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.
Recommendation Based on the above findings and conclusions of law, I hereby recommend that the action of the agency be affirmed and sustained. DONE and ORDERED this 22nd day of December, 1976, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The central issue in this case is whether Richard Koenig, D.P.M., should be licensed as a podiatrist in the State of Florida. More specifically, this case must determine these issues: whether Richard Koenig, D.P.M., has practiced podiatry in the past at an acceptable standard of care as required by Section 461.013(1)(s), Florida Statutes; whether he fraudulently misrepresented material facts on his application for licensure as a podiatrist in violation of Section 461.013(1)(a), Florida Statutes; and whether his application to become licensed as a podiatrist is barred on grounds of administrative res judicata because of the Board of Podiatry's denial of his application in 1994-1995.
Findings Of Fact Dr. Koenig is an applicant for licensure as a podiatrist in the State of Florida. He is presently licensed to practice podiatry in the State of Missouri and was previously licensed in Illinois and Florida. Both of the latter licenses have expired. Dr. Koenig meets all criteria for licensure in Florida other than the grounds for denial cited by the Board in its Notice of Intent to Deny and described in the Statement of the Issues, above. The Board is responsible for certifying individuals who are qualified to become licensed as podiatrists and the Department of Health is responsible for issuing the licenses after the Board's certification. Dr. Koenig permitted his Florida license to lapse while he practiced in Missouri. He initially sought to be licensed again in this state in 1994. At that time, his application to sit for the examination, and thereafter to be licensed, was denied by the Board. Dr. Koenig requested a hearing on the denial before the Division of Administrative Hearings (DOAH) and a case was opened as DOAH Case No. 95-0570. Dr. Koenig later dismissed his petition and the DOAH file was closed. The earlier denial thus became final. Dr. Koenig reapplied for licensure in 1997. It is this application which is the subject of the instant proceeding. Dr. Koenig has already taken and passed the national podiatric licensure examination in Louisiana in 1997, thus meeting the examination requirement. Dr. Koenig was involved in approximately eleven podiatric malpractice cases during his practice in Missouri in the 1980's and early 1990's. Eight of the cases were settled by his insurance carrier. Three additional cases were pending at the time of Dr. Koenig's initial application in 1994. Of these three, Dr. Koenig prevailed at trial in two cases. The third case has been voluntarily dismissed by the plaintiff and has not been refiled. Dr. Koenig has not been engaged in the practice of podiatry as his primary professional activity since 1993-1994. He occasionally provides podiatric services as part of his commitment to the U.S. Navy, but he has primarily been engaged in developing and marketing two devices for use in podiatric and related services and has been teaching. Dr. Koenig received and reviewed the 1994 Board Notice of Intent to Deny Application for Examination and Licensure prior to filing his 1997 licensure application. In addition, he was aware that he had dismissed his petition to review that decision and the Board's decision was thus final. Nevertheless when called upon to state in the 1997 application whether he had ever been denied licensure as a podiatrist, Dr. Koenig answered "No." (Petitioner's Exhibit No. 1) This answer was false. Question five of the application for podiatry licensure reads: "Has any podiatry license held by you ever been acted upon, suspended or revoked, or have you ever been denied licensure?" Dr. Koenig's explanation concerning his negative answer to this question was that he thought he was being denied the right to take the examination, which was a condition required before he could be licensed. His understanding is supported by a reading of the minutes of the Board meeting at which the decision was made: "Dr. Simmonds moved to deny Dr. Koenig from taking the examination based on not having the ability to practice Podiatric Medicine at a level of care and safety." (Petitioner's Exhibit No. 1) However, the Board sent, and Dr. Koenig received, a Notice of Intent to Deny Application for Examination and Licensure. While that document plainly states that he was both being denied the right to take the examination and the right to be licensed, he did not focus on the second point--the right to be licensed. Dr. Koenig offered his explanation to the Board at its meeting on July 25, 1997, and when asked about the application question, he stated, "Because it is a misunderstanding. I make a differentiation between being denied a license and being denied the opportunity to sit for a license, and I may be wrong, and I stand corrected if I am, but that's what my intention was." (Petitioner's Exhibit No. 1, Transcript pp. 21-22). He understood that the Board was denying him the right to take the examination, an essential element of his application process. Dr. Koenig's explanation has been consistent throughout this proceeding, both before the Board and in the formal hearing. Although Dr. Koenig did answer the question incorrectly, his explanation that he did so without any fraudulent intent is entirely credible. Had there been an intent to defraud the Board regarding his application, Dr. Koenig might have avoided disclosing the malpractice suits which resulted in the Board's earlier decision to deny him licensure. Those malpractice suits are no longer an appropriate basis to deny licensure. Dr. Koenig is a Board-certified podiatrist and is a Fellow of the American College of Foot and Ankle Surgeons. One becomes Board-certified by taking an examination, by meeting practice requirements, and by submitting a number of medical cases to the Board for evaluation. Only about 10 percent of all podiatrists are Board-certified. Dr. Koenig's specialty is foot surgery and he has operated more often than a podiatrist in standard practice. Dr. Koenig has written several articles in peer- reviewed journals, and has spoken widely in the United States and elsewhere at various continuing medical education seminars. A frequent topic of his speeches involves the use of an implant which he developed to replace the big toe joint. This implant is patented, approved as a safe device by the FDA, and is covered by Medicare and Medicaid. Dr. Koenig has developed and marketed a special shoe for patients who have had foot surgery. There have been no Medicare or Medicaid complaints brought against Dr. Koenig and he maintains Medicare and Medicaid provided numbers. The two lawsuits which went to a jury verdict were decided in his favor and there are no lawsuits pending now. The multiple claims of malpractice occurred when he was actively engaged in foot surgery practice in Missouri. His insurance carrier, without consulting him, settled those claims. After he changed carriers and contested the claims, he has prevailed. The Board in this proceeding presented no evidence that Dr. Koenig has practiced below the standard of care. Nor did it refute his credible testimony.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: that a Final Order be entered granting Dr. Koenig's license to practice podiatry in the State of Florida. DONE AND ENTERED this 24th day of April, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1998. COPIES FURNISHED: John J. Rimes, III Office of Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Eric B. Tilton Gustafson, Tilton, Henning & Metzger, P.A. Suite 200 204 South Monroe Street Tallahassee, Florida 32301 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Eric G. Walker, Executive Director Board of Podiatry Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether or not on or about July 13, 1975, Arthur Hayes, Jr., licensed under the beverage laws, and or his agent, servant or employee did sell or permit to be sold, served or consumed alcoholic beverages, to wit: a quart bottle of Schlitz beer, any time otherwise not provided for by county or municipal ordinance, contrary to Florida Statutes 561.29 Whether or not on or about July 20, 1975, Arthur Hayes, Jr. licensed under the beverage laws and or his agent, servant or employee did sell or permit to be sold, served or consumed, alcoholic beverages, to wit: a quart bottle of Schlitz beer at a time otherwise not provided for by county or municipal ordinance, contrary to Florida Statutes 561.29.
Findings Of Fact In the presentation of its case, the petitioner called beverage agent Eugene Fogel to the stand. On or about July 13, 1975, agent Fogel was working for the Sanford, Florida, Police Department and in addition was acting in an undercover capacity for the Division of Beverage. At around 2:00 p.m. July 13, 1975, then police officer Fogel met with agent Herb Baker of the Division of Beverage in Sanford, Florida, for purposes of investigating alleged illegal alcoholic beverage sales which were being made on Sunday. The witness, Fogel, went to the address of Dinah's West Side Grocery, entered the store and purchased a quart bottle of Schlitz beer from the respondent, Arthur Hayes, Jr., This particular item of evidence became petitioner's exhibit 1 and is currently in the custody vault of the Division of Beverage District Office in Orlando, Florida. Testimony by agent Herb Baker indicated that the meeting as spoken of by agent Fogel had transpired, and he had seen agent Fogel enter the subject premises on July 13, 1975, and come out with a paper bag which contained petitioner's exhibit number 1. This exhibit was turned over to agent Baker. Officer Fogel testified that on Sunday, July 20, 1975, the same sequence of events occurred that had occurred on Sunday, July 13, 1975. He met agent Baker and then went to Dinah's West Side Grocery around 3:30 p.m. and purchased a quart bottle of Schlitz beer, which is petitioner's exhibit number 2. The petitioner's exhibit number 2 is now located in the custody of the District Office, Division of Beverage, Orlando, Florida. Again, agent Baker stated that he observed officer Fogel go into the premises on July 20, 1975, return with a bag and that the bag contained a quart bottle of Schlitz beer. The testimony was given by officer Fogel that July 13, 1975 and July 20, 1975, were Sundays. Other Petitioner's exhibits admitted into evidence were exhibit number 3 which is a notice to show cause with accompanying administrative complaint, exhibit 4 which is a notice of hearing, and exhibit 5 which is a copy of an ordinance in Seminole County, Florida. This ordinance was in effect on July 13, 1975 and July 20, 1975, and prohibited the sale of alcoholic beverages on any Sunday. The respondent took the stand in his own behalf and indicated that he knew Eugene Fogel in July of 1975, and knew that Eugene Fogel was a policemen with the Sanford Police Department. He stated that he therefore would not have sold beer to Officer Fogel on Sunday, because he knew such a sale would be illegal. The witness also stated that the only employees in his store were he and his wife and consequently the only explanation he could think of for the two quarts of beer, was that the policemen had stolen the beer from his freezer. He said this would have been easy since there was no lock on the beer freezer and it was close to the door. After assessing the testimony of the witnesses, together with the examination of the evidence it is determined that the violations as alleged in counts 1 and 2 in the administrative complaint have been proven. This determination is arrived at because it would not appear that there is any motive on the part of the two police officers to promote absolute falsehoods. On the other hand considering the interest of the respondent and the quality of his comments, he has not effectively explained or defended against the charges.
Recommendation For committing the offense as alleged in Count 1 of the Administrative Complaint, it is recommended that the respondent, Arthur Hayes Jr., have his license suspended for a period of 30 days. For committing the offense as alleged in Count 2 of the Administrative Complaint, it is recommended that the respondent, Arthur Hayes, Jr., pay a civil penalty in the amount of $150.00. DONE and ENTERED this 5th day of February, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Department of Business Regulation The Johns Building Tallahassee, Florida 32304 Arthur Hayes, Jr. 1717 West 18th Street Sanford, Florida ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF BEVERAGE IN RE: DINAH'S WEST SIDE GROCERY 1717 West 18th Street CASE NO. 75-2011 Sanford, Florida DABT CASE NO. 5-75-94-A License No. 69-139 /
The Issue Should Respondent's alcoholic beverage license, number 61-00005, 2-COP be revoked, suspended or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: DABT is the division within the Department of Business and Professional Regulation charged with the responsibility of administering and enforcing the Beverage Law of the State of Florida. At all times material to this proceeding, Respondent held a series 2- COP alcoholic beverage license, number 61-00005, authorizing the Respondent to sell only beer and wine on the premises of East Side Tavern (Tavern), located on Cummer Road, 1 mile east of Highway 301, Lacoochee, Pasco County, Florida. Around 12:30 a.m. on May 16, 1994, Special Agents Ashley Murray and Keith B. Hamilton went to the Tavern in an undercover capacity. This undercover activity was initiated due to a request of the Pasco County Sheriff's Office (PCSO) concerning allegations of drugs sales on the premises of the Tavern. Agent Murray has been a sworn law enforcement officer for five and one- half years. Agent Murray completed a two-week basic Drug Enforcement Administration (DEA) drug school regarding the identification, sale and the manner of use of drugs. Agent Murray also completed a three-day undercover DEA school. During her five and one-half years as a sworn law enforcement officer, Agent Murray has been involved in at least 100 occasions where drugs were being sold or used. Agent Hamilton has been a law enforcement officer since 1981. During Agent Hamilton's tenure as a law enforcement officer he has been involved in numerous training classes regarding the identification, sale and manner of use of drugs, including courses taught by DEA. Agent Hamilton has been trained to recognize the scent of burning marijuana. Agent Hamilton has been in at least 70 different establishments where drugs, including marijuana, were being sold and used. As the agents approached the Tavern, they noticed a large number of people (100-150) standing in front of the Tavern and in a vacant lot across the road from the Tavern. Additionally, cars were parked along Cummer Road in front of the Tavern. The agents also testified that a "lot" of the people standing outside appeared to be "young". Upon entering the Tavern, the agents noticed that no one was checking identification at the door. The Tavern consists of two rooms divided by wall with a door between the two rooms. The bar is located in one room. The second room is a disco/dance area. Based on the description of the inside of the Tavern, a person behind the bar would not have clear view of all of the disco/dance area. On May 16, 1994, the Tavern was crowded with customers. Agent Murray saw what appeared to her to be a "lot of really young kids" in the crowd. Upon entering the Tavern on May 16, 1994, Agent Hamilton detected a scent in the air that resembled, based on his training and experience, the odor of burning marijuana. Agent Hamilton did not actually see anyone smoking marijuana inside the Tavern. Agent Murray also noticed, both on the inside of the Tavern in the dance floor area and outside the Tavern by the entrance, what appeared to her to be a hand-to-hand exchange between customers of what appeared to be money for something that she could not identify. As Agent Murray left the Tavern she noticed what appeared to her, based on experience and training, to be customers passing and maybe smoking marijuana. However, Agent Murray did not actually see the marijuana or the customers actually smoking marijuana. Agent Murray also noticed a customer with a closed fist going to another customer and placing the closed fist over an open palm and then the release of the closed fist. Based on her training and experience, this appeared to Agent Murray to be an exchange of crack cocaine between the customers. Agent Murray did not see or confirm that any crack cocaine was actually being exchanged. Upon reentering the Tavern, the agents were together at the bar and saw a black female customer place a large bottle of liquid on top of the bar close to where they were sitting. The customer ordered something from the bar and left with the bottle. Agent Murray testified that by observing the label on the bottle she was able to identify the liquid as scotch whiskey. Agent Hamilton testified that he observed the same black female with a bottle of "alcohol, distilled spirits" and further identified the liquid as a "bottle of gin". Neither Agent Murray nor Agent Hamilton testified that the bottle bore the manufacturer's insignia, name or trademark. Both agents were apparently close enough to the customer to be able to observe the label. Neither agent smelled or tasted the contents of the bottle. For reasons of their own, the agents did not seize the bottle. Agent Murray thought she saw the Respondent behind the bar on that day. Agent Hamilton referred to the person behind the bar that day as the clerk but did not identify the Respondent as being the clerk on May 16, 1994. On August 8, 1994, ten DABT agents and 20 deputies from the PCSO conducted a walk-through inspection (inspection) of the Tavern. The agents and deputies were dressed in such attire as to be visibly recognized as law enforcement officers. During the inspection on August 8, 1994, DABT Sergeant Allen Ray observed an individual inside the Tavern in possession of a cup of beer, which individual Sergeant Ray suspected of being under 21 years of age. Sergeant Ray testified that this person identified herself as Tamieka Ranell Shaw and that Shaw advised him she was under 21 years of age. Sergeant Ray then took Shaw outside and placed her in the custody of Agent Hamilton for processing. Agent Hamilton testified that Shaw advised him that she was 16 years of age. At this time, Shaw did not have a driver's license or any other type of identification in her possession that would verify her age or date of birth. Furthermore, Shaw was not identified by a family member or anyone else having personal knowledge of Shaw's age or date of birth. Neither Shaw nor anyone else having personal knowledge of Shaw's age testified at the hearing. Furthermore, DABT did not present any documentary evidence of Shaw's age at the hearing. DABT failed to prove that Shaw was under 21 years of age on August 8, 1994. There was no evidence that Respondent or any person working for Respondent had sold, given, served or permitted the beer to be served to Shaw. During the August 8, 1994, inspection, DABT Sergeant John Allen observed three individuals in the Tavern that he suspected of being under 21 years of age that were in possession of what Sergeant Allen considered to be an alcoholic beverage. Sergeant Allen escorted each of these individuals out of the Tavern separately. None of these individuals had a drivers license or any other type of identification to verify their age or date of birth. Sergeant Allen testified that each of the individuals identified themselves and admitted to being under the age of 21 years. However, one of the individuals managed to leave the premises before any other identification could be made. Sergeant Allen testified that Ronald Adair, one of the alleged underage customers referred to in Finding of Fact 15 above, was identified by his mother as being under 21 years of age in a telephone conversation with Sergeant Allen on August 8, 1994. However, neither Adair, his mother nor anyone else having personal knowledge of Adair's age was present at the hearing to testify as to Adair's age. Furthermore, DABT did not present any type of documentary evidence of Adair's age at the hearing. DABT failed to prove that Adair was under 21 years of age on August 8, 1994. The person identifying himself as Marlon Inmon, another of the alleged underage customers referred to Finding of Fact 15 above, was alleged to have been in possession of an alcoholic beverage inside the Tavern on August 8, 1994. Sergeant Allen testified that he talked to a relative of Inmon's over the telephone and that this relative identified Inmon and advised Sgt. Allen that Inmon was under 21 years of age. However, this person did not talk to or see the person claiming to be Inmon. Neither Inmon nor the person identifying Inmon over the telephone or anyone else with personal knowledge of Inmon's age testified at the hearing. Furthermore, DABT did not present any documentary evidence of Inmon's age at the hearing. DABT failed to prove that Inmon was under 21 years of age on August 8, 1994. The third alleged underage person referred to in Finding of Fact 15 above in possession of an alcoholic beverage on August 8, 1994, was never identified by anyone before he left the premises. Neither this person nor anyone else having personal knowledge of this person's age testified at the hearing as to this person's age. Furthermore, DABT did not present any documentary evidence as to this person's age. DABT has failed to prove that this person was under 21 years of age on August 8, 1994. During the walk-through inspection on August 8, 1994, DABT Special Agent Michael Freese seized a 1.75 liter of Seagrams gin, alcoholic beverage. The gin was in plain view on a table in the dance floor area. In attempting to seize the gin, Agent Freese had a confrontation with a customer who claimed the gin belonged to him. There was no evidence that the gin had been purchased on the premises. This gin is not the type of alcoholic beverage allowed to be possessed by the licensee or anyone else on the licensed premises of a licensee holding only a 2-COP alcoholic beverage license such as Respondent. The Respondent was present at the Tavern on August 8, 1994, and either directly observed, or was in such a position at the bar to have easily detected the presence of the unauthorized alcoholic beverage on the table. Also during the walk-through inspection on August 8, 1994, Agent Freese observed a small plastic bag containing a substance that resembled marijuana on the floor behind one of the speakers around the "DJ" booth. Agent Freese seized the bag and identified it as marijuana by sight and smell. A field test conducted by Agent Freese indicated that the substance was marijuana. However, Agent Freese testified that the field test may not be 100 percent accurate. No laboratory analysis was made of the substance suspected of being marijuana. DABT failed to prove that the substance was in fact marijuana. Likewise, DABT has failed to prove that Stewart was aware of alleged marijuana being present on the premises. During the walk-through inspection on August 8, 1994, Lieutenant Bruce Schmelter, PCSO, seized a loaded 22-caliber revolver that was protruding from beneath one of the speakers near the "DJ" booth. The revolver was turned over to DABT. However, DABT failed to prove that Stewart was aware of the revolver being present on the premises. After the walk-through inspection on August 8, 1994, Sergeant Allen gave Respondent official notice of the problems encountered during the inspection. On September 18, 1994, a second walk-through inspection (second inspection) was conducted at the Tavern by ten DABT agents and 25 PCSO deputies. The DABT agents and the deputies from the PCSO were dressed in such attire as to be visibly recognized as law enforcement officers. During the second inspection, agents Murray and Aikens advised Respondent that they intended to go behind the bar to secure that area. After advising Stewart of their intended action, there was a confrontation between Stewart and the agents wherein Stewart's daughter became involved. The agents became concerned because of the crowd and notified Sergeant Ray of the problem. Sergeant Ray advised Stewart of why they were there and that DABT agents had the authority to secure the area behind the bar. After this explanation, Respondent allowed Sergeant Ray and another DABT agent behind the bar without further incident. After the incident at the bar during the second inspection, Agents Murray and Aikens seized a bottle of Seagrams Extra Dry Gin, an alcoholic beverage, which they found on the floor against the wall in the area of the bar inside the Tavern. This gin is not the type of alcoholic beverage allowed to be possessed by the licensee or anyone else on or at the licensed premises of a licensee holding a 2-COP alcoholic beverage license such as Respondent. The Respondent was present in the Tavern on September 18, 1994, and either directly observed, or was in such a position as to have easily detected the presence of the unauthorized alcoholic beverage. During the second inspection, Agent Hamilton observed an individual in possession of a bottle of beer which individual he suspected of being under 21 years of age. Agent Hamilton testified that the individual was identified as Corey Anthony Owens, 20 years of age. Neither Owens nor anyone else having personal knowledge of Owens' age were present to testify at the hearing. Furthermore, DABT did not present any documentary evidence as to Owens' age. Agent Hamilton testified that Owens advised him that he had purchased the beer in the Tavern from a black male behind the bar. DABT presented no other evidence that the beer had been purchased in the Tavern. Although DABT has proven that Owens did have beer in his possession while in the Tavern on September 18, 1994, DABT failed to prove that Owens purchased or was served or given the beer in his possession on September 18, 1994, by Stewart or his servant, agent or employee. Furthermore, DABT failed to prove that Owens was under 21 years of age on September 18, 1994. On December 7, 1994, Captain Bruce Ashley met with Stewart at Stewart's request to discuss the Administrative Action that had been served on Stewart. At Stewart's request, Captain Ashley marked an X by the first box on the Request For Hearing which states as follows: "I dispute issues of fact. (Please list which of the charges and counts in the Administrative Action you dispute and why)." Also at Stewart's request, Captain Ashley wrote the following: "There are facts and issues that are not true that need to be discussed. I have documents and facts to bring out about this matter." (Emphasis supplied) Below this statement Captain Ashley wrote "Written On Behalf Of Licensee By" and signed his name. Below the above underlined statement there was an X with Isaiah Stewart's signature. On December 8, 1994, Captain Ashley wrote a memorandum setting forth what Captain Ashley considered to be the conversation between he and Stewart on December 7, 1994. However, because of the circumstances under which this conversation with Respondent occurred and the conflict between the statement signed by Respondent and Captain Ashley's memorandum, the memorandum is somewhat suspect and a cause for concern, and thereby lacks credibility. DABT's exhibit 4 consist of computer records from the PCSO listing the calls that the PCSO responded to around the Tavern from May 12, 1993 through June 29, 1994. Using these computer records DABT summarized the type of calls and the total number of each type of call received between February, 1994 and June 29, 1994. This summary shows a total of 69 calls of various types responded to by the PCSO during the period covered by the summary. Of the 69 calls listed in the summary, 22 were calls to backup units which apparently were backup for some of the other 47 calls. Ten calls were to assist a sick person. The balance of the calls were as follows: 2-affray/incite or encourage riot; 1- special patrol request; 1-juvenile problem; 3-miscellaneous incident; 2-field interrogation report; 4-shooting in area; 1-battery (simple); 4- disturbance(noise); 1-accident traffic; 1-illegal parking; 1-suspicious person; 3-narcotics violation; 1-throwing a deadly missile; 1-obstructing police without violence; 1-warrant arrest; 1-robbery, strong arm; 1-simple assault; 2-traffic warning; 1-aggravated assault; 1-weapons; 1-shooting into occupied dwelling; 1- battery on officer and 2-special detail. It is clear from the PCSO computer printout that the whole area around Cummer Road, not just the area around the Tavern, kept the PCSO busy responding to calls during the period in question. DABT presented no evidence as to the legitimacy of the call or if the call involved the activity of the Tavern's customers on the premises of the Tavern or the activity of someone else in the vicinity of the Tavern or what action was required upon the PCSO responding to the call. DABT failed to prove that Respondent kept or maintained a premises which was resorted to by persons who use or sell illegal drugs. DABT failed to prove that between the dates of February 1994, and September 1994, the Respondent maintained a public nuisance at his licensed premises.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law and having reviewed the penalty guidelines set forth in Rule 61A-2.022, Florida Administrative Code, it is recommended that a final order be entered finding Respondent guilty of the allegations contained in Counts 5 and 8 of the Administrative Action and for this violation that DABT assess an administrative fine in the amount of $1,000 against Respondent. It is further recommended that DABT dismiss Counts 1, 2, 3, 4, 6, 7, 9, 10 and 11 of the Administrative Action. RECOMMENDED this day 27th of September, 1995, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1482 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 Petitioner in this case. Petitioner's Proposed Findings of Fact. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1-3(2); 4-5(3); 6(6); 7(7); 8(8); 9(9); 10(5); 11(10); 12(4,10-11); 13(11); 14(12); 15(13); 17-18(15); 21-22(19); 24-25(21); 26(22); 27(23); 28-29(24); 30(25); 32(27); and 34(28). Proposed finding of fact 16 is adopted in Finding of Fact 14, except that portion regarding the age of Shaw, which is rejected. Proposed finding of fact 19 is adopted in Finding of Fact 16, except that portion regarding the age of Adair, which is rejected. Proposed finding of fact 20 is adopted in Finding of Fact 17, except that portion regarding the age of Inmon, which is rejected. Proposed finding of Fact 23 is adopted in Finding of Fact 19, except that the field test did not absolutely prove that the substance was in fact marijuana. Proposed finding of fact 31 is adopted in Finding of Fact 26, except that portion regarding the age of Owens and that Owens purchased the beer in the Tavern, which is rejected. Proposed finding of fact 33 is rejected as not being supported by competent, substantial evidence in the record. The Respondent elected not file any proposed findings of fact. COPIES FURNISHED: John J. Harris, Director Division of Alcoholic Beverages and Tobacco Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Linda L. Goodgame, Esquire General Counsel Department of Business Professional Regulations Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard A. Grumberg, Esquire Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Isaiah Stewart, Pro se Post Office Box 429 Lacoochie Florida 33537
The Issue Whether Respondent's alcoholic beverage license should be revoked or otherwise disciplined on grounds that (1) on several occasions, cocaine was possessed, sold, or delivered on the licensed premises by Respondent's employees in violation of state law, and (2) by virtue of such Possession, sale, or delivery of cocaine by its employees, Respondent maintained a public nuisance on the licensed premises.
Findings Of Fact Respondent, Provende, Inc., a general partner in a limited partnership known as Alexandre, Ltd., is responsible for and operates a nightclub under the name of Club Alexandre (the "Club") at 1601 Biscayne Boulevard, Miami, Florida. In connection with its operation of Club Alexandre, Respondent holds beverage license No. 23-3953, Series No. 4-COP-SRX, which permits the sale and consumption of intoxicating beverages on the premises. (Stipulation of Parties, Testimony of Cachaldore.) Club Alexandre, located within the Omni International complex, is a large, multi-faceted club. Its premises consists of two levels totaling approximately 30,000 square feet. The first level includes a restaurant, bar area, three separate dance floors, bathroom facilities, and a stage for entertainment. Buffet lunches are served as early as 11:30 a.m., followed by a cocktail hour in late afternoon, dinner, and live entertainment which continues until 3:00 a.m. The second level is used primarily for private parties, weddings, and business meetings; it is enclosed in glass, and includes banquet rooms, bathroom facilities, storage rooms, and the Club's business offices. Ordinarily, the Club employs from 45 to 50 persons as busboys, bartenders, barmaids, waiters, maitre d's, cooks, dishwashers, office staff, promoters, and buyers. Most of the employees have been hired by Alex Cachaldora--general manager of the Club, stockholder, and president of Respondent. He either hires or approves the hiring of all Club employees and is the individual responsible for managing the Club on a daily basis. (Testimony of Cachaldora.) Club Alexandre is a semi-private club. Upon application, acceptance, and payment of a fee, persons may become members; public customers may also use the Club after screening at the entrance and payment of a cover charge. (Testimony of Cachaldora.) I. As to Count I On November 23, 1980, at approximately 12:10 a.m., D.C. Diaz--an off- duty officer of the Miami Police Department--paid a cover charge and entered the Club Alexandre. He sat at the bar counter, ordered a drink from a young barmaid dressed in a black uniform, and asked her if she could give him some "white magic", a street term referring to cocaine. She asked how much he wanted, he said "one gram"; she then informed him that the price would be $65. (Testimony of Diaz.) Diaz then gave the barmaid a $100 bill; she went to the cash register and returned with $35 in change which he gave to Diaz. She told him, "It will take between five and ten minutes." (Tr. 22-I-22.) Five to ten minutes later, a waiter--dressed in a black tuxedo-type shirt--approached from the restaurant area and gave the barmaid a folded napkin which she, in turn, gave to Diaz. He opened the napkin and found a small tinfoil packet inside containing a white powder which he suspected to be cocaine. (Testimony of Diaz.) Subsequent laboratory tests by the Metropolitan Dade County Public Safety Department confirmed that the white powder obtained by Diaz from the barmaid on November 23, 1980, was cocaine. II. As to Count 2 On January 23, 1981, at approximately 10:30 p.m., Beverage Officers Carmen Gonzalez and Joe Mato, together with Art Serig of the Miami Police Department, entered the Club Alexandre for the purpose of conducting an undercover narcotics investigation. They proceeded to the second floor area, sat at a table, and ordered drinks. (Testimony of Mato.) At approximately 12:25 am. (January 24, 1981), Officer Mato proceeded to the downstairs bar where a barmaid identified as Enid Epstein was tending bar. After ordering a drink, he asked her if she knew where he could obtain some "white magic"; she answered, "Yes, if he is still here it would be $65."(Tr. 22-I-53.) He agreed to the price and handed her $70. She took the money and proceeded to the kitchen area located in the rear of the premises. A few minutes later, he observed her running across the upstairs lounge area to the bar. After a brief delay, she proceeded toward the downstairs bathroom area. She then returned to Officer Mate, handed him a $5 bill folded into a small package, and explained, "This is the change that I owed you." (Tr. 22-I- 54.) He opened the folded $5 bill and found a small tinfoil packet containing a white powder which he suspected to be cocaine. (Testimony of Mato.) Subsequent Dade Public Safety Department laboratory tests confirmed that the white powder obtained by Officer Mato from Enid Epstein was cocaine. (P-2.) III. As to Count 3 On January 24, 1981, at approximately 9:20 p.m., undercover Beverage Officers Lou Clark end Lou Terminello entered the Club Alexandre for the purpose of continuing the Division's narcotic investigation. They seated themselves at the downstairs bar area end ordered drinks from a male bartender who introduced himself as "Bill", later identified as William Mendel. Officer Clark told "Bill" that they had picked up a couple of girls and asked if there was anything to help with the party. A conversation ensued about there being a lot of "snow" in Kansas--Clark using the term's ordinary meaning--and "Bill" answering, "That is not the kind of snow I was referring to." (Tr. 22-I-132.) In response to Clark's question about obtaining something that might help with their party, "Bill" indicated his contact wasn't there at that time, but that "they should be in later." (Tr. 22-I-133.) Officers Clark and Terminello then left the premises. (Testimony of Clark, Terminello.) About an hour later, the two beverage officers returned to the premises, and seated themselves at the downstairs bar. They ordered a drink from "Bill" and asked if his contact had arrived. He went over and talked to a young red-haired female barmaid--later identified as Enid Epstein-and returned to the officers; he then wrote "75" on a white bar napkin and placed it on the counter in front of them. Terminello said, "That is fine, we'll take two" (Tr. 22-I-136) and laid $80 on the table. Clark laid dawn a $100 bill. "Bill" took the $100, and $56 from Terminello's $80, leaving $24 in change. 4/ "Bill" then rang up a $6 sale an the register and placed the rest of the money in the right vest pocket of Enid Epstein. She then left the bar and proceeded into the kitchen area. A few minutes later she returned--via the staircase leading from the second floor--folded an unidentified object into a napkin, and handed it to Bill. He, in turn, handed the napkin to Terminello. After finding two small tinfoil packets in the napkin, the officers departed the premises. (Testimony of Terminello, Clark.) The two small packets contained a white powder. Subsequent Public Safety Department laboratory tests identified the white powder contained in one of the packets as cocaine. 5/ IV. As to Count 4 After his initial drug transaction with barmaid Enid Epstein during the early morning hours of January 24, 1981, (Paragraph 7 through 9, Count 2, above) Officer Mato returned to the Club Alexandre with Beverage Officer Emil Marrero. They arrived shortly before midnight on January 24, 1981, and seated themselves on opposite ends of the downstairs bar. After ordering drinks, Officer Mato called over barmaid Enid Epstein--who was tending bar--placed $70 on the bar and told her he would like to purchase some "white magic", another street name referring to cocaine. She took the money and proceeded to the kitchen area, then returned and handed Mato a folded $5 bill containing a small tinfoil packet. A few minutes later, the beverage officers departed the premises. (Testimony of Mato, Merrero.) The small tinfoil packet contained white powder which subsequent Public Safety Department laboratory tests identified as cocaine. (P-2.) V As to Count 5 At 11:00 p.m., on January 27, 1981, Beverage Officers Marrero and Delmonte entered the Club Alexandre and seated themselves at the downstairs bar. They ordered drinks from barmaid Enid Epstein. Shortly after midnight Merrero folded $70 in a small packet and placed it on the bar; he then asked Epstein if he could buy some "white magic", meaning cocaine. Taking the money, she went to the kitchen area and returned, placing a folded $5 bill in front of Marrero. Inside the folded bill was a small tinfoil packet. The officers then left the premises. (Testimony of Marrero, Delmonte.) Subsequent Public Safety Department laboratory analysis identified the contents of the tinfoil packet as cocaine. (P-3.) VI. As to Count 6 On January 28, 1981, at 12:45 a.m., Officers Clark and Terminello returned to the Club Alexandre in furtherance of their narcotics investigation. Seated at the lower level bar, they ordered drinks from Enid Epstein, the barmaid. Shortly thereafter, Terminello called her over end asked her if there was any chance of their getting some more "toot", another slang ward for cocaine. She replied that she would have to check to "see if any of my people are here." (Tr. 22-I-104.) She then left the bar, walked to the rear kitchen area and returned several minutes later saying, "Yeah, no problem. There is somebody here." Id. Each officer then placed $75 on the bar; she retrieved the money, left for the kitchen area and returned with a folded napkin which contained two small tinfoil packets. (Testimony of Clark, Terminello.) Subsequent Public Safety Department laboratory analysis identified the contents of one of the packets as cocaine. 6/ (P-5.) VII. As to Count 7 On January 29, 1981, at approximately 11:40 p.m. beverage officers, assisted by officers of the Miami Police Department, executed a search warrant on the premises of the Club Alexandre. During the search, Beverage Officer Joseph Maggio found a brown leather purse on a shelf in a locked storage room on the second floor. The outside pocket of the purse contained ten small tinfoil packets containing a white powder suspected to be cocaine. A further search of the purse revealed small baggies and six additional tinfoil packets--all containing suspected cocaine. (Testimony of Maggio, McEwan.) The purse also contained a checkbook and a Florida driver's license issued in the name of Luis A. Vargas. Vargas, the head chef for Club Alexandre, was subsequently located downstairs. After being advised of his rights, Vargas identified the purse as his own. Of the numerous packets of white powder found within the purse, only one was subjected to Public Safety Department laboratory analysis; the contents of that packet were identified as cocaine. (P-7.) VIII. Licensee's Duty to Exercise Reasonable Care end Diligence Before a beverage license can be suspended or revoked for a violation of law on the licensee's premises, the licensee must be found culpably responsible for the violation through his own negligence, intentional wrongdoing, or lack of diligence. 7/ In the instant case, no intentional wrongdoing by Respondent has been alleged or proved. Rather, the Division contends that the violations of state narcotics laws described above resulted from Respondent's failure to exercise reasonable skill and diligence in managing and supervising its operations. Respondent does not dispute that on seven occasions, as alleged, violations of state narcotics laws occurred on the premises; however, it denys negligence or lack of diligence. It affirmatively contends that it took every reasonable precaution to guard against the illegal sale or use of narcotics on the licensed premises. (Testimony of Cachaldora, Petitioner's Proposed Recommended Order, Respondent's Suggested Findings of Fact.) Respondent's contention is unavailing; the evidence establishes that Respondent failed to take reasonable precautions to guard against violations of narcotics laws on its premises--that Respondent failed to exercise reasonable care end diligence in managing its operations and supervising its employees. The following facts justify this conclusion: The alleged violations of narcotics laws occurred on the premises in a recurring, persistent, and practiced manner. They occurred at least seven times--over a 2 1/2- month period--and involved at least three separate employees of the Respondent. Despite the licensee's knowledge or suspicion, through its operators and managers, that violations of state narcotics laws occasionally occurred on it premises, the licensee never expressly enunciated--either to its employees or patrons--a policy forbidding the possession, sale, or use of narcotics. Employees were not admonished against involving themselves in such violations; neither were penalties for such violations announced in advance. Neither was information concerning possible narcotics law violations or convictions elicited from prospective employees. Given the nature and size of the Club, the number of its employees end patrons, and management's knowledge, or suspicion, that narcotics violations had occurred on the premises--the licensee took inadequate steps to (1) monitor activities on the premises, and (2) detect narcotics violations and prevent their occurrence. It employed off-duty Omni security guards only during times when business activity was greatest. At all other times, it relied on its employees for surveillance and security. The place where narcotics violations were most likely to occur--the bathroom facilities on two floors--were monitored by a single valet with minimal security training and who could neither speak nor understand English. The security efforts by the licensee were directed more to controlling disturbing or offensive behavior by patrons than pretending violations of law from occurring on the premises, or taking forceful action when such violations were detected. The quality of the licensee's surveillance program is illustrated by an experiment conducted by Beverage Officer Delmonte. On January 14, 1981--while at the Club with Beverage Officer Marrero--he observed several persons in the men's bathroom with running eyes and noses. During that same visit, Officer Marrero observed several waiters and a patron in the bathroom "sniffing something through their nostrils." (Tr. 22-I-78.) The Respondent's valet was also present in the bathroom at the time. On Officer Delmonte's next visit to the Club--January 27, 1981--he decided to conduct an experiment because of the suspicious activities observed on January 14, 1981. He went to the bathroom with a dollar bill rolled into a small tube; he placed it to his nostril and pretended to inhale something. The valet came in, observed this behavior, and acted surprised. Delmonte then acted embarrassed, smiled, and placed the dollar back in his pocket. After the valet handed him a kleenex, Delmonte exited the bathroom with the valet following him. At the foyer, the valet spoke with an older lady wearing a dark dress; the lady then engaged in a casual conversation with Delmonte and Enid Epstein--who was tending bar. Nothing further occurred in response to Officer Delmonte's experiment. (Testimony of Delmonte, Mendel, McEwen, Maggie, Mato, Clerk, Terminello, Marrero, Guerre, Robertson, Cachaldora, Puig; R-3, R-7.) Respondent's suggested findings of fact are adopted to the extent they establish: (1) Between November 23, 1980, and January 28, 1981, law enforcement officers made numerous undercover visits to the Club when they did not, or were unable to purchase illicit narcotics on the premises; (2) During undercover visits during the period in question--except for the January 14, 1881, incident in the men's bathroom end the incidents alleged in Counts 1 through 7--the officers did not observe anyone using or selling illicit narcotics or marijuana. Moreover, two off-duty police officers who sometimes socially visited the Club-- and were encouraged to do so by Respondent--did not observe any narcotics violations taking place; (3) Each sale of cocaine, as alleged, was preceded by a law enforcement officer's solicitation to purchase; and (4) Unless observed in the act, it is difficult to ascertain--with certainty--whether a person uses, sells, or is inclined to use or sell narcotics. (Testimony of Stillman, Diaz, Sokolowski, Delmonte, Mandel, McEwen, Maggie, Mato, Clark, Terminello, Marrero, Guerra, Robertson.) IX. Appropriate Disciplinary Penalty No aggravating evidence was offered by the Division to justify permanent license revocation; no intentional wrongdoing by Respondent, or its manager, has been shown. Respondent has no record of prior infractions of the Beverage Law. There is no evidence which indicates that Respondent's operator, Alex Cachaldora, was aware that several of his employees were involved with illicit narcotics. In light of the facts of this case, permanent revocation of Respondent's beverage license is unwarranted; rather, a 90-day suspension is appropriate, less any days during which Respondent's beverage license has been effectively suspended by emergency order of the Division. (Testimony of Cachaldora.) Both parties have submitted proposed findings of fact for consideration in this proceeding. To the extent such findings have not been adopted or incorporated in this Recommended Order, they are rejected as irrelevant or unnecessary to resolution of the issues presented or unsupported by the evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, It is RECOMMENDED: That the Division enter a final order suspending Respondent's beverage license No. 23-3953, Series No. 4-COP-SRX, for 90 days; provided, however, to the extent Respondent's license may have been effectively suspended by prior emergency order of the Division, the period of such emergency suspension should be subtracted from the 90-day period. DONE AND RECOMMENDED this 10th day of June, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1981.
