Findings Of Fact Respondent Paul N. Fjell is a 45-year-old graduate of Eastern Illinois University. In 1970, he was employed as a teacher by Petitioner, the School Board of Dade County, Florida. He subsequently was placed on continuing contract and continued in his capacity as a teacher for Petitioner until December 5, 1990, when he was suspended from his employment and this termination proceeding was commenced. Respondent has a long history of alcohol abuse. Since 1984, Petitioner has encouraged Respondent to avail himself of the services offered by Petitioner's Employee Assistance Program (hereinafter "EAP"). Respondent has been referred on a number of occasions to the EAP by his supervisors since his alcohol problem appeared to be a fitness-related problem. On April 25, 1986, Respondent was admitted to the Addiction Treatment Program at Mount Sinai Medical Center, where he remained hospitalized for 28 days. His admitting diagnosis was poly-drug dependency and alcoholism. Respondent had been referred to that program by Petitioner's EAP. During the 1988-1989 school year Respondent again came to the attention of the Office of Professional Standards when he was removed from his position at Horace Mann Middle School because of absences and a resulting referral to EAP. Respondent was next assigned to two Cope Centers (North and South). He was assigned to work one-half day at each Center as a Work Experience Coordinator. Respondent's duties were to teach a class of young, pregnant students, locate part-time jobs for them, and monitor them at their places of employment. A Work Experience Coordinator occupies a highly visible position since the Coordinator must visit businesses and other organizations in the community in order to locate jobs for students. After approximately two months, Respondent was removed from his position at both Centers because of his non- performance and because of complaints from students, staff, faculty, and a School Board member that Respondent had the odor of alcohol on his breath at work. Respondent was next assigned to the Office of Vocational, Adult, Community, and Career Education (hereinafter "OVACCE"). The offices of OVACCE are located in the School Board Administration Building; consequently, Respondent had little contact with students or the public. While he was assigned there, Respondent was repeatedly absent, did not produce any work that could be used, and his supervisor detected an alcohol odor about Respondent. As a result, prior to the end of the 1989-1990 school year, Respondent was removed from OVACCE and relocated to the Dorsey Skill Center for a few months to complete the school year. In August, 1990, Respondent was arrested and charged with driving under the influence, leaving the scene of an accident, and violation of driving restrictions. On August 15, 1990, a conference-for-the-record was held in Petitioner's Office of Professional Standards (hereinafter "OPS"). At that time, Respondent's arrest record and employment history were reviewed, and he was given specific directives as to the procedures he must thereafter follow regarding absences. Respondent was then placed on alternate assignment pending court disposition of his DUI arrest. Respondent was temporarily placed in the Physical Education Department at the School Board Administration Building at the end of August, 1990. His duties were essentially clerical in nature: stuffing envelopes, collating documents, distributing mail, and re-arranging the mail boxes. Within five weeks, his supervisor requested that OPS remove Respondent from that work assignment. His supervisor complained that Respondent reported late for work, left early, took long breaks, and was frequently absent. He also complained that other workers in the area were becoming demoralized because Respondent did not carry his share of the work. On one occasion Respondent's supervisor thought he smelled alcohol on Respondent's breath. Several times during this period Respondent was observed taking his shoes and socks off and elevating his feet to relieve swollen joints. Even after being instructed to not remove his shoes and socks and elevate his feet while at work, Respondent did so again and was observed by the Deputy Superintendent. Respondent was next placed in Petitioner's Security Investigative Unit (hereinafter "SIU"), where he performed clerical chores. On November 2, 1990, Respondent reported to his work location in an impaired state. This was discovered when other employees at the work site noted that Respondent was talking to himself, his clothing was disheveled, his speech was slurred, he had bloodshot eyes which he was trying to conceal by wearing dark glasses, he kept repeating himself, the content of his speech was nonsensical, and he had a strong odor of alcohol on his breath. Later that morning, a blood specimen was drawn from Respondent, which upon analysis showed an ethanol content of at least 50 milligrams per deciliter. During October, 1990, it had been determined that further psychological evaluation of Respondent was medically indicated, and he was directed by OPS to submit to further evaluation. An appointment was scheduled for him by OPS. Respondent, however, rescheduled that appointment several times and never did submit for further evaluation. Respondent disregarded directives given to him by OPS on August 15, 1990, regarding absence and leave procedures. Between November 5 and 14, 1990, Respondent was absent from work and failed to contact OPS regarding his absences in accordance with the directives previously given to him. Respondent understood that he was to contact OPS. The reason that Respondent did not contact OPS when he failed to report to work between November 5 and 14 was as a result of his drinking and not as a result of any lack of understanding of the directives which he had been given. Petitioner's EAP has had 140 contacts directly with Respondent or with his medical providers in an attempt to assist Respondent in dealing with his fitness-related alcoholism. Respondent is generally non-compliant with the recommendations made to him by professionals for dealing with his alcohol problem. Recommendations for long-term residential treatment have been ignored. Although Respondent has voluntarily admitted himself for treatment in hospital mental health units, his stays there are short and do not appear to be assisting him in dealing with his long-term alcohol problem. Although Respondent is currently attending daily AA meetings, his attendance may be related as much to his pending traffic charges and this termination proceeding as to any commitment on his part to finally resolve his alcohol problem. When Respondent was a patient at Mount Sinai, once he was detoxified, he exhibited no personality disorder or psychiatric condition. His problem was alcoholism and poly-drug dependency; his behavior was secondary to that problem. Based upon protocols established by the American Society of Addiction Medicine, a physician cannot, with certainty, diagnose a mental condition while the patient is still under the influence of alcohol or other mind-altering drugs. Although Respondent has been receiving treatment from a psychiatrist on an irregular basis over the last few years, that physician's opinion that Respondent suffers from a manic depressive disorder requiring the administration of anti-depressant medication is rejected. That physician has not had the benefit of seeing Respondent on a regular basis. It is uncertain whether that physician has had the benefit of treating Respondent in a detoxified state since approximately 1985. Although it is believed that Respondent has been in a detoxified state during certain time periods since 1985, there is no assurance that the recovery program Respondent has created for himself is working. Respondent received acceptable annual evaluations for the 1988-1989 and 1989-1990 school years and was recommended for reemployment at the conclusion of each of those school years. Each year's annual evaluation was based upon one classroom observation only. Although fitness-related issues such as active alcoholism appear to be included within Category VII, Professional Responsibilities, on Petitioner's annual evaluation form, principals completing annual evaluations of teachers are prohibited from considering fitness-related issues. By union contract, only the Office of Professional Standards can deal with issues relating to a teacher's fitness for duty. Over the years, Respondent's drinking problem has become known to more and more students, staff, medical professionals, and members of the community. His failure to ultimately resolve his alcohol problem has achieved some degree of notoriety.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Respondent's suspension as of December 5, 1990, was proper and dismissing Respondent from his employment as a teacher for the School Board of Dade County, Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of May, 1991. LINDA M. RIGOT 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 24th day of May, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-10 13-15, and 17 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 11, 12, and 16 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed findings of fact numbered 1-3, 5-7, and 9 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4, 8, and 11 have been rejected as not being supported by the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 10 and 12-14 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. transmitting transcript, together with Petitioner's exhibits numbered 1-14 and Respondent's exhibits numbered 1-4. COPIES FURNISHED: Octavio J. Visiedo, Superintendent Dade County School Board 1450 Northeast 2nd Avenue Miami, Florida 33132 William Du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 Southwest Third Avenue Suite One Miami, Florida 33129 James C. Bovell, Esquire 75 Valencia Avenue Coral Gables, Florida 33134 Honorable Betty Castor, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent should be dismissed from his employment as an instructor at Chipola Junior College for alleged misconduct in office, incompetency, willful neglect of duties, and drunkenness, as set forth in the Complaint Recommending Dismissal, dated July 31, 1981. This proceeding commenced with the issuance of a Complaint Recommending Dismissal by the Interim President of Chipola Junior College alleging that Respondent James T. Sims, an instructor, should he dismissed for misconduct in office, incompetency, willful neglect of duty, and drunkenness. Respondent filed a petition for formal hearing pursuant to Section 120.57(1), Florida Statutes, on August 13, 1981. The matter thereafter was referred to this Division for the appointment of a Hearing Officer. At the hearing, Petitioner presented the testimony of Dr. Richard E. Morley, Interim President of Chipola Junior College; Dean James A. Lewis, Dean of Academic Studies; and Alice J. Story, Chairman of the Division of Natural Science and Mathematics. Respondent testified in his own behalf, and submitted the testimony of Dr. Jack Golden, Director of the Alcoholism Treatment Program at Capital Medical Center, Tallahassee, Florida. Four exhibits were received into evidence. The memorandum brief of Petitioner, and Respondent's memorandum have been fully considered and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unwarranted in fact or law.
Findings Of Fact Respondent James T. Sims has been an instructor at Chipola Junior College, Marianna, Florida, since 1959. In 1962, he entered into a continuing contract with the Beard of Public Instruction of Jackson County, Florida to continue in the capacity of a teacher at the college. At some undisclosed date, responsibility for the college became vested in a Board of Trustees at which time existing continuing contracts with the county Board of Public Instruction were apparently honored by the Board of Trustees without execution of new contracts. (Testimony of Respondent, Morley, Exhibit 1) Respondent's personnel file reflects that he was the subject of a number of memoranda from his supervisors commencing in 1975, concerning late or non-attendance of faculty meetings, early dismissal of classes, award of high grades to students who did not attend class, and unexcused absences. A "confidential" letter from Joiner Sims, Chairman, Division of Natural Science and Mathematics at the college, to Respondent, dated October 17, 1977, expressed concern over a "serious personal problem" that Respondent had had for several years which Sims had offered to help him solve, but stated that if he were found under the influence of alcohol on campus in the future, he would recommend Respondent's dismissal or return to annual contract. A memorandum from Chairman Joiner Sims to Respondent in March, 1978, recited that Respondent had been absent from classes on two occasions during the semester without advance notification. In September, 1979, President Raymond M. Deming met with Respondent, Dean of Academic Studies James A. Lewis, and Miss Josephine Story, then Chairman of the Division of Natural Science and Mathematics. A memorandum in Respondent's personnel file, dated September 10, 1979, of President Deming, reflects that during this conference Dean Lewis advised Respondent to quit drinking with the assistance of medicine, and that Respondent acknowledged that he liked to drink and had done quite a bit of drinking, but denied doing so on the college campus. The college officials offered to do anything they could to aid Respondent and he expressed appreciation for their consideration. (Testimony of Lewis, Story, Exhibit 1) A further memorandum from Dean Lewis to Miss Story on November 19, 1979, reviewed his concern about complaints from members of the community about Respondent's behavior off campus and his lessened effectiveness as an instructor over the past several months as a result of his "alcoholic problem," such as dismissing class early and absences from his office during office hours. By the memorandum, Dean Lewis requested that Miss Story direct Respondent to meet assigned classes for the full period, observe posted office hours, adhere to college rules, and insure that he understood that an immediate and permanent change in his performance was expected. Accordingly, by memorandum of November 20, 1979 to Respondent, Miss Story reviewed student complaints she had received concerning Respondent's late arrival at classes, assigning problems with little or no explanation, dismissing classes early, and coming to school sometimes smelling of alcohol. Miss Story had frequently failed to find Respondent in his office during office hours and she also noted this in her memorandum. The memorandum therefore directed Respondent specifically to cure the stated deficiencies. The memorandum had been preceded by a conference with Respondent on November 19th at which time Miss Story had reviewed Respondent's shortcomings, offered suggestions for improvement, and told him that if he found it impossible to abide by the conditions she had stated in her memorandum of November 20th, she would recommend that he be given the option of taking a semester's leave of absence to seek professional help. At the conference, Respondent assured her that he would take appropriate action to prevent further complaints. (Testimony of Story, Exhibit 1) Respondent's personnel file reflects that the President of the college Student Government Association wrote to President Deming on November 29, 1979, stating that Respondent had come to class several times unable to properly teach because of his "current problem of alcoholism" which prevented him from doing his job, that it was common knowledge to the students and faculty that he had a severe alcohol problem, and that his reputation would hurt the college greatly. In a letter to Miss Story dated December 12, 1979, Respondent denied the allegations. (Exhibit 1) In a letter dated December 17, 1979, President Deming informed Respondent that his image at the college and in the community should be a subject of great concern and that it may become necessary to request that Respondent submit himself to a physical examination if deemed necessary, and that if he ever came on the campus under the influence of alcohol he would be removed from the classroom and "immediate action would be taken." In another memorandum from Miss Story to Respondent dated June 3, 1980, she noted that although he had made a real effort toward improvement during the spring semester she had observed that several of his summer session classes had been dismissed before the end of the period, and cautioned him about maintaining class schedules. She explained the contents of her memorandum to Respondent in a conference on June 23rd and confirmed this with a memorandum dated June 25, 1980. In a further memorandum dated July 1, 1980, Dean Lewis reviewed past memoranda concerning Respondent that were contained in the latter's personnel file, and noted that "a pattern has developed that appears to be growing progressively worse." (Testimony of Story, Lewis, Exhibit 1) On March 31, 1981, Dean Lewis went to talk with Respondent during scheduled office hours but found that he had dismissed a class early and had not returned to his office. After searching around the campus, Lewis went to Respondent's home and, after no one answered his knocks at the door, went inside fearing that Respondent might be ill. He found Respondent watching television with a drink of some kind in his hand. Respondent told Lewis that he had gone home to take his medicine. Based on this incident, Dean Lewis sent a memorandum to President Deming with a copy to Respondent recommending that Respondent be given the opportunity to take off both 1981 summer sessions and the fall semester to seek professional help "with his problems" and that if he did not elect to do so, that either dismissal or some lesser action be taken against him. President Deming reprimanded Respondent in a letter dated April 10, 1981, wherein he again reviewed Respondent's past actions as reflected in memoranda in his file, restated the requirements that had previously been placed upon him as to his conduct, and stated that even one deviation from any of those directives would result in an immediate suspension and recommendation of dismissal. Respondent, by letter to President Deming, dated April 23rd defended his actions on March 31 by stating that he had been ill and attached copies of prescriptions for medicine issued on March 24 and 26 for throat pain. He claimed that he was only drinking a glass of water when Dean Lewis arrived at his home, and that his only dereliction was in failing to notify anyone that he was leaving the campus. (Testimony of Lewis, Exhibit 1) In another incident that occurred on June 15, 1981, during registration for the summer session, at which time Respondent was supposed to be counselling students, Dean Lewis observed that Respondent could not walk straight and did not appear rational. He appeared to be either sick or under the influence of alcohol, but Lewis could not smell anything on his breath. He felt that Respondent was in no condition to counsel students and carry out his duties. (Testimony of Lewis, Exhibit 1) On July 27, Miss Story recommended to Dean Lewis that Respondent be relieved of his teaching duties, and Lewis recommended to Dr. Morley, the Interim President, that Respondent be removed as a member of the faculty. Interim President Morley thereafter had a conference with Respondent at which he gave him the opportunity to resign or face dismissal action. Respondent declined to resign, and the Complaint Recommending Dismissal was issued by Morley on July 31, 1981. (Testimony of Morley, Lewis, Story, Exhibit 1) Miss Story and Respondent have philosophical differences regarding grading practices. Respondent uniformly gave high grades to his students and Miss Story felt that this was not in keeping with standard college practices. Respondent consistently received satisfactory evaluations of his performance regardless of his deficiencies, and both Dean Lewis and Miss Story justified this as an effort to encourage him to improve his performance. Neither questioned his knowledge of subject matter or teaching ability, but are of the opinion that his cumulative record establishes that his instructional ability has been impaired and he is a detriment to the institution. (Testimony of Lewis, Story, Exhibit 1) Respondent received treatment in the Alcoholism Treatment Program at Capital Medical Center, Tallahassee, Florida, in late August, 1981, for the program period of 28 days. The program involves psychotherapy which assists one suffering from the disease of alcoholism to regain his "self-concept," and learn about the addiction process and the person's own value and belief system. After the inpatient phase, the individual becomes involved in an aftercare program which includes a weekly meeting with counselors at the Medical Center, participation in Alcoholics Anonymous, and regular use of "Antabuse" to prevent lapses from abstention. A year is the normal recovery period. Since his discharge from Capital Medical Center in September, 1981, Respondent has been involved with the aftercare program. He has missed several of the meetings and on at least one occasion failed to take his Antabuse, became intoxicated, and was arrested for driving under the influence of alcohol in Marianna on October 21, 1981. Dr. Jack Golden, the Director of the Alcoholism Treatment Program, finds that it is not unusual for someone in Respondent's situation to not follow up completely with the aftercare treatment, or to experience at least one period of drinking during the first year of recovery. About 95 percent of his cases, including that of Respondent, involve the "denial process" for varying periods in which the individual cannot make sound judgments and refuses to recognize that he has a problem with alcohol. The disease, which has been recognized as treatable, is biological in nature in which the chemical system of a patient reacts differently to the drug of alcohol than does that of normal individuals. In most cases, persons will not seek assistance unless some crisis arises, or they are placed under coercion of some sort. In Respondent's case, the fact that he was being considered for dismissal prompted him to seek assistance. The treatment program has been experiencing about a 90 percent success rate if an individual remains in the program for one year with a six-months follow-up period thereafter. Although public intoxication has been decriminalized and alcoholism primarily placed in the health care system, it does not serve as an excuse for criminal activities. A state policy adopted in 1973 applicable to Career Service employees provides for termination of employment of persons suffering from alcoholism only if they refuse to seek treatment. (Testimony of Golden, Respondent) Respondent conceded at the hearing that he is an alcoholic and that he had committed himself to treatment which has benefited him to the point where he believes he can resume his normal career after successful completion of the treatment program. He admitted that he had dismissed classes early at various times and failed to keep proper office hours. However, he denied that he had ever been under the influence of alcohol while on the college campus and, in fact, had not consumed any alcohol for approximately six (6) months prior to the filing of the instant charges against him. He admitted that there was truth to the various other complaints that had been made against him over the years, but that some had been exaggerated to some extent. He did not take any initiative to reguest a leave of absence to seek treatment during the lengthy period because he was in what had been described as the "denial stage" of alcoholism. He produced a doctor's statement to the effect that he had had episodes of acute syncope, bradycardia, hypertension, cardiac arrhythmia, and fluid retention. The statement reflected that his "intermittent confusion, unstable gait and extreme weakness at times have probably been directly related to his electrolyte imbalance." Respondent also submitted a number of letters from various individuals, including students, attesting to his excellence as a mathematics instructor and to their lack of knowledge as to any problems with alcohol while on campus. (Testimony of Respondent, Exhibit 3, Composite Exhibit 4)
Recommendation That the Board of Trustees of Chipola Junior College dismiss Respondent, James T. Sims, from his employment as an instructor for incompetency and willful neglect of duty pursuant to Rule 6A-14.411(6), Florida Administrative Code. DONE and ENTERED this 29th day of December, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1981. COPIES FURNISHED: Richard Wayne Grant, Esquire 209 North Jefferson Street Post Office Box 209 Marianna, Florida 32446 Philip J. Padovano, Esquire Post Office Box 872 Tallahassee, Florida 32302 John E. Roberts, Esquire Post Office Box 854 Marianna, Florida 32446
Findings Of Fact Eugene Willner is the corporate officer and sole stockholder of G.W. Liquors of Broward, Inc., d/b/a Case Deliveries, and G.W. Liquors of Collier, Inc., d/b/a Discounted by the Case. On August 27, 1980, Eugene Willner entered a plea of guilty in the United States District Court for the Eastern District of Louisiana to a violation of Title 21, United States Code s. 963, Conspiracy to Import Marijuana. Based upon his plea he was convicted and sentenced to two years of imprisonment, and a fine of $5000 was imposed. Willner had never before been convicted of any offense, nor has he been convicted of any offense subsequent to the 1980 conviction. Other than the 1980 conviction, Willner has a reputation of good moral character in his community. On July 8, 1983 Willner received a Certificate of Restoration of Civil Rights which provided, in relevant part, that he ... is restored to all civil rights in this State, except the specific authority to possess or own a firearm, lost by reason of any and all felonies this person may have been convicted of in another state, federal, or military court . In early 1987, the Petitioner corporate entities controlled by Willner applied for new quota alcoholic beverage licenses. Those applications disclosed Willner's 1980 conviction and his 1983 restoration of civil rights. On October 28, 1987, Respondent denied the applications. Of the 8500 licensed alcoholic beverage premises in Dade and Monroe Counties, only approximately 20 to 25 (or approximately one-quarter of one percent) are experiencing a problem with narcotics.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered approving Petitioners' applications for alcoholic beverage licenses. DONE and RECOMMENDED this 28th day of June, 1988, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-5565 & 87-5566 Petitioners' proposed findings of fact numbered 1-5 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2-4 have been adopted either verbatim or in substance in this Recommended Order. Respondent's unnumbered proposed finding of fact has been rejected as being irrelevant to the issues under consideration herein for the reasons set forth in this Recommended Order. Additionally, that proposed finding of fact contains phrases which are not supported by the evidence in this cause. Respondent's proposed finding of fact numbered 5 has been rejected as not constituting a finding of fact but rather as constituting background information forming the basis for Respondent's proposed agency action in this cause. Respondent's proposed findings of fact numbered 7 and 6, respectively, have been rejected as not constituting findings of fact but rather as constituting argument of counsel and recitation of the testimony. COPIES FURNISHED: C. I. Ivey, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1000 Bruce Rogow, Esquire 2097 S.W. 27th Terrace Fort Lauderdale, Florida 33312 W. Douglas Moody, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Sy Chadroff, Esquire 2700 S.W. 37th Avenue Miami, Florida 33133 Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue The issues are whether Respondent committed the acts alleged in the Administrative Complaint, and, if so, what penalty, if any, should Petitioner impose on Respondent's teaching certificate.
Findings Of Fact Respondent is authorized to teach English, the mentally handicapped, and psychology in Florida pursuant to Florida Educator's Certificate No. 435635. The certificate is valid through June 30, 2008. Respondent was an outstanding teacher for the Manatee County School District (the District) for approximately 21 years. The District employed Respondent as a language arts teacher at Manatee High School (Manatee) in 2000. On November 4, 2000, Respondent drove a white Dodge van approximately 30 miles an hour on the wrong side of U.S. Highway 41 (Highway 41) toward a deputy sheriff who was directing traffic during an annual festival. The deputy was off duty, but was in uniform and wore an orange vest. Highway 41 contains six lanes where the deputy was directing traffic. Three northbound and three southbound lanes are divided by a landscaped median with a turning ramp. Oncoming vehicles pulled off the road to avoid the van. The left front tire of the van was flat. The deputy attempted to stop Respondent by waiving his arms, jumping up and down, and yelling and screaming for Respondent to stop. Respondent drove past the deputy, and the deputy pushed off the front window of the vehicle. The deputy's vehicle was approximately 15 feet away with blue lights and strobe lights already operating. The deputy drove his vehicle after Respondent with the siren on. Respondent stopped the van approximately 1.4 miles from the location where she drove past the deputy. Respondent pulled into a parking lot of a chain restaurant. The deputy arrested Respondent for aggravated assault on a police officer and fleeing to elude a police officer. Respondent subsequently pled guilty to both charges. The court withheld adjudication and sentenced Respondent to six months of community control, 25 hours of community service, imposed fines and costs, and placed Respondent on probation for one year. Respondent satisfactorily completed her sentence, paid her fines, and completed her probation. On November 10, 2000, Respondent was under the influence of alcohol at Manatee as students were arriving for school. Administrators at Manatee gave Respondent a Breathalyzer test. The test disclosed a positive reading of .23. The legal limit is .07. The District suspended Respondent without pay on November 10, 2000. Respondent resigned from her teaching position with the District on November 16, 2000. The acts committed by Respondent on November 4 and 10, 2000, constitute neither gross immorality nor moral turpitude within the meaning of Section 1012.795(1)(c), Florida Statutes (2003). The acts were not base, depraved, dishonest, or unprincipled. They were related to alcohol addiction and a long-term illness of Respondent's mother. Respondent did not violate Section 1012.795(1)(e), Florida Statutes (2003). Respondent was not convicted of a criminal charge. The court withheld adjudication. Petitioner acknowledges in its PRO that Petitioner could find no authority to support a conclusion that the withholding of adjudication is a conviction for the purpose of this alleged violation. Respondent did not violate Section 1012.795(1)(f), Florida Statutes (2003). The evidence is less than clear and convincing that the acts committed by Respondent seriously reduced her effectiveness as a teacher. The traffic incident occurred away from school. The second incident occurred before school began and did not harm students or their parents. Respondent was an outstanding teacher prior to her resignation. She resigned her position before her condition had any effect in the classroom. Respondent violated Section 1012.795(1)(i), Florida Statutes (2003), by committing acts prohibited by Principles of Professional Conduct for the Education Profession. Respondent violated Section 1012.795(2), Florida Statutes (2003), by pleading guilty to the criminal charges against her. Three aggravating factors support a significant penalty against Respondent's teaching certificate. First, the offenses on November 4 and 10, 2000, were severe within the meaning of Florida Administrative Code Rule 6B-11.007(3)(a). (References to rules are to rules promulgated in the Florida Administrative Code on February 27, 1994.) Second, both offenses created a danger to the public within the meaning of Florida Administrative Code Rule 6B-11.007(3)(b). Third, the offense on November 10, 2000, was a repetition of an alcohol- related problem. The District had previously transferred Respondent from another school to Manatee in an effort to help Respondent with problems associated with alcohol addiction. Numerous mitigating factors listed in Florida Administrative Code Rule 6B-11.007(3) justify a penalty less severe than the three-year revocation and probation that Petitioner proposes. The last offense occurred more than three years ago. Respondent practiced as an educator for over 21 years before the last incident, made significant contributions to students and the educational system in which she worked, and has no other disciplinary history. Fla. Admin. Code R. 6B-11.007(3)(d)-(f). Respondent caused no actual damage to any person or property. A penalty in this case has little, if any, deterrent effect and will have a significant adverse impact on Respondent's livelihood. Respondent voluntarily resigned her position and successfully rehabilitated herself from alcohol addiction. Respondent candidly admitted actual knowledge of her offenses and their severity. Respondent pled guilty to the charges against her and voluntarily resigned her teaching position. No pecuniary gain inured to Respondent, and Respondent did not harm any student or child. Respondent is rehabilitated from her previous alcohol addiction. Fla. Admin. Code R. 6B-11.007(3)(g)-(k), (m), and (q)-(s). The evidence does not support a period of probation. Respondent's alcohol addiction was related to external circumstances involving Respondent's mother who was ill and in need of constant attention in 2000. Those external circumstances no longer exist. Respondent is rehabilitated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Subsections 1012.795(1)(c), (e), and (f), Florida Statutes (2003); guilty of violating Subsections 1012.795(1)(i) and (2), Florida Statutes; suspending Respondent's teaching certificate for one year beginning on November 10, 2000; and thereafter activating the certificate forthwith. DONE AND ENTERED this 7th day of July, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 2004. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Nina Ashenafi, Esquire FEA/United 118 North Monroe Street Tallahassee, Florida 32301 Bruce P. Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731-0131 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
The Issue This case concerns the issue of whether the Respondents' beverage license should be suspended, revoked or otherwise disciplined for permitting their licensed premises to be used for the purpose of prostitution and for gaining profit from that prostitution. At the formal hearing, the Petitioner called as witnesses, Beverly Fraley, Alfred Stone, and Raphael Grulau. The Respondents presented no evidence. The Petitioner offered and had admitted over the objection of the Respondent, one tape recording of conversations which occurred inside the licensed premises as a part of the undercover investigation by the Hillsborough County Sheriff's Office. Counsel for the Petitioner and counsel for the Respondents submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that these proposed findings and conclusions are inconsistent with the findings and conclusions contained in this order, they were considered by the Hearing Officer and rejected as not being supported by the evidence or as being unnecessary to the resolution of this cause.
Findings Of Fact At all times material to this proceeding, Katherine J. and Guy H. Sutton were the holders of a valid, current beverage license No. 39-1792, Series 2COP. This license was issued to a licensed premises called Guy's Tavern located on Highway 301, South, in Riverview, Florida. On May 12, 1983, Detective Beverly Fraley of the Hillsborough County Sheriff's Office, went to the licensed premises in an undercover capacity to investigate possible prostitution activity. On this particular evening, Detective Fraley was accompanied by two other detectives of the Hillsborough County Sheriff's Office in a backup capacity. Prior to entering the licensed premises, Detective Fraley was fitted with a body bug for the purpose of recording any conversations that she might have in the licensed premises during the course of the investigation. When Officer Fraley arrived, the two backup detectives were inside the licensed premises shooting pool. Upon entering the licensed premises, Officer Fraley went to the bar and ordered a drink. After obtaining her drink, she was approached by a white male, who called himself "Stogie." While talking with Stogie, another white male, who called himself "Turkey" approached Officer Fraley from behind and placed his arms around her. She had never met Turkey before. Officer Fraley pushed Turkey away and said "Keep your hands off the merchandise." Shortly after her encounter with Turkey, Officer Fraley began shooting pool with Stogie and the two undercover detectives. After a short time, she left the licensed premises with Detective Grulau and after a few minutes the two of them reentered the licensed premises. After reentering, Officer Fraley went to the ladies' rest room and when she came out, she was called over to the bar area by the owner, Guy Sutton, who was behind the bar. As Officer Fraley approached the bar, Mr. Sutton stated, "If you're going to fuck here you've got to pay me." Officer Fraley asked what he meant and he told her that she would have to pay him $5.00 for every trick" she took out of the bar. "Trick" is a slang or street term used to describe an act of prostitution. Mr. Sutton then identified himself as the owner and said that the other women in the bar also paid. Officer Fraley then gave Mr. Sutton a $5 bill. After paying Mr. Sutton, Officer Fraley turned to the bartender, Irene Springer, who was present during this conversation and asked if in fact the other women in the bar were required to pay. Irene Springer stated that the other women in the bar did in fact have to pay $5.00 per trick and a group of white females sitting at a table near the bar responded, "That's right honey." Later that evening, Officer Fraley left with the other undercover detective. When they returned, Guy Sutton was in the pool room area. Officer Fraley intentionally did not go over to Sutton. Shortly after she returned, Sutton came over to her and told her that she owed him another $5.00. He then told her that she would be better off paying him $25.00 per week rather than $5.00 per trick. He also stated that she had the potential to make $300 or $400 per week in his place. Guy's Tavern has a reputation in the community as a bar where prostitutes can be picked up.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered revoking Respondents' beverage license No. 39-1792, Series 2COP. DONE and ORDERED this 30th day of December, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact At all times relevant to the Notice to Show Cause, the Respondent, Londonaire Lounge, Inc., was the holder of License No. 26-664, a Series 4-COP license held with the State of Florida, Division of Beverage. On January 22, 1975, the Respondent, Londonaire Lounge, Inc., licensed under the Beverage Laws as a corporation, had listed Robert Larson as its vice president/secretary in its statement on file with the State of Florida, Division of Beverage. In fact, Robert Larson had served in that capacity from November 27, 1973 to January 28, 1974 and subsequent to that time, Nicholas Balistreri was, in fact, the corporate secretary and had been serving in that capacity for more than ten (10) days subsequent to Robert Larson's removal as vice president/secretary. On January 23, 1976, the Respondent, Londonaire Lounge, Inc., licensed under the Beverage Laws as a corporation, had listed Robert Larson as its vice president/secretary in its statement on file with the State of Florida, Division of Beverage. In fact, Robert Larson had served in that capacity from November 27, 1973 to January 28, 1974 and subsequent to that time, Nicholas Balistreri was, in fact, the corporate secretary and had been serving in that capacity for more than ten (10) days subsequent to Robert Larson's removal as vice president/secretary. On or about the evening of January 6, 1976, Nicholas Balistreri, a corporate officer and employee of the Respondent went to the licensed premises at 1553 South Lane Avenue, Jacksonville, Florida about the time of closing. He was in the company of a man names Paul Spencer and both of these individuals were riding in Balistreri's automobile. Spencer and Balistreri entered the licensed premises and Spencer went into the office of the licensed premises and was joined by Balistreri and another individual who was an agent of the United States Drug Enforcement Administration. Spencer had in his possession approximately 35 grams of cocaine, a Schedule II controlled substance listed under Title 21, United States Code, Section 812(c). Spencer removed the cocaine and Balistreri, the agent, and Spencer ingested a quantity of the cocaine. The agent was acquainted with Spencer from some other occasion. After the individuals had ingested the cocaine, Balistreri told the agent and Spencer that no sale of that substance could be made in the licensed premises. Balistreri and Spencer then left with the agent of the Drug Enforcement Administration and returned to Balistreri's apartment in Balistreri's car, at which time Balistreri and Spencer were arrested. Balistreri was subsequently charged and convicted of having in his possession with the intent to distribute the substance, the aforementioned cocaine, a Schedule II controlled substance, listed under Title 21, United States Code, Section 812(c), in violation of Title 21, United States Code, Section 841(a)(1) and Title 18, United States Code, Section 2. He was sentenced to three years confinement for that offense. Subsequent to the arrest of Balistreri, charges were placed against the Respondent, i.e., a Notice to Show Cause was filed against the Respondent corporation. Balistreri remained as an employee of the corporation until after the informal conference with the Division of Beverage and the date of Balistreri's dismissal from the corporation occurred in May, 1976. The above facts were as stipulated to by the parties.
Recommendation Based upon the findings of facts and conclusions of law, and in consideration of the aggravating and mitigating factors, and the agreement of the counsel of the Petitioner that the Petitioner does not seek revocation or suspension, it is recommended that the Respondent, Londonaire Lounge, Inc., be fined in the amount of $750.00, against its License No. 26-664, Series 4-COP. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles Tunicliff, Esquire Division of Beverage Department of Business Regulation The Johns Building 725 Bronough Street Tallahassee, Florida 32304 H. R. Fallin, Esquire 1239 King Street Jacksonville, Florida 32204
Findings Of Fact The stock in Bourbon Street Corporation is owned by Richard Stanton and James Urie. These individuals also own several other bars and enterprises in the Dade-Broward area. All of the entertainment corporations are managed by Jane Kruger. One such company, Crazy Jim's Corporation, contracts with dancers to provide entertainment at the various Stanton-Urie enterprises managed by Kruger. Bourbon Street pays Crazy Jim's a fee for providing dancers. The dancers are, in turn, paid on an hourly or shift basis by Crazy Jim's. The bartenders at Bourbon Street are employees of the Bourbon Street Corporation and are in charge when on duty. They are instructed to contact Kane Druger when they have trouble with a dancer or with any facet of the business. In practice, bartenders control dancers to the extent of telling them when to dance, when to mingle with customers, how to conduct themselves, and to leave the premises if they are too "high" to work. The efforts of management to prevent drug use and sale by employees- dancers involve the posting of rules of conduct in the dressing room and inclusion of these rules in employment contracts; the use of polygraph examinations; and occasional premises visits by undercover "spotters." Several employees-dancers have been discharged for drug use. The openness of drug use and sales in Bourbon Street varies. The testimony of Beverage Officers Douglas, Maggio, Jones and Imperial, detailed below, indicates generally open drug use and discussion of sales during the period of their investigation (February and March, 1981). During the same period, Beverage Officers Alford, Thompson, Nelson and Fitzenmeyer were also assigned to the Bourbon Street investigation. By stipulation, they observed nothing of an incriminating nature. An attorney and a police officer who were patrons of Bourbon Street saw or heard nothing incriminating on their visits. An undercover investigator working for Bourbon Street observed no drug activity during a check in December, 1980, but had observed substantial drug activity on an earlier visit in May, 1980. On February 22nd, 1981, Beverage Officer Douglas entered the licensed premises of Bourbon Street to investigate alleged violations and remained on the premises until 4:45 a.m. February 23rd. Officer Douglas met a dancer identified as Jacque LaPriest who agreed to arrange a purchase of cocaine. Thereafter, LaPriest placed two calls using the telephone located at the bar. After the second call, which was placed about 4:10 a.m., she advised Douglas that her man would be there in 20 to 25 minutes. At 4:30 a.m. a man introduced as Dave arrived. LaPriest obtained a package which contained the alleged cocaine. Douglas paid $140 to LaPriest for the substance. Douglas then left the premises and field tested the substance. He received a positive indicating of cocaine and prepared the substance for delivery to the Metropolitan Dade County Public Safety Department Crime Laboratory Bureau (hereinafter crime lab). Officer Douglas sealed the substance in an envelope but did not personally deliver it to the crime lab. The test was performed by Harry J. Coleman, and his report (Exhibit 2) established that the substance was cocaine. [Count 4]. On the evening of February 22nd and the morning of February 23, 1981, Beverage Officers Douglas and Maggio were on the licensed premises of Bourbon Street. They engaged in conversations centering on drugs with a dancer identified as Jennifer. At about 12:30 a.m., February 23, Jennifer gave Douglas and Maggio a packet containing a substance they believed to be cannabis. Douglas field tested the substance and obtained an indication of cannabis. The crime lab analysis performed by Albert C. Christensen confirmed that the substance was cannabis (Exhibit 4). [Count 7]. About 2:30 a.m., February 23, 1981, Beverage Officer Douglas, while on the licensed premises of Bourbon Street, was approached by a dancer identified as Maya Qaulliu. She offered to sell Douglas one gram of cocaine for $80.00. Douglas made the purchase and secured the substance for delivery to the crime lab. The analysis, performed by Albert C. Christensen, established that the substance was cocaine (Exhibit 4). [Count 8]. During the early morning hours of March 19, 1981, Beverage Officer Douglas was on the licensed premises of Bourbon Street. A dancer, Jacque LaPriest, offered to obtain cocaine for him at $90 per gram. They agreed that Douglas would purchase two grams and give LaPriest one-half gram. At 12:50 a.m. LaPriest informed Douglas that her man had arrived. She went outside the bar to meet the individual bringing the substance. Douglas paid LaPriest $180 and observed her receiving the packets, which Douglas subsequently acquired. He field tested the substance and obtained an indication of cocaine. The crime lab analysis performed by Jack J. Genova established that the substance was cocaine (Exhibit 6). [Count 9]. On the evening of March 19, and in the early morning hours of March 20, 1981, Beverage Officer Douglas was on the licensed premises of Bourbon Street. He discussed drugs with a dancer identified as Jacque LaPriest. At 12:45 a.m., LaPriest advised Douglas that she was going to "snort" cocaine and agreed to save a "line" for Douglas. She subsequently gave him a folded one dollar bill which contained the alleged cocaine. He replaced this dollar bill and tipped LaPriest for giving him the substance. Douglas secured the dollar bill for later analysis. The crime lab test performed by Jack J. Genova established that the substance was cocaine (Exhibit 8). [Count 10]. On the evening of March 20 and early morning of March 21, 1981, Beverage Officer Douglas was on the licensed premises of Bourbon Street. The dancer, Jacque LaPriest, offered to obtain two grams of cocaine for Douglas with a request that he give her one half-gram. Subsequently, LaPriest delivered three packets of the alleged cocaine to Douglas. He gave one container to LaPriest and field tested the contents of the remaining packets. He obtained a positive indication of cocaine which was later confirmed by the crime lab analysis performed by Kenneth F. Ede (Exhibit 15). [Count 11]. On the evening of February 17 and early morning hours of February 18, 1981, Beverage Officers Jones and Imperial were on the licensed premises of Bourbon Street. Jones was approached by the dancer Maya Qaulliu who subsequently gave him two alleged cannabis cigarettes. Jones secured the cigarettes and later submitted them for analysis. The crime lab report, signed by Newton E. Porter, confirmed that the cigarettes contained cannabis (Exhibit 12). [Count 1]. Beverage Officers Imperial and Jones were on the licensed premises of Bourbon Street on the evening of February 17 and the early morning hours of February 18, 1981. Imperial was approached by a dancer identified as Mary, who subsequently gave him an alleged cannabis cigarette. He retained the cigarette and later submitted it for laboratory analysis. The crime lab report, prepared by Newton E. Porter, established that the cigarette contained cannabis (Exhibit 13). [Count 2]. Beverage Officers Imperial and Jones were on the licensed premises of Bourbon Street in the early morning hours of February 18, 1981, and sought to purchase cocaine from the dancer Maya Qaulliu. In response to this request, Qaulliu introduced Imperial and Jones to an individual identified as Herbert R. Wolff, who thereafter left the premises. About 30 minutes after Wolff's departure, the bartender Nina called Qaulliu, who was on the dance stage, to the phone. The beverage officers heard Qaulliu discussing cocaine and during the conversation she stated to the officers: "$80 dollars a gram for coke." This statement was made openly and could have been heard by other persons near the bar, including the bartender Nina who was closer to Qaulliu than the beverage officers. [Counts 3, 12, 13]. Wolff returned to the bar and was thereupon accompanied to the restroom by Imperial and Jones. Wolff gave the beverage officers two grams of suspected cocaine for which each officer paid Wolff $80. This material was later delivered to the crime lab for testing and was found to contain cocaine by Jack J. Genova (Exhibit 18). [Count 3]. Subsequently, during the early morning hours of February 18, 1981, Wolff offered to sell cannabis to Beverage Officers Jones and Imperial. This offer took place on the licensed premises in the presence of Qaulliu. The officers agreed to buy and accompanied Wolff to a parking lot adjacent to the premises where they observed about five pounds of suspected cannabis in the trunk of Wolff's car. The officers purchased one pound of the substance for $180. The material was subsequently tested in the crime lab where it was found to contain cannabis by Newton E. Porter (Exhibit 20). [Counts 12, 13]. Beverage Officers Jones and Imperial were on the licensed premises of Bourbon Street during the evening of February 22, and the early morning hours of February 23, 1981. A dancer known as Kitten or Jennifer gave Jones a suspected cannabis cigarette which he later submitted for crime lab analysis. The substance was tested by Robert J. DiMarzo and proved to be cannabis (Exhibit 23). [Count 6]. During the late evening of February 22, 1981, Beverage Officers Imperial and Jones asked the dancer Maya Qaulliu if cocaine was available. She advised them that she could arrange a purchase and placed several phone calls in the presence of the bartender, Mary. Imperial heard Qaulliu order two grams of cocaine for $80 per gram. Mary was standing nearby and could have heard these conversations. About 2:00 a.m. February 23, Herbert Wolff arrived and requested that Imperial and Jones follow him into the restroom. He then delivered the suspected cocaine and received $180 from the beverage officers. Wolff inhaled a substance suspected to be cocaine while they were in the restroom. Customers came in and left the restroom during these transactions and could have heard the discussions. The substance purchased by Officers Imperial and Jones was forwarded to the crime lab and was found to be cocaine by Robert J. DiMarzo (Exhibit 23). [Counts 5, 12, 13]. Newton E. Porter, who prepared Exhibits 12, 13 and 20, was the only crime lab analyst present to testify at the hearing. However, Porter verified that the other reports offered into evidence by Petitioner were prepared by crime lab employees assigned to substance analysis. Porter described the crime lab accounting controls and testing procedures, and was available for cross- examination on these matters. This testimony coupled with property receipts which the beverage officers obtained on each substance submitted to the crime lab support a finding that the evidence was properly handled and that the conclusions reached in the crime lab reports are valid.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violations as alleged in Counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 13 of the Notice to Show Cause. It is further RECOMMENDED that the charges contained in Count 12 be dismissed. It is further RECOMMENDED that Respondent's License No. 23-0523, Series 4-COP be suspended for a period of 90 days, inclusive of the temporary suspension now in effect. DONE AND ENTERED this 24th day of April, 1981 in Tallahassee, Leon County, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1981. COPIES FURNISHED: Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Henry A. Amoon, Esquire 123 N. W. 12th Avenue Miami, Florida 33128
The Issue This case concerns an Administrative Complaint filed by the Petitioner against the Respondent. Count I to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its director, stockholder or corporate officer, namely: Carl Bilotti, related to the possession, sale and/or delivery of the controlled substance cocaine on July 15 and 18, 1981; August 20, 1981; and September 9 and 20, 1981. Count II to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee namely: "Anne," related to the possession of the controlled substance cocaine on August 22 and 28, 1981. Count III to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Anne," related to the possession, sale and/or delivery of the controlled substance cocaine on August 23, 1981, and September 4, 1981. Count IV to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Sandy," related to the possession, sale and/or delivery of the controlled substance methaqualone on July 19 and 25, 1981, and the possession, sale and/or delivery of the controlled substance cocaine on August 14, 22 and 23, 1981. Count V to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Eve," related to the possession, sale and/or delivery of the controlled substance diazepam on July 23, 1981. Count VI to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Gina," related to the possession, sale and/or delivery of the controlled substance diazepam on July 25, 1981, two (2) incidents. Count VII to the Administrative Complaint accuses the Respondent of violations of Sections893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Ivy " related to the possession, sale and/or delivery of the controlled substance cocaine on August 14, 1981. Count VIII to the Administrative Complaint accuses the Respondent of violations of Sections 893.03 and 893.13 (1)(a) and 561.29, Florida Statutes, by actions of its agent, servant or employee, namely: "Shayne," related to the possession, sale and/or delivery of the controlled substance cocaine on July 25, 1981. Count IX to the Administrative Complaint alleges that between July 15, 1981, and October 2, 1981, the Respondent, by actions of its agents, servants, employees, manager, corporate officer and stockholder, maintained a place, to wit: the licensed premises, at 2095 best Fourth Avenue, Hialeah, Florida, which place was used for keeping or selling of controlled substances, namely: cocaine, methaqualone and diazepam, in violation of Subsection 893.13(2)(a) 5; Florida Statutes, within the meaning of Subsection 561.29(1)(c), Florida Statutes. Count X to the Administrative Complaint alleges that between July 15, 1981, and October 2, 1981, the Respondent, through its agents, servants, employees, manager, corporate officer and stockholder, kept or maintained a public nuisance on the licensed premises, to wit: maintaining a building or place which is used for the illegal keeping, selling or delivering of controlled substances within the meaning of Chapter 893, Florida Statutes, in violation of Section 823.10, Florida Statutes, and Subsection 561.29(1)(c) , Florida Statutes. Count XI to the Administrative Complaint alleges that on or about July 25, 1981, an agent, servant or employee of the Respondent, one Gina, while engaged as a dancer, unlawfully offered to commit prostitution, in violation of Subsection 796.07(3)(a), Florida Statutes, causing a violation on the part of the Respondent of Subsection 561.29(1)(a), Florida .Statutes. Count XII to the Administrative Complaint alleges that on or about October 2, 1981, an agent, servant or employee of the Respondent, namely: Cathryne Edmondson, possessed a controlled substance, to wit: marijuana, on the licensed premises, in violation of Subsection 893.13(1)(a) Florida Statutes, causing a violation of Subsection 561.29 (1)(a) , Florida Statutes. Count XIII to the Administrative Complaint alleges that on or about December 2, 1981, a director, stockholder or corporate officer, namely: Carl Bilotti, corporate vice-president and 50 percent stockholder, pled guilty and was adjudicated guilty in the Circuit Court of the State of Florida, Eleventh Judicial Circuit, on five (5) counts of violation of Section 893.13, Florida Statutes, sale of controlled substances, namely: cocaine, a felony, and that the felony conviction impairs qualifications of the Respondent to obtain and continue holding an alcoholic beverage license under Subsection 561.15(3), Florida Statutes, and Subsection 56l.29(1)(b), Florida Statutes.
Findings Of Fact The Petitioner had served an Administrative Complaint on the Respondent, which Administrative Complaint contained the Counts as set forth in the Issues statement to this Recommended Order. Subsequent to that time, the Respondent, in the person of counsel, requested a formal Subsection 120.57 (1), Florida Statutes, hearing and the formal hearing was conducted on January 6, 1982. As indicated by correspondence from former counsel for the Respondent to counsel for the Petitioner dated December 15, 1901, Respondent's counsel withdrew from the case. This withdrawal of counsel postdated a Notice of Hearing setting forth January 6, 1982, as the date for hearing and a separate Order of November 24, 1981, which identified January 6, 1982, a the date for hearing. Notwithstanding the Notice and separate Order identifying January 6, 1982, as the hearing date, the Respondent, by and through its attorney or other authorized representative, did not attend the formal hearing. Although the Respondent was not in attendance, the hearing was conducted in view of the continuing request for hearing, which has never been withdrawn. The Petitioner is a governmental agency in the State of Florida, which has, among other duties, the licensure of the several alcoholic beverage license holders in the State of Florida, and the requirement to discipline those beverage license holders who have violated the terms and conditions of their licensure. The Respondent Carl and Mike, Inc., is the holder of an alcoholic beverage license issued by the Petitioner. The Respondent trades as the Raw Hide Bar at a licensed premises at 2095 West Fourth Avenue, Hialeah, Dade County, Florida. On July 15, 1981, at approximately 9:45 P.M., Beverage Officer L. J. Terminello, and a confidential informant, who was assisting Officer Terminello, entered the licensed premises in undercover capacities to continue an investigation which had begun on July 12, 1981. (The Beverage Officer and confidential informant had been in the licensed premises on that former date for purposes of conducting a narcotics investigation.) On this occasion, the investigative purpose was to purchase narcotics. Terminello and the informant took a seat at the bar and waited for the appearance of Carl N. Bilotti, the vice-president of the Respondent and 50 shareholder. It was the intention of Terminello to attempt to purchase narcotics from Bilotti. At 10:50 P.M. Bilotti had not arrived at the licensed premises and Terminello decided to leave; however, when he reached the front door, Bilotti was entering and Bilotti spoke to the confidential informant in the parking lot area of the licensed premises. The confidential informant, in the course of that conversation, asked Bilotti if, "we could get any coke," meaning Terminello and the confidential informant were interested in purchasing cocaine. Bilotti responded by stating, "Sure, no problem. Wait here a minute, I'll be right back." Bilotti then entered the licensed premises and returned a few minutes later and handed the confidential informant a piece of aluminum foil which was folded and the confidential informant handed this item to Terminello. Terminello opened the package and noted a quantity of white powder. Terminello asked Bilotti, "how much" and Bilotti stated, "anything close to $70.00." Terminello paid Bilotti $70.00 in United States currency and following a short conversation, departed the area of the licensed premises. The white powder in question was in fact cocaine. Terminello and the confidential informant returned to the licensed premises on July 18, 1981, at approximately 12:15 A.M. Terminello approached Carl Bilotti who was standing at the end of the bar area next to a cash register. Terminello asked Bilotti if he had any "stuff," referring to cocaine. Bilotti answered "sure" and indicated that the cost for the cocaine would be $70.00. Terminello agreed to the price, telling Bilotti that he would meet him in the mens room for purposes of the exchange of drugs and money. At approximately 12:20 A.M., while located in the mens rest room of the licensed premises, Terminello paid Bilotti $70.00 in United States currency and Bilotti gave Terminello a folded piece of white paper which Terminello could see contained white powder. Shortly thereafter, Terminello and the confidential informant exited the licensed premises. The white powder which had been purchased was analyzed and revealed the presence of cocaine. On July 19, 1981, at around 11:00 P.M., Officer Terminello returned to the licensed premises. While in the licensed premises he spoke with Sandra McQuire, a person that he had met on July 12, 1981. On July 12, 1981, McQuire had been employed as a cocktail waitress on the licensed premises and Terminello had been advised by the confidential informant that McQuire had delivered ten (10) methaqualone tablets to the confidential informant on that date. On that date, July 19, 1981, Terminello told employee McQuire that he wanted to purchase ten (10) more "ludes, meaning methaqualone. At around 11:20 P.M., while Terminello was sitting at the bar, McQuire walked by and handed him a napkin containing ten (10) white tablets. A few minutes later, Terminello handed McQuire $30.00 in U.S. currency in payment for the white tablets. Terminello then left the licensed premises at approximately 11:40 P.M. The ten (10) tablets were subsequently analyzed and found to be methaqualone. On July 23, 1981, at approximately 12:30 A.M., Officer Terminello and the confidential informant entered the licensed premises. Terminello and the confidential informant took a seat at the bar, where shortly afterwards a conversation ensued with an employee/dancer who identified herself as "Eve" and was later determined to be one Eve Mary Carroll. Carroll and the confidential informant had been acquainted prior to this time. During the course of the conversation, Terminello asked Carroll if she knew where he could get some "good ludes." This refers again to methaqualone. Carroll told him that she was "holding," meaning that she had some in her possession. She asked Terminello to pay her $4.00 for each tablet. She stated that the price was higher because they were "pure methaqualone tablets" and that they would "really do a job." Terminello told Carroll that he would purchase three (3) tablets and handed her $12.00 in U.S. currency. A few moments beyond this time, at around 12:45 A.M., Carroll handed Terminello three (3) tablets, each individually wrapped in aluminum foil, which tablets Terminello placed in his pocket. The suspect methaqualone tablets were later determined to be diazepam. On the same date, July 23, 1981, Terminello observed Carl Bilotti enter the licensed premises at around 1:00 A.M. In the course of a conversation that ensued, Bilotti told Terminello he could sell Terminello some cocaine, but that the transaction would have to occur later, in that Bilotti had to leave the licensed premises. Terminello waited until 2:30 A.M. and Bilotti never returned. On July 25, 1981, at approximately 12:00 A.M., Terminello and the confidential informant went back to the licensed premises. Over the next hour and a half, Terminello talked to Carl Bilotti and employee Sandra McQuire about purchasing narcotics; however, neither of those persons were able to deliver narcotics at that time. On that same date, Terminello and the confidential informant did speak with a dancer/employee in the licensed premises who was identified as "Gina" and this individual indicated that she had some "ludes" for sale, meaning methaqualone, that she would sell for $3.00 each. Terminello indicated that he would like to purchase five (5) tablets and they walked out the front door of the premises and Terminello gave her $15.00 in U.S. currency, in return for five (5) white tablets which were marked "Lemon 714." Those tablets were subsequently analyzed and found to be diazepam. At around 2:45 A.M. on July 25, 1981, while in the bar area, Terminello and the confidential informant spoke to an individual, a male, who was known as "Frenchie" later identified to be one Laurent E. Duval, who was in the company of a dancer employed in the licensed premises whose name was "Shayne" later identified to be Sharon K. Hicks. In the presence of Hicks, Terminello and Duval negotiated for the sale of a quantity of cocaine for the amount of $75.00. Duval also indicated that he had to be careful because he had a stolen car, was carrying a firearm and had recently been placed on probation by Circuit Court for narcotics and firearms charges. Duval told Terminello that the narcotics arrangement would have to be consummated in the parking lot of the licensed premises in view of the fact that too many people he did not know were in the bar. Terminello and the confidential informant exited the licensed premises at around 3:00 A.M. in the company of Duval and Hicks. Duval took a seat on the driver's side of an automobile in the parking lot and Hicks sat in the front passenger side seat. Duval handed Terminello a large plastic bag. containing a quantity of white powder which was suspect cocaine. Terminello started to hand Duval $75.00 in U.S. currency but Duval refused to take it, telling Terminello to hand the money to Hicks. Hicks had been observing this transaction and agreed to take the money and did accept the $75.00 in U.S. currency. The suspected cocaine was later revealed to be cocaine. Terminello next returned to the licensed premises on July 25, 1981, at around 9:30 P.M. At that time he was in the presence of the confidential informant. Terminello and the confidential informant took a seat at the bar and were approached by a dancer/employee who had earlier been identified as "Gina." There had been a prior telephone negotiation between the confidential informant and "Gina" for the purchase of five (5) "ludes," methaqualone, and in keeping with that arrangement, "Gina" handed Terminello a white napkin which contained five (5) white tablets. Terminello in turn gave "Gina" $15.00 in U.S. currency. Those tablets were subsequently analyzed and found to be diazepam. On the same evening, i.e., July 25, 1981, at around 9:45 P.M., the cocktail waitress, Sandra McQuire, approached Terminello and stated that she had five (5) methaqualone tablets that Terminello had asked for on the prior evening. She handed him a zip-lock plastic bag containing five (5) white tablets marked "Lemon 714." Shortly after this time, Terminello gave McQuire $15.00 in U.S. currency to pay for the tablets. Those tablets were subsequently analyzed and found to be methaqualone. At around 10:15 P.M. on July 25, 1981, the dancer/ employee "Gina" approached Terminello while he was seated at the bar and advised him that if he "got rid of" his "old lady" and returned about 4:00 A.M. to the premises that she, "Gina," would show him a good time by "fucking his brain out" for $50.00. Terminello acknowledged this offer. On August 3, 1981, at approximately 10:30 P.M., Terminello and the confidential informant returned to the licensed premises. At that time, Terminello entered into a conversation with Carl Bilotti on the subject of narcotics; however, Bilotti indicated that he was unable to procure cocaine at that time. Bilotti did state that he expected a delivery soon and that Terminello should wait a while. Nothing had transpired by 11:45 P.M. concerning the narcotics and Terminello and the confidential informant left the licensed premises. On August 14, 1981, at approximately 10:45 P.M., Terminello and the confidential informant went back to the licensed premises and upon entry took a seat at the bar where they were greeted by the cocktail waitress Sandra McQuire. Terminello asked McQuire if there were any "ludes" around, meaning methaqualone, and McQuire answered in the negative, but she did indicate that there was some "toot," meaning cocaine available for $70.00 a gram if Terminello was interested. Terminello advised McQuire that he was interested and removed $70.. 00 in U.S. currency from his wallet, wrapped it in a napkin and handed it to McQuire. She then stated that she would be back in a few moments. After several moments, McQuire signaled Terminello to walk over to the opposite side of the bar where she was fixing drinks. She then made a comment about the good quality of the "stuff." While Terminello was talking to McQuire, another employee, a dancer in the licensed premises identified as "Ivy" later shown to be one Julie Ann Schwartz, approached Terminello and handed him a plastic zip- lock bag containing white powder. She told Terminello "here is a present from Sandy." Terminello accepted the material. Schwartz then asked Terminello if she could "do a line," referring to the ingestion of cocaine. In view of the circumstances, Terminello did allow Schwartz to taste the cocaine. Schwartz did this by opening the packet in plain view at the bar area and placing her finger into the container and then tasting the substance that adhered to her finger. She then handed the plastic bag back to Terminello and said "you are going to enjoy this. That's good stuff." These matters transpired in the presence of McQuire. The white powder was subsequently analyzed and revealed to be cocaine. On August 22, 1981, at approximately 11:00 P.M., Terminello returned to the licensed premises. Upon entry to the licensed premises, Terminello was greeted by Carl Bilotti who appeared to be leaving the bar at that time. Bilotti told Terminello he could be back in about one hour if Terminello wanted to wait for purposes of purchasing cocaine. Terminello told him he would wait. Following his conversation with Bilotti, Terminello spoke with the cocktail waitress Sandra McQuire asking her if there was any "toot" around, meaning cocaine. McQuire indicated that there was and it would cost $70.00. Terminello followed McQuire into the hallway outside the ladies' room where he handed her a hundred dollar bill and she handed him a plastic wrapped package containing white powder. A few minutes later, Terminello was sitting at the bar when McQuire returned and laid $30.00 in U.S. currency before Terminello stating "thank you very much." This material in the plastic bag which had been provided to Terminello by McQuire was subsequently determined to be cocaine. Terminello was still in the bar area at around 12:30 A.M. on August 23, 1981, and entered into a conversation with the manager of the licensed premises identified a "Anne" later shown to be Anne R. Milotta, also known as Ann Bilotti, the sister of Carl Bilotti. Terminello told Milotta that he felt that her brother Carl Bilotti was inconsiderate in that Terminello had planned to purchase cocaine from Bilotti that night and Bilotti had not come back to the premises. Milotta agreed with Terminello and told him that he could sit in the manager's office with her to have a drink and to wait for her brother to return. Milotta and Terminello went to the manager's office. While in that office, ,Milotta answered the telephone, gave directions to employees, answered questions, was observed to have the keys to the office, and at times was seen tending bar. These managerial activities were further substantiated on a later date based upon Terminello's procurement of a copy of an application which Milotta had made with the City of Hialeah, Florida, for an identification card in which she had listed herself as the "owner-manager of the licensed premises." While in the office with Milotta, she told Terminello that it was too bad that her brother had not yet come back so that Terminello could purchase cocaine. Terminello, during this conversation, indicated to Milotta that he had purchased cocaine from Sandy McQuire, the cocktail waitress, and Milotta stated to Terminello "how 'bout turning me on to a line" and Terminello responded "OK." Terminello removed the cocaine he had received from McQuire and handed it to Milotta. She opened it and tapped out two one and one half inch long "lines" of cocaine on the desk in the office and handed the package back to Terminello. Terminello then watched Milotta ingest one of the lines through her nose using a plastic straw and he in turn simulated that activity. At around 1:15 A.M., on August 23, 1981, Terminello indicated to Milotta that, in view of the fact that Carl Bilotti was not going to appear, he would like to purchase another gram of cocaine to keep him supplied for the upcoming week. Milotta stated she would get McQuire and exited the office and called McQuire in, telling her that Terminello wanted to purchase another gram of cocaine. McQuire indicated that this would not be a problem and removed another packet similar to the first from a large plastic bag she kept on her person. This large bag appeared to have twenty (20) to thirty (30) similar type packets within it. Terminello removed a hundred dollar bill from his wallet and handed it to Milotta who in turn handed it to McQuire. McQuire then reached over Milotta and handed Terminello the packet. Shortly after this exchange, McQuire left the office and Milotta continued in general conversation both in the bar and office area until Terminello left the premises at approximately 1:50 A.M. The second package that McQuire gave to Terminello was subsequently determined to be cocaine. On August 28, 1981, at approximately 10:30 A.M., Terminello went back to the licensed premises to continue the investigation. Upon entering the licensed premises he spoke with Carl Bilotti asking if he had any "toot," meaning cocaine. Bilotti stated that he did and that it would be the same price as usual, $70.00. A few minutes later, Bilotti walked up to Terminello who was sitting at the bar and handed him a plastic zip-lock bag containing white powder and Terminello gave him $70.00 in U.S. currency in exchange. The substance which Terminello had purchased from Bilotti was subsequently determined to be cocaine. A few minutes after the exchange of cocaine and currency, Anne Milotta approached Terminello in the bar area and invited him into the manager's office for a drink. When they entered the office, Milotta told Terminello that she had seen the transaction involving the sale of cocaine between Terminello and her brother and wanted to make sure that Terminello was satisfied with the "product." The conversation continued while Milotta intended her managerial duties of making schedules, and answering the telephone. At approximately 11:00 P.M., Milotta asked Terminello if she could "do a line" of his cocaine, meaning use the material. She indicated that she knew "this coke was as good as all the coke that Carl gets." Terminello complied with her request by handing her the plastic zip-lock bag that he had purchased from Carl Bilotti. She again placed two (2) "lines" of the cocaine on the desk and on this occasion used a twenty dollar bill which had been rolled up as a tool to ingest the cocaine in her nose. Terminello simulated the use of cocaine in her presence. Terminello then left the office and exited the licensed premises. On September 4, 1981, at approximately 9:30 P.M., Terminello went back to the licensed premises. When he entered the premises he spoke with Anne Milotta asking her if her brother had "any shit to sell," referring to cocaine. Milotta invited Terminello into her office indicating that her brother did not have cocaine for sale but that she did. Terminello told her that he wanted one (1) gram. She left the office and returned a few minutes later, at around 9:50 P.M., handing Terminello a piece of plastic wrapping containing white powder. Terminello handed her 580.00 in U.S. currency and she returned $5.00, stating that her price was $75.00. Subsequent analysis of the material which he had received from Milotta revealed the presence of cocaine. While in the office area, Milotta continued to perform managerial duties. As Terminello was preparing to leave the licensed premises on this date, Milotta approached him and gave him an additional $5.00 in U.S. currency stating that she had made a mistake and that a gram should only be $70.00 and that she did not want Terminello to think that she was "ripping him off." This discussion of money referred to the purchase of cocaine. On September 9, 1981, at around 10:10 P.M., Terminello went back to the licensed premises. He took a seat at the bar and waited for the appearance of Carl Bilotti. Bilotti entered the licensed premises at around 10:25 P.M. and Terminello asked him if he was "holding any shit," referring to cocaine. Bilotti stated that he was and that it was the usual price of $70.00. Bilotti and Terminello then went to the manager's office. Bilotti left Terminello in that office, shortly thereafter and following this sequence, Terminello gave Bilotti $70.00 in U.S. currency while in the office in exchange for a white piece of paper folded in four parts which contained white, powder. The analysis of this white powder material revealed cocaine. Terminello and Bilotti stayed in the office for a few minutes discussing general topics and the possibility of a large narcotics purchase in the future. Bilotti told Terminello that he would be better off buying a quarter ounce of cocaine for $425.00 rather than one gram at a time for $70.00. Terminello then left the licensed premises at approximately 10:45 P.M. On September 20, 1901, at approximately 12:15 A.M., Terminello returned to the licensed premises. He undertook a conversation with Carl Bilotti while standing near the outside of the front door. After a short conversation, Bilotti indicated that he had cocaine for sale. A few minutes later while inside the licensed premises, Bilotti waved Terminello into the manager's office where he removed a quantity of white powder from a large plastic bag and placed a small quantity of white powder into a piece of paper on the desk. He then folded the piece of paper and handed it to Terminello who handed Bilotti 570.00 in U.S. currency. This white powder was subsequently determined to be cocaine. At approximately 1:00 A.M., Terminello left the licensed premises. On September 26, 1981, at approximately 12:20 A.M., Terminello, while in the licensed premises, entered into a discussion with Carl Bilotti about a narcotics transaction involving the purchase of cocaine. Bilotti indicated that two (2) ounces of cocaine could be purchased for $1,700.00 an ounce and he stated that the safest place for the transaction to occur would be in the office at the licensed premises. On September 29, 1981, at around 11:15 P.M., Terminello and Carl Bilotti, while in the office at the licensed premises, confirmed a future purchase of two (2) ounces of cocaine. Bilotti explained to Terminello the packaging and adulterating procedures to be used in connection with selling the cocaine. On October 2, 1981, at approximately 12:45 A.M., in the office of the licensed premises, Anne Milotta told Terminello that she was aware of the pending large transaction for the purchase of cocaine between Terminello and Carl Bilotti and that her understanding was that the purchase was to occur later that evening. She further stated that due to her brother's unreliability she would also guarantee that two (2) ounces of cocaine would be in the office by 7:00 P.M. on October 2, 1981. On October 2, 1981, a search was made of the licensed premises in connection with a warrant issued by the Dade County Circuit Court. The search warrant was read to Dorothy Bilotti, a principal in the beverage license. During the course of the search, Cathryne Edmondson, one of the dancer/employees was found in possession of marijuana. On December 2, 1981, Carl Bilotti entered a plea of guilty to five (5) counts of sale of cocaine and five (5) counts of possession of cocaine. He was subsequently adjudicated guilty of the sale of cocaine and adjudication was withheld on the counts of possession of cocaine. These matters were in connection with a court case in the Circuit Court, Dade County, Florida.
