The Issue Whether Respondent, the holder of a license to sell alcoholic beverages, sold an alcoholic beverage to a minor as alleged in the Administrative Action dated June 17, 1997, and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent, Mahmoud Mohamed, was doing business as Kwik Stop, which is a convenience store located at 1200 Broadway, Riviera Beach, Florida. Respondent holds license number 60-02476, series 2APS, which authorizes him to sell alcoholic beverages at his business location (the licensed premises). On June 13, 1997, the Division initiated a general investigation to determine whether persons under the age of 21 were being sold alcoholic beverages by licensees of the Division. As part of that general investigation, two special agents employed by the Petitioner and an investigative aide employed by the Petitioner made a random stop at the licensed premises between 8:30 p.m. and 9:00 p.m. One of the special investigative agents was Andrew Panzer, an experienced law enforcement officer. The other special agent was Agent Panzer's partner, who did not testify. The investigative aide was Casey Fand, a seventeen-year-old high school student. The special agents instructed Mr. Fand to enter the licensed premises and to attempt to purchase a beer. Mr. Fand entered the premises first, and shortly thereafter, Mr. Panzer entered the store. The other agent remained outside the premises. Mr. Fand went to the cooler, selected a 12-ounce can of Budweiser beer, and walked to the counter where Respondent was working. Mr. Panzer selected a soft drink and followed Mr. Fand to the counter. Mr. Panzer stood behind Mr. Fand and was in position to observe and hear what transpired between Mr. Fand and the Respondent. There is a dispute in the record as to what happened next. Respondent testified that when Mr. Fand came to the counter with the beer, Respondent asked him for identification. Respondent further testified that Mr. Panzer then took the beer from Mr. Fand. Respondent testified that Mr. Panzer paid for the beer and the soft drink. The testimony of Mr. Fand and Mr. Panzer conflicted with Respondent's testimony. Both Mr. Fand and Mr. Panzer testified that Respondent never asked Mr. Fand for identification and that Mr. Fand paid for the beer and left the store. They both testified that Mr. Panzer thereafter paid for the soft drink and left the store. Mr. Panzer testified that after he conferred outside with his partner and Mr. Fand, he re- entered the premises, advised Respondent of the violation, and issued him a notice to appear. In resolving the conflicts in the evidence, it is determined that the clear and convincing testimony of Mr. Fand and Mr. Panzer is more credible than that of the Respondent. In reaching this conclusion, the undersigned has considered the demeanor of the witnesses, the training and experience of Mr. Panzer, and the fact that neither Mr. Panzer nor Mr. Fand has an apparent motive to fabricate evidence. Based on the more credible testimony, it is found that on June 13, 1997, Respondent sold a beer, which is an alcoholic beverage, to a minor, Mr. Fand, without asking for identification. Respondent's license has not been previously disciplined by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that incorporates the findings of fact and conclusions of law contained herein. It is further recommended that the Final Order impose an administrative fine against Respondent in the amount of $1,000 and suspend his license for a period of seven days. DONE AND ENTERED this 5th day of December, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1997. COPIES FURNISHED: James D. Martin, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Mark R. Hanson, Esquire 415 Fifth Street West Palm Beach, Florida 33401 Captain Debbie Beck 400 North Congress Avenue, Suite 150 West Palm Beach, Florida 33401 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for consideration at the hearing was whether Respondent's alcoholic beverage license issued by the State of Florida should be disciplined because of the misconduct alleged in the various charges listed in the Notice to Show Cause filed in this case.
Findings Of Fact At all times pertinent to the issues herein, Petitioner held Florida 2- COP alcoholic beverage license number 26-2036, for his establishment, known as the Dynasty, located at 140 Soutel Drive, Jacksonville, Florida. This license was for the sale and consumption on premises of alcoholic beverages only. In addition, a license was issued by the City of Jacksonville to the Continental Club, c/o Grady Stroy, to operate a dance hall and night club at the same address. Respondent did not have a restaurant license or a license to operate any type of public food service establishment during the time in question. On February 25, 1983, Respondent entered into an agreement in writing with three other individuals, Grady Stroy, John Gibson, and Bobby Wade, whereby each of these latter three would invest with Respondent for an equal partnership in the Continental Club. Thereafter, in April 1983, Respondent officially changed the name of his club from Dynasty to Continental Club. In reality, all three outside partners, Stroy, Gibson, and Wade, each invested at lest $3,000.00. At no time prior to the incidents involved in this hearing, did Respondent disclose to DABT that those three individuals had an interest in his beverage license nor did he notify Petitioner that the name of the club where his license was being used had been changed from Dynasty to the Continental Club. Sometime after June 1983 and the incidents described herein, Respondent applied for a transfer of his license from himself along to himself and his above-named partners. For reasons not pertinent to this hearing, this application was denied. On June 26, 1983, Deborah Powell, in response to a citizen's complaint that alcoholic beverages were being improperly sold on Sunday, entered the Respondent's establishment in an undercover capacity. She observed a table at the door at which admission charges were being collected, and when she got inside, she saw many people who she thought were underage being served what, to her, appeared to be alcoholic beverages. There is no evidence, however, that anyone under the authorized drinking age was drinking alcoholic beverages. Those she looked for food being served and for some means of food preparation there, she found none in evidence. All she could find was a jar of sausages, a bun warmer, and some potato chips. Section 412.402 of the Ordinance Code of the City of Jacksonville, Florida, in effect on June 26, 1983, a Sunday, permits the sale of alcoholic beverages for consumption on the premises only in motels or hotels having 100 or more guest rooms; properly licensed restaurants; airport lounges; fish camps; and private clubs. Respondent's establishment does not fall within any of the above permitted categories. At approximately 9:30 that same night, other officers of the Sheriff's vice squad accompanied by DABT agents entered Respondent's club. When Officer Hall entered the crowded bar, he had the lights turned up and he and other officers began checking the driver's licenses of the patrons to insure they were of age. To do this, they set up a station at the door and had the patrons come out one by one. A check of the driver's license of each patron revealed 20 who were underage. These individuals' names, addresses, and dates of birth were recorded by Officers Hall and another. The minors in the club at the time, who are listed in the charges pertinent to this hearing are: (1) Loraine Doles DOB-Sep 19, '65 age 17 (2) Frederick A. Hayes DOB-Nov 18, '65 age 17 (3) Terry L. Jones DOB-Mar 18, '65 age 17 (4) Jocelyn F. Prince DOB-Mar 15, '66 age 17 (5) Irene D. Reed DOB-Jul 10, '66 age 16 (6) Yolanda D. Williams DOB-Jul 24, '65 age 17 (7) Arabella Washington DOB-May 25, '67 age 16 (8) Sandra D. Hodges DOB-Nov 9, '65 age 17 (9) Ava M. Gardener DOB-Aug 11, '65 age 16 In sworn written statements made to agent Lachman on July 7 and 8, 1983, in Jacksonville, all admitted to being in Respondent's establishment on June 26, 1983, but all deny purchasing or consuming alcoholic beverages while there. None was asked for identification or proof of age before being admitted. Respondent was present at the club at the time all this took place. In a sworn voluntary written statement to agent Lachman on June 28, 1983, Respondent admitted that at the pertinent time in question he had a partnership with Stroy, Gibson, and Wade; that he had a dance hall license to operate his club issued by the city; that he did not have a restaurant license nor did he have the appropriate food preparation and serving equipment to permit him to lawfully sell alcoholic beverages on Sunday; and, that at the time in question, there were 16 to 20 persons under the age of 18 in the lounge. This statement was objected to at the hearing by Respondent's counsel who contended that because Respondent was not given a proper warning of his rights to counsel and against self incrimination prior to making it, it was not admissible at the hearing. The statement, on its fact, reflects its voluntary nature and Mr. Lachman testified that while he did not fully advise Mr. Cobb of his right to remain silent, he did advise him that he could voluntarily make a statement. Full advice of a nature sufficient to support admission of an inculpatory statement in a criminal trial is not required to render such a statement admissible in an administrative hearing such as this. As an admission against interest, it is an exception to the rule excluding hearsay evidence and is admissible. It is corroborated as to the presence in the club of underage individuals by the written statements of those individuals which though themselves hearsay evidence, are admissible to explain or corroborate other admissible evidence such as here. In any case, Respondent offered no evidence to contradict or rebut any of the evidence offered by the Petitioner.
Recommendation In light of the fact that this series of incidents constitutes the first recorded or reported instance of disciplinary action, severe penalty is not indicated. Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Respondent, Mose Cobb, Jr., be fined $250.00 for each of the twelve violations established, for a total of $3,000.00, and that his 2- COP alcoholic beverage license, number 26-2036, be suspended for six months. DONE AND ENTERED this 13th day of November 1984 in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November 1984. COPIES FURNISHED: Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Courtney Johnson, Esquire 215 Washington Street Jacksonville, Florida 32202 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco, Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern whether the Respondent's beverage licensure should be subjected to sanctions for allegedly selling alcoholic beverages to a minor and what if any penalties should be imposed.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating licensure, and practice under that licensure, of alcoholic beverage-selling entities in the State of Florida, including administration of the laws and rules related to the selling of alcoholic beverages by restaurant businesses. The Respondent is an entity licensed and domiciled in the State of Florida and authorized to sell alcoholic beverages under license number 55-00306, Series 2-COP. The Respondent is subject to the Division's regulatory jurisdiction. The subject license allows the Respondent to make sales "by the drink" for consumption on the premises at the restaurant business located at 1766 S. Eighth Street, Fernandina Beach, Florida. On October 22, 2002, Ms. Deidre Kaye Miller, then 18 years of age, was employed as an I.A. by the Petitioner Agency for the purpose of attempting to purchase beer at the Respondent's restaurant. She was paid a total of $35.00 for her services as an undercover operative that day by the Division. She was given instructions by Agent Edwards and Agent Maxwell to attempt to purchase an alcoholic beverage from the Respondent. Ms. Miller was told that if asked for identification she was to show her valid Florida Driver's License, if asked her age to tell her correct age and not to engage in any extensive conversation with anyone. On October 22, 2002, Ms. Miller entered the restaurant and walked to the left of the entrance where the bar was located. A waitress asked what she wanted and she told her she wanted a Corona (Beer). After Ms. Miller ordered the beer from the waitress the owner and Respondent Mr. Wong came over and asked for her identification. She provided her driver's license as an I.D. to Mr. Wong. As he was checking her driver's license the waitress, Tabitha Cornett, opened the Corona and set it on the counter so that it would be ready when Mr. Wong approved giving Ms. Miller the beer. The point on the bar where the beer was placed was approximately 16 feet away from where Mr. Wong and Ms. Miller were having the conversation about her I.D. Mr. Wong viewed Ms. Miller's Driver License I.D. for 30 or 45 seconds. The driver's license had her correct name and date of birth, which was in 1984, and a statement printed on the license which said "Under 21 until 09-02-05." Mr. Wong allowed the beer to be served to Ms. Miller. Ms. Miller took the beer and placed it on a table near the bar. She then indicated to the waitress that she was going to call friends to meet her and walked outside the restaurant, leaving the beer on the table. In restaurant sales situations, IAs are instructed to depart the premises once they have been served alcohol. Generally payment will not be tendered because, in restaurant situations, the law and licensure calls for consumption on the premises and it is customary to consume the alcohol and pay for at the end of one's stay at the restaurant. In the instant situation neither Ms. Miller nor anyone else ever paid for the beer in question. Mr. Wong acknowledged in a due diligence statement taken at 5:30 p.m., on the day in question October 22, 2002 (in evidence as Petitioner's Exhibit four) that he checked the I.D. but he wasn't wearing his glasses and he thought it said that Ms. Miller was born in 1964. He asked her, "You were born in 64?" He said in his statement that Ms. Miller did not reply to him and then he states (in his due diligence statement) that he told her that she was too young for that I.D. and again she said nothing. He again asked her if this was her I.D. and she said nothing. He handed it back to her. He then said in the statement: "I did not want to insult someone so I allowed it served." In other words he questioned whether she was old enough based upon the I.D. he saw; believing it to say 1964 because he did not have his glasses on, but also believing that she appeared too young for that I.D. Ms. Miller left the premises and Agent Edwards and Agent Maxwell entered the premises and informed Mr. Wong that he had just allowed service of alcohol to a minor. Thereafter Mr. Wong was placed under arrest handcuffed, and taken to the Nassau County Jail. Mr. Wong had never had any beverage-related offense on his record prior to that time. No investigation or prosecution concerning his business had ever occurred up to that point. A criminal prosecution was instituted against him concerning this same incident and facts, which resulted in a jury verdict of acquittal. The totality of the evidence shows that although Mr. Wong did not actually serve Ms. Miller, he did allow a beer to be served to her. She was under 21 years of age. Mr. Wong testified that even though one person checks identification, any employee can open a beer and place it on the counter or service bar. Ms. Cornett did so in this case, placing the beer at the far end of the service bar from where Mr. Wong and Ms. Miller were conversing concerning her I.D. This allows the beer to be ready once the person checking the I.D. authorizes the sale. In the situation at hand, Ms. Cornett opened the beer, placed in on the bar and Mr. Wong then went through the door away from the bar into the main part of the restaurant. Ms. Miller, the I.A., then took the beer from the bar and placed it on the table and told Ms. Cornett that she was going outside to meet her friends or to call her friends. After that occurrence the other agents named above came in, explained the situation to Mr. Wong, and arrested him during the course of which discussion he made the above-referenced statement. Mr. Wong never touched the beer in question and Ms. Cornett never actually physically handed it to Ms. Miller, but both Mr. Wong and Ms. Cornett allowed Ms. Miller to take the beer from the bar and place it on her table, thus taking the beer into her own custody and control at least temporarily, even though no money was exchanged in return for the beer.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties it is, therefore, RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, finding that the Respondent violated Section 562.11(1)(a), Florida Statutes, and that he be required to pay a $250.00 fine to the Division. DONE AND ENTERED this 31st day of July, 2003, in Tallahassee, Leon County, Florida. S COPIES FURNISHED: Christina Pardieck, Assistant General Counsel P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 31st day of July, 2003. Division of Alcoholic Beverage and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-2202 Gary Barker, Esquire Post Office Box 1177 Callahan, Florida 32011 Hardy L. Roberts, III, General Counsel Division of Alcoholic Beverage and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Peter Williams, Director Division of Alcoholic Beverage and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
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 Whether the Respondent committed the offense alleged in the Administrative Complaint dated August 14, 2012, and, if so, what penalties, if any, should be imposed.
Findings Of Fact PTL Associates, Inc., d/b/a 7 Eleven Store No. 32599A (PTL), is a convenience store located at 4401 Colonial Boulevard, Fort Myers, Florida 33912. Lucia D'Costa is the sole shareholder of PTL. Since October 12, 2011, and at all times material to this case, the Respondent has been licensed by the Petitioner to sell alcoholic beverages under license number BEV 4604710, Series 2APS. According to a document titled "Record of Inspection-- Official Notice," on July 19, 2012, an employee of the Respondent sold an alcoholic beverage to an underage individual after checking the individual's identification. The document advised the Respondent that a follow-up compliance check would take place within the subsequent 12 weeks. The Petitioner took no disciplinary action against the Respondent based on the July 19, 2012, compliance check. The Respondent has not been the subject of any prior disciplinary proceeding related to the license referenced herein. On August 2, 2012, the Petitioner conducted an undercover compliance check as a follow-up to a compliance check done on July 19, 2012, to determine whether the Respondent was selling alcoholic beverages to underage individuals. The compliance check was performed by two of the Petitioner's agents, Jennifer Nash and David Foraker, with the assistance of a 16- year-old female identified as Investigative Aide FT0205 (IA). On August 2, the IA entered the store accompanied by Agent Nash, while Agent Foraker remained in the vehicle outside the store. Ms. D'Costa was present in the store, behind the counter and operating multiple store sales registers. Two employees were also present, occupied with various cleaning tasks. The IA walked to the beverage cooler and withdrew a 16 ounce Coors Light, carried it to the counter area, and stood in line to pay for the beer. Ms. D'Costa took the beer from the IA, scanned the beer into the sales register, and completed the transaction. Ms. D'Costa did not ask the IA to produce any form of identification to verify the IA's age. While the transaction occurred, Agent Nash observed the AI and Ms. D'Costa, initially from inside the store, and then from outside while looking through large windows on the storefront. Although while in the store Agent Nash spoke to Ms. D'Costa to ask for driving directions, Agent Nash did not interfere with the sale of beer to the IA. There is no evidence that Agent Nash prompted Ms. D'Costa to sell the beer to the IA, or that she interfered in the transaction in any way. Some, but not all, of the Respondent's cash registers have software to prompt a register operator to verify a customer's age during the sale of an alcoholic beverage. When Ms. D'Costa sold the beer to the IA, she used a register that did not prompt the sales clerk to verify the customer's age. Ms. D'Costa testified that she does not usually operate the sales registers and that the clerks are usually responsible for the counter operation. She testified that, at the time of the compliance check on August 2, 2012, the two employees present were cleaning the store in anticipation of a monthly inspection, and, therefore, Ms. D'Costa was working alone at the sales registers. The inspection referenced by Ms. D'Costa is a routine monthly inspection conducted by corporate representatives at a time unknown to the licensee until the representatives arrive. It is reasonable to presume, given the nature of the inspection, that store cleaning would be an ongoing obligation of a licensee. The testimony fails to suggest that a licensee is exempt from compliance with laws prohibiting underage alcohol sales when employees are busy. After completing the purchase, the IA left the store and delivered the beer to Agent Foraker. The Petitioner's agents then went into the store to notify Ms. D'Costa that the transaction had taken place and to deliver to her a "Record of Inspection--Official Notice" and a "Notice to Appear." Ms. D'Costa testified at the hearing that she believed the IA to be at least 30 years of age on August 2, 2012. The IA participated in seven undercover compliance checks on August 2, 2012. The Respondent was the only store that did not check the IA's identification during a compliance check. Ms. D'Costa also testified that the franchise agreement could be breached by a suspension of the alcoholic beverage license. The franchise agreement was not offered into evidence at the hearing. The Petitioner has a written policy of not utilizing children or other relatives of the Petitioner's employees as IAs. At the time the compliance check was conducted on August 2, 2012, the Petitioner was apparently unaware that the IA was related to an employee of the Petitioner. After the Petitioner learned of the relationship, the IA was not again utilized in making compliance checks. The evidence fails to establish that the relationship between the IA and an employee of the Petitioner prompted Ms. D'Costa to sell the beer to the IA without checking whether the IA was of legal age to purchase alcohol.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order suspending the license referenced herein for a period of seven days and imposing a fine of $1,000 against the Respondent. DONE AND ENTERED this 27th day of March, 2013, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 27th day of March, 2013. COPIES FURNISHED: Andrew R. Fier, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399 Timothy Joseph Perry, Esquire Oertel, Fernandez, Bryant and Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Allen Douglas, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1020
The Issue The issues are whether Respondent is in violation of section 464.018(1)(j), Florida Statutes (2020),1 by being unable to practice nursing with reasonable skill and safety; and, if so, the appropriate penalty. 1 Unless stated otherwise, all statutory references shall be to the 2020 version of the Florida Statutes. See McClosky v. Dep’t of Fin. Serv., 115 So. 3d 441 (Fla. 5th DCA 2013)(stating that a proceeding is governed by the law in effect at the time of the commission of the acts alleged to constitute a violation of law).
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, the entire record of this proceeding, and matters subject to official recognition, the following Findings of Fact are made: The Department of Health, Board of Nursing, is the state agency charged with regulating nursing in the State of Florida, pursuant to chapters 456 and 464, Florida Statutes. Mr. Kemp is a combat veteran who participated in Operation Desert Storm. In 2004 or 2005, he earned a nursing degree from Virginia College and became licensed in the State of Florida as a licensed practical nurse (“LPN”). Mr. Kemp suffers from post-traumatic stress disorder (“PTSD”), anxiety, and depression. Three or four years ago, Mr. Kemp participated in an outpatient, substance abuse treatment program in Gulf Breeze, Florida. He successfully completed the program but was diagnosed with alcohol abuse disorder. During the Summer of 2020, Mr. Kemp was employed as the Assistant Director of Nursing at a healthcare facility called The Waterford at Creekside (“Creekside”). Belinda Kaye Bass was Creekside’s Director of Nursing and had known Mr. Kemp for approximately 10 years due to previously working with him at Southern Oaks Nursing Home. On approximately Tuesday, June 30, 2020, Mr. Kemp called Ms. Bass to tell her that he was having issues with his father. Mr. Kemp did not report for work the next day, and Ms. Bass became concerned when she was unable to reach him by telephone.3 Because she was already scheduled to leave Creekside’s campus for business purposes on July 2, 2020, Ms. Bass decided to visit Mr. Kemp’s home that morning in order to check on him. Mr. Kemp was at home that morning and had been drinking liquor prior to Ms. Bass’s arrival. At some point during her visit, she was alone in a room of the house and noticed a box containing a bottle of morphine on the floor. Upon picking it up, she discovered that the morphine belonged to a Creekside resident. When Mr. Kemp returned to the room, Ms. Bass asked him about the morphine, and he responded by telling her to leave and accused her of attempting to set him up. Ms. Bass thought that Mr. Kemp was acting paranoid and seemed impaired.4 Ms. Bass returned the morphine to Creekside and called the police. The seal on the morphine bottle was intact, and the police declined to pursue charges against Mr. Kemp. Creekside fired Mr. Kemp on July 3, 2020, for “gross misconduct.” Pursuant to its authority under section 464.018(1)(j), the Department ordered Mr. Kemp to undergo an evaluation of his mental and physical condition.5 Part of that evaluation was a phosphatidyl ethanol (“PEth”) test 3 Mr. Kemp testified that he had told an unidentified person in authority at Creekside on approximately June 30, 2020, that he was resigning because his workload was excessive. Ms. Bass was unaware of Mr. Kemp’s resignation, and her testimony on this point is credited. 4 Mr. Kemp denied that Ms. Bass found a resident’s medication in his home and asserted that Ms. Bass and his ex-wife were conspiring against him. Mr. Kemp’s testimony on this point is not credited. 5 Section 464.018(1)(j) subjects LPNs to discipline for “[b]eing unable to practice nursing 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. In enforcing this paragraph, the department shall have, upon a finding of the State Surgeon General or the State Surgeon General’s designee that probable cause exists to believe that the nurse is unable to practice nursing because of the reasons stated in this paragraph, the authority to issue an order to compel a nurse to submit to a mental or physical examination by physicians designated by the department. If the nurse refuses to comply with such order, the department’s order directing such examination may be enforced by filing a petition for enforcement in the circuit court where the nurse resides or does business.” of Mr. Kemp’s blood. PEth levels are used to determine if someone drinks heavily or engages in binge drinking. A “normal” or “healthy” PEth level is 20 nanograms per milliliter. Mr. Kemp’s blood contained 317 nanograms per milliliter, and that amount is 15 to 16 times what is considered to be a healthy level. Mr. Kemp’s evaluation also consisted of a two-hour assessment by Dr. Jordan Iserman6 on November 2, 2020. Dr. Iserman considered Mr. Kemp’s PEth test result to be an indication of “pretty serious heavy binge drinking.”7 Dr. Iserman also evaluated Mr. Kemp based on the criteria for severe alcohol use disorder set forth in the Diagnostic and Statistical Manual of Mental Disorders – Fifth Edition (“the DSM-5”).8 If a person satisfies at least two of the 11 criteria set forth in the DSM-5, then that person is thought to suffer from severe alcohol use disorder. Dr. Iserman thought that several of the DSM-5 criteria applied to Mr. Kemp, but two seemed particularly applicable to Mr. Kemp. For example, the DSM-5 indicates that one sign of severe alcohol use disorder is that the person in question has given up important social, occupational, or recreational activities. Dr. Iserman believes that criterion applies to Mr. Kemp because he was “more than comfortable just deciding he wasn’t going back to work.” Also, rather than giving Creekside a two weeks’ notice, he just stopped coming to work. 6 Dr. Iserman is licensed to practice medicine in Florida and is a board-certified psychiatrist and addictionologist. He has been qualified to render opinions regarding addiction medicine in at least 50 other legal proceedings, and the undersigned found him to be qualified to render opinion testimony regarding addiction medicine and related disorders. 7 In addition, a test of Mr. Kemp’s hair indicated that he had been using marijuana. 8 Using the criteria set forth in the DSM-5 to diagnose severe alcohol disorder is an accepted practice in addiction medicine. The DSM-5 also identifies “tolerance” as an indicator of severe alcohol use disorder. In other words, someone with an alcohol use disorder requires markedly increased amounts of alcohol in order to achieve intoxication. Dr. Iserman believes this criterion applies to Mr. Kemp because his PEth test indicated he has a high tolerance for alcohol. As for why someone with depression, PTSD, and severe alcohol use disorder would be unable to practice nursing with reasonable skill and safety, Dr. Iserman explained that alcohol use disorder exacerbates the symptoms of PTSD: Well, actually when you talk about someone with post-traumatic stress disorder, that is a very troubling syndrome whereby the person is continuously revisited by traumatic, sometimes near-death experiences, that have transpired in the past or they had seen a loved one shot and killed in front of them, something tremendous like that. And these people have terrible problems resting, sleeping, they become emotionally numb, they don’t want to have anything to do with people. And so clearly, and many times what they will reach for first is some alcohol because that’s going to numb them up. All right? But that only makes the depression and the anxiety from the post-traumatic stress disorder worse because the hallmark symptom of alcohol withdrawal is anxiety. So you’re sort of – it’s a downward spiral here with one acting on the other, each one acting on the other, to make them both worse. As for how alcohol use disorder affects someone suffering from depression, Dr. Iserman explained that: if you’re already depressed and then you’re drinking alcohol, you’re only – you can only expect that you’re going to intensify the level of depression that you had previously. And you know, does that push a person to the point where they – they’re not in their right mind and they decide to blow their brains out or drive their car into a tree or whatever it is? Certainly could. Dr. Iserman also described how severe alcohol use disorder and depression can impact an LPN’s ability to safety administer medication to patients: Well, if you go back to, you know, how alcohol impairs a [person’s] coordination, focus, and everything like that, I mean, LPNs are passing out medications to different individuals, some of them with morphine and things like that. They could very easily make a medication error and give the wrong person someone else’s medication which could have very serious if not lethal effects on the person that they gave it to by mistake. And it clearly would impair their ability to think clearly, focus, concentrate, not to mention the physical repercussions. * * * Well, if depression is – again, if it’s controlled, then they should be able to perform their chosen profession. Okay? If it’s not, depressed people don’t have a lot of motivation, they don’t have a whole lot of – it can affect them cognitively, emotionally, physically. It will totally destroy motivation, willingness to be [sic] significantly focused in on what it is that they’re supposed to do. They don’t have the motivation. They don’t have the energy. They don’t have [the] oomp to, you know, exert that type of energy. In sum, Dr. Iserman opined that Mr. Kemp is unable to practice nursing with a reasonable degree of skill and safety. Mr. Kemp testified that he has substantially curtailed his alcohol consumption since the PEth test described above. He asserts that he stopped drinking liquor in February or March of 2021 and has since restricted his alcohol consumption to 32 ounces of beer three or four days a week. As for why he supposedly made this change, Mr. Kemp explained that: I was going through a lot, and I noticed that I was drinking a little too much. I was a caregiver for my mom. My mom had passed, my nephew had passed. So, yeah – and I was going through a divorce. So yeah, I noticed that I was drinking too heavy and I talked to some of my family members, and they told me that I need[ed] to slow it down, and that’s what I did. Mr. Kemp’s assertions that he has curtailed his alcohol consumption and restricted himself to beer did not change Dr. Iserman’s opinion that Mr. Kemp is unable to practice nursing with reasonable skill and safety: A: Well, because as I indicated before, it doesn’t really make any difference about, you know, what the source of the alcohol is. If he says all I’m drinking is beer, well, how much beer is he drinking? Okay? And, you know, I suppose you could go back and do another PEth test, but the fact remains that the behavior hasn’t changed. Okay? I mean, this is not an individual, number one, who sees himself as having a problem and so, therefore – you know, that’s the great thing about substance abuse, denial. I didn’t do that. I don’t have a problem. You know, [why] are you coming at me with this stuff? Okay? It allows them to basically continue to go ahead, you know, act out, you know, mistreat[ing] other people plus themselves, or whatever it is that they do, and basically not be bothered by it all. And if they’re in denial, they’re not going to do anything about it. Q: In your experience, do people with alcohol abuse disorder tend to minimize their reports of how much alcohol they drink? A: Oh, routinely. Q: Okay. At his deposition, Mr. Kemp stated that he drinks a quart of beer at a time three to four times a week. If Mr. Kemp’s reports are true, would your opinion that Mr. Kemp is not able to practice nursing with reasonable skill and safety to patients change? A: No. Q: Why not? A: Well, again, I would say using myself as an example, I know that if I put away a quart of beer three to four times a week, I would not be doing very well. Any by the way, there’s an unwritten rule, if you talk to somebody and you ask them how [much] they drink – now, this is not scientific, and I can’t show it to you in a book. It goes with, you know, experience with this stuff. Whatever [a] person tells you that they drink, double it and you might be at the lower end of what they’re really doing. Mr. Kemp underwent additional testing on June 15, 2021, and a second PEth test returned a result of 243 nanograms per milliliter. That result and other results (or lack thereof) from a second round of testing also had no impact on Dr. Iserman’s opinion regarding Mr. Kemp’s ability to practice nursing with reasonable skill and safety: Q: Based on Mr. Kemp’s [second] PEth test results, has your opinion that Mr. Kemp is not able to practice nursing with reasonable skill and safety to patients changed? A: No. Q: Is the PEth test result consistent with someone who drinks a quart of beer three to four times a week? A: I’m thinking he’s drinking more than that. Q: Did – you mentioned that Mr. Kemp also tested positive for an ETG test; is that correct? A: Ethyl glucuronide. And actually, when we did the original hair test, he came up positive for marijuana. Now, when we sent him back for the updated PEth test and the urinalysis, we also sent [him] back for another hair test. He arrived there freshly shaven, so there was no hair to test. However, we also have what are called nail tests. Okay? And they can sometimes trace these things back even further. Mr. Kemp refused that test. Q: Okay. And what does that indicate to you? A: Well, it would indicate that if I had nothing to hide or anything to be concerned about, you know, my fingernails will grow back. I don’t know why I would refuse that test. * * * Q: Did [Mr. Kemp] take a urinalysis on June 15, 2021 as well? A: Yes. Q: And was that positive? A: For ethyl glucuronide, yes. * * * Q: Does it show – does it tell you how – when the last time someone consumed alcohol? A: Unlike the phosphatidyl ethanol, the hair testing, the nail testing, and things like that which can go back – nails can go back sometimes almost a year, okay, but ethyl glucuronide does not hang around that long. It is probably going to be gone I would say within a week. Q: So that positive test would mean that Mr. Kemp had consumed alcohol in the last week, for instance? A: Recently. I mean, he would have to have had something recently. As for a treatment recommendation, Dr. Iserman would refer Mr. Kemp to the Interventional Project for Nurses (“IPN”), which could lead to an in-patient treatment program of at least 30 days. After completion of such a program, Dr. Iserman would recommended toxicology monitoring, peer meetings such as those in a 12-step program, psychiatric treatment, and participation in a nurses’ support group. The findings set forth above amount to clear and convincing evidence that Mr. Kemp is unable to practice nursing with reasonable skill and safety.
Conclusions For Petitioner: Amanda M. Godbey, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 For Respondent: Walter Lindsey Kemp, Jr., pro se 855 Limoges Way Pensacola, Florida 32505
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order: (a) finding Walter Lindsey Kemp, Jr., L.P.N. violated section 464.018(1)(j); (b) imposing a $250 fine; and (c) suspending Mr. Kemp’s licensed practical nursing license until such time that he enters into a monitoring contract with IPN and complies with any and all terms and conditions imposed by IPN.9 DONE AND ENTERED this 4th day of October, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S G. W. CHISENHALL Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 2021. Amanda M. Godbey, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Kristen M. Summers, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Walter Lindsey Kemp, Jr. 855 Limoges Way Pensacola, Florida 32505 Deborah McKeen, BS, CD-LPN Department of Health Bin D-02 4052 Bald Cypress Way Tallahassee, Florida 32399-3252 Joe Baker, Jr., Executive Director Department of Health, Board of Nursing 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-3252 9 Section 456.072(4) provides that “[i]n addition to any other discipline imposed through final order, or citation, entered on or after July 1, 2001, under this section or discipline imposed through final order, or citation, entered on or after July 1, 2001, for a violation of any practice act, the board, or the department when there is no board, shall assess costs related to the investigation and prosecution of the case.”
Conclusions THIS CAUSE came before the Director, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Division), and enters this Final Order in the above styled cause pursuant to authority vested by Chapter 120, Florida Statutes. LI TAT 1. On September 20, 1997, the Division issued an Administrative Action against Respondent, a copy of which is attached hereto and incorporated by reference. 2. On April 15, 1997, an administrative hearing was held in 1 of 6 this matter in Ocala, Florida, before Administrative Law Judge Donald R. Alexander, the Division of Administrative Hearings, pursuant to §120.569 and §120.57(1), Florida Statutes. 3. On May 12, 1997, the Administrative Law Judge issued his Recommended Order in this cause. IN {e) T The Division hereby adopts and incorporates by reference the Findings of Fact, numbered 1 through 9, as set forth in the Recommended Order.
Findings Of Fact Respondents currently hold a Series 2APS license, number 45-00254, for Eastside Grocery, which is located at 132 South Highway 33, Groveland, Florida. The current term of the license expires on September 30, 1988. On February 26, 1988, Victoria Solozabal entered Eastside Grocery at about 4:25 p.m. Claude Cruce, a law enforcement investigator employed by Petitioner, entered the store directly behind her. Ms. Solozabal was acting under the direction of Mr. Cruce and another of Petitioner's investigators, Carl Lloyd, in assisting them in the detection of sales of alcoholic beverages to underaged persons. Ms. Solozabal was born on August 23, 1969. Upon entering the store, she carried with her only her driver's license and a small amount of cash for the purchase of a single can of beer. Ms. Solozabal went directly to an electric cooler in the back of the store, selected a chilled can of Budweiser beer, and took it to the checkout counter. With Mr. Cruce directly behind her and Mr. Lloyd only a few feet away watching, Ms. Solozabal placed the beer on the checkout counter and took out a $10 bill while Respondent Sandra Pettingill was ringing up the purchase. Ms. Pettingill demanded 75 cents, and Ms. Solozabal gave her the $10 bill. Ms. Pettingill placed the bill in the cash register and returned the change to Ms. Solozabal. At no time did Ms. Solozabal or any other employee of Eastside Grocery ask Ms. Solozabal her age or for proof of age. As Ms. Solozabal approached the door to leave the store, Mr. Cruce stopped her, demanded her identification, and seized the beer. He and Mr. Lloyd then informed Ms. Pettingill that she had sold an alcoholic beverage to an underaged person.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondents guilty of selling an alcoholic beverage to a person under the age of 21 years and imposing a civil penalty in the amount of $250. DONE and RECOMMENDED this 4th day of August, 1988, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1759 Treatment Accorded Petitioner's Proposed Finding of Facts Adopted. Adopted in substance. Adopted. Rejected as subordinate. 5-6. Adopted. Second 6. Rejected as irrelevant. Adopted. First sentence adopted. Remainder rejected as subordinate. Adopted. Rejected as subordinate. Treatment Accorded Respondents' Proposed Findings of Fact 1-3. Adopted, except any resemblance between Ms. Solozabal and a regular customer of legal age is rejected as irrelevant. 4-5. Rejected as irrelevant. Ms. Pettingill testified that her normal procedure was to check proof of age before ringing up a sale. She also testified that Mr. Cruce asked about the couch drops only after she had taken the $10 bill from Ms. Solozabal. Mr. Cruce's request for cough drops thus had nothing to do with the sale, which had already been made. COPIES FURNISHED: Harry Hooper, Esquire Department of Business Regulation 725 South Bronough Street The Johns Building Tallahassee, Florida 32399-1007 George Kelley, Esquire 368 East Main Street Post Office Box 1132 Apopka, Florida 32703 Van B. Poole Secretary Department of Business Regulation 725 South Bronough Street The Johns Building Tallahassee, Florida 32399-1007 Joseph Sole General Counsel Department of Business Regulation 725 South Bronough Street The Johns Building Tallahassee, Florida 32399-1007 =================================================================
The Issue Whether Petitioner, Palm Beach County School Board, has just cause to suspend and terminate the employment of Respondent, Carla J. Holmes, for violations of school board policies resulting from her refusal to take a reasonable suspicion drug test on January 7, 2013.
Findings Of Fact The Board is the duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Palm Beach County, Florida (the District), pursuant to Article IX, Florida Constitution, and section 1001.32, Florida Statutes. From 2006 until her termination, Respondent was employed by the District as a food service assistant assigned to Palm Springs Elementary School. The District has a Drug and Alcohol Free Workplace Policy (the Policy) that prohibits staff from coming to work under the influence of alcohol or illegal drugs and provides for the District to undertake "reasonable suspicion" drug testing when warranted by certain circumstances. On January 7, 2013, a cafeteria worker, Rose Niva-Joseph (Niva-Joseph), heard the bell for the cafeteria door ring. When she opened the door, Respondent stumbled into the kitchen. Respondent sat in a chair, fell, and dropped her bag. According to Niva-Joseph, Respondent smelled like alcohol. Niva-Joseph reported her observations to the cafeteria manager, Lisa Rosenthal (Rosenthal). Rosenthal observed that Respondent had fallen and sprayed water all over the floor. Rosenthal went to assistant Principal Andrew Kline (Kline) and reported that Respondent was acting very unusual. She told Kline that Respondent fell and sprayed water all over the kitchen floor. Kline went to the kitchen to investigate. Kline observed that Respondent was swaying back and forth, slurring her speech and had alcohol on her breath. Kline directed Respondent to return with him to his office. Kline contacted Human Resources Manager Britoni Garson (Garson) in the District’s Professional Standards Office to report Respondent's unusual behavior. Garson directed Kline to fill out an Observable Behaviors Checklist (Checklist). On this Checklist, Kline noted that Respondent was argumentative, her speech was slurred, she appeared restless, and had an unsteady gait. Kline also noted that Respondent had an odor of alcohol on her breath, she fell, and appeared agitated and nervous. Kline faxed the Checklist back to Garson who determined reasonable suspicion existed to suspect Respondent was under the influence of alcohol or drugs. Garson contacted the testing technicians to go to the school and collect a specimen for a drug and alcohol test on Respondent. While in Kline's office, Respondent was agitated and belligerent. Because this was not the first time Kline had observed Respondent acting in this manner, he asked for the school district police to send an officer. Kline previously observed similar behaviors from Respondent in September 2008 for which Respondent received a written reprimand for a positive drug or alcohol test. As a result of Respondent's aggressive behavior during the 2008 incident, Respondent also received a verbal reprimand with a written notation for her unprofessional behavior displayed in threatening Kline. Commander Terry Moore (Moore) was dispatched on January 7, 2013, and was directed to stand by because a cafeteria worker appeared to be under the influence of alcohol or drugs, and he was to be present to deter any problems. When Moore arrived, Respondent was in the office with Kline, and Kline was trying to explain to Respondent why she was asked to submit to testing. Respondent was aggressive, resistant, and accused Kline of being a racist. Moore smelled the strong odor of alcohol on Respondent's breath from three to four feet away. Principal Kathy Harris (Harris) was starting her first day at Palm Springs Elementary School on the morning of January 7, 2013. She heard yelling from Kline's office, and she looked in to see what was going on. Respondent was talking to Kline in a very argumentative tone. When Harris looked in the office, Kline was on the telephone. He came out to speak to Harris and told Harris that Respondent exhibited unusual behaviors including slurred speech and an unsteady gait. Harris personally observed Respondent being argumentative, belligerent, talking with slurred speech, and not making any sense. She believed these behaviors warranted a drug test. When the technician arrived to take Respondent's specimen, Respondent refused. Harris and Kline told Respondent that refusing to take a drug test constitutes an automatic positive test pursuant to the Board's policies. Harris had not previously met Respondent, and she was unaware that Respondent had a prior positive drug or alcohol test. Kline explained to Respondent that if she refused to take the drug test, she could lose her job. Respondent refused to take the test and walked out of the school. Moore followed Respondent to make sure that she was safe and that she did not drive. Moore observed Respondent boarding a public transit bus. Several days later, the lab sent the District a report indicating that Respondent refused to provide a sample for a drug test. Board Policy 3.96 provides that refusal to take a reasonable suspicion drug test constitutes a positive test and that the appropriate discipline for a positive drug test shall be in conformance with the applicable collective bargaining agreement. Pursuant to notice dated January 28, 2013, Respondent was informed that the District was undertaking an investigation into her actions and that she was scheduled for pre-determination meeting for February 1, 2013. Respondent attended this meeting and offered no explanation for her behavior on January 7, 2013, including her refusal to take the drug test. Respondent denied spraying water on the kitchen floor and stated that, if Kline wanted her to submit to a drug test, everyone else in the kitchen would need to be drug tested because they were using drugs. She denied that she had an odor of alcohol or demonstrated any risky behavior, slurred speech, or increased loud talking. Significantly, prior to January 7, 2013, Respondent never reported to anyone her belief that her co-workers were using drugs or alcohol while at work. No other member of the cafeteria staff was observed engaging in behavior that would suggest that they were under the influence of drugs or alcohol at work. Respondent signed a Drug and Alcohol Free Workplace Acknowledgment form on January 11, 2007, verifying her receipt and understanding of Board Policy 3.96 and that violation of the Policy would result in disciplinary action up to, and including, termination. Respondent signed the Code of Ethics Acknowledgment Receipt on April 24, 2010. The applicable collective bargaining agreement requires progressive discipline, and the District's policy and practice since 2008 has been that every employee who has a second positive drug or alcohol test was terminated for that offense. On August 7, 2013, the Board voted to terminate Respondent's employment effective August 23, 2013, for violation of Board Policy 3.96(2)(v) and (4)(f), Drug and Alcohol Free Workplace Policy; Board Policy 3.02(4)(a), (4)(f) and (4)(h), Code of Ethics; Board Policy 3.10(6), Conditions of Employment; and Board Policy 1.013(1), Responsibilities of School District Personnel and Staff. No evidence was introduced at the final hearing to substantiate Respondent's contention that the request for her to take a drug and alcohol test on January 7, 2013, was the result of a "conspiracy" against her, racism on the part of Kline, or that she was being singled out for testing when other co-workers were allegedly using drugs. Determination of Ultimate Facts The Board demonstrated by a preponderance of the evidence that reasonable suspicion existed on January 7, 2013, to require Respondent to submit to a drug and alcohol test. Respondent's refusal to take such test was not justified and constituted a "second offense" for purposes of the Policy. Accordingly, "just cause" existed to suspend and terminate Respondent's employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Palm Beach County School Board, sustaining Respondent's suspension without pay and terminating her employment. DONE AND ENTERED this 23rd day of July, 2014, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 23rd day of July, 2014. COPIES FURNISHED: Jean Marie Middleton, Esquire School District of Palm Beach County Office of General Counsel Post Office Box 19239 West Palm Beach, Florida 33416-9239 Carla J. Holmes 615 Mango Drive, Apartment 117 West Palm Beach, Florida 33415 E. Wayne Gent, Superintendent Palm Beach County School Board Suite C-316 3300 Forest Hill Boulevard West Palm Beach, Florida 33406 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Pam Stewart, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
