The Issue The primary issues for determination are whether Brother J. Inc., d/b/a A.J.’s Sports (Respondent) violated Section 561.29(1)(a), Florida Statutes; and secondarily, if Respondent committed such a violation, what penalty should be imposed?
Findings Of Fact Petitioner is the agency vested with general regulatory authority over the alcoholic beverage industry within the state, including the administration of the laws and rules relating to the sale of alcoholic beverages. Respondent is subject to the regulatory jurisdiction of Petitioner, having been issued license number 47-02607, Series 4-COP by Petitioner. That license allows Respondent to make sales for consumption on premises of liquor, wine, and beer at his establishment located in Tallahassee, Florida. Events at issue in this proceeding revolve around a fraternity/sorority party held at Respondent’s establishment on the evening of March 30/April 1, 2005. Members of the Phi Kappa Psi fraternity and the Delta Nu Zeta sorority decided that they would host a “construction” theme party. To facilitate the party, the social chairman of Phi Kappa Psi contacted Respondent to make arrangements. Respondent’s establishment has several large areas on its ground floor and a single, 1,800 square foot room on the second floor. Respondent agreed to reserve its upstairs room for the Phi Kappa Psi/Delta Nu Zeta party, to waive its cover charge for party patrons, and to make “dollar wells, dollar beers” (i.e. discounted prices on certain alcoholic beverages) available to party participants for a fee of $300.00. On the night in question, most of the participants met at the Phi Kappa Psi house before going out for the evening. They gathered around 10:00 p.m. and socialized. Some people were getting their “construction” costumes together; others were “pre- partying” –-drinking before going out to minimize the size of the bar bill when they go out later. The majority of the people at the frat house at that time were drinking. At some point around 10:30 or 11:00 p.m., the party moved from the Phi Kappa Psi house to Respondent’s establishment, with party members leaving in groups of three or four to drive from the fraternity house to Respondent’s establishment. It was estimated that 15 or so sorority members and 15 to 30 fraternity brothers attended the party, and that somewhere between a third and a-half of those people were not of legal drinking age. When they arrived at Respondent’s establishment, the sorority and fraternity party makers used a side entrance set up for them by Respondent for use in getting to the party. A doorman was posted at the side entrance that checked the age of each of the patrons. He would place a “Tybex®” wristband on those persons who were over the age of 21 and would mark the hand of those under 21 with an indelible marker. Once inside, party members would go upstairs, where there was a bar with a bartender, a disk jockey, and a dance floor. The party continued on until around 2:00 a.m. on the morning of April 1, 2005, at which time the bar closed and the patrons left. During the course of the evening, 244 alcoholic beverages were served at the upstairs bar at Respondent’s facility. No evidence was presented that established with any degree of accuracy how many fraternity and sorority members actually were at the party and how many were of legal drinking age. The evidence of party attendance provided at hearing varied widely and was in each instance an estimate or a guess. Numerous persons who were not members of Phi Kappa Psi or Delta Nu Zeta were in attendance. There is no accurate estimate of how many legal drinkers were at the party or how many drinks each legal patron may have had. The Underage Drinkers Shane Donnor was observed drinking at the frat house that night. He did not, however, appear to be intoxicated when he left the frat house. He had a wristband indicating that he was over 21, which allowed him to drink at Respondent’s establishment, even though he was not of legal age. It is unknown how he obtained his wristband. Donnor was observed to have a glass in his hand while at Respondent’s establishment, but no one could confirm that he was drinking alcohol. While at Respondent’s establishment, various witnesses described him as appearing under the effects of alcohol and thought he appeared quite intoxicated. By 2:30 a.m. on April 1, Donnor had a blood alcohol level of 0.27. This corresponds to at least 10 drinks and probably more. It is an extremely high level of intoxication, which could result in a coma or even alcohol toxicity in some persons. He was quite drunk and had been so for some time. Stephanie Reed was carded upon entering Respondent’s establishment, as was her boyfriend and all the others in her party. She had one or two drinks, but she didn’t buy them herself. One of the fraternity brothers purchased her drinks for her. Reed testified at one point that she did not receive a wristband when she entered the establishment (signifying legal drinking age); later, she testified that she did due to the intervention of some unknown man who told the doorman to give her a bracelet. Reed’s testimony on this point is inconsistent and cannot be credited. Christopher Lowe was carded as he entered Respondent’s establishment. He received marks on the back of his hand indicating that he was underage. Although he was marked as being underage, Lowe was able to purchase two drinks from the bartender. He ordered the drinks; did nothing to conceal the underage marks on his hand; was served; and left money on the bar. Tania Vasquez was carded upon entering Respondent’s establishment and was marked as being underage. She did not buy any drinks while at the party, but was given an alcoholic beverage by a friend that she consumed while on the premises. Elizabeth McKean, and everyone who entered with her, were carded when they arrived at the party. McKean was marked as being underage. She did not buy any drinks for herself, but was given a shot of tequila by someone else. She drank the shot quickly to avoid detection by Respondent’s staff. David Moser had a roommate who manufactured fake i.d. cards. When he entered Respondent’s establishment, he was carded and presented a false drivers license that made it appear that he was over the age of 21. He was marked as though he was over the legal drinking age and was able to buy and consume drinks at the bar, which he did. Lee Habern had several sips of a friend’s drink that was “snuck” to him. Prevention Of Underage Drinking It is well recognized that underage persons will seek to obtain alcoholic beverages at bars. This action by underage youths results in a “cat and mouse” game whereby the bar will change its tactics in trying to prevent underage drinking and the underage drinkers will change their methods of trying to obtain drinks. Respondent tries to combat underage drinking by creating a culture of compliance. This starts with the initial hiring of employees by Respondent. Respondent’s policy is that no underage drinking will be tolerated. This policy is stated in the Employee’s Handbook. Every employee is given a copy of the handbook upon becoming employed and is required to sign an acknowledgement that he or she received it. The policy is reiterated in informal training at every staff meeting. Every new employee at Respondent’s establishment is required to go through formal training with regard to liquor laws, the effect of alcohol on the human body, dealing with customers who have had too much to drink, and related topics. These courses are known as “PAR”, “TIPS”, and “Safe Staff” and are offered by the Florida Restaurant Association and Anheiser-Busch. Respondent has also offered training provided by agents of Petitioner. These formal training programs are offered continuously to employees, and at least one of the programs is offered three times each year. The initial formal training is accomplished within 30 days of the employee being hired. Records are maintained by Respondent as to who receives what training, and when it is provided. Respondent has a policy that everyone who is served alcohol is to have his or her age checked. When the bar is not busy, this is accomplished by having the waitress check the patron’s I.D. When the bar is busier, a doorman is posted at the entrance to check the patron’s I.D. If the patron is over age 21, he or she is given a wristband; if under age 21, an indelible mark is placed on the back of the hand. Since Respondent has experienced persons copying their “over 21” designation, it is changed on a nightly basis. Fake identification cards, if detected, are confiscated. On busier nights, Respondent might confiscate 20 to 30 of such fake identifications. On the night in question, the doorman confiscated five altered cards. Respondent also has a floor manager on duty at all times that the bar is open. The floor manager will circulate throughout the establishment to make sure that all of the policies and procedures, including the prevention of underage drinking, are being carried out. On the night in question, the floor manager, Bo Crusoe, is documented to have worked and in the nominal course of events would have checked the upstairs area of the premises several times. On busy nights, Respondent will hire one or more off- duty City of Tallahassee police officers to serve as security at the bar. The officers work in their police uniforms. These officers serve first and foremost as high visibility deterrents to unlawful activity. Their mere presence serves to minimize underage drinking. Respondent regularly has off-duty law enforcement on the premises. Respondent also has a security consultant, Officer John Beemon, who is a Tallahassee Police officer. He evaluates the need for additional security and communicates those needs to the owners. When he becomes aware of a new wrinkle in underage persons obtaining alcohol, he works with Respondent to prevent the practice. He assists the doormen in identifying fraudulent I.D.s. Respondent has always implemented whatever recommendations Beemon makes to them. Generally, the security measures used by Respondent have proven effective. From time to time, Petitioner will try a “sting operation” at Respondent’s establishment by sending a minor into Respondent’s bar to see if they are able to purchase alcohol. On every such “sting operation” Petitioner’s decoy was identified and stopped at the front door and was not allowed to purchase alcoholic beverages. Carrie Bruce is Petitioner’s special agent for the Tallahassee area. She is familiar with most Tallahassee alcoholic establishments and her testimony establishes that Respondent’s establishment is not considered a “problem bar” by Petitioner and is considered to be better than other area bars in preventing underage drinking. To the best of the owner’s knowledge and Beemon’s knowledge, no one has ever knowingly served a drink to a minor at Respondent’s establishment. Further, Respondent has never previously been charged with serving alcohol to minors.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is
The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Action and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, Suamy Corporation, held license number 23-21872, series 2APS, authorizing it to operate a beer and wine package store (the sale of beer and wine for off-premises consumption) at the premises of a business known as Bristol Sundries, located at 2127 Brickell Avenue, Miami, Florida (hereinafter "the licensed premises").2 Milagros Suarez was the sole shareholder, as well as the sole corporate officer, of the Respondent corporation. On February 11, 1997, Leonard DelMonte, a special agent with the Division of Alcoholic Beverages and Tobacco, undertook an inspection of the licensed premises. Upon entry into the premises, the agent observed shelves on his left that contained bottles of liquor on display, and behind the counter he observed more shelving, which contained more bottles of liquor on display, together with bottles of wine. A cash register was observed on the counter, and an employee was present to attend the needs of customers. The agent inspected, inventoried, and seized 19 bottles of distilled spirits (Petitioner's Exhibits 2-1 through 2-19) on the licensed premises. (Petitioner's Exhibit 1). The bottles were all sealed; labeled as distilled spirits, such as rum, scotch, gin, and vodka; and carried the name, trademark, or insignia of commonly known manufacturers of distilled spirits, such as Johnny Walker, Cuervo, Pinch, and Bombay. The bottles also had affixed to them price stickers, of the same type affixed to the wine that was offered for sale, and contained prices that were consistent with the retail price of the product. Given the facts, it is apparent that Respondent was offering the distilled spirits for sale on the licensed premises.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the charge set forth in the Administrative Action and imposing a civil penalty of $1,000 for such violation, subject to Respondent's option to substitute a period of suspension in lieu of all or a portion of the civil penalty. DONE AND ENTERED this 27th day of January, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 27th day of January, 1998.
The Issue The issue in this case is whether the alcoholic beverage license of Harold Haffner, Jr., and Catherine B. Haffner, d/b/a Bay's Produce Market (Respondents) should be disciplined by the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Petitioner), based on actions they are alleged to have taken on October 18, 1988, in the sale of a can of beer to a person under 21 years of age.
Findings Of Fact At all times material hereto, Respondents have held an alcoholic beverage license issued by the Petitioner, number 39-02010-1-APS, and have done business at 6609 South Westshore Boulevard, Tampa, Florida, as Bay's Produce Market. On October 18, 1988, Respondent Catherine B. Haffner sold a can of beer to James L. Leschner, whose birthdate is November 21, 1970. At the time of this sale, Leschner was 17 years of age. At the time of this sale, Respondent Catherine B. Haffner testified that Bay's Produce Market was very busy since it was around noon. She did not check Leschner's identification, or even ask him his age. She testified that he looked 25 years old, and she simply assumed he was at least 21 years of age because he was approximately 6 feet 3 inches tall. The Petitioner's investigator, William P. Fisher, disputed Respondent's testimony. The store was not very busy, and only three customers were in the store, including Leschner, Fisher, and one other investigator. Based upon the demeanor of the witnesses, the testimony of Fisher is found to be more credible than that of Respondent. It is, therefore, found that Bay's Produce Market was not filled with many lunchtime customers, but rather, only Leschner and two other people were in the store at the time Respondent sold him a can of beer. Leschner did not show Respondent any false identification, or misrepresent his age. He was simply not asked for any identification, or about his age.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order suspending Respondents' license to sell alcoholic beverages for a period of thirty days, and imposing an administrative fine of $500. DONE AND ENTERED this 28th day of August, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1989. APPENDIX (DOAH CASE NO. 89-0804) Rulings on the Petitioner's Proposed Findings of Fact: 1. Adopted in Finding 1. 2-3. Adopted in Finding 2. 4. Adopted in Finding 3. The Respondents did not file Proposed Findings of Fact. COPIES FURNISHED: John B. Fretwell, Esquire The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Robert H. Carlton, Esquire 1101 East Jackson Street Tampa, Florida 33602 Steven Royal, Esquire 209 North Brush Street Tampa, Florida 33602 Joseph A. Sole, Esquire The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Stephen R. MacNamara, Secretary Dept. of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007
The Issue The amended Administrative complaint, forwarded to the Division of Administrative Hearings on January 20, 1987, alleges that Respondent is unable to practice medicine with reasonable skill and safety to patients by reason of alcohol and substance abuse; that Respondent attempted to treat patients while under the influence of alcohol, constituting gross or repeated malpractice or failure to practice medicine with the level of care recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances; and that Respondent failed to fulfill a statutory or legal obligation placed upon a licensed physician. After lengthy discovery and negotiations and Respondent's submittal to an inpatient mental and physical examination, the parties filed a stipulation substantially limiting the issue to the conditions under which Respondent should be allowed to return to the practice of medicine and appropriate monitoring once he returns to practice. At the final hearing, DPR presented the testimony of two witnesses: Lynn Hankes, M. D., qualified as expert in addictionology without objection, treated Dr. Pigg for alcoholism in 1985 and examined him as an inpatient in January, 1988. Robert A. Goetz, M. D., qualified without objection as an expert in the field of impaired physicians, has been the director of Florida's Physicians' Recovery Network since February 1988, and has known Dr. Pigg since shortly after that time. Respondent's sole witness was Milton R. Burglass, M.D., qualified without objection as an expert in psychiatry and in addiction treatment. Dr. Burglass reviewed Dr. Pigg's records and files and interviewed him on April 7, 1988, in anticipation of this hearing. After the hearing the transcript was filed and both parties submitted proposed recommended orders. Specific rulings on the proposed findings of fact are found in the attached appendix.
Findings Of Fact William Larry Pigg is, and has been at all time material, a licensed physician in the State of Florida, having been issued license number ME 0040625. The parties in their prehearing stipulation filed on February 15, 1988, agree to the following: Peitioner, the Department of Professional Regulation, is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes. Since at least the summer of 1984, Respondent has had a problem with alcohol abuse. On or about June 13, 1985, Respondent entered the Impaired Physician's Program. Respondent completed an alcohol treatment program in Miami, Florida. Thereafter, Respondent also completed an extended program in Mississippi. On or about December 17, 1985, Respondent was granted staff privileges at Holmes Regional Medical Center in Melbourne, Florida. In order to obtain staff privileges, Respondent signed a statement agreeing to do the following: to abide by the Aftercare Con- tract of the Mississippi State Medical Association Impaired Physician's Program; and to submit to blood alcohol levels [sic] at any time at the request of any physician on the staff of Holmes Regional Medical Center. In or about April 1986, Respondent began to abuse alcohol again. On or about April 12, 1986, Respondent was attempting to perform a right hip reduction on a patient at Holmes Regional Medical Center. The patient in question was legally intoxicated and a large muscular man. Respondent, in attempting to relax the patient, ordered a large dose of narcotics, including Demerol and Nubain, as well as Phenergan and Valium. On or about the evening of April 12, 1986 or the morning of April 13, 1986, Respondent left the emergency room, took a Phenergan tablet and went home. Phenergan is the brand name for prometnazine Hydrochloride. Phenergan can cause drowsiness or impair the mental and/or physical abilities of the individual taking the drug. Later on the same evening, the Emergency Department Physician, Dr. Wagner, spoke with Dr. Pigg by telephone in reference to two patients with fractures that required orthopedic intervention. Respondent agreed to come and resume care for the patients. However, Respondent never came to the medical center and could not be located by police. On or about April 16, 1986, Respondent's wife contacted the Melbourne Police Department because her husband had come home intoxicated. On or about June 7, 1986, Respondent was arrested for driving while under the influence of alcohol and reckless driving. On or about June 30, 1986, the Director of the Florida Medical Foundation Committee on Impaired Physicians, Roger A. Goetz, M.D., advised the Petitioner, by letter, that Respondent was not progressing satisfactorily with the program and had not complied with all aspects of his aftercare contract. Respondent is and has been at all times alleged in the above stipulated facts, unable to practice medicine with reasonable skill and safety to patients by reason of alcohol abuse. No evidence was presented as to substance abuse, other than alcohol. Nor was there evidence that Dr. Pigg suffers from a mental condition. Although his records reflect some prior diagnosis of a passive/aggressive personality disorder, the prevailing thought in the addictionology community is that psychiatric diagnoses are invalid until an individual has been sober long enough to assure that the problem is not solely the alcohol's effect on the individual. There is no evidence that Dr. Pigg has had this requisite period of sobriety since 1984, and particularly the time that he was examined by Dr. Burglass, the only psychiatrist to testify in this proceeding. Of the experts who testified, Dr. Hankes is most familiar with Dr. Pigg, having been his primary treating physician in the past, and having examined him recently over several days as an inpatient. Dr. Hankes found that Dr. Pigg progressed from the mid stage of alcoholism to the early late stage of this disease between 1985 and 1988. In addition to Dr. Hankes' program at South Miami Hospital, Dr. Pigg has undergone primary treatment at a series of facilities in Georgia, Mississippi and Florida, all of which have an excellent reputation. At this point, in Dr. Hankes' opinion, he is a treatment failure. He has, at various times in his treatment experience also undergone detoxification at a Myers Act facility, attempted Antabuse therapy, and tried and rejected Alcoholics Anonymous. In spite of the past failures, the experts concurred that Dr. Pigg, like other alcoholics, is capable of recovery and that once recovered, Dr. Pigg would be capable of practicing medicine safely. All concurred that the recovery must be verified prior to Dr. Pigg's return to practice, and that thereafter the recovery must be monitored for an unforeseeable period of time. Dr. Hankes' advice, based on his concern as Dr. Pigg's treatment provider and primary therapist, is a six-part program: that addiction therapy continue on an outpatient basis, at least weekly, by a certified alcohol or addiction professional; that Dr. Pigg engage in psychotherapy with a qualified psychiatrist knowledgeable about addictive disease, the frequency to be determined by the psychiatrist; that a primary internist or family general practitioner monitor his physical well-being, especially his liver dysfunction; that Dr. Pigg participate in Alcoholics Anonymous, with a lay individual sponsor, as well as engage in International Doctors in Alcoholics Anonymous with a recovering physician sponsor; that Dr. Pigg be assigned a monitoring physician, knowledgeable in addictive disease, who has the authority to require random, unannounced surprise testing of blood or urine and that personal contact be made every two weeks and telephone contact in the alternate weeks; that the treating and monitoring individuals report on a quarterly basis to Dr. Roger Goetz, the Recovery Network director and that at the end of a two-year period Dr. Pigg be examined again by Dr. Hankes who would make his recommendation to Dr. Goetz. Dr. Pigg would also have the right to go to another AMA approved treatment provider for a second opinion. Dr. Hankes distinguishes between the state of being "dry" or free from alcohol use for a period, and recovery from alcoholism which requires a personal transformation with some undefined indicators. Dr. Hankes is convinced that the latter state is essential for real recovery and that Alcoholics Anonymous is the most effective, though not exclusive, route to that state. Although Dr. Hankes recommends a two year period during which Dr. Pigg would not be permitted to practice, he concedes that recovery could be effective in less time and that he would readily endorse his return to practice if the recovery were completed sooner. He describes Dr. Pigg as a "very competent physician", a "very bright guy", a "multi-talented individual, who flies airplanes and does wonderful things in his life." None can predict the time required for recovery, but each of the three experts recommends a period of one to two years of verified sobriety prior to the return to practice. Dr. Burglass recommends neither Alcoholics Anonymous participation nor the multi-part program outlined by Dr. Hankes. Since Alcoholics Anonymous and the other treatment/recovery models have been unsuccessful, Dr. Burglass suggests that Dr. Pigg be allowed to devise his own method of achieving recovery; he emphasizes that the goal, and not the route to that goal, is the concern here. He recommends that sobriety be verified for a period of one year and thereafter Dr. Pigg be allowed to return to practice with monitoring for approximately three years. The evidence, weighed and considered as a whole, fails to establish that an absolute two-year suspension from medical practice is necessary or that involvement in Alcoholics Anonymous is essential.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That William Larry Pigg, M.D. be suspended from the practice of medicine for an indefinite period, provided that he be given an opportunity to appear before the Board at twelve month intervals to demonstrate that he can resume the competent practice of medicine with reasonable skill and safety to patients. That demonstration should include, as a minimum: a ) That he has totally abstained from the use of alcohol for a period of twelve months, as evidenced by frequent unannounced random collection of blood samples by an agent designated by the Board. That he has been under the continuous care and supervision of a physician qualified to provide addiction therapy and that, if recommended by that individual after a necessary period of sobriety, he has also undergone a psychiatric evaluation to determine the existence of mental disease or disorder. If detected, the disease or disorder must be treated. That he has been evaluated successfully participated in Alcoholics Anonymous or other similar peer support group program. Successful participation means frequent regular attendance at meetings and the association with a qualified sponsor from the program. That he has been evaluated and recommended for return to practice by Dr. Hankes or other treatment professional designated by the Board. However, if the recommendation is negative, Dr. Pigg should be permitted to obtain a second opinion independent of the Board's designated evaluator, from an individual other than that described in b), above, who is also qualified in the field of addictionology. The length and type of monitoring necessary once Dr. Pigg returns to practice should be determined at that time, based on recommendations of the professionals responsible for assisting in his recovery. DONE and RECOMMENDED this 4th day of August, 1988, in Tallahassee, Florida. MARY CLARK 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. 87-0225 The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings Adopted in paragraph 2. Adopted in paragraph 1. 3-13. Adopted in paragraph 2, incorporating the parties pre-hearing stipulation. 14. Adopted in paragraph 7. Respondent's Proposed Findings 1-4. Incorporated in Issues and Background statement. 5. Adopted in paragraph 2, incorporating the parties' prehearing stipulation. 6-8. Included in Background Statement. 9-12. Rejected as unnecessary restatement of the witnesses' testimony. Adopted in substance in paragraph 3. Included in Background Statement. 15-16. Adopted in substance in paragraph 4. Adopted in paragraph 6. Adopted in paragraph 9. 19-20. Adopted in paragraph 7. Adopted in paragraph 8. Adopted in paragraph 9. 23-24. Incorporated in substance in the Background statement. 25-28. Adopted in substance in paragraph 11, otherwise rejected as cumulative and unnecessary. 29. Adopted by implication in paragraph 12. 30-31. Rejected as cumulative and unnecessary. Adopted in paragraph 12. Rejected as a conclusion of law. Rejected as contrary to the evidence. Abstinence alone is insufficient. Adopted in substance in paragraphs 3, 11, and 12. Rejected as unnecessary. COPIES FURNISHED: John Namey, Esquire 22 East Pine Street Orlando, Florida 32801 Deborah J. Miller, Esquire One Biscayne Tower, Suite 2400 Two South Biscayne Boulevard Miami, Florida 33131 Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
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 The issue presented in this case is whether the Petitioner has established by a preponderance of the evidence that Respondent sold alcoholic beverages to a person under the age of 21, in violation of Section 562.11(1)(a), Florida Statutes, as alleged in the Notice To Show Cause issued October 8, 1992.
Findings Of Fact At all times relevant and material to this proceeding, the Respondent, Jin I. Jeon, (licensee), held license number 39-03637, series 2-APS, authorizing him to sell alcoholic beverages on the premises of the Diwan Food Store, located at 7504 N. Florida Avenue, Tampa, Hillsborough County, Florida (premises). On or about September 16, 1992, Special Agent A. Murray, Special Agent K. Hamilton, Investigative Aide D. Snow and Intern M. Dolitsky went to Diwan Food Store to investigate complaints of alcoholic beverage sales to minors. Investigative Aide D. Snow's date of birth is November 11, 1973. She was 18 years of age on September 16, 1992. In accordance with the intructions of the law enforcement officers, Investigative Aide Snow entered the premises and selected a one-quart bottle of Budweiser beer, an alcoholic beverage, from a cooler. The bottle of beer was sealed and clearly marked as an alcoholic beverage. She proceeded to the cash register, where the Respondent was waiting. Snow paid the Respondent, who rang up the sale on the register. The Respondent did not request to see Snow's identification, nor did he ask her whether she was at least 21 years of age. The Respondent's defense was that he was not the person who sold Snow the beer. When he was confronted with the charges, he disclaimed any knowledge of them and blamed an employee, Min Sup Lee, whom he believed must have been the person involved in the sale. He immediately fired Lee because of the charges. Lee testified that he was employed by the Respondent from March 1992 through January, 1993. Lee testified that he worked for Respondent six days a week, primarily at night, and that he was the person in charge of the cash register the majority of the time. He asserted that he probably worked the cash register on the night of the violation. However, he denied ever having seen either Special Agent Murray or Special Agent Hamilton, or Investigative Aide Snow, and he denied any knowledge of the incident. It seems clear that Lee was not the person who sold the beer to the Investigative Aide Snow. Communication problems (the Respondent's English language limitations) may be at the root of the Respondent's inability to understand and to carry out his responsibilities as a vendor under the Beverage Law. Later on the evening of the sale in question, Special Agent Murray returned to the store to talk to the Respondent about the violation but she was not confident that he understood anything she was saying. It is possible that, due to the Respondent's lack of facility with the English language, he did not understand that Murray was charging him with illegal sale of alcoholic beverages to a minor and that, when, some time later, the Respondent came understand the nature of the charge against him, he assumed that his employee must have been responsible. On the other hand, it is possible that the Respondent knows full well his responsibilities under the Beverage Law, and knows full well that he failed to meet those responsibilities on September 16, 1992, but that he knowingly and unfairly tried to use his employee to avoid his own responsibity. In any event, it is found that it was the Respondent, not Lee, who sold the beer to Snow and that, in all likelihood, Lee either was not working on September 16, 1992, or was occupied elsewhere with other responsibilities when Snow and Murray were in the store. The Division's standard penalty for the violation alleged in the Notice to Show Cause is a twenty-day license suspension and a thousand dollar ($1,000.00) civil penalty. This standard penalty has been noticed as proposed Rule 7A-2.022, Penalty Guidelines, pending public workshop and approval.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order: (1) finding the Respondent guilty as charged in the Notice to Show Cause; (2) suspending the Respondent's alcoholic beverage license for twenty days; and (3) ordering the Respondent to pay a $1,000 civil penalty. RECOMMENDED this 27th day of July, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1993. COPIES FURNISHED: Miguel Oxamendi, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32399-1007 Jin I. Jeon 7504 N. Florida Avenue Tampa, Florida 33604 John Harrison, Acting Director Division of Alcoholic Beverages and Tobacco Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Donald D. Conn, Esquire General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee Florida 32399-1000
Findings Of Fact At all times pertinent to the issues herein, alcoholic beverage license No. 26-01841, Series No. 2-APS, was issued to Respondents, Frank D. and Estella S. Ryers, for their establishment known as the Big B Restaurant, located at 5570 Avenue B, Jacksonville, Florida. A 2-APS license permits the package sale only of beer and wine. It does not permit the consumption on the premises of beer, wine, or liquor. On March 27, 1983, Investigator Wendell M. Reeves conducted an undercover operation directed against the Big B Restaurant predicated upon reports received by Petitioner that Respondents were conducting sales of alcoholic beverages not permitted by the license at the licensed premises. In furtherance of that operation, Reeves utilized another beverage agent, Van Young, in an undercover capacity to make a controlled buy of an improperly sold substance from the licensees. Prior to sending Young into the licensed premises, Reeves searched Young to ensure that he, Young, had no alcoholic beverage or money in his possession. Satisfying himself that that was the case, he gave Young $15 in U.S. currency and sent him into the licensed premises to make the buy. Young entered the Big B Restaurant at 1:00 p.m. and came out 17 minutes later. When he came out of the licensed premises, Young came over to where Reeves was waiting and turned over to him a sealed 200 ml bottle of Fleishman's Gin. Young told Reeves that he had purchased the gin in the licensed premises from a black male whose description matched that of Respondent Frank D. Byers which is contained on Respondent's application for license. Respondent Frank Byers denies making the sale. On balance, however, there is little doubt it was Respondent who made the sale, especially in light of the fact that this same licensee was issued a letter of warning by the Division of Alcoholic Beverages and Tobacco in October 1981 for possession on the premises of an alcoholic beverage not permitted to be sold under the license. Young also stated that he purchased a second bottle which he consumed on the premises with another black male. However, this evidence was in the form of Reeves' report of what was told him by Young. As such, it is clearly hearsay and can be used only to corroborate or explain other admissible evidence. Therefore, as to the allegation regarding the consumption of the gin on the premises, since it is the only evidence of that offense, it cannot be used to support a finding of fact on that allegation. It may, however, be used to explain how Young got the bottle with which he was seen by Reeves to come out of the licensed premises. Several days later, on March 30, 1983, Reeves again entered the licensed premises, where he told Respondent Estella Byers he was there to inspect the site. She opened the cooler for him and he inspected the beer inside and the cigarettes. While he was doing that, however, he noticed her take a cloth towel and drape it over something behind the bar. He went over to it, removed the towel, and found that it covered a bottle of Schenley's gin. Mrs. Byers immediately said she thought it was her husband's, Respondent Frank Byers, but another individual present at the time, Sharon Thomas, said she had taken it from her brother, who was drunk, and had put it there. Again, as to Ms. Thomas' comments, they, too, are hearsay and can only serve here to explain or corroborate other admissible evidence. In any case, after Ms. Thomas made her comment, she was immediately contradicted by Respondent Estella Byers, who again indicated she thought the bottle was her husband's. In any case, at the hearing, Respondent Estella Byers contended she did not know it was there. On balance, Mr. Reeves' testimony that she covered it with a towel while he was inspecting and the evidence of the prior warning for an identical offense tend to indicate she did know it was there and that it was unlawful for it to be there. There is, however, no evidence to establish sufficiently the reason for its being there.
The Issue Whether Petitioner established, pursuant to section 1012.33(1)(a), Florida Statutes (2011),1/ "just cause" to terminate Respondent from employment based on a breath alcohol level of 0.112, as alleged in the Administrative Complaint dated February 8, 2012.
Findings Of Fact In January 2003, Petitioner hired Respondent to teach exceptional student education courses. Since commencing her employment with Petitioner, Respondent has always received an annual performance evaluation rating of no less than fully satisfactory. Respondent has a bachelor's degree in exceptional student education and, most recently, received a master's degree with an endorsement in reading and special education. For the 2011-2012 academic school year, Respondent was employed by Petitioner pursuant to a professional services contract. Respondent's professional services contract provides that "THE TEACHER SHALL BE BOUND TO SERVE AS PROVIDED IN SECTION 1012.33, FLORIDA STATUTES," and "SHALL NOT BE DISMISSED DURING THE TERM OF THIS CONTRACT EXCEPT FOR JUST CAUSE AS PROVIDED IN SECTION 1012.33(1)(a), FLORIDA STATUTES." (Capitalization in original). The contractual term of Respondent's contract covered the period of August 16, 2011, through June 8, 2012. On the morning of January 13, 2012, Respondent began her day by dressing both herself and her two-year-old daughter. Respondent safely drove her daughter to daycare and then proceeded to safely drive herself to Bayshore High School. Respondent arrived at school around her customary time of between 7:15 a.m. and 7:25 a.m., parked her car in the school's parking lot, without incident, and then entered the school building where she checked her mail, walked to her classroom, and made general preparations for the school day, which included briefly exchanging pleasantries with her colleague, Michele Neathery. Although the exchange between Respondent and Ms. Neathery was brief, at no time during the encounter did Ms. Neathery smell alcohol about Respondent's person or observe Respondent behaving in a way that would suggest impairment. Respondent's first instructional period of the day on January 13, 2012, started at 8:50 a.m., and ended at 10:20 a.m. A.M. was a student in Respondent's first class and also served as Respondent's classroom aide. At the time of the final hearing, A.M. was 19 years old. A.M. testified that on January 13, 2012, Assistant Principal Ginger Collins came to Respondent's classroom and asked her to step into the hallway. Before this occurred, A.M. had conversed with Respondent for about ten minutes, and during this time, he did not notice anything unusual about Respondent's appearance or her behavior. At approximately 10:20 a.m., on the day in question, Ms. Collins had gone to the classroom occupied by Respondent to discuss with her a situation from the previous day that involved one of Respondent's students. Ms. Collins entered the classroom occupied by Respondent and asked Respondent to step into the hallway with her so that they could discuss the situation from the previous day. Respondent complied with the request from Ms. Collins, exited the classroom, and positioned herself outside of her classroom door so that she could speak with Ms. Collins and simultaneously monitor her students through the window of the door to the classroom. Respondent, while speaking with Ms. Collins in the alcove to her classroom, observed that two of her students were not on-task. Ms. Collins, from her vantage point, did not observe the two students that Respondent saw who were off-task and otherwise did not witness any "rambunctiousness or loud behavior" in Respondent's classroom. Respondent, in an attempt to alert the two students to the fact that they were being monitored and to otherwise get them back on-task, slapped her hand against the door three times. Ms. Collins had never observed Respondent use this student management technique. Because Ms. Collins did not see that two of Respondent's students were off-task during the time when she conversed with Respondent, Ms. Collins thought it was odd and out of character for Respondent to have slapped the classroom door for what to Ms. Collins, was no apparent reason. Although Ms. Collins thought it "odd" when Respondent slapped the door, Respondent's student, A.M., credibly testified that prior to January 13, 2012, he had witnessed Respondent slap her hand against the door a "couple of times before" as a technique for refocusing her students. There was no evidence offered during the hearing that slapping a door with one's hand is an inappropriate classroom management technique. Respondent's act of slapping the door with her hand is not evidence of Respondent's normal faculties being impaired but is instead, under the circumstances, evidence that her faculties were intact. Respondent was able to observe and appreciate that two of her students were off-task and she responded by taking appropriate corrective action to redirect the errant students. Had Respondent not taken such corrective action, it would certainly make for a more credible assertion that her normal faculties were impaired because, then, it could be said that Respondent was unable to appreciate the need to correct her students because of alcohol-related influences on her judgment. This, however, is not the case. Furthermore, the evidence establishes that all of Respondent's students were on-task until Respondent was asked to step into the hallway by Ms. Collins. The fact that all of Respondent's students were on-task when Ms. Collins initially entered Respondent's room is further indication that Respondent was in control of her classroom and not suffering from diminished faculties related to alcohol consumption. When Ms. Collins conversed with Respondent outside of Respondent's classroom, Ms. Collins became concerned about allowing Respondent to return to the classroom because Ms. Collins observed that Respondent "was covering her mouth" with her hand when she spoke, was shifting her body "from side to side," had a strong smell of alcohol emanating from her person, and was speaking louder than usual. Although Ms. Collins had concerns about Respondent's ability "to return to the classroom," Ms. Collins did not monitor Respondent's performance in the classroom upon completion of their conversation. According to evidence stipulated to by the parties, one of the behaviors associated with alcohol-related impairment is "decreased inhibition." The word "inhibition" is defined as "a mental process imposing restraint upon behavior or another mental process." Merriam-Webster Online Dictionary. Respondent's act of covering her mouth while speaking is not evidence of decreased inhibition, but is, instead, evidence of heightened inhibition. Respondent was cognizant of the smell of her breath and by covering her mouth with her hand, she was taking steps which were reasonably designed to deflect any offending breath-related odor. Had Respondent suffered from "decreased inhibition," then it is certainly more likely that Respondent would have spoken to Ms. Collins in such a way as to not have shielded Ms. Collins from any smells that may have been emanating from Respondent's mouth. After completing her initial conversation with Respondent, Ms. Collins immediately shared her concerns about Respondent with Assistant Principal Baron McCombs, Respondent's supervisor. Within a few minutes of being alerted to the situation by Ms. Collins, Mr. McCombs went to Respondent's classroom. Mr. McCombs entered Respondent's classroom and asked Respondent to accompany him to his office. The total time that Mr. McCombs was in Respondent's classroom was "[j]ust a matter of seconds." During the few seconds that Mr. McCombs observed Respondent in her classroom, he noticed that Respondent "was acting very out of character . . . sort of flamboyantly, [and] [h]er voice was sort of boisterous, and her hands were sort of flailing, and her speech patterns were sort of elongated." Mr. McCombs described Respondent as usually being a very reserved person. Although Mr. McCombs observed Respondent behaving in a manner that he considered "out of character," he did not believe that Respondent's behavior was detrimental to her students. Respondent admits the behaviors described by Mr. McCombs, but credibly testified that the observed behaviors were intentionally orchestrated because she was trying to get her students excited about learning about President George Washington and his false teeth. Mr. McCombs and Respondent exited her classroom and walked together to his office. During the walk to his office, Mr. McCombs did not observe Respondent staggering or otherwise having difficulty ambulating. Once in Mr. McCombs' office, Respondent and Mr. McCombs spoke briefly about an incident from the previous day involving one of Respondent's students. Respondent did not elongate her words while speaking with Mr. McCombs in his office, and according to Mr. McCombs, Respondent's demeanor at the time was "reserved." Ms. Collins entered Mr. McCombs office within a few minutes of Respondent's arrival, and once Ms. Collins took her seat, the conversation shifted to the real reason why Respondent had been summoned to the office by Mr. McCombs. Mr. McCombs informed Respondent that she was suspected of being under the influence of alcohol. Respondent's initial response to the accusation was to say, "Oh my God, I can't believe that this is happening," and she then became emotional and started to cry. When questioned, Respondent admitted that she had been drinking the night before. Specifically, Respondent admitted that she had her last drink "somewhere around 1:00 or 1:30 in the morning." Mr. McCombs left the room to report the matter to school Principal David Underhill. While waiting for Mr. Underhill to arrive, Respondent continued to converse with Ms. Collins. Respondent asked questions about the protocols and procedures related to the allegations and also wanted to know the impact of the situation on her employment. While discussing these issues with Respondent for more than an hour, Ms. Collins did not detect that Respondent's "speech was slowed or sluggish." Mr. Underhill eventually arrived and explained to Respondent the procedures and protocols associated with suspected impairment testing. At about 12:30 p.m. Ms. Collins, who had been with Respondent the entire time since entering Mr. McCombs' office, prepared to transport Respondent to the medical clinic for suspected impairment testing. Before leaving for the clinic, Ms. Collins escorted Respondent to her car to retrieve some items. The walk to Respondent's car took about five minutes. During the walk, Ms. Collins observed that Respondent did not experience any difficulty walking and that Respondent was coherent. Ms. Collins drove Respondent to the medical clinic for suspected impairment testing. Once at the medical clinic, Respondent provided two breath samples for a breathalyzer testing machine that measured Respondent's breath-alcohol level at 0.112. Since commencing employment with Petitioner, this was Respondent's first positive, confirmed alcohol test. The testing protocol at the medical clinic was such that Respondent met with a nursing assistant and stayed in the presence of the nursing assistant throughout the testing process. During the 20 or so minutes that Respondent was with the nursing assistant, it was observed by the nursing assistant that Respondent was coherent, she understood instructions that were given to her, and her speech was not sluggish. The nursing assistant did observe that Respondent had glassy eyes. After completing her final breathalyzer test, Respondent met with medical doctor Craig Trigueiro for about five to ten minutes. Dr. Trigueiro has been a physician for 37 years. When Dr. Trigueiro evaluates patients for suspected alcohol impairment, he described his process for face-to-face evaluation as follows: I look at them. I smell their breath. I observe their behavior. I ask them various questions, and then I document everything on the drug testing forms. [T-17] When Dr. Trigueiro met with Respondent, he noted the following on her drug testing form: Admits to last p.m. drinking until 1:00 a.m. In Alcoholics Anonymous. Glassy eyed. Has alcohol on breath. Breath alcohol, 0.112 and 0.112. Assistant principal. Ginger Collins here. Legally under the influence. Acutely intoxicated and cannot drive. Dr. Trigueiro stated that he noticed that Respondent was "a little unsteady on her feet," but on cross-examination, admitted that Respondent's apparent unsteadiness could have been related to causes other than alcohol consumption. Dr. Trigueiro, contrary to his stated practice of "document[ing] everything on the drug testing form," did not note on Respondent's drug-testing form that she was "a little unsteady on her feet." Dr. Trigueiro also testified that he noticed that Respondent was "sluggish in her speech." On cross-examination Dr. Trigueiro admitted that he did not mention on Respondent's drug-testing form that Respondent was "sluggish in her speech." Dr. Trigueiro testified that the reason why he did not note on Respondent's drug-testing form his observations of Respondent's sluggish speech and her being unsteady on her feet, was because he "didn't think that this type of situation would end up in court." Dr. Trigueiro stated that had the instant case been one involving "great bodily harm or death," as opposed to one merely involving an employer for-cause breath test, he would have performed a higher level of medical examination that would have included diagnostic exams, such as the "finger to nose" and "heel to toe" test. In Dr. Trigueiro's opinion, Respondent's intoxication was "cut and clear" because she had a breath-alcohol test which showed that Respondent was "legally intoxicated." Contrary to Dr. Trigueiro's conclusion that Respondent was "legally intoxicated," a breath-alcohol level of 0.08 or higher does not establish, ipso facto, "legal intoxication," but instead merely establishes a rebuttable presumption, as it relates to the operation of a motor vehicle, that a person is under the influence of alcoholic beverages to the extent that his normal faculties are impaired. § 316.1934(2)(c), Fla. Stat. Specifically, section 316.1934(2) provides that the presumptions created therein do "not limit the introduction of any other competent evidence bearing upon the question of whether the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired." Id. Ms. Collins was with Respondent when she was seen by Dr. Trigueiro. According to Ms. Collins, when Dr. Trigueiro spoke to Respondent "he was very upset" and treated Respondent quite harshly. When Respondent told Dr. Trigueiro that she had been drinking until about 1:00 a.m., Dr. Trigueiro said to Respondent: "Do you think I'm a fool?" Dr. Trigueiro went on to state that he had been practicing medicine for over 30 years and that Respondent could not have consumed her last drink at the stated hour and then some twelve hours later have a breath- alcohol level of 0.112. Despite this initial assertion by Dr. Trigueiro, he, nevertheless, admitted on cross-examination that some people are more tolerant of alcohol than others and that not all individuals metabolize alcohol at the same rate. According to Dr. Trigueiro: The more alcohol someone drinks, the more enzymes in the liver exist to detoxify alcohol, which is why someone who drinks all the time has to drink more alcohol to . . . get a buzz to become--you know, feel the central nervous system effects of the alcohol. So someone who drinks a lot has to drink more alcohol simply because the liver enzymes are revved up to detoxify alcohol; whereas someone who doesn't drink much alcohol would become intoxicated at a much lower beverage intake, alcohol intake because the liver enzymes are not induced by chronic drinking. Dr. Trigueiro did not perform any tests on Respondent to determine that rate at which her body metabolizes alcohol. Dr. Trigueiro's medical opinion establishes that Respondent had glassy eyes, but does not establish that Respondent's normal faculties were impaired. When asked specifically if Respondent's "normal faculties were impaired," Dr. Trigueiro could only state that Respondent was "clinically impaired." Petitioner did not offer any evidence as to whether "clinical impairment" is synonymous with impairment of one's normal faculties, and Dr. Trigueiro's response suggests that the two standards are not synonymous. Dr. Trigueiro was more concerned with lecturing Respondent about her alcohol consumption, as opposed to conducting a thorough assessment of Respondent's level of functional impairment. Dr. Trigueiro obviously believed that a more thorough evaluation of Respondent's level of cognitive functioning was unwarranted because in his opinion, Respondent's case was "cut and clear" due to her breath-alcohol level of 0.112 and the fact that this was merely a case involving an employer for-cause evaluation. The greater weight of the competent substantial evidence establishes that when Respondent reported to school on January 13, 2012, and through and including the time that she met with Dr. Trigueiro, she was coherent, she was able to process information that was communicated to her and provide appropriate responses thereto, she was oriented to time and place, her speech was not sluggish or slurred, and she did not have any difficulty ambulating. The greater weight of the competent substantial evidence also establishes that during all times relevant hereto, the glassy appearance of Respondent's eyes was the only objective manifestation of the alcohol that was in Respondent's system and that the presence of "glassy eyes" does not establish in and of itself that a person's normal faculties are impaired. Respondent admits to being a recovering alcoholic. She is actively involved in an alcoholics support group and consults with her sponsor regularly. Near the end of the 2010-2011 academic school year, Respondent was experiencing difficulty in maintaining sobriety. There was no evidence presented that Respondent's challenges with maintaining sobriety during the previous school year negatively impacted her performance in the classroom. In recognition of her challenges, Respondent self-disclosed to the school principal, Mr. Underhill, her challenges with alcohol and requested a leave- of-absence so that she could receive in-patient treatment. Respondent's request for leave-of-absence was granted, and she attended and completed a rehabilitation program. Mr. Underhill, when asked about whether he had concerns about Respondent being in the classroom with students with alcohol in her system, testified that he "would be extremely concerned when a teacher in a classroom has to make multiple decisions, all at any given time, that any type of circumstances can arise [and Respondent's] level of [breath] alcohol is going to impair good judgment." Petitioner did not offer any credible evidence establishing that on January 13, 2012, Respondent's judgment was impaired or that she had difficulty, or would likely have difficulty, making appropriate decisions while in her classroom.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The violations alleged in paragraphs 10, 12, 13, and 14 of the Administrative Complaint should be dismissed. The violation alleged in paragraph 11 of the Administrative Complaint should be dismissed to the extent that it seeks to establish just cause for termination of Respondent's employment. Paragraph 11 of the Administrative Complaint should be sustained to the extent that it establishes grounds for imposing non-terminable discipline against Respondent. Respondent shall be suspended, without pay, for a period of 60 calendar days. Respondent shall not be eligible to use any accrued leave during her period of suspension. Upon return from her suspension, Respondent, during the remainder of the 2012-2013 academic year, shall at her expense be subject to random alcohol testing as determined by the Manatee County School Board or its designee. A positive alcohol test shall result in further disciplinary action. Upon return from her suspension, Respondent, during the remainder of the 2012-2013, shall be assigned to a position where she does not have responsibility for the supervision of students. During Respondent's period of suspension, she shall remain eligible to participate in the Employees' Assistance Program and shall enroll in and successfully complete an alcohol dependency program. Respondent may be subject to disciplinary action should she fail to successfully complete the alcohol dependency program. DONE AND ENTERED this 16th day of August, 2012, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 2012.
The Issue The issues for determination are whether the undisputed actions of Respondent constitute just cause to terminate his employment as an educational support employee, and, if not, what penalty is reasonable.
Findings Of Fact Most of the material facts in this proceeding are undisputed. The parties dispute the reasonableness of the proposed termination of Respondent's employment. From December 3, 2001, through April 3, 2007, when Petitioner suspended Respondent without pay, Petitioner employed Respondent as an educational support employee, defined in Subsection 1012.40(1)(a), Florida Statutes (2006).1 Petitioner employed Respondent as an Electrician in Petitioner's Maintenance Services Department. The terms of employment are governed by the collective bargaining agreement between Petitioner and the Support Personnel Association of Lee County (the CBA).2 Respondent is a recovering alcoholic, but his alcoholism has not previously affected his job performance. That changed on January 12, 2007. After receiving work assignments on the morning of January 12, 2007, Respondent became loud and agitated. Respondent's supervisor asked Respondent what was wrong, and Respondent indicated he was having problems at home. The supervisor asked if Respondent had been drinking alcohol. Respondent denied the implicit accusation. After the encounter with the supervisor, Respondent drove one of Petitioner's vans to his home and consumed vodka for most of the day. At about 3:00 p.m. that day, Respondent returned the van to the parking lot of the Maintenance Department and had difficulty parking, according to the observations of Respondent's supervisor. Respondent stopped the van and got out. He was unable to walk without staggering. His eyes were red and watery. He had difficulty standing, and his shirt was soiled with vomit. The supervisor asked Respondent again if Respondent was intoxicated, and Respondent voluntarily reported his alcohol- related problem. Respondent's supervisor and two zone service managers called for assistance from the Fort Myers Police Department (the police). The police first attempted to have Respondent admitted to the Detoxification Unit, but the Unit was full. The police drove Respondent to the hospital, and the hospital admitted Respondent. The incident on January 12, 2007, was not the first time Respondent had voluntarily reported his alcohol-related problem to a member of management. In November of the previous year, Respondent experienced some personal problems and resumed the compulsive consumption of alcohol. Respondent voluntarily reported the alcohol-related problem to his supervisor and to his department director and obtained a 30-day leave of absence to complete a 28-day residential alcohol treatment program. Respondent completed only 17 days of the 28-day program. Respondent exhausted his insurance benefits after 17 days and could not afford the daily rate of $833 to complete the remaining 11 days. Respondent returned to duty sometime between January 8 and 10, 2007. Respondent informed his supervisor that Respondent had not completed the residential treatment program because he had exhausted his insurance benefits. Petitioner did not refer Respondent to another treatment program. After the incident on January 12, 2007, Respondent voluntarily entered an outpatient treatment program with Southwest Florida Addiction Services. Respondent successfully completed the program on March 30, 2007. Petitioner paid for the outpatient program and Respondent kept Petitioner notified of his progress. Respondent has maintained after-care treatment with a physician who specializes in addiction disorders and has regularly attended Alcoholic Anonymous meetings. Respondent has no prior disciplinary history. During the period of employment that began on December 3, 2001, Respondent received one probationary performance assessment and four annual performance assessments. Petitioner consistently evaluated Respondent at an "effective level of performance" in all areas targeted for assessment, with the exception that the assessment for the 2002-2003 school year scored two areas as "focus for development/feed back." The comment section in three annual assessments provides that Respondent "continues to do an excellent job." The department director recommended renewal of Respondent's contract for the five school years ending in 2007.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order suspending Respondent from his employment without pay for four months from April 3, 2007, as a penalty for personal business on school time and driving a school vehicle for personal use, and requiring Respondent, as a condition of his continued employment, to maintain his current regimen of addiction treatment with a physician and regular intervention from Alcoholics Anonymous. DONE AND ENTERED this 23rd day of August, 2007, 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 23rd day of August, 2007.
