine Kimball" were 90-percent owners of DEDI, which "develops pharmaceuticals and chemicals for manufacturing" and had an assessed value of $1,000,000; "James and Josephine Kimball" were 90-percent owners of ASTAK, a company that "manufactures custom order vitamins"; James Kimball was a 100- percent owner of Discovery Experimental and Development, Mexico N.A. (DEDI of Mexico), a company that "manufacture[s] pharmaceuticals" and ships to 12 countries; and "James and Josephine Kimball" were 83-percent owners of Discovery Tour Wholesalers' Inc. (Tours), which owned the real property located at 29949 State Road 54 West, Wesley Chapel, Florida. The Department's investigation indicated that several companies controlled by the Kimballs had separate and distinct functions related to the unlawful drug enterprise. For example, it appeared that one company manufactured the unlawful drugs, another took and filled orders from customers for the unlawful drugs, and another put out promotional information and literature about the unlawful drugs. During the investigation, the Department determined that many of the companies controlled by Mr. and Mrs. Kimball and involved in unlawful drug distribution were located in the building owned by Tours and located at 29949 State Road 54 West, Wesley Chapel, Florida. Prior to issuance of the 1997 Administrative Complaint in the underlying proceeding, Agent Orr wrote a report of her findings based on her multi-year investigation and sent them to her supervisor, who forwarded the report to Jerry Hill, R.Ph., Bureau Chief, Statewide Pharmaceutical Services of the Department. Mr. Hill reviewed the report that was prepared by Agent Orr and information and evidence obtained during the investigation. He also talked to some of the Department agents and/or investigators who participated in the investigation at various times during the years the investigation was on-going. Based on his review of Agent Orr's report and related information and evidence, Mr. Hill believed there were several companies involved in promoting and/or advertising, manufacturing, and distributing prescription drugs that were not approved by the FDA. The specific unapproved drugs were selegiline citrate (deprenyl) and some silvicidal products, some of which had been found during inspections of the premises at 29949 State Road 54 West, Wesley Chapel, Florida. Although Mr. Hill believed that some of the companies were more involved in the operation than others, he believed that all of the principals had some involvement in the illegal activity. Based on the information Mr. Hill obtained prior to issuing the 1997 Administrative Complaint, he believed that Global Health had falsely advertised and made false claims about drugs containing silver that were manufactured by Respondents DEDI and ASTAK, non-prevailing parties in the underlying proceeding. In addition, Department drug agents had obtained samples of the unlawful silver drugs that appeared related to DEDI and ASTAK that made false claims on their labels, similar to the false and misleading advertisement of these drugs by Global Health. Mr. Hill believed that because of the common ownership of DEDI and ASTAK, the companies that he believed manufactured, labeled, and sold the unlawful silver drugs, and Global Health, the apparent advertising arm of DEDI and ASTAK, the advertisements of Global Health constituted "labeling" and, thus, false or misleading advertisement of prescription drugs in violation of Chapter 499, Florida Statutes (1997), specifically Section 499.0054, Florida Statutes (1997). Based on the information and evidence Mr. Hill had received, he believed that the corporations that were engaging in these activities involved two principal natural persons, Mr. and Mrs. Kimball. Mr. Hill believed that he had sufficient evidence to tie DEDI, DEDI of Mexico, ASTAK, TOURS, and Global Health together. For example, the information Mr. Hill reviewed indicated that, except for Global, these entities were at the same address, 29949 State Road 54 West, in Wesley Chapel, Florida, and also had common ownership. Mr. Hill was concerned that if the Department did not tie the companies together and prosecute all the entities that were involved in the operation, the illegal activity would continue through some other company, and the unapproved drugs would get into commerce. Mr. Hill believed that the situation described in paragraph 15 could happen based on another situation that occurred in or about 1991, when the Department initiated and settled an enforcement action against Discovery Distributing, Inc. (Discovery Distributing), located at 29949 State Road 54 West, in Wesley Chapel, Florida, and its president, Mr. Kimball. The enforcement action related to Discovery Distributing's promotion of an unlawful product called Kimballac. Pursuant to the settlement in that aforementioned action, Mr. Kimball agreed not to manufacture or sell drugs that had not been approved by FDA. Yet, Mr. Hill learned that soon after the settlement was signed, the unlawful activities resumed with the same type of products being sold to the citizens of Florida. After careful consideration of all the information and evidence provided to him by Department investigators, agents, and other Department officials familiar with and involved in the investigation, Mr. Hill concluded that Global Health had violated provisions of Chapter 499, Florida Statutes (1997), by making false and misleading advertisements about drugs that were not approved by FDA. Having made that determination on or about June 24, 1997, Mr. Hill issued the 1997 Administrative Complaint in the underlying proceeding, which was later assigned DOAH Case No. 97-3836. Pursuant to a Delegation of Authority dated February 19, 1997, Mr. Hill was authorized to initiate and pursue to conclusion any legal or administrative action authorized by Chapter 499, Florida Statutes (1997). In the underlying administrative proceeding, after taking and considering testimony and documentary evidence, the Administrative Law Judge issued a Recommended Order finding that the Department failed to establish by clear and convincing evidence that Global Health violated the provisions of Chapter 499, Florida Statutes (1997), as alleged by the Department. That Recommended Order was adopted in the Department's Final Order. At all times relevant to this proceeding, Global Health was a Florida corporation with its primary office in Florida and had less than 25 employees and a net worth of less than $2,000,000. Global Health was represented by Elliot Dunn, Esquire, in the pre-hearing phase of the underlying proceeding and the first day of the 23-day final hearing. Mr. Dunn withdrew from the case after Mr. Kimball "fired" him during the proceeding. Mr. Dunn, Esquire, did not testify at this proceeding and at no time records related to his representation of Global Health or any of the other Petitioners in the underlying proceeding were available for review, inspection, or consideration. Global Health never paid Mr. Dunn for the legal services that he provided. Moreover, there was never a contract between Global Health and Mr. Dunn that defined the terms and conditions of Mr. Dunn's legal representation on behalf of Global Health. Petitioner's expert witness opined that a reasonable hourly rate for attorneys representing each of the Petitioners, including Global Health, was $175 to $350. The expert did not form an opinion as to the total number of hours reasonably spent by Mr. Dunn representing Global Health in the underlying proceeding. Rather, the expert testified that he utilized Rules Regulating Florida Bar 4-1.5, which deals with the reasonableness of fees and concluded that based on the factors in that rule, reasonable attorney's fees incurred by Global Health in the defense of the underlying case is $12,000 to $17,000, assuming the lower rate of $175. In light of the findings and conclusions reached in this Final Order, no findings are made or necessary regarding issues related to the reasonableness of the attorney's fees, the quality of the evidence presented on that issue, or any other issues related to attorney's fees.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, the Respondent was licensed as a physician in the State of Florida having been issued license number ME 0006795. Respondent has been a licensed physician since 1955. No evidence of any prior disciplinary action against Respondent was presented. At all times pertinent to this proceeding, Respondent was a Board Certified Urologist. He has been certified in that specialty by the American Board of Urology since 1971. The practice of urology is a specialty in the field of medicine focusing on the treatment of the urinary tract and diseases of the kidney, prostate, bladder and genitalia. On or about October 1985, the Respondent was practicing urology in Fort Lauderdale, Florida when he met D.D., a patient's girlfriend. Shortly thereafter, he hired D.D. to help in his office. D.D. worked at the Respondent's Fort Lauderdale office until late December 1985 when, as discussed in more detail below, the Respondent fired her. In October, 1985, D.D. was a 27 year-old female with a history of drug and alcohol abuse which began during her teenage years. From the outset of her employment with Respondent, D.D.'s relationship with Respondent was not a typical employer/employee or physician/patient association. While there is no evidence of any sexual relationship between D.D. and Respondent other than "some mild foreplay," the relationship was fraught with sexual overtones. Respondent prepared a typewritten summary of his version of the relationship which was accepted into evidence as Petitioner's Exhibit 5. This "resume" details the unusual relationship that developed. As reflected in this "resume," Respondent loaned money to D.D. and brought her expensive Christmas presents. In addition, during the period from October 1985 through February 1986, Respondent and D.D. frequently dined together. On several occasions while they were together, D.D. became intoxicated and exhibited bizarre and troublesome behavior. On October 13, 1985, four days prior to starting work at the Respondent's office, D.D. presented at the Boca Raton Hospital Emergency Room (the "Boca Raton E.R.") for treatment of post-abortion complications. The hospital record of that visit indicates that D.D. had alcohol on her breath and had a history of drug and alcohol abuse. During that visit, D.D. was provided with Keflex (an antibiotic) and was given an intramuscular injection of 2 mgs. of Stadol, a controlled substance. Between the time of D.D.'s visit to the Boca Raton ER and the time she started working for Respondent, Respondent arranged to provide D.D. with Keflex samples which he had in his office. He provided the Keflex to her because she supposedly did not have enough money to fill her prescription. D.D. began working for Respondent on October 17, 1985. While D.D. was in his employ, Respondent entered into a physician-patient relationship with D.D. and began treating her for her post-abortion complications which he described as "pain in the lower left quadrant". Pain in the lower left quadrant resulting from post abortion complications is a medical condition which is normally treated by a physician in the specialty area of gynecology, not urology. Respondent contends that he undertook to treat D.D. because she had limited funds and he wanted to help insure that his employee was healthy. On October 18, 1985, the day after she began work, Respondent provided D.D. with one tablet of the legend drug Tylenol #3 for her pain prior to conducting a physical examination and without reviewing the chart from the Boca Raton ER or discussing the case with her prior physician. Between October 23 and November 20, 1985, Respondent conducted at least five separate pelvic examinations of D.D., reviewed her sonogram test results, had a pregnancy test performed on her and a culture taken. Respondent diagnosed D.D.'s condition as severe pain coming from residual-decidual fragments following her September 28, 1985 abortion. During this period, Respondent treated her continuing complaints of pain with Stadol because D.D. claimed Tylenol #3 had been ineffective. Respondent had some Stadol samples in his office which had been provided by the manufacturer's representative. During the period from October 21, 1985 through November 18, 1985, Respondent administered approximately 12 injections of Stadol to D.D. in response to her complaints of pain while at work. There is no evidence that more than one injection was ever given on any one day or that any injection exceeded 2 mgs. Tylenol #3 is a legend (prescription) painkilling drug and is a Schedule III controlled substance pursuant to Chapter 893, Florida Statutes. It contains codeine and can produce psychic and physical dependence and should be prescribed and administered with caution. Stadol is a legend (prescription) drug which is a potent analgesic pain killer. Because of its antagonist properties, Stadol is not recommended for patients physically dependent on narcotics. Detoxification of narcotic dependent patients is strongly suggested prior to use. At all pertinent times, Stadol was not a scheduled drug. However, the Physician's Desk Reference ("PDR") recommends that special care be exercised in administering Stadol to emotionally unstable patients and to patients with a history of drug misuse. Tylenol #3 is indicated for the relief of mild to moderate pain and Stadol is used to relieve moderate to severe pain. The PDR indicates that the dosage of Tylenol should be adjusted according to the severity of pain and the response of the patient. Tylenol #3 is usually administered orally and one or two tablets may be given every four hours as required. Stadol is usually administered through intramuscular or intravenous injection. The usual recommended single dose for Stadol is 2 mgs. for intramuscular administration. The effective dosage range, depending on the severity of pain, is 1-4 mgs. repeated every three to four hours for intramuscular administration. Respondent contends that he only administered Stadol to D.D. after observing her in his office and listening to her complaints of severe pain while in the office. He claims that he inquired as to her prior medical history and was advised that she was not a drug user. D.D. also advised that the Tylenol #3 had been ineffectual. Following the onset of menses on approximately November 21, 1985, Respondent contends that D.D.'s complaints of pain diminished and she no longer sought pain medication from him. Respondent contends that, prior to administering any injections to D.D., he contacted the Boca Raton ER and obtained specific information regarding the tests that had been performed on D.D. at the hospital. While the Boca Raton ER records specifically mention D.D.'s history of substance abuse, Respondent denies seeing the actual hospital records and denies being told by the hospital staff that D.D. had a history of drug and alcohol abuse. In fact, Respondent denies having any knowledge that D.D. had problems with substance abuse until sometime after Thanksgiving in 1985. No persuasive evidence was presented to refute these claims and/or establish that Respondent saw the ER records in 1985. Petitioner contends that Respondent should have discovered that D.D. had a history of alcohol and drug abuse prior to administering Tylenol and Stadol to her during the October through November, 1985 period. This information could have been discovered from a review of the October 13, 1985 ER record. While D.D.'s sometimes bizarre behavior during this period should have made him more cautious, it cannot be concluded based upon the evidence presented that Respondent knew or should have known that D.D. had a serious drug problem until late November, 1985. Respondent admits to increasing concern or "second thoughts" in late November regarding D.D.'s possible drug use. Around November 19th or 20th, Respondent discovered two syringes and needles in the waste basket of his office which had not been used by him. This evidence suggested to him that D.D. may have been using drugs in the office. Around the same time, he had conversations with D.D.'s mother who confirmed that her daughter had a long history of drug and alcohol problems. Respondent hid the remaining Stadol in his desk. Based on subsequent conversations with D.D., Respondent now believes that she gained access to and used that Stadol while still in his employ. After Thanksgiving, Respondent noticed a marked change in D.D.'s disposition and behavior. Respondent discussed the situation with a psychiatrist friend of his and, based upon those conversations, began providing D.D. with Limbitrol, which is a combination of an antidepressant and Librium.4 Limbitrol is an antidepressant used in the treatment of psychotic patients who are having psychotic episodes or are going through alcohol or drug withdrawal. Respondent had received some samples from the manufacturer's representative and, at D.D.'s request, sought additional samples. During the month of December, 1985, Respondent and D.D. frequently dined together and, on occasions, went to bars or parties together. During this time, there were several incidents that indicated pretty clearly that D.D. was involved in illicit drug use. On December 23, 1985, Respondent monitored at least two phone conversations during which D.D. phoned in false prescriptions for Stadol using another physician's name and DEA number. During the latter part of December, Respondent became very concerned about some of D.D.'s friends and certain suspicious activities that he noted. Respondent became apprehensive that D.D. may be "setting him up" for some sort of drug transaction. He reported his concerns to the police. On December 30, 1985, Respondent advised D.D. that she was "fired" as of December 31, 1985. Respondent says he fired her because he suspected her of stealing from the office petty cash fund, using drugs in his office and using his office to order prescription drugs, i.e., Stadol, for herself. He notified the Pompano Police Department of her suspected activities. During January of 1986, Respondent was in frequent telephone contact with D.D. They had dinner at least one time during January. He also saw her on at least one other occasion when she came to his house. During this month, Respondent discovered that D.D. had removed the sample box of Limbitrol from his office. She refused to return it to him. Based upon his phone conversations and other interactions with D.D. during January, Respondent concluded that she was drinking excessively and/or taking drugs. Respondent contends that throughout the month he frequently cautioned her about the dangers of drugs and advised her of her need for treatment. Early on Saturday morning February 1, 1986, D.D. called Respondent claiming that she was in severe pain and needed to get to a hospital. At approximately 8:30 a.m., Respondent, accompanied by an off duty policeman, went to D.D.'s residence. At the residence, D.D. stated that she had been at a party the night before and had been raped by her boyfriend and his friends. She complained of severe pain in the left pelvis and in the lower abdomen. Respondent examined her, took her blood pressure and pulse and gave her a 2 mg. injection of Stadol. After approximately ten to twenty minutes, D.D.'s condition had not improved and she continued to complain of pain. D.D. was very unsteady on her feet, disoriented and, at times, speaking unintelligibly. Respondent and the off duty police officer proceeded to take her to the North Broward General Hospital Emergency Room. Respondent's name and signature appear on the ER record as the attending physician. That ER report listed D.D.'s chief complaint as pain in the lower left quadrant. Drug withdrawal was not mentioned on the ER record. While D.D. was in the Emergency Room, Respondent made rounds to visit his other patients in the hospital. He also contacted D.D.'s mother, B.D., who expressed a strong desire to have her daughter placed in a facility to treat her drug and alcohol problems. After speaking with Respondent on the morning of February 1, B.D. contacted the Coral Springs Care Unit, a drug and alcohol treatment center. B.D. spoke with Michael Halprin, the Emergency Director of the facility, who indicated that he was willing to go to the Emergency Room to evaluate D.D. for admission to the Care Unit and to assist in getting her there. B.D. contacted Respondent and advised him of her discussions with the Coral Springs Care Unit. Mr. Halprin made several calls to the Emergency Room and was told that D.D. was in an agitated state and was being cared for by Respondent. Subsequently, Mr. Halprin spoke with Respondent who questioned him regarding the detoxification of an individual who was chemically dependent. Mr. Halprin advised Respondent that the best place for such an individual would be in a drug and alcohol rehabilitation center under nursing care. Mr. Halprin told Respondent that he was willing to go to the ER, as he had done for other patients in the past, to evaluate D.D. for admission to the Care Unit and that he would assist in getting her there. Respondent contends that the Coral Springs Care Unit was not willing to pick up D.D. from the Emergency Room and/or treat her until they could confirm that she was able to pay for the necessary services. This contention is rejected as contrary to the greater weight of the evidence. At approximately 9:30 or 10:00 that morning, Respondent ordered a 4 mg. injection of Stadol for D.D. which was given to her intramuscularly. In addition, Respondent ordered blood tests and laboratory tests and reexamined her. The Stadol appeared to alleviate some of D.D.'s pain, however, she was still somewhat agitated. The lab tests conducted on D.D. were normal. There was no indication that her temperature was high, her pulse, respiration and blood rate were relatively normal and she was not nauseous or otherwise exhibiting signs of acute drug withdrawal. During the course of the morning, D.D. became more agitated and indicated that she was still in pain and the Stadol was not providing her any relief. Respondent attempted to contact certain physicians that he knew who were familiar with treating patients undergoing drug withdrawal. Respondent also tried to contact a few hospitals and facilities that he knew provided treatment to such individuals. At some point, Respondent contacted Dr. de Eljalde, a board certified psychiatrist and neurologist, to determine whether he could treat the patient and/or the appropriate drugs to use for detoxifying D.D. Dr. de Eljalde indicated that he would be willing to treat D.D. when a bed became available at Imperial Point Hospital. In the meantime, Dr. de Eljalde advised Respondent to use Dilaudid and Talwin in decreasing dosages until she could be admitted. While Respondent now contends that his discussion with Dr. de Eljalde took place on the morning of February 1, 1986, his discussion with Dr. de Eljelade was not mentioned in the interview conducted on May 8, 1986 or in the "resume" which Respondent prepared prior to that interview. In view of the conclusions reached in this Recommended Order, it is not necessary to determine exactly when the contact with Dr. de Eljalde was actually made. However, the more persuasive evidence indicates that the contact was made sometime after D.D. left the ER. At approximately 12 noon, Respondent administered another injection of Stadol to D.D. At approximately 12:45 p.m., Respondent administered a 1cc. (2 mg.) injection of Dilaudid. Dilaudid is a hydrogenated ketone of morphine. It is a powerful narcotic analgesic, and a Schedule II controlled substance. Psychic dependence and/or physical dependence may develop upon repeated administration. The PDR provides that it is indicated for moderate to severe pain due to surgery, cancer, trauma, biliary colic, myocardial infarction, burns and renal colic. Within a very short time after the Dilaudid injection, D.D. showed significant improvement and expressed her desire to leave the hospital. In view of D.D.'s marked change following the administration of Dilaudid, Respondent concluded that D.D. was experiencing withdrawal from narcotics. D.D. would not disclose to Respondent the exact type or amount of drugs that she had been taking. As indicated above, several diagnostic tests were conducted, however, all test results were normal. Other than D.D.'s agitation and complaints of pain, there were no clinical or diagnostic indications of drug or alcohol withdrawal or any other emergency condition. After D.D.'s mental and physical condition improved following the injection of Dilaudid, Respondent decided to treat D.D. at his residence and had her discharged to his care. He took her to lunch and then brought her to his house. Based upon his knowledge and experience and the practices at the time, Mr. Halprin had the authority to involuntarily place patients in a facility for observation if necessary. Respondent took D.D. to his house despite Mr. Halprin's willingness to evaluate her at the Emergency Room for placement. Respondent did not contact B.D. or Mr. Halprin before leaving the hospital with D.D. Both Mr. Halprin and B.D. were very surprised when they learned that Respondent left the hospital with D.D. before Mr. Halprin had an opportunity to see her. Respondent claims that D.D. insisted that he treat her and that she adamantly refused to go to the Coral Springs Care Unit. Respondent contends that D.D. agreed to treatment at the Imperial Point Hospital Psychiatric Unit if a bed opened up on Monday. In the meantime, he claims that he was "maintaining" her until she could get treatment. D.D. remained at Respondent's residence from the afternoon of February 1, 1986 until the morning of February 3, 1986. Respondent admits to administering three additional 2 mg. injections of Dilaudid as follows: at approximately 6:30 p.m. on February 1, 1986; between midnight and 1:00 a.m. on February 2, 1986; and between 8:00 and 9:00 a.m. on February 2, 1986. On the afternoon of February 2, 1986, Respondent administered a 1cc.(30mg.) injection of Talwin. Respondent felt the Talwin was "not working" and he noticed some changes in D.D.'s behavior. Therefore, he administered another 2 mg. injection of Dilaudid to D.D. at approximately midnight that evening. At 8:00 a.m. the next morning, February 3, 1986, Respondent administered another 30 mg. injection of Talwin to D.D. According to the PDR, the usual starting dose for Dilaudid is 1-2 mg. intramuscularly every four to six hours as necessary for pain control. The dose should be adjusted according to the severity of the pain. A gradual increase in the dose may be required if analgesia is inadequate, tolerance occurs or if pain severity increases. Talwin is a legend (prescription) drug and a Schedule IV controlled substance pursuant to Chapter 893, Florida Statutes. It is a potent analgesic and 30 mg. of Talwin is usually as effective as 10 mg. of morphine. Talwin carries with it a special warning for prescribing this drug to emotionally unstable patients and patients with a history of drug abuse. For Talwin, the recommended single intramuscular dosage is 30 mg. which may be repeated every three to four hours. Respondent did not and does not hold any licenses, permits or authorizations from any federal or state agency to detoxify persons addicted to controlled substances. Under the federal regulations governing the dispensing of narcotic drugs for detoxification treatment or "maintenance treatment", any physician can administer narcotic drugs in certain instances. Physicians who are not specifically registered to conduct a narcotic treatment program are authorized to administer (but not prescribe) narcotic controlled substances to a person as part of "maintenance treatment" for the sole purpose of relieving acute withdrawal symptoms when necessary while arrangements are being made for referral for treatment. Not more than one day's medication may be administered to the person or for the person's use at one time. Such an emergency treatment may be carried out for not more than three days and may not be extended or renewed. Respondent argues that his conduct in this case falls within the allowed "maintenance treatment" of the federal regulations (which have been followed by the Board.) However, based upon all of the facts in this case, it is concluded that Respondent has not adequately demonstrated that the injections he administered were "necessary" or that appropriate efforts were being undertaken to arrange necessary treatment. In view of all the circumstances and evidence presented in this case, it is concluded that Respondent undertook to treat D.D. at his personal residence without fully and adequately exploring more appropriate treatment by better trained professionals at a more suitable facility. Respondent should not have undertaken the "detoxification" or "maintenance" of D.D. with such powerful narcotics without a better understanding of the patient's history and a better treatment plan than simply "maintaining" her with whatever dosage was necessary. Because Dilaudid is a very powerful drug with potential impacts on the respiratory center, heart rate and pulse rate as well as other possible complications, the frequent or large volume utilization of Dilaudid should only take place in a hospital or similar setting where the patient can be closely monitored and the resources are available to address potential problems. Conflicting testimony was presented as to whether Dilaudid is ever an appropriate drug to use for maintaining and/or detoxifying an addicted patient. That conflict need not be resolved in this case. Given all of the facts and circumstances, including, but not limited to, Respondent's lack of knowledge as to the specific drugs that D.D. was taking, the absence of acute withdrawal symptoms, Respondent's knowledge that D.D. had been taking Limbitrol, the Respondent's lack of training, and the setting in which the drugs were administered, it is concluded that Respondent's administration of Dilaudid to D.D. during the weekend of February 1-3, 1986 was inappropriate and, therefore, was in violation of Section 458.331(1)(q), Florida Statutes. After leaving the ER, Respondent spoke with D.D.'s mother and told her that all of D.D.'s tests were normal and that D.D. was with him at his house and that he was going to "wean her off" drugs slowly. D.D.'s mother was upset with this arrangement and called the police. The police went to Respondent's house on February 2, 1986. Respondent only reluctantly allowed them to enter. The police officer noted that D.D. appeared to be under the influence of some intoxicant and was wearing only panties and a T-shirt. However, because the officer could not conclude that D.D. was being held against her will, no action was taken. During the visit, Respondent told the officer that he had overreacted in his prior police complaint that D.D. had placed false prescriptions. Respondent asked the police officer to delete this prior report. No cogent explanation has been given for this request and it tends to confirm that Respondent's motives during this period were not wholly alturistic. On the morning of February 3, 1986, Respondent left D.D. at his residence and went to make hospital rounds before going to his office for work. Respondent returned to his residence at approximately noon and let a friend of D.D. enter the house to stay with her. At approximately 2:00, he received a call from the friend who was leaving to go to work and said that D.D. was becoming very agitated and unruly. Respondent returned home and found D.D. in an extremely agitated and aggressive state. He called the police. When the police officers came to Respondent's house, D.D. was still clad only in panties and a T-shirt. She was extremely agitated and made a wide variety of accusations against Respondent. D.D. pointed to her buttocks where there were numerous injection marks, and screamed that Respondent had been "sticking me with drugs." D.D. had to be physically restrained and removed from Respondent's residence and taken to a hospital. Subsequently, after meeting with Michael Halprin, she was placed in the drug treatment program at the Coral Springs Care Unit. Respondent's treatment of D.D. during the period February 1-3, 1986 constituted practice below an acceptable standard of medical care. Respondent should not have taken a suspected drug addict from the ER to treat her with a powerful narcotic, Dilaudid, at his home. Even Respondent's own expert called it unwise to treat a patient with narcotics at a personal residence. After the injection of Dilaudid at the hospital, D.D. appeared fine. She was not screaming and there was no medical reason to take the patient from the ER to the Respondent's home. A review of her vital signs at the ER and the results of the diagnostic tests do not reflect any clinical indication associated with drug withdrawal. In addition, there are numerous complications that can occur as a result of using a powerful medication such as Dilaudid, including decreased respiration, slowing of the heart rate and pulse rate and a drop of the blood pressure. If Dilaudid was to be used, the patient should have been kept in a setting where her condition was closely monitored. There is a great deal of confusion regarding the Respondent's "medical records" of his treatment of D.D. When interviewed by Petitioner's Investigator on May 8, 1986, the Respondent was asked for a copy of his patient medical records regarding D.D. The Investigator served a Patient Release Form on Respondent which directed that he provide "full and complete medical records, medical reports, psychological, psychiatric reports, and information including reports or information prepared by other persons that may be in your possession and all financial records to the Florida Department of Professional Regulation or any official representative of the Department pursuant to Section 455.241, Florida Statutes." In response, the Respondent indicated that he had not really kept medical records, but he provided the Investigator with a copy of his "resume" regarding his dealings with D.D. This "resume" was clearly prepared after the described incidents took place and does not constitute a "medical record" for purposes of Section 458.331(1)(m). At Respondent's request, the Investigator returned to Respondent's office several days after the May 8, 1986 interview to pick up Petitioner's Exhibit 7, which were notes of Respondent's treatment of D.D. from October through December, 1985. At the hearing, Respondent's Exhibits 1 and 5 were produced for the first time. Respondent contends that these exhibits are the medical records of his treatment of D.D. for the October through December, 1985 period. As indicated in the Preliminary Statement, Respondent's Exhibits 1 and 5 were not accepted into evidence because they were not properly identified as required in the Prehearing Order. Respondent's claim that Respondent's Exhibits 1 and 5 were provided to the Investigator who allegedly lost them is rejected as not persuasive. In any event, after considering all of the evidence, it is concluded that Petitioner's Exhibit 7 and Respondent's Exhibits 1 and 5 were not contemporaneous records regarding Respondent's treatment of D.D., but, instead, were prepared after the fact 56. Accordingly, it is concluded that the Respondent failed to maintain adequate medical records to justify his treatment of D.D. at his office during the period October 1985-December 1985. In addition, Respondent did not keep adequate records of his treatment of D.D. while she was at his home from February 1-3, 1986. Respondent failed to keep adequate patient records by failing to record the drugs he prescribed and/or administered, the dosage amounts, and the patient's condition during this period.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order finding Respondent guilty of violating Sections 458.331(1)(q), (m) and (t), Florida Statutes. As punishment therefore, Respondent should be (1) reprimanded, (2) fined $10,000, (3) suspended from the practice of medicine for six months, three months of which should be suspended if Respondent successfully completes board approved continuing Medical Education Courses, and (4) thereafter, Respondent should be placed on probation for a period of 3 years, the terms and conditions of which should be set by the Board of Medicine. DONE and ENTERED this 12th day of June, 1992, at Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1992.
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on July 11, 1990, and issued certificate number 4-90-502-02. On May 31, 1990, Dawn Rees was working in concert with the Police Department of Williston, Florida, and the Florida Department of Law Enforcement as a confidential informant regarding illegal drug activity in the Williston area. In the course of her work, Rees would meet with various individuals and attempt to buy illegal drugs. As a prelude to each of these meetings, Rees would be searched by law enforcement officials to determine that she had no illegal drugs on her person. Then, she would be "wired" or fitted with sonic monitoring equipment and sent to negotiate the illegal drug purchase. Upon her return from the drug rendezvous, Rees would turn over any contraband purchased by her and submit again to a personal search. Rees' conversations with the persons from whom she sought to buy drugs was monitored and recorded by authorities via the broadcast of those communications to them through the "wire" worn by Rees. On the evening of May 31, 1994, Rees went to the residence where Respondent lived and spoke with William Lynch, a friend of Respondent who also resided in the house, concerning the purchase of an ounce of marijuana. The conversation between Lynch and Rees took place on the front porch of the residence. Lynch told Rees that he could get the marijuana for her. Later that evening, Rees, equipped with the hidden listening device described above, returned and entered the residence to get the promised marijuana. Sometime later, Rees left the residence and met with law enforcement authorities. As stipulated by the parties at the final hearing, a field test of the substance obtained from Lynch in the residence by Rees, and provided to authorities that night, identified the drug as marijuana. As established by Rees' testimony at the final hearing, she was involved in several other investigations as a confidential informant during the same general time span that she was also involved in the drug purchase at Respondent's residence. Rees testified from the basis of her recollection of events that had occurred several years prior to final hearing. Respondent was present and operating a "Nintendo" game when Rees entered the house. Respondent engaged in conversation with Rees, but did not observe the later exchange of money for marijuana between her and Lynch. The exchange, as established by Lynch's candid and credible testimony, took place in a back bedroom of the house, out of the presence of Respondent. Respondent testified that he had no knowledge of the transaction or the presence of illegal drugs in the house. Accordingly, Rees' testimony, absent further corroboration by other direct admissible evidence, that Respondent knew illicit drugs were on the premises and observed the drug transaction, cannot be credited. A transcript, presented at the final hearing and purportedly derived from the tape of conversations had between Rees and persons in the residence garnered via the "wire" worn by Rees, offers no proof in support of a contention that Respondent was aware of the presence or sale of illegal drugs on the premises. As established by the credible testimony of Respondent, and corroborated by Lynch, Respondent was unaware of the presence of illicit drugs in the residence or the sale of such drugs in the residence at any time, contrary to allegations of the Administrative Complaint. Later, Lynch moved out of the residence. Respondent was arrested several months later in connection with the incident. By stipulation of the parties, it is established that those charges were subsequently nolle prossed by the Office of the State Attorney, 8th Judicial Circuit of Florida. The evidence presented by Petitioner of Respondent's knowledge and possible participation in the possession and sale of an illicit drug, marijuana, as charged in the Administrative Complaint, is met by Respondent's credible denial of any knowledge as to the alleged events. Further, Respondent's assertion of innocence is corroborated by the testimony of William Lynch. It is concluded that there is insufficient evidence to establish that Respondent knew that drugs were in the house on the night in question or that Respondent knew of the drug sale to Dawn Rees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing the charges contained in the Administrative Complaint. DONE and ENTERED in Tallahassee, Leon County, Florida, this 10th day of June, 1994. DON W. DAVIS 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 10th day of June, 1994. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1-2 Accepted. 3-4 Rejected, the transcript reference shows that Respondent was arrested on February 5, 1991, following the May, 1990 incident. 5-6 Accepted. 7-8 Subordinate to HO's findings on these points. Specifically, Ms. Rees is found to have been mistaken about the content of her conversations with Respondent and without a basis to draw the conclusion that Respondent was a willing and knowledgeable participant in illegal activity. Subordinate to HO findings. Respondent had the transcript admitted to show its lack of probative value. At no time does Respondent adopt the transcript in order to prove the case against himself. Rejected, relevance. Accepted. Rejected, relevance. Accepted. Rejected, weight of the evidence. Respondent's Proposed Findings None submitted. COPIES FURNISHED: Pauline Ingreham-Drayton Attorney at Law Florida Department of Law Enforcement 711 B Liberty Street Jacksonville, Florida 32202 Richard Bova, Jr. 624 S.W. 70th Terrace Gainesville, Florida 32608 Leon Lowry, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Petitioner is the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. Respondent is Lillian Marie Reynolds, d/b/a Diamond Lil's, who currently operates under beverage license number 54-00573, Series 2-COP, at U.S. Highway #1, Lot #5, Big Coppitt Key, Monroe County, Florida. On August 7, 1986, the Monroe County Sheriff's Department and Petitioner began an undercover narcotics investigation entitled "Operation Sabre". As part of that investigation, two of Petitioner's beverage agents conducted surveillance of Respondent's licensed premises. On August 15, 1986, Petitioner's investigators, Deloach and Warner, entered this licensed premises. They met a patron known as "Ken" and discussed the purchase of marijuana. Subsequently, Ken sold Investigator Deloach approximately 3.4 grams of marijuana, in exchange for $10. This transaction occurred in plain view and took place in an open and notorious manner inside the licensed premises. On that same day Investigator Deloach was invited into the ladies' bathroom by two other patrons to use cocaine. He observed the patrons "snort" cocaine in the licensed premises. On August 16, 1986, Investigators Deloach and Warner reentered the licensed premises. Investigator Deloach was approached by the patron Ken regarding the sale of marijuana. During the conversation, Ken displayed a marijuana cigarette in plain view. Later in the evening, the investigators were approached by Steve Anderson, a member of the band that played at Diamond Lil's. Anderson discussed future sales of marijuana to the investigators. Anderson then sat on the floor just inside the front door of Diamond Lil's, rolled a marijuana cigarette, lit it, smoked it, and passed it to Investigator Deloach who simulated smoking it. On August 18, 1986, Investigators Deloach and Warner returned to the licensed premises. On this occasion, Respondent's son Kevin Blackburn was acting as the bartender/manager. The investigators were approached by Steve Anderson, who inquired whether they would be interested in purchasing some marijuana or cocaine. In response thereto, Investigator Deloach handed Anderson $10 for the purchase of some marijuana. However, Anderson later returned Investigator Deloach's money and stated that his supplier was not at home. On that same day the investigators approached Kevin Blackburn to inquire as to whether he could get them cocaine or marijuana. In response thereto, Blackburn stated that he had been on a "three day buzz" and that there were no drugs available at this time. The term "three day buzz" is a slang term which is generally understood to mean a narcotics-induced euphoria. Investigator Deloach also asked Blackburn to advise him when drugs became available. On August 19, 20 and 21, 1986, Investigators Deloach and Warner returned to the licensed premises. No actual drug purchases were made on these occasions; however, the investigators had loud conversations with Steve Anderson relative to the purchase of cocaine and marijuana. On August 22, 1986, Investigators Deloach and Warner returned to the licensed premises. On this occasion, the licensee and her son were sitting at the bar, facing the investigators, in the vicinity of a patron known as "Jackie Francesia". While at the bar, Investigator Deloach asked Jackie Francesia if he could purchase some cocaine. In response, Jackie Francesia sold Investigator Deloach one-half (1/2) gram of cocaine for $35. This transaction occurred in plain view and took place in an open and notorious manner, some fifteen feet from the licensee and her son. On August 25, 1986, Investigators Deloach and Warner returned to the licensed premises. Investigator Warner met with band member Steve Anderson to inquire as to the availability of marijuana. Anderson stated that he did not have any but that he would check in the bar for some. Anderson then left the immediate vicinity of Investigator Warner and approached Kevin Blackburn, who was tending bar. Investigator Warner observed Kevin Blackburn talking with Anderson and pointing out another patron, who was seated in the premises. Anderson went directly to that patron and spoke with the patron. Shortly thereafter, Anderson returned to Investigator Warner and told her that the cocaine was available but that his motorcycle was not running. Also on this date, the investigators observed three patrons standing just outside the main entrance of the licensed premises, smoking marijuana. On August 26, 1986, Investigators Deloach and Warner returned to the licensed premises. On this occasion, Kevin Blackburn was working behind the bar in a managerial capacity. The investigators met with Jackie Francesia to inquire as to the availability of cocaine. In response, Francesia handed Investigator Warner one-half gram of cocaine in exchange for $35. This transaction occurred in plain view and took place in an open and notorious manner in the licensed premises. After the cocaine delivery, Investigator Deloach approached Investigator Warner at the bar of the licensed premises and held out his wallet in full view of several patrons and Kevin Blackburn. Investigator Warner removed the cocaine from her pants pocket, held it up in plain view of Kevin Blackburn and placed it in Investigator Deloach's wallet. Subsequently, Investigator Deloach approached Kevin Blackburn and told him that he had just purchased cocaine from Jackie Francesia at the bar. In response thereto, Kevin Blackburn voiced his approval of the narcotics transaction occurring on the licensed premises. On August 28, 1986, Investigators Deloach and Warner returned to the licensed premises. Again, Kevin Blackburn was tending bar. The investigators approached Steve Anderson in the presence of Kevin Blackburn to inquire as to the availability of cocaine. Anderson stated that a patron known as "Miguel Vasguez" had some in his possession. Investigator Deloach then gave Anderson $40 for the purchase of cocaine. Anderson left the immediate vicinity of the investigators and returned shortly thereafter with one-half gram of cocaine. He then handed the cocaine to Investigator Deloach. This transaction occurred in plain view and took place in an open and notorious manner on the licensed premises. After taking delivery of the cocaine, Investigator Deloach again approached Kevin Blackburn and told him that he had just purchased cocaine in the licensed premises. Kevin Blackburn again acknowledged his approval of the narcotics transaction. In addition to being the licensee of record in the instant case, Lillian Marie Reynolds operates another premises which has an alcoholic beverage license and at which business she spent almost all of her time. Sometime prior to the commencement of "Operation Sabre", Reynolds turned over the management of Diamond Lil's to her son Kevin Blackburn. Although Reynolds was only present during one of the drug transactions described above, Blackburn was present during most of the others. Neither Reynolds nor Blackburn voiced any disapproval of the drug transactions taking place in Diamond Lil's. Furthermore, Reynolds admitted she had given no specific directions to her son regarding prohibiting drug use or transactions in the premises even though she had told the Sheriff prior to "Operation Sabre" that drug dealing might be taking place in Diamond Lil's.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained within the Notice to Show Cause and assessing a civil penalty against Respondent in the amount of $5,000. DONE and RECOMMENDED this 4th day of December, 1987, at Tallahassee, Florida. LINDA M. RIGOT, 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 4th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2095 Petitioner's Proposed Findings of Fact numbered 1-14 and the first two sentences of finding numbered 15 have been adopted verbatim or in substance in this Recommended Order. The remainder of finding numbered 15, however, has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. Respondent's Proposed Findings of Fact numbered 1, 2, and 4-7 have been adopted in this Recommended Order either verbatim or in substance. The remainder of Respondent's Proposed Findings of Fact have been rejected as follows: 3 and 9 as being immaterial to the issues under consideration herein; 12 as being contrary to the evidence in this cause; and 8, 10, 11, and 13 as not being supported by the evidence herein. COPIES FURNISHED: Daniel Bosanko, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 John P. Rotolo, Esquire 627 Whitehead Street Key West, Florida 33040 Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
