Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the stipulations of the parties, the documentary evidence presented and the entire record compiled herein, I hereby make the following Findings of Fact: The Respondent, Ceola Virginia Cutliff is the holder of Alcoholic Beverage License No. 23-06844, Series 2-COP, for a licensed premises known as Club Night Shift, located at 6704 N.W. 18th Avenue, Miami, Dade County, Florida. On or about September 18, 1987, Division of Alcoholic Beverages and Tobacco (DABT) Investigators R. Campbell, R. Thompson and C. Houston entered the licensed premises as part of an ongoing narcotics task force investigation. An individual named "Frances" was on duty at the bar. The investigators observed Frances sell what appeared to be narcotics to several patrons on the licensed premises. At approximately 7:50 p.m., Investigator Houston approached Frances and asked to purchase narcotics. Frances and Investigator Houston then went to the rear of the bar where Frances sold 2 pieces of "crack" cocaine to Investigator Houston for $10.00. Approximately fifteen minutes later, Investigator Campbell asked Frances if he could purchase narcotics. Frances presented a piece of rock cocaine which Investigator Campbell purchased for $5.00. This transaction took place in plain view of other individuals in the licensed premises. Frances, upon making a sale, would take the money and give it to a black male called "Spider" a/k/a Arthur Dorsey. Spider would then retain the money. On September 19, 1987, Investigators Houston and Thompson again entered the licensed premises known as Club Night Shift. On duty that night, was a black female known as "Josephine". Spider was also on the licensed premises positioned in the D.J.'s booth, apparently trying to fix a speaker. Houston and Thompson had observed a black male, named "Gary", exchanging an unknown substance for money with various individuals, immediately outside the licensed premises. Gary, upon receiving money in exchange for the unknown substance, would go into the licensed premises and hand the money to Spider. Later that evening, Investigator Houston noticed that Spider had a brown paper bag in his hand. Gary and Spider proceeded to the bathroom on the licensed premises. After exiting the bathroom, Gary left the premises and Spider went behind the bar and began counting a large amount of money onto the counter of the bar. Spider placed the money in his back pocket. Investigator Thompson then inquired whether Spider could sell him some crack cocaine. Spider acknowledged that he could and proceeded with Thompson to the rear of the bar, where Spider sold Thompson 20 pieces of rock cocaine for $100.00. On September 22, 1987, Investigators Houston and Thompson again entered the licensed premises known as Club Night Shift. Bartender Josephine-was on duty at that time along with another black female known as "Niecey". When the investigators inquired as to the whereabouts of Spider, Niecey replied that "he went home to cook up the stuff because they were very low on supply." Niecey reiterated the above statement on numerous occasions when individuals would enter the bar searching for Spider. At approximately 10:30 p.m., Spider appeared on the licensed premises with a brown paper bag in his possession. Patrons that had been waiting outside the premises came inside and Niecey locked the doors to the front and rear exits of the bar. Spider went to the D.J.'s booth and pbured the contents of the paper bag onto the counter inside the booth. The bag contained approximately 200 small zip-lock bags containing suspected crack cocaine. The patrons who had been waiting outside for the arrival of Spider then proceeded to line up in front of the D.J.'s booth in order to make purchases. Niecey would take the money from the individual patrons and Spider would deliver the crack cocaine. Investigator Houston got in line and upon arriving at the booth, purchased 20 packets of crack cocaine from Spider in exchange for $100.00. These transactions took place in plain view on the licensed premises. On September 23, 1987, Investigators Houston, Thompson and Campbell entered the licensed premises known as the Club Night Shift. The barmaid on duty was Josephine. Spider was positioned in the D.J.'s booth making sales to patrons of what appeared to be crack cocaine. Investigator Campbell walked over to the D.J.'s booth and asked to purchase ten (10) pieces of crack cocaine from Spider. Approximately 200 zip-lock packets of suspected crack cocaine were positioned in front of Spider. Spider motioned for Campbell" to pick them out." Campbell then picked out ten (10) packets in exchange for $50.00 which he gave to Spider. This transaction occurred in plain view of other individuals on the licensed premises. Before leaving Spider went behind the bar, obtained a .357 magnum pistol, placed it inside his pants and exited the premises. On September 29, 1987, Investigators Campbell and Thompson again entered the licensed premises known as the Club Night Shift. The bartender on duty was Josephine. Shortly after the investigators arrived, Spider appeared on the premises and went behind the bar where he took a pistol from inside his pants and placed it under the bar counter. Spider then removed a brown paper bag from under the bar counter and went to the D.J. s booth. Investigator Thompson proceeded to the D.J.'s booth and asked to purchase two (2) large pieces of crack cocaine. Spider reached into the bag and gave Investigator Thompson two (2) large pieces of crack cocaine in exchange for $100.00. On October 3, 1987, Investigators Campbell and Thompson again entered the licensed premises known as the Club Night Shift. Investigator Campbell approached an unknown black male who Campbell had seen selling narcotics on prior occasions. Campbell made inquiries relative to the purchase of cocaine and the unknown black male indicated that he could sell Campbell crack cocaine. The unknown male then gave two five dollar ($5.00) pieces of crack cocaine to Investigator Campbell in exchange for $10.00. This transaction took place in plain view on the licensed premises. On October 6, 1987, Investigators Campbell and Thompson again entered the licensed premises known as the Club Night Shift. Shortly after the investigators arrived, they observed Spider on the premises selling crack cocaine to patrons from the D.J.'s booth. Subsequently, Investigator Thompson went to the D.J.'s booth and asked to purchase twenty (20) pieces of crack cocaine. In response thereto, Spider left the licensed premises and proceeded to a pickup truck parked outside. Spider then retrieved a brown paper bag from the vehicle, returned to Investigator Thompson and handed him twenty (20) pieces of crack cocaine in exchange for $100.00. The substance purchased on this occasion was laboratory analyzed and found to be cocaine. The Respondent licensee admitted to being an absentee owner. The Respondent did not maintain payroll, employment or other pertinent business records. The licensee was aware that drugs were a major problem in the area surrounding the premises and that drug transactions were known to take place immediately outside of the licensed premises. The licensee did nothing to prevent the incursion of narcotics trafficking onto the licensed premises. The licensee, CeoIa Cutliff, is engaged to Arthur Dorsey. Ms. Cutliff gave Mr. Dorsey a key to the premises and knew or should have known that he was operating in the capacity of a manager on the licensed premises. Josephine, the bartender generally on duty, referred to Mr. Dorsey as "boss man" and Mr. Dorsey directed her activities in the licensed premises. Mr. Dorsey a/k/a Spider utilized the licensed premises as if they were his own and was operating in the capacity of a manager at the Club Night Shift.
Recommendation Based upon the foregoing, it is recommended that Respondent's beverage license 23-06844, Series 2-COP, located in Miami, Dade County, Florida, be revoked. DONE and ORDERED this 12th day of November, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 12th day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4482 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Adopted in substance in Finding of Fact 1. 2. Adopted in substance in Finding of Fact 2. 2. (Petitioner has two paragraphs numbered 2) Adopted in substance in Finding of Fact 3. 3. Adopted in substance in Finding of Fact 4. 4. Adopted in substance in Finding of Fact 5. 5. Adopted in substance in Finding of Fact 6. 6. Adopted in substance in Finding of Fact 7. 7. Adopted in substance in Finding of Fact 8. 8. Adopted in substance in Finding of Fact 9. 9. Adopted in substance in Finding of Fact 10, 11 & 12. Rulings on Proposed Findings of Fact Submitted by the Respondent (None Submitted). COPIES FURNISHED: W. Douglas Moody, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 R. Scott Boundy, Esquire 901 E. Second Avenue Miami, Florida 33132 Honorable Van B. Poole Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas A. Bell, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Daniel Bosanko Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue The primary issues for determination are whether Brother J. Inc., d/b/a A.J.’s Sports (Respondent) violated Section 561.29(1)(a), Florida Statutes; and secondarily, if Respondent committed such a violation, what penalty should be imposed?
Findings Of Fact Petitioner is the agency vested with general regulatory authority over the alcoholic beverage industry within the state, including the administration of the laws and rules relating to the sale of alcoholic beverages. Respondent is subject to the regulatory jurisdiction of Petitioner, having been issued license number 47-02607, Series 4-COP by Petitioner. That license allows Respondent to make sales for consumption on premises of liquor, wine, and beer at his establishment located in Tallahassee, Florida. Events at issue in this proceeding revolve around a fraternity/sorority party held at Respondent’s establishment on the evening of March 30/April 1, 2005. Members of the Phi Kappa Psi fraternity and the Delta Nu Zeta sorority decided that they would host a “construction” theme party. To facilitate the party, the social chairman of Phi Kappa Psi contacted Respondent to make arrangements. Respondent’s establishment has several large areas on its ground floor and a single, 1,800 square foot room on the second floor. Respondent agreed to reserve its upstairs room for the Phi Kappa Psi/Delta Nu Zeta party, to waive its cover charge for party patrons, and to make “dollar wells, dollar beers” (i.e. discounted prices on certain alcoholic beverages) available to party participants for a fee of $300.00. On the night in question, most of the participants met at the Phi Kappa Psi house before going out for the evening. They gathered around 10:00 p.m. and socialized. Some people were getting their “construction” costumes together; others were “pre- partying” –-drinking before going out to minimize the size of the bar bill when they go out later. The majority of the people at the frat house at that time were drinking. At some point around 10:30 or 11:00 p.m., the party moved from the Phi Kappa Psi house to Respondent’s establishment, with party members leaving in groups of three or four to drive from the fraternity house to Respondent’s establishment. It was estimated that 15 or so sorority members and 15 to 30 fraternity brothers attended the party, and that somewhere between a third and a-half of those people were not of legal drinking age. When they arrived at Respondent’s establishment, the sorority and fraternity party makers used a side entrance set up for them by Respondent for use in getting to the party. A doorman was posted at the side entrance that checked the age of each of the patrons. He would place a “Tybex®” wristband on those persons who were over the age of 21 and would mark the hand of those under 21 with an indelible marker. Once inside, party members would go upstairs, where there was a bar with a bartender, a disk jockey, and a dance floor. The party continued on until around 2:00 a.m. on the morning of April 1, 2005, at which time the bar closed and the patrons left. During the course of the evening, 244 alcoholic beverages were served at the upstairs bar at Respondent’s facility. No evidence was presented that established with any degree of accuracy how many fraternity and sorority members actually were at the party and how many were of legal drinking age. The evidence of party attendance provided at hearing varied widely and was in each instance an estimate or a guess. Numerous persons who were not members of Phi Kappa Psi or Delta Nu Zeta were in attendance. There is no accurate estimate of how many legal drinkers were at the party or how many drinks each legal patron may have had. The Underage Drinkers Shane Donnor was observed drinking at the frat house that night. He did not, however, appear to be intoxicated when he left the frat house. He had a wristband indicating that he was over 21, which allowed him to drink at Respondent’s establishment, even though he was not of legal age. It is unknown how he obtained his wristband. Donnor was observed to have a glass in his hand while at Respondent’s establishment, but no one could confirm that he was drinking alcohol. While at Respondent’s establishment, various witnesses described him as appearing under the effects of alcohol and thought he appeared quite intoxicated. By 2:30 a.m. on April 1, Donnor had a blood alcohol level of 0.27. This corresponds to at least 10 drinks and probably more. It is an extremely high level of intoxication, which could result in a coma or even alcohol toxicity in some persons. He was quite drunk and had been so for some time. Stephanie Reed was carded upon entering Respondent’s establishment, as was her boyfriend and all the others in her party. She had one or two drinks, but she didn’t buy them herself. One of the fraternity brothers purchased her drinks for her. Reed testified at one point that she did not receive a wristband when she entered the establishment (signifying legal drinking age); later, she testified that she did due to the intervention of some unknown man who told the doorman to give her a bracelet. Reed’s testimony on this point is inconsistent and cannot be credited. Christopher Lowe was carded as he entered Respondent’s establishment. He received marks on the back of his hand indicating that he was underage. Although he was marked as being underage, Lowe was able to purchase two drinks from the bartender. He ordered the drinks; did nothing to conceal the underage marks on his hand; was served; and left money on the bar. Tania Vasquez was carded upon entering Respondent’s establishment and was marked as being underage. She did not buy any drinks while at the party, but was given an alcoholic beverage by a friend that she consumed while on the premises. Elizabeth McKean, and everyone who entered with her, were carded when they arrived at the party. McKean was marked as being underage. She did not buy any drinks for herself, but was given a shot of tequila by someone else. She drank the shot quickly to avoid detection by Respondent’s staff. David Moser had a roommate who manufactured fake i.d. cards. When he entered Respondent’s establishment, he was carded and presented a false drivers license that made it appear that he was over the age of 21. He was marked as though he was over the legal drinking age and was able to buy and consume drinks at the bar, which he did. Lee Habern had several sips of a friend’s drink that was “snuck” to him. Prevention Of Underage Drinking It is well recognized that underage persons will seek to obtain alcoholic beverages at bars. This action by underage youths results in a “cat and mouse” game whereby the bar will change its tactics in trying to prevent underage drinking and the underage drinkers will change their methods of trying to obtain drinks. Respondent tries to combat underage drinking by creating a culture of compliance. This starts with the initial hiring of employees by Respondent. Respondent’s policy is that no underage drinking will be tolerated. This policy is stated in the Employee’s Handbook. Every employee is given a copy of the handbook upon becoming employed and is required to sign an acknowledgement that he or she received it. The policy is reiterated in informal training at every staff meeting. Every new employee at Respondent’s establishment is required to go through formal training with regard to liquor laws, the effect of alcohol on the human body, dealing with customers who have had too much to drink, and related topics. These courses are known as “PAR”, “TIPS”, and “Safe Staff” and are offered by the Florida Restaurant Association and Anheiser-Busch. Respondent has also offered training provided by agents of Petitioner. These formal training programs are offered continuously to employees, and at least one of the programs is offered three times each year. The initial formal training is accomplished within 30 days of the employee being hired. Records are maintained by Respondent as to who receives what training, and when it is provided. Respondent has a policy that everyone who is served alcohol is to have his or her age checked. When the bar is not busy, this is accomplished by having the waitress check the patron’s I.D. When the bar is busier, a doorman is posted at the entrance to check the patron’s I.D. If the patron is over age 21, he or she is given a wristband; if under age 21, an indelible mark is placed on the back of the hand. Since Respondent has experienced persons copying their “over 21” designation, it is changed on a nightly basis. Fake identification cards, if detected, are confiscated. On busier nights, Respondent might confiscate 20 to 30 of such fake identifications. On the night in question, the doorman confiscated five altered cards. Respondent also has a floor manager on duty at all times that the bar is open. The floor manager will circulate throughout the establishment to make sure that all of the policies and procedures, including the prevention of underage drinking, are being carried out. On the night in question, the floor manager, Bo Crusoe, is documented to have worked and in the nominal course of events would have checked the upstairs area of the premises several times. On busy nights, Respondent will hire one or more off- duty City of Tallahassee police officers to serve as security at the bar. The officers work in their police uniforms. These officers serve first and foremost as high visibility deterrents to unlawful activity. Their mere presence serves to minimize underage drinking. Respondent regularly has off-duty law enforcement on the premises. Respondent also has a security consultant, Officer John Beemon, who is a Tallahassee Police officer. He evaluates the need for additional security and communicates those needs to the owners. When he becomes aware of a new wrinkle in underage persons obtaining alcohol, he works with Respondent to prevent the practice. He assists the doormen in identifying fraudulent I.D.s. Respondent has always implemented whatever recommendations Beemon makes to them. Generally, the security measures used by Respondent have proven effective. From time to time, Petitioner will try a “sting operation” at Respondent’s establishment by sending a minor into Respondent’s bar to see if they are able to purchase alcohol. On every such “sting operation” Petitioner’s decoy was identified and stopped at the front door and was not allowed to purchase alcoholic beverages. Carrie Bruce is Petitioner’s special agent for the Tallahassee area. She is familiar with most Tallahassee alcoholic establishments and her testimony establishes that Respondent’s establishment is not considered a “problem bar” by Petitioner and is considered to be better than other area bars in preventing underage drinking. To the best of the owner’s knowledge and Beemon’s knowledge, no one has ever knowingly served a drink to a minor at Respondent’s establishment. Further, Respondent has never previously been charged with serving alcohol to minors.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is
Findings Of Fact Respondent holds alcoholic beverage license no. 39-651, Series 4-COP, which applies to its business known as Library Lounge, located at 10924 Nebraska Avenue, Tampa, Florida. Respondent was so licensed at all times relevant to this proceeding. Tampa Police Department Detective Robert Ulriksen was in the licensed premises in an undercover capacity during November and December, 1980. On November 30, he purchased three grams of cocaine from the dancer-employee Lila Colvert. The purchase was made openly and involved at least one other person who gave Colvert the packet which was later identified as cocaine. Ulriksen paid Colvert $25 for the packet. Tests performed by the Florida Department of Law Enforcement Crime Laboratory (FDLE) estab1ished that the substance purchased by Ulriksen was, in fact, cocaine. Ulriksen purchased three purported Quaalude tablets from the dancer- employee Barbara Ann Smith for ten dollars during a visit to the licensed premises on December 2, 1980. Tests performed by FDLE established that the tablets were Quaaludes (methaqualone) Ulriksen again visited the licensed premises on December 5, 1980. On this occasion he purchased three tablets from the dancer-employee Lila Colvert, which she represented as Quaaludes. FDLE tests established that these tablets were Quaaludes. On December 7, 1980, Ulriksen was again in the licensed premises. On that occasion he purchased four tablets, that were later determined to be quaaludes by FDLE. He purchased these tablets for $12 from the dancer-employee Barbara Ann Smith. Ulriksen visited the licensed premises on December 9, 1980, and purchased four tablets which were later determined by FDLE to be Quaaludes. Ulriksen purchased these tablets from the dancer-employee Brenda Sue Parr for $15. On December 12, 1980, Ulriksen was in the licensed premises and discussed a purchase of quaaludes with the dancer-employee Tammy Yates. She took Ulriksen to the dancers' dressing room where she removed five Quaaludes from her purse. Ulriksen paid her $15 for these tablets, which were determined to be Quaaludes by FDLE. The dressing room transaction was observed by the manager, Gaskins, who told Ulriksen to leave. The testimony of FDLE personnel and Tampa Police Department employees who secured the substances purchased by Ulriksen established that this evidence was properly controlled throughout the investigation. There was no indication whatsoever of tampering or other improper handling of the substances. In mitigation of these charges, Respondent established that it has cooperated with the Tampa Police Department in the investigation of its employees and third persons who were involved in the drug trafficking. Subsequent to the arrest of these employees, Respondent adopted preemployment screening procedures and currently has no female entertainers employed in the licensed premises.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty of all charges contained in the Notice to Show Cause/Administrative Complaint and suspend Respondent's alcoholic beverage license no. 39-651 for a period of thirty days. DONE and ENTERED this 19th day of July, 1982 at Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1982.
Findings Of Fact Respondent is a Florida corporation doing business in Tampa, Florida, and is the bolder of alcoholic beverage license number 39-482, 4-COP. Respondent's licensed premises are located at 2309 North Dale Mabry Highway, Tampa, Hillsborough County, Florida. The license was suspended by Petitioner's Emergency Order of Suspension issued July 22, 1982. On March 25, 1982, Beverage Officer Freese entered Respondent's licensed premises in an undercover capacity after paying a $1 cover charge. Freese proceeded to a circular room located upstairs in the licensed premises. This room had a small bar in the center, a small dance stage in front of the juke box, and bench-type seats located around the perimeter of the room. Shortly after entering the licensed premises, Freese was approached by a female dancer known as Diane. She sat down next to Freese without invitation and asked Freese if she could call the waitress over. Upon inquiry by Freese, Diane informed him that the reason for calling the waitress was because Freese had a drink and she did not. When Freese asked if that meant she wanted a drink, her reply was yes, and she thereafter ordered a drink. The drink was later served and Freese was charged $4 (Count 1). At approximately 10:45 p.m. on March 25, 1982, a female dancer known as Caryl seated herself next to Freese without invitation and inquired, "Who is going to buy me a drink?" After Freese agreed to buy her a drink, she stated that she was not supposed to solicit drinks because the premises had lost its license for such action in the past. Caryl ordered her drink from a waitress who returned with the drink, placed it in front of her, and charged Freese $4 (Count 2). At approximately 11:55 p.m. on March 25, 1982, a female dancer known as Mercedes was seated next to Freese and asked him if she could call the waitress over. When Freese asked why, the dancer replied that she needed a certain brand of mixed drink, and called the waitress to the table. She then ordered a drink for herself, which the waitress brought and placed in front of Mercedes. The waitress charged Freese $4 for the drink (Count 3). On March 26, 1982, Freese and a Confidential Informant entered the licensed premises in an undercover capacity. After paying the $1 cover charge they proceeded to the same circular room as on the previous occasion. At approximately 9:45 p.m. Mercedes again seated herself next to Freese and remarked that both she and Freese were dry and that she would call the waitress over. When asked by Freese if that meant she wanted him to buy her a drink, she summoned a waitress named Darlene to the table and ordered a drink for herself. Upon returning to the table, the waitress placed Mercedes' drink in front of her and charged Freese for the drink. The total charge for the two drinks was $6, and Mercedes later informed Freese that all of the dancers got doubles when ordering drinks (Count 4). On March 31, 1982, Officer Freese and the Confidential Informant again entered the licensed premises in an undercover capacity. After paying the cover charge of $1 each, Officer Freese again proceeded to the upstairs circular room of the lounge. At approximately 8:25 p.m., the dancer Mercedes again joined Officer Freese at the table. After paying Mercedes $5 for dancing, Mercedes asked Freese if she could call the waitress over. Freese replied, "It's up to you," and Mercedes called a waitress known as Marty to the table and ordered a mixed drink for herself. Upon delivering the drink to Mercedes, the waitress informed Freese that the cost of the drink was $4 (Count 5). At approximately 9:00 p.m. on March 31, 1982, Mercedes again asked Freese, "May I call the waitress over?" Freese replied, "It's your turn to buy." Mercedes replied that it was not her turn and ordered a mixed drink for herself from the waitress. The waitress charged Freese $6 for this drink (Count 6). At approximately 9:40 p.m. on March 31, 1982, Mercedes again asked Freese if she could call the waitress over. After Freese told her that it was her turn to buy this time, Mercedes replied that it was his turn to buy. She again called the waitress over and ordered a drink for which Freese was charged $4 (Count 7) At approximately 11:00 p.m. on March 31, 1982, Freese was in the presence of two dancers, Mercedes and another dancer known as Cheryl. At this time, Mercedes again asked Freese if she could call the waitress over. After Freese asked Mercedes if she was buying this time, she replied, "I do the dancing." In response to this remark, Freese stated, "I guess that means that I pay for all the drinks," to which Mercedes indicated yes. Mercedes ordered a drink from the waitress Marty, who returned with the drink, placed it in front of Mercedes and charged Freese for the drink (Count 8). On April 7, 1982, Officer Freese entered the licensed premises with a Confidential Informant in an undercover capacity. Upon entering the licensed premises, they proceeded to the circular bar upstairs and seated themselves at a small table. At approximately 8:45 p.m., the dancer Mercedes, while seated at the table with Freese, asked him if she could order another drink. She ordered a drink from a waitress who served her the drink and then charged Freese $4 for it (Count 9). On April 7, 1982, at approximately 9:15 p.m., the dancer known as Caryl was seated at the table with Freese. She turned to him and stated, "Mike, I need a drink." When Freese inquired as to what she had said, Caryl replied, "Will you get me a drink?" (Count 10). On April 8, 1982, Officer Freese and a Confidential Informant again entered the licensed premises and proceeded to the upstairs bar. At approximately 8:40 p.m. the female dancer known as Mercedes was seated at the table with Officer Freese. While tipping her empty glass toward Freese, Mercedes asked if she could call the waitress. She then ordered a drink for herself, which was delivered to her by the waitress who charged Freese for the drink (Count 11). At approximately 9:15 on April 5, 1952, Officer Freese and a Confidential Informant were joined by another female dancer known as Caryl, who proceeded to ask, "Who is going to buy me a drink?" While a waitress known as Darlene was standing in front of Caryl, Caryl asked Freese, "Mike, will you buy me a drink?" She then ordered a mixed drink for herself, which was delivered to her, and the waitress charged Freese for the drink (Count 12). On May 13, 1982, at approximately 11:00 p.m., Beverage Officers Freese and Hodge entered the licensed premises in an undercover capacity and proceeded upstairs to the circular room. Shortly after seating themselves, they were joined by a dancer known as Stephanie. At approximately 9:45 p.m. the officers were approached by a waitress known as Doris. Hodge ordered a beer and upon inquiry by the waitress if there would be anything else, Hodge replied in the negative. However, Stephanie stated to the waitress that she would have a mixed drink. While waiting for the drinks to be delivered, Stephanie informed Hodge that she could not ask for a drink because it would be soliciting and she could be thrown into jail for that. After paying for the drinks, Hodge made a remark as to the cost of the drinks to which Stephanie replied, "That's how the house makes its money, off the drinks, and we make ours off the lap dances. That's what this upstairs is about, drinking and dancing." (Count 13) At approximately 11:00 p.m. on May 13, 1982, Freese was approached by a dancer known as Linda, who asked if she could dance for him. While lap dancing for Freese, Linda asked, "Can I get a drink, too?" Freese asked if she wanted him to buy her a drink and she replied, "Yes, will you buy me a drink?" Linda then called the waitress, ordered a drink which was delivered to her at Freese's table, and he was charged $4 for Linda's drink (Count 14). On May 18, 1982, Beverage Officers O'Steen and Freese entered the licensed premises in an undercover capacity and proceeded to the upstairs lounge. At approximately 8:35 p.m., Freese was approached by a female dancer known as Darlene, who asked to dance for him. After informing Darlene that he did not want a dance, she asked him if he would buy her a drink. Darlene then summoned a waitress over to the table and ordered a mixed drink for herself. The waitress delivered the drink to Darlene and charged Freese for it (Count 15). At approximately 10:25 p.m. on May 18, 1982, Freese was again approached by Darlene and asked, "How about a drink?" When Freese asked Darlene if she was buying, she responded "No, you are." Darlene then summoned the waitress and ordered a drink which was delivered to her at Freese's table. Freese paid for the drink (Count 16). On May 19, 1982, Officers Hodge and Freese entered the licensed premises in an undercover capacity and proceeded to the circular lounge upstairs. At approximately 8:45 p.m., a dancer known as Diane asked Freese, "Can I call the waitress?" to which Freese replied, "Does that mean that you want me to buy you a drink?" After Diane replied affirmatively, she summoned the waitress over and ordered a drink which was later delivered to her at Freese's table. Freese was charged $4 for the drink (Count 17). On May 19, 1982, at approximately 8:55 p.m., the dancer Mercedes approached the officers' table and seated herself between them. Mercedes then asked Hodge if she could call the waitress over. She thereafter ordered a drink which was delivered to her at the officers' table by the waitress Darlene, who charged Hodge $4 for the drink (Count 18). At approximately 9:10 p.m. on May 19, 1982, Diane was still seated at the officers' table and asked Freese if she could call the waitress again. Diane then called the waitress to the table and ordered a mixed drink for which Freese was charged (Count 19). At approximately 9:50 p.m. on May 19, 1982, Diane asked Hodge "Do you want to buy me a drink now, or do you want me to wait until after I dance?" In response to this, Hodge asked Diane if she wanted him to buy her a drink, to which Diane replied, "yes." While Diane was dancing, the waitress brought her drink to the table and charged Hodge $4 for it (Count 20). On July 6, 1982, Officers Freese and Hodge again entered the licensed premises in an undercover capacity and proceeded to the upstairs lounge. At approximately 8:55 p.m., the dancer Stephanie, who was then seated at the officers' table, said to Hodge, "Will you buy me a drink?" She thereafter ordered a drink for which Hodge was charged (Count 21). At approximately 9:15 p.m. on July 6, 1982, Officers Hodge and Freese were seated in the upstairs portion of the lounge. At this time, they were accompanied by the dancers Caryl and Stephanie. During the course of a conversation, Hodge asked Freese if he was buying the next drinks, and Stephanie said, "What about me?" A waitress was present during this conversation and asked Freese if he intended to buy the dancer Caryl a drink also. Both Stephanie and Caryl each ordered mixed drinks which were delivered to the officers' table and were paid for by the officers (Count 22). At approximately 11:00 p.m. on July 6, 1982, the dancer Stephanie was seated with the officers at their table. At this time, she asked Freese, "Are you going to buy me a drink?" Upon Officer Freese replying "Yes," Stephanie ordered a mixed drink from the waitress who brought the drink to Stephanie and charged Officer Freese $4 (Count 23). On July 8, 1982, Officers Freese and Hodge entered the licensed premises in an undercover capacity and proceeded to the upstairs lounge. At approximately 7:25 p.m., they were approached by a woman known as Judy, who asked if she could join them for a drink. She then stated, "Mine only costs $2. They cost $4 for the girls on the night shift." Judy then ordered a drink which was delivered to her at the officers' table and was paid for by Freese (Count 24). At approximately 7:35 p.m. on July 8, 1982, Judy inquired of Hodge if he was ready for another beer and then said to Freese, "Can I get another one?" She then ordered a drink from the waitress known as Cathy, and the drink was paid for by Officer Freese (Count 25). At approximately 9:45 p.m. on July 8, 1982, Officers Freese and Hodge were seated at a table with a dancer known as Dorothy. At this time, Freese was approached by a waitress who asked him if he needed another drink, at which time Freese looked at Dorothy, and she said, "I'm drinking 7 and 7." The waitress delivered the drink to Dorothy, and it was paid for by Freese (Count 26). On July 19, 1982, Officer Hodge was again in the licensed premises in an undercover capacity and was seated in the upper level of the lounge. At approximately 9:15 p.m. the dancer Stephanie, who was sitting with Hodge asked, "Are you going to buy me a drink?" Upon Hodge agreeing to do so, Stephanie called to a waitress known as Darlene to bring her a mixed drink. Hodge paid for this drink (Count 27). On April 1, 1982, Officer Freese and the Confidential Informant were in the circular lounge in the upper portion of the licensed premises. At approximately 9:00 p.m., the dancer Caryl seated herself between the Confidential Informant and Freese. After the Confidential Informant inquired of Caryl if she had a bag of marijuana she had earlier promised them, Caryl stated that she did and would retrieve it. She then proceeded to a small dance stage and retrieved a large bag from which she transferred something into her handbag. Upon returning to the table, Caryl handed the marijuana to the Confidential Informant and was paid $10 by Freese (Count 25). On May 13, 1982, Officers Hodge and Freese entered the licensed premises in an undercover capacity. At approximately 11:10 p.m., the dancer known as Mercedes joined the officers and entered into a conversation with Freese. During the conversation, Mercedes discussed her use of cocaine and how it affected her. Freese inquired if she was in possession of any cocaine, to which she replied, "No, but I can get you some," and informed him that it would cost $45 for a half gram. At approximately 11:45 p.m., Mercedes delivered a small, clear, plastic package to Hodge containing a white powdery substance, later proven to be cocaine. The delivery of the cocaine occurred on the licensed premises while the officers were seated in the upstairs lounge (Count 29) On July 7, 1982, Officers Hodge and Freese were again in the licensed `premises. They engaged the dancer Stephanie in a conversation concerning the availability of drugs. She informed them that she was in possession of a fourth of an ounce of marijuana and would sell each of the officers two marijuana cigarettes for $5. At approximately 12:30 a.m. on this date, she advised Freese that she needed $10, since she was going to roll their marijuana cigarettes. At approximately 12:50 a.m. Stephanie returned to the officers' table and delivered two hand-rolled marijuana cigarettes to Freese and one to Hodge. This transaction took place on the licensed premises in the upstairs portion of the lounge (Counts 30 and 31). On July 8, 1982, Officers Hodge and Freese were again in the licensed premises. At approximately 7:20 p.m., Freese was approached by the dancer Linda, who inquired if he still wanted a gram of cocaine which she had agreed to sell to him on July 7, 1982. At approximately 9:30 p.m., Linda approached Hodge and Freese in the upper portion of the lounge. She handed Freese a small, amber, glass vial containing a half gram of cocaine for which he paid her $50. She also delivered a one dollar bill containing half a gram of cocaine to Hodge for which he paid her $45. After the deliveries were made, Linda informed Freese that she could obtain cocaine for him at any time as long as he gave her a day's notice (Counts 32 and 33). On July 14, 1982, Officer Freese was again in the licensed premises and took delivery of approximately one gram of cocaine from the woman known as Linda. Linda was not working as a dancer at the time, but was downstairs working as a bartender. Prior to the delivery of the cocaine to Freese, for which he paid $90, Linda requested that she be allowed to ingest part of the cocaine and proceeded to the dancers' restroom. Upon returning she gave Officer Freese the gram of cocaine contained in a plastic bag with the seal broken (Count 34). On July 15, 1982, Officers Freese and Hodge returned to the licensed premises accompanied by Special Agent Rick Look from the Florida Department of Law Enforcement. On this occasion, Agent Look took possession of approximately one-eighth of an ounce of cocaine from the bartender Linda. The delivery was made in the parking lot of the licensed premises where Linda delivered the cocaine to Look in return for $275. The arrangements for this transaction had been made the night before inside the licensed premises (Count 35). On July 20, 1982, Officer Hodge was again in the licensed premises in an undercover capacity. At approximately 8:50 p.m., the bartender Linda delivered approximately one gram of cocaine to Officer Hodge in return for $90. On this same date, Linda also delivered approximately one-eighth of an ounce of cocaine to Special Agent Look in return for payment of $280. The deliveries to Look and Hodge both took place in the downstairs portion of the licensed premises in the vicinity of the bar (Counts 36 and 37). The testimony of Respondent's employees established that the dancers in the upper portion of the lounge are not on Respondent's payroll and, in fact, pay Respondent for the privilege of dancing upstairs. Their compensation is obtained through tips they receive from customers for their dances. It was shown that the upstairs dancers are informed as to the rules of the club which prohibit solicitation of drinks and possession of drugs. These dancers have access to the various portions of the lounge, including the dressing room and the restrooms. Their schedules are controlled by the manager, who also hires and fires them. From the testimony of the dancer Stephanie, whose real name is Peggy Knight, it was shown that dancers generally knew that certain other dancers were selling drugs on the premises, that several of the dancers were using drugs and that they regularly ingested such drugs in the women's restroom. The reason for using this room was the double entrance, which could be locked from the inside so as to prevent intrusion. Testimony of the president of the licensee corporation, 2001, Inc., established that Respondent paid a $10,000 fine and served a two weeks' suspension in 1991 as a result of violations of Section 561.131, Florida Statutes. The president occasionally visits the licensed premises, but had not been to the upstairs portion of the lounge for almost two years.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty as charged in Counts 1 through 12, 14 through 25 and 27 through 37 of the Notice to Show Cause/Administrative Complaint and suspending Respondent's alcoholic beverage license for a period of one year. DONE and ENTERED this 10th day of February, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1983.
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 The issues in this case are whether Petitioner, in response to a question on the application for licensure as a practical nurse, knowingly misrepresented a material fact by denying prior participation in an alcohol recovery program for treatment of alcohol abuse, and, if so, whether Respondent has grounds to deny Petitioner's application.
Findings Of Fact On December 10, 2014, Petitioner Stephanie DeCelestino ("DeCelestino") submitted an Initial Application for Licensure to Respondent Board of Nursing (the "Board"). Because DeCelestino is a licensed practical nurse ("LPN") in another state, she applied for a Florida LPN license by endorsement (a process which allows an applicant to avoid sitting for another examination). The Board is responsible for reviewing such applications and determining which should be certified for licensure to the Department of Health ("Department"), and which denied. Under the heading "Criminal History," the application which DeCelestino completed asked a single question: "Have you EVER been convicted of, or entered a plea of guilty, nolo contendre, or no contest to, a crime in any jurisdiction other than a minor traffic offense?" DeCelestino answered, "NO." Under the heading "Health History," the application which DeCelestino completed contained five questions, as follows: In the last five years, have you been enrolled in, required to enter into, or participated in any drug or alcohol recovery program or impaired practitioner program for treatment of drug or alcohol abuse that occurred within the past five years? In the last five years, have you been admitted or referred to a hospital, facility or impaired practitioner program for treatment of a diagnosed mental disorder or impairment? During the last five years, have you been treated for or had a recurrence of a diagnosed mental disorder that has impaired your ability to practice nursing within the past five years? In the last five years, were you admitted or directed into a program for the treatment of a diagnosed substance- related (alcohol/drug) disorder or, if you were previously in such a program, did you suffer a relapse in the last five years? During the last five years, have you been treated for or had a recurrence of a diagnosed substance-related (alcohol/drug) that has impaired your ability to practice nursing within the past five years? DeCelestino answered "NO" to all five questions. The Department orders a criminal background check on all applicants. The results for DeCelestino suggested that she had an undisclosed criminal history. Accordingly, by letter dated December 23, 2014, the Department notified DeCelestino that her application might contain false information and invited her to "modify [her] response to the criminal history question" and provide "a typed self explanation of each charge" together with "all available court dispositions" among other items. DeCelestino complied. By letter dated February 7, 2015, DeCelestino informed the Department (as she would later testify credibly at hearing) that she had been arrested in Tennessee on February 14, 2014, for committing a crime after "consuming large amounts of alcohol." For this offense, DeCelestino had been sentenced, on April 22, 2014, to six months' probation on the conditions that she "continue counseling" and have no contact with the victim. The mandatory "counseling" consisted of attending Alcoholics Anonymous ("AA") meetings, which DeCelestino did from April to September 2014. Later, DeCelestino voluntarily received group counseling through ADAP Counseling Services ("ADAP") in Florida, which she completed on November 9, 2014. DeCelestino disclosed these facts to the Department in her February 7, 2015, correspondence, writing: "I attended AA meetings and a strict counseling group here in Florida called Adap." Together with her letter, DeCelestino furnished the Department with a copy of the Order for the Expungement of Criminal Offender Record dated November 20, 2014, by which the Tennessee court having jurisdiction over her criminal offense had dismissed the charge and ordered "that all PUBLIC RECORDS relating to such offense . . . be expunged and immediately destroyed." She also submitted an Application Update on which she switched her answer to "Yes" in response to the criminal history question. The Board accepted DeCelestino's explanation of the criminal charge and does not currently allege that she knowingly misrepresented a material fact by denying the arrest in Tennessee, given that the record thereof had been expunged. On June 30, 2015, however, the Board executed a Notice of Intent to Deny DeCelestino's application for certification as a practical nurse by endorsement, relying upon other grounds in support of such proposed action. In the notice, the Board alleged: As part of a pretrial intervention agreement, the applicant was required to attend substance abuse counseling sessions. The applicant was discharged from the sessions on or about November 9, 2014. The Board accused DeCelestino of having attempted to obtain a license by bribery, misrepresentation, or deceit when she denied, in response to the first health history question on the application, having participated in an alcohol recovery program for treatment of alcohol abuse that occurred within the past five years. The Board's factual allegations are not entirely accurate. The counseling provided by ADAP, which DeCelestino completed on November 9, 2014, was not court ordered, but rather involved services that DeCelestino sought on her own. There is no evidence in the record persuasively establishing that these services were provided as part of a "drug or alcohol recovery program" for the purpose of treating "drug or alcohol abuse."1/ Perhaps more important, there is no persuasive evidence supporting a finding that DeCelestino knew that the ADAP counseling services met these criteria, even assuming that they did, which to repeat was not proven. The undersigned accepts as credible DeCelestino's testimony that she did not interpret the health history question as an inquiry about such counseling as she received at ADAP. As for her court ordered attendance at AA meetings, which DeCelestino was "required to enter into," the undersigned accepts as credible her testimony that she did not consider AA to be an "alcohol recovery program . . . for treatment of drug or alcohol abuse." There is, to explain, no evidence in the record establishing the nature of AA meetings, and, although the undersigned has a general idea of what AA does given that it is a well-known organization with which most adults in the U.S. have at least a passing familiarity through common experience and exposure to the popular culture, it is not clear to the undersigned that AA constitutes an "alcohol recovery program" within the meaning of the health history question.2/ Because the question does not unambiguously inquire about AA, DeCelestino's conclusion that nondisclosure of her attendance at AA meetings was permissible is arguably correct and at worst an honest mistake. Based on DeCelestino's credible testimony, which the undersigned credits, it is found that DeCelestino had no intention of deceiving the Board in hopes her attendance at AA meetings or ADAP counseling sessions would not be discovered. She readily disclosed this information when asked for an explanation of her criminal background, even though no issue had been raised concerning her response to the health history question. Had she intended to conceal her participation in an "alcohol recovery program," DeCelestino surely would not have mentioned AA or ADAP in her February 7, 2015, letter to the Department because she could have responded truthfully to the inquiry about her criminal charge without doing so. The order sentencing her to probation, recall, required her to "continue counseling" but said nothing about attending an "alcohol recovery program." The fact that she volunteered the information while making no attempt to update her application to conform thereto persuasively corroborates her testimony that she did not understand the health history question to be asking about AA meetings or ADAP counseling. Determinations of Ultimate Fact DeCelestino is not guilty of attempting to procure an LPN license by knowing misrepresentations, which is a disciplinable offense and grounds for denial of licensure under section 464.018(1)(a), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order approving DeCelestino's application for licensure by endorsement as a practical nurse unless it determines that she might be impaired as a result of alcohol abuse, in which case a referral should be made pursuant to section 456.076(3) with further proceedings to follow in accordance therewith. DONE AND ENTERED this 29th day of March, 2016, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 29th day of March, 2016.
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 one of its agents, servants or employees, namely: Penny Reid, related to sales of the substance methaqualone, on July 26, 1981, and August 22, 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 one of its agents, servants or employees, namely: Penny Reid, related to sales of the substance methaqualone, on July 16, 1981, and July 20, 1981, and September 9, 1981. In addition, there are allegations of a sale of lysergic acid diethylamid, on July 16, 1981. 2/ 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 one of its agents, servants or employees, namely: "Eve" related to sales of the substance methaqualone, on August 14, 1981, and with the sale of the substance cocaine, on August 15, 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 one of its agents, servants or employees, namely: "Kitty," related to sales of the substance methaqualone, on August 15, 1981, and with the sale of the substance cocaine on September 26, 1981. Count V to the Administrative Complaint accuses the Respondent of violations of Sections 893.03, 893.13(1)(a) and 561.29, Florida Statutes, by actions of one of its agents, servants or employees, namely: "Orlando," related to sales of the substance cannabis, on July 26, 1981. Count VI to the Administrative Complaint accuses the Respondent of violations of Sections 893.03, 893.13(1)(a) and 561.29, Florida Statutes, by actions of one of its agents, servants or employees, namely: "Julie," related to sales of the substance cocaine on September 26, 1981. Count VII to the Administrative Complaint accuses the Respondent, between July 16, 1981, and October 2, 1981, of maintaining a place, namely the licensed premises, which was used for keeping or selling controlled substances, in particular methaqualone, cocaine and cannabis, in violation of Subsections 893.13(2)(a).5 and 561.29(1)(c), Florida Statutes. Count VIII contends that between July 16, 1981, and October 2, 1981, the Respondent, by actions of its agents, servants or employees and patrons, kept or maintained the building or place which was used for illegal keeping, selling or delivering of substances controlled under Chapter 893, Florida Statutes, and in doing so violated Section 823.10, Florida Statutes, and Subsection 561.29(1)(c), Florida Statutes. Count IX accuses the Respondent of allowing its agent, servant or employee, Annie D. Bryant, to unlawfully possess a controlled substance on the licensed premises, namely, marijuana, in violation of Section 893.13, Florida Statutes, and Subsection 561.29(1)(a), Florida Statutes. Count X accuses the Respondent of allowing its agent, servant or employee, Danita Buchin, to unlawfully possess a controlled substance on the licensed premises, namely, marijuana, in violation of Section 893.13, Florida Statutes, and Subsection 561.29(1)(a), Florida Statutes. Count XI accuses the Respondent of allowing its agent, servant or employee, Barbara Jean O'Rourke, to unlawfully possess a controlled substance on the licensed premises, namely, marijuana, in violation of Section 893.13, Florida Statutes, and Subsection 561.29(1)(a), Florida Statutes. Count XII accuses the Respondent, on April 20, 1981, through its corporate officers, directors, stockholders, employees, agents, or servants, of failing to file a sworn declaration of the transfer of voting stock of the corporate licensee, in violation of Rule 7A-3.37, Florida Administrative Code. Count XIII accuses the Respondent, through actions of its corporate officers, directors, stockholders, employees, agents, or servants, on May 4, 1981, of failing to notify the Petitioner of a change of corporate officers within ten (10) days of that change, in particular, within ten (10) days of the resignation of George and Florrie Pappas, as corporate officers and directors of the corporate licensee, in violation of Rule 7A-2.07(2), Florida Administrative Code.
Findings Of Fact Effective August 18, 1980, Pappas Enterprises, Inc., which trades or does business as Foremost Liquors and Hideaway Lounge, at 1005 East 49th Street, in Hialeah, Dade County, Florida, was licensed by the Petitioner to sell alcoholic beverages. At that time, the sole officers listed for the corporation were George and Florrie Pappas. George Pappas was listed as the sole shareholder. In May, 1981, Miguel Rodriguez purchased the shares in the corporation, Pappas Enterprises, Inc. At that time, in his attorney's office, he executed a personal data sheet and certificate of incumbency for the benefit of the Division of Alcoholic Beverages and Tobacco; however, this personal data sheet proposing Rodriguez as a new officer and shareholder of the subject corporation was not filed with the Division of Alcoholic Beverages and Tobacco until October 14, 1981. Furthermore, the first official request for change of corporate officers, owners and shareholders from the Pappases to Rodriguez was not filed with the Division of Alcoholic Beverages and Tobacco until November 4, 1981. Prior to October 14, 1981, the Respondent corporation, in the person of Miguel Rodriguez, was served with a Notice to Show Cause/Administrative Complaint containing the first eight (8) counts alluded to in the Issues statement in this Recommended Order. The date of this service was October 2, 1981. Subsequent to that time, an amendment was allowed adding the remaining counts to the Administrative Complaint. The Respondent, through actions of Miguel Rodriguez, in his effort to protect his interest in the Respondent corporation, which he had purchased, and in view of the fact that he had effective control of the licensed premises during all times pertinent to the Administrative Complaint, has requested a Subsection 120.57(1), Florida Statutes, hearing, following service of him at the licensed premises as agent in fact for the corporation. The hearing was allowed to go forward upon the request made by Rodriguez because Rodriguez's substantial interests are at stake. The requested transfer of ownership and substitution of officers filed on November 4, 1981, is unresolved pending the outcome of the proceedings herein. See Subsection 561.32(2), Florida Statutes. On July 15, 1981, in the evening hours, Beverage Officer, Louis J. Terminello, went to the licensed premises known as the Hideaway for purposes of conducting an undercover narcotics investigation. Once he had entered the premises, he spoke with one of the employees, Penny Reid, a dancer. Upon his inquiry concerning the subject of narcotics Reid told him that she would sell him methaqualone tablets for $3.00 each and lysergic acid diethylamid (LSD) for $5.00 per dosage. In order to consummate the transaction, she explained that she would need to leave the licensed premises. Around 12:15 A.M. on July 16, 1981, Reid approached Miguel Rodriguez and asked permission to leave the licensed premises. She was granted that permission and Reid and Terminello went to a residence location off the licensed premises where a purchase was made of ten (10) methaqualone tablets and four (4) units of LSD at the unit prices as have been indicated. The Beverage Officer and dancer then returned to the licensed premises around 1:30 A.M. On July 20, 1981, at around 9:45 P.M., Officer Robert Chastain entered the licensed premises and spoke with Penny Reid. This conversation ensued when Reid approached Chastain. The subject of drugs was discussed and subsequent to that time, Reid received permission to leave the licensed premises. (She was still employed by the Respondent.) On the date above, Reid and Chastain went to a residence and purchased ten (10) methaqualone tablets. The price for the tablets was $30.00. When they returned to the bar, while in the premises, Reid removed one methaqualone tablet from the napkins in which they were wrapped and gave Chastain nine (9) tablets. Terminello came back to the licensed premises on the evening of July 25, 1981, and spoke with the dancer Reid. During the conversation methaqualone was discussed and she indicated that she did not have that substance at the time. She said she might have some of the material available to her later that night. Reid left the licensed premises around 11:35 P.M. on July 25, 1981, to return around 11:55 P.M. While in the licensed premises she exchanged five (5) methaqualone tablets at $3.00 per tablet, in return for $15.00 on July 26, 1981. This transaction took place in the hall area near the rest rooms in the licensed premises and no effort was made on the part of Reid to disguise the transaction. On July .26, 1981, during his visit to the licensed premises, at approximately 1:30 A.M., Officer Terminello spoke to a man who identified himself as "Orlando" and who claimed to be a manager at the premises and the son of Miguel Rodriguez. In fact, "Orlando" was not a manager at the licensed premises nor the son of Rodriguez. During this conversation, Terminello asked "Orlando" where he could get coke, meaning the controlled substance cocaine. "Orlando" responded that he might get the cocaine on some occasion but not on that evening. "Orlando" did give Officer Terminello marijuana, also known as cannabis, a controlled substance. This item was given to Officer Terminello as he was departing the premises on July 26, 1981. Terminello returned to the licensed premises on August 14, 1981, around 9:45 P.M. On that evening, he spoke with a dancer identified to him as "Eve" who was later determined to be Eve Mae Carroll. Carroll was employed as a dancer in the licensed premises. While seated at a table near the front door, Carroll told Terminello that she would sell "quaaludes" meaning methaqualone at a price of $2.50 a tablet and a total of three (3) tablets. Terminello paid her the prescribed price and she delivered the substance methaqualone to him while seated at the table. She also indicated that she would sell him cocaine at a later time, in that she was expecting a delivery of that substance. At around 12:30 A.M. on August 15, 1981, a further discussion was held between Terminello and Carroll and while standing at the bar, Terminello purchased cocaine from Carroll. On August 15, 1981, at around 12:45 A.M., Terminello spoke with another dancer employed in the licensed premises who was identified as "Kitty" whose actual name is Kathleen Keddie, who explained to him that she had some "ludes," meaning methaqualone. She wanted $4.00 for each tablet and while seated at a table in the bar area, Terminello purchased two (2) methaqualone tablets from Kitty. On August 22, 1981, Terminello was back in the licensed premises at approximately 9:50 P.M. and was seated at the bar talking to Penny Reid who told him she was going to get some "ludes," methaqualone. This activity was to occur on her next break from dancing as an employee in the licensed premises. She left the licensed premises with a patron and returned at around 10:25P.M. and handed Terminello a paper towel containing five (5) methaqualone tablets for which he paid her $15.00. On September 9, 1981, Terminello was again at the licensed premises and was approached by Penny Reid. He asked her for "ludes or acid" meaning methaqualone or LSD, respectively. She told Terminello that she would have to go to a house to obtain these items. She then asked the manager to leave and Terminello and Reid went to the residence where methaqualone was purchased and suspected LSD as requested by Terminello. (She was still employed by the Respondent.) On September 16, 1981, while pursuing the investigation, Terminello again returned to the licensed premises and spoke with Reid who was still an employee at the premises. She told Terminello that she could go to a residence and obtain narcotics. At this time Terminello was accompanied by another Beverage Officer, Robert Chastain. After entering into a discussion on the evening in question, the two (2) officers went with Reid to an off-premises residence where methaqualone and suspected LSD were purchased. On this occasion, Reid took part of the methaqualone purchased as a "tip" and carried those methaqualone tablets back into the licensed premises when the officers and the dancer returned to the licensed premises. On September 19, 1981, Officer Terminello talked to Reid who remained employed at the licensed premises and the discussion concerned narcotics. Then they left the licensed premises and went to a residence where cocaine and methaqualone were purchased. Reid kept three (3) of the methaqualone tablets as a "tip" and she carried those methaqualone tablets back into the licensed premises when Terminello and the dancer returned to the bar. When they had returned to the licensed premises on September 19, 1981, Terminello was approached in the bar by a Michael Harrington who asked Terminello if he wanted to buy coke, meaning cocaine. Harrington then indicated that they should go out into the parking lot of the premises which they did and in the presence of another patron, Alexis Pagan, Terminello purchased a gram of cocaine. On September 25, 1981, Terminello returned to the licensed premises and spoke to an employee/dancer previously identified as Kathleen Keddie. Keddie told him that her "old man" could bring some cocaine into the premises and make some of it available to Terminello. This conversation took place around 9:45 P.M. on that evening. At approximately 12:05 A.M. on September 26, 1981, while seated at the bar, Terminello purchased approximately one (1) gram of cocaine from Keddie for $75.00. In the early morning hours of September 26, 1981, Terminello was also approached by a Julie Murphy who was employed as a cocktail waitress in the licensed premises and she told Terminello that she could sell him cocaine cheaper, at $55.00 a gram. She indicated she would serve as a go-between, intermediary, and told Terminello to leave the premises and come back later. Terminello left and returned at around 3:00 A.M., and while at the bar, purchased the cocaine from Murphy at the agreed upon price of $55.00. During the course of Terminello's investigation at the licensed premises, on a number of occasions he saw people sniffing what, from his expertise in law enforcement, appeared to be cocaine and, from the appearance and odor, using cigarettes thought to be marijuana. These activities occurred in the bathroom areas, halls and package store area. Augusto Garcia who was employed as a manager in the licensed premises was observed at times in the proximity of the activities referred to immediately above and Garcia was also observed by Officer Terminello in the men's room snorting what appeared to be cocaine. On one occasion Garcia was observed near the front door to the bar and package area where a marijuana type cigarette was being smoked in the presence of Garcia, by an employee who worked in the package store. Reid had also told Terminello that she had been fired as an employee at the licensed premises because she was so "luded" out that she fell off the stage. Nonetheless, she had been rehired. Terminello had observed Miguel Rodriguez in the licensed premises during the course of the investigation, mostly in the package store and on occasion in the bar area. Terminello did not speak with Rodriguez during the investigation. On October 2, 1981, the petitioning agency served the Notice to Show Cause/Administrative Complaint at the licensed premises. Following this service, an inspection was conducted in the licensed premises of the lockers of several dancers, for which the dancers had the keys. These dancers were employees at the licensed premises on that date. The search of the lockers and purses of the dancers led to the discovery of marijuana. The dancers in question were Annie D. Bryant, Danita Buchin and Barbara Jean O'Rourke. (Following the October 2, 1981, service of the Administrative Complaint on Miguel Rodriguez, and with Rodriguez's knowledge of the pendency of narcotics allegations being placed against the dancers, Kathleen Keddie, Annie D. Bryant and Danita Buchin, those individuals were allowed to remain as employees in the licensed premises.) During the time in question by the Administrative Complaint, Augusto Garcia acted as a manager in the licensed premises. He had been hired by Miguel Rodriguez. His normal hours of employment were 6:00 P.M. through as late as 4:30 A.M., except for Fridays and Saturdays when he worked a couple of hours. When he was on duty, Rodriguez was ordinarily at the licensed premises. Rodriguez had instructed Garcia to be cognizant of drug problems in the licensed premises and to keep the bar quiet and peaceful. In particular, Rodriguez had instructed Garcia not to allow drugs in the bar and if someone was found with drugs to throw him out. An individual identified as Hector who is a friend of Garcia's assisted in these matters. Garcia indicated the policy of management at the licensed premises was to check the person of the dancers and their bathroom and dressing area to discover narcotics. Nevertheless, testimony by Kathleen Keddie, a person implicated in these matters for narcotics violations and an employee at the bar as a dancer established the fact that she had never been searched for narcotics. Rodriguez was not told by Garcia about people selling drugs in the licensed premises, Garcia would simply "throw them out." Garcia did tell Rodriguez about people "sniffing" what he suspected to be cocaine. At the time Garcia served as a manager in the licensed premises, one Willie Rolack also was a manager in the licensed premises. Willie Rolack's duties as manager were primarily associated with the package store, in contrast to the bar, area. He would periodically go in the bar to check to see if there were fights occurring and to determine if drugs were being used. Rolack had been instructed by Rodriguez to call the Hialeah Police Department if persons who were using drugs would not depart the premises. At times, the Hialeah Police Department has assisted in removing those patrons. Additionally, some employees at the licensed premises had been dismissed for drug involvement as observed by Rolack. Miguel Rodriguez worked sixteen (16) to eighteen (18) hours in the licensed premises, mostly in the package store; however, he did have occasion to check the bar area while at the licensed premises. Rodriguez had told the dancers that he would not tolerate their involvement with drugs and he had instructed customers who were found with drugs that they should leave and not return. He had a policy of not allowing the dancers to leave the licensed premises except on occasion to go for food at nearby restaurants; however, as has been determined in the facts found, the occasions of the departures of the dancers were fairly frequent and not always for the purposes of obtaining food. Rodriguez, through his testimony, verifies a general policy of checking dancers' lockers and pocketbooks and watching their activities. The lockers as have been indicated before were controlled by the dancers themselves who had keys. Prior to July, 1981, and in particular, in June, 1981, one Alexis Pagan had worked as the bar manager and had been dismissed for drug involvement. Nonetheless, the same Alexis Pagan had been observed in the licensed premises during the times set forth in the administrative charges, to include the instance mentioned before.
The Issue The issues in this case are whether Respondent violated section 464.204(1)(b), Florida Statutes, by intentionally violating section 456.072(1)(z), Florida Statutes, due to being unable to practice as a nursing assistant with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, or chemicals or any other type of material or as a result of any mental or physical condition; and, if so, what penalty shall be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of nursing assistants, pursuant to section 20.43, and chapters 456, and 464, Florida Statutes. At all times material to the Administrative Complaint, Respondent was a certified nursing assistant (C.N.A.) in the State of Florida, having been issued Certificate No. CNA 165217. Respondent is a convicted felon, having been convicted in 1988 of the felony offenses of grand theft and forgery. The conviction constitutes a crime of dishonesty. In 1989, Respondent was convicted of felony possession of cocaine and sale of cocaine. In 1992, Respondent was convicted of robbery, a felony. In 1998, Respondent was convicted of possession of cocaine, a felony. Respondent was sentenced and incarcerated in 2003 to a term of three-and-a-half years. In addition to the numerous felony charges, Respondent committed multiple misdemeanors over the past 30 years. In 2007, Respondent applied to be a C.N.A. in Florida. Respondent explained her criminal history in her application to become a C.N.A., as follows: The charges that were committed happen [sic] at a time in my life when I was living on the streets. I stole out of stores in order to get clothes to wear and sell to support my addiction. I use [sic] drugs and alcohol to escape. I hung around a lot of wrong people who did drugs and stole for a living. To me this was normal. I did everything under the sun in order to get high. My life was very unmanageable. I wrote checks out of my mother’s checking account to purchase drugs and alcohol. I unchanging [sic] sex for drugs, so before long the relationships that I got involved in boyfriend’s would dealt [sic] drugs. I would sell drugs in order to get the drugs to [sic] and get enough money to make whomever I was dating at the time happy [sic]. I have been drug free since 2000. I have maintained steady employment, and stable housing. I attend A.A. meeting [sic] on a regular basis. I have successfully completed Parenting, and Behavioral Healthcare Technical training classes given by the Operation PAR Incorporation. I am currently in my second year of school at St. Petersburg College in the Human Service Program. With hopes [sic] of earning a [sic] associate degree in Substance Abuse Counseling. I have positive friends and role models that do not indulge in any criminal activities or drugs. I also attend church services, and participate in church functions. Also, I have been raising two children as a single parent. In conclusion, I have successfully completed probation and as well have not committed any new offenses. Respondent was first licensed as a C.N.A. in the State of Florida in April 2008. On April 24, 2015, Respondent attended a party where she consumed alcohol. Early the next morning, SPPD Officer Daniel L’Esperance observed a vehicle parked at an odd angle in the parking lot of a closed gas station. Respondent was asleep behind the wheel of the vehicle with the keys in the ignition. The officer noticed a strong odor of alcohol coming from her breath, slurred speech, unsteadiness on her feet, and watery, bloodshot eyes. Officer L’Esperance told Respondent to call a friend to come pick her up because he believed she was under the influence of alcohol or drugs. Respondent could not find her phone and gave Officer L’Esperance consent to look for her phone in the vehicle. While searching for Respondent’s phone, Officer L’Esperance found a crumpled up dollar bill in the driver’s seat containing what he believed to be cocaine residue. The officer arrested Respondent for the felony offense of cocaine possession. On or about April 26, 2016, at approximately 11:15 p.m., SPPD officers responded to a car accident involving two motor vehicles. Respondent was one of the drivers involved. She had consumed alcohol prior to the accident. Respondent was wearing black scrubs at the time of the car accident. She had slurred speech; glassy, watery, and bloodshot eyes; and alcohol on her breath. She was unsteady on her feet and was disoriented. She exhibited further signs of impairment while participating in the field sobriety exercises. SPPD Officer Michael Karayianes arrested Respondent for driving under the influence of alcohol or drugs. Respondent refused to provide a breath sample for alcohol testing. On August 3, 2016, Lawrence S. Wilson, M.D., a physician specializing in addiction medicine, and hereby found to be an expert in this field, evaluated Respondent pursuant to Department order. Respondent admitted she first consumed alcohol at age 15. She reported that in her past she would consume 12 beers in one drinking session, and she would consume approximately 750ml of liquor every weekend. She consumed alcohol approximately once or twice per month in the two to three months leading up to the evaluation. Respondent reported consuming a maximum of four alcoholic drinks in one sitting during this time period. She stated she had most recently consumed alcohol two days prior to her evaluation. Respondent acknowledged to Dr. Wilson that she is an alcoholic. Respondent acknowledged she first used cocaine at age 15. She most recently used cocaine two days prior to the evaluation. Respondent stated that, other than the use of cocaine two days prior to the evaluation, she had not used cocaine in approximately 20 to 30 years. She acknowledged she has a problem with cocaine. Respondent told Dr. Wilson that she had not admitted herself nor been admitted to any detox facilities, any inpatient treatment, or any outpatient treatment programs. During the evaluation and in her testimony at hearing, Respondent claimed to be in active recovery, attending Alcoholics Anonymous (AA) meetings three to five times per week for the past year. Respondent claimed to have a sponsor and home group. Respondent chaired meetings, but had never told her story as a speaker. On August 3, 2016, Respondent submitted to toxicology tests at Dr. Wilson’s request. The tests were positive for both cocaine and alcohol. These results, which were professionally obtained and are deemed credible, were inconsistent with Respondent’s reported use of alcohol and cocaine. The toxicology results indicated repetitive and frequent use of cocaine in the past two to three months. The toxicology results indicated heavy repeated alcohol use or binging. Respondent’s participation in AA has not prevented her from continuing both alcohol and cocaine use. Her “participation” in AA, at best, can be described as passive and, at worst, as embellished or untrue. Dr. Wilson agrees with the latter assessment, calling Respondent’s reporting of her alcohol and drug abuse “dishonest and deceptive.” He further concluded that Respondent’s minimization and deceptive reporting of her drug and alcohol use indicated that she was in denial of her alcohol and cocaine use disorders. Not surprisingly, Dr. Wilson diagnosed Respondent with severe alcohol use disorder and severe cocaine use disorder. Dr. Wilson recommended Respondent participate in an Intervention Project for Nurses (IPN) monitoring agreement and complete an inpatient treatment program for her cocaine use disorder and alcohol use disorder. Due to Respondent’s current addictions, Dr. Wilson concluded that Respondent is not able to practice as a nursing assistant with the necessary skill and safety to adequately serve patients. Dr. Wilson stated that his opinion would not change even if Respondent participated in AA meetings multiple times a week because the Respondent’s participation in AA is not effectively treating her addiction disorders. He believes she needs more intensive treatment due to her disease and addiction being active. The undersigned finds Dr. Wilson’s opinions and ultimate findings credible and well-substantiated. Respondent has not actively entered into an IPN monitoring agreement nor has she entered or completed an inpatient treatment program for her cocaine use disorder and alcohol use disorder. As recently as August 9, 2016, Respondent submitted a urine sample for a drug screening as a condition of her criminal probation. The sample returned positive for cocaine. In order to have a positive result, the individual tested must have consumed cocaine within 48 to 72 hours of submitting the sample. Even the witnesses called by Respondent to testify at hearing confirmed her alcohol abuse issues. Her sister, Candace Thomas testified that she had last drunk alcohol with Respondent a month or two prior to the hearing, and recalled having drinks with Respondent at least once a week. Another witness called by Respondent, Jakayla Hudson, testified that Respondent’s drinking habits were about the same as they had been years earlier, before she had been incarcerated. Respondent denied the allegations of alcohol and drug abuse. She claims that Dr. Wilson and Officers Karayianes and L’Esperance fabricated their testimony to exaggerate the extent of her impairment. Respondent claims to have last consumed alcohol on or about August 1, 2016, which is inconsistent with her sister’s testimony at the hearing. She testified that she is not an alcoholic and does not have a problem with alcohol. Respondent’s testimony was inconsistent with her statement that alcohol is her drug of choice, her history of alcohol abuse, her regular attendance at AA meetings since 2007, and her own previous statements. When asked if she still used cocaine, Respondent testified that alcohol is her drug of choice. She testified she had not used cocaine in many years, yet a drug test showed she had ingested cocaine within the past year. When these conflicting statements are viewed with her history of alcohol and cocaine abuse, her regular hosting of AA meetings, regardless of her active participation in them, since 2007, and her own previous statements about the frequency of her drinking and cocaine abuse, the evidence clearly and convincingly strongly supports her being both an alcohol and cocaine abuser. Respondent’s criminal history, combined with the established fact that she has been and continues to suffer from severe alcohol use disorder and severe cocaine use disorder, both of which appear to be voluntary, prove she is unable to practice as a nursing assistant with reasonable skill and safety to patients.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent violated sections 464.204(1)(b) and 456.072(1)(z); imposing a suspension of her license until such time as Respondent personally appears before the Board and can demonstrate the present ability to engage in the safe practice of a nursing assistant, and the demonstration shall include at least one IPN evaluation, in which the evaluator finds Respondent is presently able to engage in the safe practice of a nursing assistant or recommend the conditions under which safe practice could be attained; requiring compliance with IPN recommendations and contract conditions, if any; requiring the payment of an administrative fine in the amount of $150; and awarding costs incurred in the prosecution of this case to the Department. DONE AND ENTERED this 18th day of May, 2017, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2017. COPIES FURNISHED: Rob F. Summers, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Lannette Thompson, C.N.A. 4718 9th Avenue South St. Petersburg, Florida 33711 Lindsey H. Frost, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-3252 (eServed) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 (eServed) Jody Bryant Newman, EdD, EdS, Chair Board of Nursing Department of Health 4052 Bald Cypress Way, Bin D-02 Tallahassee, Florida 32399
