The Issue Should Petitioner discipline Respondent's Series 2-APS alcoholic beverage license for allegedly failing to disclose the direct interest in the beverage license held by M. Kashani, for falsely swearing to a material statement in the application for Respondent's alcoholic beverage license, and for allowing an employee to exchange U.S.D.A. food coupons for cash?
Findings Of Fact Effective October 12, 1993, the alcoholic beverage license number 52- 01222, Series 2-APS, held by Mohammad Kashani, d/b/a Quick Serv, for the location at 2066 West Silver Springs Boulevard, Ocala, Marion County, Florida, was revoked by Petitioner. The basis for the revocation concerned Mr. Kashani's conviction of criminal possession of a controlled substance in New York State, which disqualified Mr. Kashani from holding a Florida alcoholic beverage license. On October 13, 1993, Petitioner received Respondent's application for an alcoholic beverage license, Series 2-APS, for the license establishment known as Quick Serv, located at 2066 West Silver Springs Boulevard, Ocala, Marion County, Florida. When Respondent made the application, she was unaware that the alcoholic beverage license number 52-01222, Series 2-APS, held by Mr. Kashani, had been subject to investigation and revocation. Respondent first learned of the revocation of Mr. Kashani's alcoholic beverage license on the hearing date. Although Respondent was unaware of the investigation of the alcoholic beverage license held by Mr. Kashani and the revocation of that license for a criminal offense, Respondent was aware that a different pending criminal case for which Mr. Kashani stood accused might effect Mr. Kashani's ability to continue to hold the alcoholic beverage license for the establishment at West Silver Springs Boulevard. When Respondent submitted the application for the alcoholic beverage license, she had been living with Mr. Kashani, although they were not married. The couple had children together at the time the application was made. Subsequently, Respondent and Mr. Kashani were married and had been married for approximately two and one-half years when the hearing was held. Before Respondent made the application for the beverage license, she had worked at the establishment at 2066 West Silver Springs Boulevard, while Mr. Kashani was in jail awaiting trial for alleged violation of laws unrelated to the New York offense. Mr. Kashani's predicament concerning the pending criminal trial led Respondent to discuss with him the possibility that Respondent would take over the business at 2066 West Silver Springs Boulevard as a means to support Respondent and her children should Mr. Kashani be incarcerated following his trial. It took a period of time for Respondent to obtain the necessary information to complete the application for the alcoholic beverage license. Before the application was submitted, Mr. Kashani had been released from jail on bond pending his trial. The trial was conducted on January 3, 1994, and Mr. Kashani was found not guilty. Respondent was issued alcoholic beverage license number 52-01290, Series 2-APS, to do business as Quick Serv at the West Silver Springs Boulevard location. It is that license which is subject to administrative discipline in this case. In preparing the sworn application, Petitioner sought the advice of an attorney. She also entered into certain business arrangements with Mr. Kashani, which were disclosed in her application for alcoholic beverage license. Among the arrangements between Respondent and Mr. Kashani, which were entered into when Mr. Kashani was still incarcerated, awaiting trial, was a transfer of the assets of the Quick Serv business and the execution of a lease between Respondent and Mr. Kashani, in which Respondent was the lessee for the property which Mr. Kashani owned, where the business was located on West Silver Springs Boulevard. Mr. Kashani is the owner of the property upon which the Quick Serv establishment is located and is responsible for the payment of a mortgage on the property and the property taxes for that parcel. In particular, on September 21, 1993, while Mr. Kashani was incarcerated, a Bill of Sale, selling to Respondent all merchandise, inventory and store equipment at the Quick Serv, for a nominal consideration, $10.00, was executed by Mr. Kashani. A lease was entered into on that date for the period of September 1, 1993 through March 31, 1996. The rental amount contemplated by the lease was $400.00 per month. Under the terms of the lease, the Respondent was required to pay for all water, gas, electricity, and other utilities associated with the licensed premises. Finally, on September 21, 1993, an assignment was made from Mr. Kashani to Respondent of the Quick Serv telephone numbers and trade name. In taking over the Quick Serv business, Respondent opened a business bank account. This account was opened before Respondent obtained the alcoholic beverage license. In its details, the application which Respondent submitted to obtain her alcoholic beverage license disclosed that she had invested no funds, personal or otherwise, in Quick Serv. The application disclosed the existence of the Bill of Sale dated September 21, 1993. It disclosed the existence of the lease between Respondent and Mr. Kashani. In the application, Respondent did not specifically disclose the name of Mr. Kashani, or any other person, as having an interest, directly or indirectly. The application also reminded the applicant to list the names of persons whose interest was that of lender, joint account holder, or co-signer. Nothing was stated in response to that item. The application disclosed that the basis for purchasing the business was a "gift". No money was disclosed as having been invested by the Respondent. With the application, Respondent revealed the assignment of the Quick Serv telephone numbers and trade name to her from Mr. Kashani. In the application, Respondent indicated that she was the 100 percent owner of any stock in the business, notwithstanding that there was no indication that the business had been incorporated. This information was imparted under the application section having to do with the disclosure of liens, titles and interest of all officers, directors, stockholders, limited partners and general partners of the business for which the license was sought. Although Respondent did not specify in the section designed to reveal the names and types of interest that Mr. Kashani would have in the Quick Serv business, either directly or indirectly, the other information concerning his association with the business that has been described did identify Mr. Kashani's involvement with the business, as contributing the assets for operating Quick Serv and remaining as landlord for the property under the lease terms. Contrary to the business arrangements which have been described between Respondent and Mr. Kashani, the contract for electric services at Quick Serv has always been in Mr. Kashani's name at pertinent times, as has the contract for telephone services at that establishment. Mr. Kashani holds a membership in Sam's Club as a primary member, issued in the name of Quick Serv on October 21, 1993. On or about February 18, 1994, Mr. Kashani's name was added to the signature card for the bank account which Respondent had opened for the Quick Serv business. That signature authorizes Mr. Kashani to draw checks on the bank account. He has drawn checks on the bank account to pay for, among other items, the purchase of inventory for the Quick Serv business from Sam's Club. Generally, Mr. Kashani has routinely written checks on the bank account to purchase inventory for the Quick Serv business. In addition, Mr. Kashani has written checks on the Quick Serv bank account opened by Respondent to pay his real estate mortgage for the Quick Serv location. While Mr. Kashani has made mortgage payments from the bank account, Respondent has never made lease payments to Mr. Kashani, in accordance with the lease between Respondent and Mr. Kashani. Following his trial on January 3, 1994, Mr. Kashani began to perform duties in operating the Quick Serv business. His association was not that of an employee who was compensated for his services, nor under terms of a managerial contract with Respondent. As Respondent describes it, Mr. Kashani has been "helping me out". The duties that Mr. Kashani has performed in the store are the same as Respondent has performed. This includes stocking and operating the cash register. Mr. Kashani's involvement extends to advising Respondent of what to do in the business. Respondent described this arrangement as one in which "he knows better business than I do". After Respondent obtained the alcoholic beverage license, Petitioner's investigator has been to the Quick Serv on more than 10 occasions. When the visits were made Mr. Kashani was usually behind the counter working. Respondent was only seen on one occasion. The United States Department of Agriculture (U.S.D.A.) instituted an investigation of the Quick Serv store during the period of December 8, 1994 through August 1, 1995 to ascertain whether food stamps were being improperly exchanged for cash at that location. To achieve its purpose, its investigator, George Carson, employed the assistance of an investigative aide, George Evans. Essentially, Mr. Carson gave Mr. Evans U.S.D.A. food stamps to be presented to an employee at Quick Serv, in exchange for cash, if the employee was willing. On December 8, 1994, Mr. Evans entered the Quick Serv and spoke to Mr. Kashani. Mr. Evans asked Mr. Kashani if Mr. Kashani wanted to buy any food stamps. Mr. Kashani replied that he did not know Mr. Evans. Another man was in the store. Mr. Kashani called out to that individual and asked the unidentified man, if he, the unidentified person, knew Mr. Evans. The response was "yes". Mr. Kashani then asked for the food stamps. Mr. Evans handed them to him. Mr. Kashani obtained money from his pocket and from an undisclosed location within the store and gave cash in exchange for the food stamps. The food stamp value was $80.00. The cash exchanged was $40.00. On March 10, 1995, Mr. Evans returned to the Quick Serv. On this occasion, he had $195.00 in food stamps. Once in the store, Mr. Evans addressed Mr. Kashani and asked him if he was buying food stamps again. Mr. Kashani said that he did not know him. Mr. Evans told him that he did know him and that he had bought "some" from Mr. Kashani a while back, after which Mr. Evans handed Mr. Kashani $195.00 in food stamps. In turn, Mr. Kashani gave Mr. Evans $95.00 in cash. The $95.00 was obtained from Mr. Kashani's pocket. On August 1, 1995, Mr. Evans returned to the store. He again asked Mr. Kashani if he would buy food stamps. Mr. Kashani told Mr. Evans that he did not know him. Mr. Evans replied "you bought some from me a couple of weeks ago, three or four times", to which Mr. Kashani replied "I was just testing you". Mr. Evans then handed Mr. Kashani $325.00 in food stamps, and Mr. Kashani gave Mr. Evans $150.00 in cash from the cash register in exchange. Respondent was not in attendance on any of the occasions at which food stamps were exchanged for cash.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the amended administrative action against Respondent. DONE AND ENTERED this 19th day of July, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, 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 19th day of July, 1996. APPENDIX TO RECOMMENDED ORDER The following discussion is given concerning the proposed findings of fact of the parties. Petitioner's Proposed Findings of Fact 1-4. Subordinate to facts found. With the exception of paragraph 5(e), subordinate to facts found. The reference in paragraph 5(e) to information about spouses does not pertain, in that, at the time the application was made, Respondent and Mr. Kashani were not married. Subordinate to facts found. With the exception of the last sentence in paragraph 7, subordinate to facts found. The last sentence is not supported by competent evidence. 8-15. With the exception of the reference to a traffic ticket being paid by check, subordinate to facts found. The reference to the traffic ticket is not supported by competent evidence. Subordinate to facts found. Not supported by competent evidence. 18-22. Subordinate to facts found. Respondent's Proposed Findings of Fact 1-11. Subordinate to facts found. 12. Not necessary to the resolution of the dispute. 13-16. Subordinate to facts found. 17-18. Rejected, in the suggestion that Mr. Kashani did not have an interest, either direct or indirect, in the business. 19. Not necessary to the resolution of the dispute. 20-22. Subordinate to facts found. 23. Subordinate to facts found, with the exception that the date should read January 3, 1994. 24-28. Subordinate to facts found. Not supported by competent evidence. Subordinate to facts found. Contrary to facts found. Subordinate to facts found. 33-34. Constitute conclusions of law. COPIES FURNISHED: Thomas D. Winokur, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Donna M. Meek, Esquire 20 South Main Street Gainesville, Florida 32601 John J. Harris, Director Department of Business and Professional Regulation 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 is whether Petitioner had just cause to terminate Respondent's employment for being under the influence of alcohol while on duty.
Findings Of Fact At all times material to this proceeding, Petitioner employed Respondent as a facilities maintenance technician at Pathways Elementary School. Respondent's job required him to maintain the school's heating and air conditioning equipment and all electrical equipment. Respondent's position was safety-sensitive because his work occasionally exposed him to as much as 220 volts of electricity. Respondent was aware of Petitioner's personnel policy regarding illegal drug or alcohol abuse. This policy is set forth in policy No. 415, which states as follows in relevant part: It is the intention of the School Board of Volusia County to maintain a drug-free workplace and school environment for its employees and students . . . . An employee of the school board shall not manufacture, distribute, dispense, possess or use alcoholic beverages on school grounds, on school board property, or at school board activities (on or off school board property) at which students are present . . . . * * * Disciplinary action, including, but not limited to termination of employment and referral for prosecution, if appropriate will be taken against any employee who violates this policy. . . . Procedures shall be developed to effectuate the intent of this policy. The procedures shall include provisions for drug testing applicants for employment and employees. Employee testing may be part of a routinely scheduled fitness-for-duty medical examination or based upon reasonable suspicion that an employee is violating the terms of this policy. . . . Respondent signed a document on October 12, 1998, acknowledging his receipt of policy No. 415. Respondent admits he had a responsibility to make sure that he was not under the influence of alcohol at work. On July 20, 2000, the school's secretary was making photo identification badges for school staff members. The secretary radioed Respondent and requested that he come to the office to have his picture taken. During this conversation, the secretary noticed that Respondent's speech was slurred. Because Respondent's voice did not sound right, the secretary asked the school's resource teacher to be present when Respondent arrived. In order to take the picture, the secretary had to place the camera fairly close to Respondent's face. The secretary smelled alcohol on Respondent's breath. She also observed that Respondent was sweating profusely and that his complexion was very pale. Upon Respondent's arrival at the office, the resource teacher smelled a strong odor of alcohol in the room. The resource teacher noticed Respondent's slurred speech. She also observed that Respondent appeared ill because he was pale and sweating profusely. The school secretary called the assistant principal to tell him that she had observed Respondent in an intoxicated state. The assistant principal, in turn, telephoned Respondent's immediate supervisor regarding Respondent's observable intoxication. The assistant principal made this call around 1:00 p.m. Subsequently, the assistant principal observed two bottles of vodka and several bottles of mouthwash in Respondent's vehicle. The vehicle was parked in the school's parking lot. Respondent's immediate supervisor first called Petitioner's professional standards investigator who agreed to meet the supervisor at Pathways Elementary School. The supervisor and the investigator wanted to observe Respondent's behavior firsthand. Arriving at the school, the supervisor noted that Respondent's speech was slurred. Upon her subsequent arrival, the investigator noted Respondent's disheveled clothing, his confused conversation, and the smell of alcohol about his person. Based on her training and experience and her observations of Respondent, the investigator concluded that Respondent was under the influence of alcohol. Respondent freely agreed to submit to a sobriety test. The supervisor transported Respondent to Deland, Florida, for a breath alcohol test. They arrived at the testing center about 3:00 p.m. After taking two breath alcohol tests, Respondent signed a document setting forth the numerical results. As a result of Respondent's intoxication on the job, and in light of Petitioner's drug-free workplace policy, Petitioner gave Respondent another work assignment pending completion of an investigation. After the investigation was complete, Petitioner voted to terminate Respondent's employment. Petitioner's decision was consistent with its policy of terminating employees upon their first violation of the prohibition against using alcoholic beverages on school property. Respondent presented testimony that he is now enrolled in an intensive alcohol-treatment program. He admits that he "has a problem with alcohol." Respondent's testimony that he was not intoxicated from using alcohol while at work on July 20, 2000, is not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding just cause for terminating Respondent's employment. DONE AND ENTERED this 9th day of April, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 9th day of April, 2001.
The Issue Whether Petitioner has just cause to terminate Respondent's employment as an educational support employer based on the incident that occurred on November 3, 2005.
Findings Of Fact Respondent's employment with Petitioner began on September 30, 2002. He is a school bus driver, who works out of the south zone transportation compound. The position of the bus driver is an education support employee. Respondent is governed by the collective bargaining agreement between Petitioner and the Support Personnel Association of Lee County (SPALC). Since Respondent commenced working for Petitioner in September 2002, he received one probationary performance assessment and three annual performance assessments. Respondent always scored an "effective level of performance" in all areas targeted for assessment. The "comment" section for Petitioner's 2003-2004 performance assessment stated he was "an excellent employee." On his 2004-2005 assessment, the assessor wrote in the "comments" section that Respondent "performs daily route, requiring little supervision." Respondent's director recommended that Respondent's annual contract with Petitioner be renewed for each of the school years for 2003-2004, 2004-2005, and 2005-2006. On September 13, 2005, Respondent was involved in a minor traffic accident while driving his school bus. There were no passengers on the bus at the time. After initially being unable to reach his supervisor on the radio, Respondent spoke with his supervisor and was instructed to complete his scheduled run. As a consequence of the accident, Respondent was required to submit to a drug and alcohol test. Both tests were negative. Pending the results for the test, however, Respondent was reassigned to office duty at Petitioner's south zone transportation department. Respondent was required to submit to a second drug and alcohol test on September 15, 2005. Respondent was working in the transportation office at the time. He had returned from lunch and was accused of smelling like he had consumed marijuana. He claimed that he simply had smoked a cigar during his lunch break. The drug and alcohol tests were negative. Respondent cooperated with the drug and alcohol testing in both instances. Notwithstanding, he believed he was being unfairly singled out and expressed this fact to Armando de Leon, the director of transportation for the south zone. On November 3, 2005, Respondent reported for duty around 5:00 a.m. He conducted his pre-trip check of the bus and discovered that the screws on the bracket of the passenger-side cross-over mirror, which assists the driver in observing students, who pass in front, and to the side of the bus, had come loose from the bus. Respondent did not record the problem on his pre-trip checklist, but instead drove the bus to the mechanic bay to have it repaired. Since September 2005, Respondent repeatedly had experienced a problem with the bracket of the passenger-side cross-over mirror becoming loose. It was repaired on several occasions both before and after November 3, 2005. Respondent showed the mechanic, David Deberardis, the problem with the mirror. Respondent and the mechanic both determined that it was safe to operate the bus in its existing condition, at least for Respondent's initial morning run. The mechanic instructed Respondent to return the bus to him after Respondent's first trip, and he would repair it at that time. Before commencing his run, Respondent repositioned the bracket of the mirror so it was temporarily operable. Only after his students disembarked at their destination at South Fort Myers High School did Respondent observe that the mirror bracket had again worked itself loose, and the mirror was hanging down from the bus. On November 3, 2005, in response to a citizen's anonymous complaint regarding Respondent's operating his bus erratically, Nena Garrett, the Petitioner's road safety supervisor, was assigned to surveil Respondent's bus. Garrett waited for Respondent at the bus ramp of South Fort Myers High School on November 3, 2005. She observed Respondent park his bus, get out of his bus, and speak to the driver of the bus in front of him. Garrett was convinced that the bus in front of her then intentionally blocked her access to the bus ramp. However, she was able to follow Respondent's bus and observed that Respondent activated the left turn signal, but made a right turn out of the school bus ramp and drove approximately two miles to the bus compound. When Respondent parked his bus at the south compound, Garret noticed that the front bumper of the bus on the passenger side was scraped and that the cross-over mirror bracket was detached from the holder. Garrett did not witness Respondent be involved in an accident; however, she saw the damaged mirror. She then reviewed Respondent's pre-trip inspection log, which indicated that everything on Respondent's bus was in working order. No damage to the bus was reported on the inspection log for that day. Bus operators are taught in training how to conduct a pre-trip inspection, and that if anything is wrong with the bus, it should be noted on the form. Respondent acknowledged that he attended such training and that he had received the Operator's, Assistant's and Monitor's Handbook, which includes requirement that bus operators are to conduct a pre-trip inspection daily. Respondent did not indicate on his pre-trip inspection log that there was any damage to the mirror or to the outside of the bus for the report submitted on November 3, 2005. Garrett did not observe anything of concern when Respondent exited his bus at the compound. However, Garrett confronted Respondent in the parking lot and asked how the cross-over mirror was broken. Respondent explained to Garrett that he had reported the loose mirror to the mechanic earlier that morning and that the mechanic told him to return to have it fixed after he completed the first run. Garrett conferred with the mechanic and confirmed that Respondent indeed had reported the problem with the mirror to him and that he told Respondent to proceed with his first run. The mechanic also confirmed that the condition of the mirror was not the result of an accident. Garrett testified that during the conversation with Respondent in the parking lot of the south compound, she observed the Respondent trip climbing the bus stairs. She also testified that his eyes were red and glassy and that he had pasty saliva coming from his mouth. Based on her experience as a teacher of drug and alcohol traffic education courses, she determined that something was wrong with Respondent and that he must be impaired. Garrett made the decision to contact the south zone director, Armando de Leon, to inform him that it appeared Respondent had been in an accident and that his appearance was suspicious. Garrett did not inform de Leon that she had talked to the mechanic. Following Garrett's phone call, de Leon arrived on the scene, and Garrett informed de Leon what she had witnessed. De Leon contacted Patrick Hayhurst, the district's safety inspector and deputy sheriff, to ascertain how he should proceed with searching the bus. Hayhurst advised de Leon to conduct the search. Respondent was advised that Garrett would be searching the bus. Respondent consented to the search and stated that he "had nothing to hide." Respondent claimed that he also requested union representation at that time, but his request was denied, and they proceeded with the search. During the search, a small grey briefcase was discovered on the floor resting against a partition behind the driver's seat. De Leon obtained Respondent's permission to search the briefcase. Among the contents of the briefcase, Garrett found a plastic card with scrape marks and a light brown, sticky powder stuck to it. She also found a Swiss army pocket knife. The pocket knife was a multi-tool devise with a knife blade estimated to be a two inch to two and a half inch blade, along with other tools. Respondent admitted to de Leon that the knife was his. He also admitted that he had placed the knife in the briefcase, but had forgotten it was there. In addition to the above items found in the briefcase, a transparent pen was also found with some type of residue on it. Respondent testified on direct examination that the pen was actually a mechanical pencil; however, on cross-examination he admitted that it was in fact a pen. Respondent had received the School Board's employee Handbook, which indicates the Petitioner's zero tolerance policy for weapons on school property. The policy reads as follows: Florida Statutes supports district procedures stating that persons shall not possess any firearm, electric weapon or electric devise, destructive devise or other weapon on the property of any school, any school bus stop, any facility having a school-sponsored activity, a district facility or any district property. Check with your site administrator for more specific procedures and for information regarding situations of this type at your worksite. Due to the observations made by Garrett and de Leon, it was determined that reasonable suspicion existed to administer a drug and alcohol screening of the Respondent; including, a test for Oxycontin. De Leon was aware that Respondent had been prescribed to take Oxycontin for pain-related injuries received in the past. De Leon testified that after the items were found on the bus, he contacted Hayhurst once again to determine what to do next. Hayhurst advised de Leon to contact the Lee County Sheriff's Office for the purpose of documenting what was discovered and to have the substance on the plastic card tested. De Leon then contacted the sheriff's office. Respondent was asked to come into de Leon's office. Once inside, Respondent was afforded the opportunity to contact a union representative. He spoke with Suzan Rudd, the executive director of SPALC, who told him to say as little as possible. A union representative did not arrive at de Leon's office prior to Respondent's departure. De Leon put the knife, pen barrel, and plastic card down on his office desk and went to advise Jack Shelton of what was taking place. When he returned to the office, the knife and plastic card were gone. Respondent had taken possession of both items. Upon request, Respondent returned the plastic card to de Leon, but retained the knife. De Leon then received a phone call advising him that a deputy had arrived. De Leon testified that at that moment Respondent's disposition changed, and he became extremely agitated and aggressive, and he advanced towards him. At this point, the testimony of the witnesses becomes very conflicted. However, the best evidence indicates that Respondent backed de Leon up against the wall near the corner of his office. Garrett stood up, and de Leon yelled for help. De Leon had his hands up above his head, and Respondent reached his hands toward de Leon's arms seeking to retrieve the plastic card. At that time, Shelton entered the room and, at Shelton's request, Respondent stepped away from de Leon. The testimony is inconsistent regarding the physical incident with de Leon. The testimony was that he stumbled into de Leon, shoved de Leon, fought with de Leon, or forcibly put his hands on de Leon. The testimony of Garrett, Shelton, and Giles corroborates de Leon's testimony that he had his hands in the air, and Respondent was forcibly making contact with de Leon's arms and/or hands against his will. Immediately following the incident with de Leon, Respondent announced that he was resigning his position. He was advised that there was a process for submitting a resignation, and that it cannot be done verbally. Once again, Respondent was advised that he was being asked to submit to a drug test, and he refused. Respondent admitted to observing the nurse, from the company used to conduct drug tests for Petitioner, on the compound prior to leaving the premises. Lee County Sheriff's Deputy John Kinsey testified that when he arrived at the scene, he proceeded to de Leon's office and observed a struggle going on. He obtained information about the incident from those present. He stated that he could have taken Respondent to jail for battery; however, he advised de Leon that his possession of the Respondent's plastic card could be considered petty theft. He testified that both parties thought better of pressing charges at that moment and moved on. Deputy Kinsey then conducted a swipe of the plastic card, which is less then a presumptive field test. The test would show for cocaine and any type of methamphetamine. The test was negative. Deputy Kinsey did not test for marijuana or Oxycontin. His visual observation of the plastic card was inconclusive as to illegal substances. Respondent looked medicated and disconnected from the world to Deputy Kinsey, like someone who had been taking pills. Based on his observation of Respondent, he advised Respondent not to drive home after leaving Petitioner's compound. Respondent ignored the deputy's advice and drove from the premises. Respondent withdrew his verbal resignation when he arrived home later that day, after he had an opportunity to confer with a union representative. Although both Garrett and de Leon overreacted to the incident, de Leon was authorized to require Respondent to take a drug and alcohol test, to test the plastic card for drug residue, and to consider the pocket knife a weapon.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order suspending Respondent without pay from his position as a bus operator with the Lee County School District from March 14, 2006, until the end of the 2005-2006 school year. FURTHER RECOMMENDED that should the School Board follow this recommendation to suspend Respondent rather than terminate him, it is within the sole discretion of the superintendent of the district to offer Respondent a new contract for the school year 2006-2007. See Cox v. School Board of Osceola County, 669 So. 2d 353 (Fla. 5th DCA 1996). DONE AND ENTERED this 18th day of August, 2006, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 18th day of August, 2006.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, is the regulatory agency charged with enforcing beverage and cigarette tax laws. As part of its duties, Petitioner investigate the sales of cigarettes to minors (under age persons). Respondent, Workman, Inc., d/b/a Coastal Mart, is the holder of alcoholic beverage license number 39-02924, series 1-APS, and retail tobacco products permit number 39-04440. Respondent's licensed premises is located at 9931 North Florida Avenue, Tampa, Florida. Raymond Daoud is Respondent's sole stockholder and is a corporate officer. Pursuant to an anonymous complaint received by Petitioner during the spring of 1993, Special Agent Joseph A. Maggio directed investigative aide Kimberly Siebel to enter the premises of Coastal Mart and attempt to purchase cigarettes. Petitioner, during times material, utilized the services of investigative aides Kimberly Siebel and Stephanie Haley, whose birth dates are September 20, 1975, and January 24, 1978, respectively. Both aides were under the age of 18 during the spring of 1993. Investigative aides Siebel and Haley, are trained by Petitioner, when conducting investigations for the purchase of either beer or cigarettes, to enter premises and to truthfully tell their age when requested. They also provide proper identification to establish their age if requested to do so by the clerk when they are attempting to purchase beer or cigarettes. This procedure was used in this case by investigative aides Siebel and Haley when they purchased cigarettes from Respondent on May 20 and July 8, 1993. When investigative aide Siebel purchased cigarettes from Respondent on May 20, 1993, she had previously worked as an undercover operative for Petitioner approximately 30 times. On May 20, 1993, Siebel entered the premises of Respondent with Special Agent Maggio at approximately 9:25 p.m. Investigative aide Siebel approached the counter and ordered a pack of Marlboro Light cigarettes from the clerk who was later identified as Angela Schulte, an employee of Respondent. Ms. Siebel received a pack of Marlboro Light cigarettes as requested from Schulte without being asked for identification. She paid for the cigarettes and exited the store. Special Agent Maggio observed the purchase of cigarettes by Siebel from his position next in line behind her. When Siebel purchased the cigarettes from Schulte on May 20, 1993, she and Special Agent Maggio observed Respondent, Daoud, behind the counter when they entered the licensed premises. When Siebel and Maggio exited the premises, Siebel gave the cigarettes to Maggio. Maggio placed the cigarettes in a plastic bag and Siebel signed them. Maggio then sealed and placed them in the locked trunk of his vehicle until they were deposited in Petitioner's evidence file the following day. Approximately ten minutes after Siebel purchased the cigarettes and turned them over to Maggio, he reentered the premises, identified himself to Schulte, and advised her that she was under arrest for the sale of cigarettes to an under age person. Daoud was still inside the premises near the front counter. Special Agent Fisher, who is no longer employed by Petitioner, accompanied Special Agent Maggio inside the premises. Fisher completed a letter of warning and Daoud signed the warning. Fisher gave Daoud a copy of the warning as they left. On July 8, 1993, Maggio again directed investigative aide Stephanie Haley to enter Respondent's premises to attempt to purchase cigarettes. On July 8, 1993, investigative aide Haley was fifteen years old. Haley had on her person a Florida Drivers License showing her birthday to be January 24, 1978. On July 8, 1993, investigative aide Haley had previously acted as an undercover operative for Petitioner approximately 20 times. On July 8, 1993, Haley entered the premises of Respondent and approached the counter. She ordered a pack of Marlboro Light cigarettes from the clerk, who was later identified as Raymond Daoud. Daoud asked Haley for identification whereupon she presented her Florida Drivers License. Daoud examined the license and completed the transaction. Haley exited the premises and turned over the cigarettes purchased to Special Agent Maggio. Special Agents Maggio and Bock witnessed the transaction from a vantage point outside the premises. Maggio and Special Agent Bock then entered the premises of Coastal Mart and Bock identified himself and placed Daoud under arrest for the sale of cigarettes to an underage person. Daoud complained that he had been "setup" and that he remembered the girl, "thought she was young," and asked her for identification. Daoud observed Haley's license and thought that it had eighteen years of age on it. Special Agent Bock reminded Daoud that the license did not have an age on it. Daoud insisted that he thought the license had the date 1979 which would, of course, make investigative aide Haley, fourteen when she was, in fact, fifteen at the time. Petitioner has a policy of not letting undercover operatives reenter premises to allow licensed vendors to review items from undercover operatives such as their identification cards, etc., so as not to jeopardize them in future operations and for their own personal safety. Petitioner explained to Respondent that he could examine the identifying card (license) either during the hearing or in court. Respondent suspended Schulte for one week without pay for selling cigarettes to a minor. Respondent also verbally warned Schulte for selling cigarettes to a minor and reminded her that it was against company policy to do so. Schulte recalled that Respondent was "extremely mad" about the incident. Respondent would not knowingly sell cigarettes or alcoholic beverages to a minor. Respondent has operated his business for approximately three years, and this is the first infraction that he has received for the sale of beer or cigarettes to a minor.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent's alcoholic beverage license number 39-02924, series #1-APS, be assessed a $500.00 civil penalty for each count for a total civil penalty of $1,000.00. 1/ RECOMMENDED in Tallahassee, Leon County, Florida, this 4th day of April, 1994. JAMES E. BRADWELL 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 4th day of April, 1994.
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 Whether or not on or about July 13, 1975, Arthur Hayes, Jr., licensed under the beverage laws, and or his agent, servant or employee did sell or permit to be sold, served or consumed alcoholic beverages, to wit: a quart bottle of Schlitz beer, any time otherwise not provided for by county or municipal ordinance, contrary to Florida Statutes 561.29 Whether or not on or about July 20, 1975, Arthur Hayes, Jr. licensed under the beverage laws and or his agent, servant or employee did sell or permit to be sold, served or consumed, alcoholic beverages, to wit: a quart bottle of Schlitz beer at a time otherwise not provided for by county or municipal ordinance, contrary to Florida Statutes 561.29.
Findings Of Fact In the presentation of its case, the petitioner called beverage agent Eugene Fogel to the stand. On or about July 13, 1975, agent Fogel was working for the Sanford, Florida, Police Department and in addition was acting in an undercover capacity for the Division of Beverage. At around 2:00 p.m. July 13, 1975, then police officer Fogel met with agent Herb Baker of the Division of Beverage in Sanford, Florida, for purposes of investigating alleged illegal alcoholic beverage sales which were being made on Sunday. The witness, Fogel, went to the address of Dinah's West Side Grocery, entered the store and purchased a quart bottle of Schlitz beer from the respondent, Arthur Hayes, Jr., This particular item of evidence became petitioner's exhibit 1 and is currently in the custody vault of the Division of Beverage District Office in Orlando, Florida. Testimony by agent Herb Baker indicated that the meeting as spoken of by agent Fogel had transpired, and he had seen agent Fogel enter the subject premises on July 13, 1975, and come out with a paper bag which contained petitioner's exhibit number 1. This exhibit was turned over to agent Baker. Officer Fogel testified that on Sunday, July 20, 1975, the same sequence of events occurred that had occurred on Sunday, July 13, 1975. He met agent Baker and then went to Dinah's West Side Grocery around 3:30 p.m. and purchased a quart bottle of Schlitz beer, which is petitioner's exhibit number 2. The petitioner's exhibit number 2 is now located in the custody of the District Office, Division of Beverage, Orlando, Florida. Again, agent Baker stated that he observed officer Fogel go into the premises on July 20, 1975, return with a bag and that the bag contained a quart bottle of Schlitz beer. The testimony was given by officer Fogel that July 13, 1975 and July 20, 1975, were Sundays. Other Petitioner's exhibits admitted into evidence were exhibit number 3 which is a notice to show cause with accompanying administrative complaint, exhibit 4 which is a notice of hearing, and exhibit 5 which is a copy of an ordinance in Seminole County, Florida. This ordinance was in effect on July 13, 1975 and July 20, 1975, and prohibited the sale of alcoholic beverages on any Sunday. The respondent took the stand in his own behalf and indicated that he knew Eugene Fogel in July of 1975, and knew that Eugene Fogel was a policemen with the Sanford Police Department. He stated that he therefore would not have sold beer to Officer Fogel on Sunday, because he knew such a sale would be illegal. The witness also stated that the only employees in his store were he and his wife and consequently the only explanation he could think of for the two quarts of beer, was that the policemen had stolen the beer from his freezer. He said this would have been easy since there was no lock on the beer freezer and it was close to the door. After assessing the testimony of the witnesses, together with the examination of the evidence it is determined that the violations as alleged in counts 1 and 2 in the administrative complaint have been proven. This determination is arrived at because it would not appear that there is any motive on the part of the two police officers to promote absolute falsehoods. On the other hand considering the interest of the respondent and the quality of his comments, he has not effectively explained or defended against the charges.
Recommendation For committing the offense as alleged in Count 1 of the Administrative Complaint, it is recommended that the respondent, Arthur Hayes Jr., have his license suspended for a period of 30 days. For committing the offense as alleged in Count 2 of the Administrative Complaint, it is recommended that the respondent, Arthur Hayes, Jr., pay a civil penalty in the amount of $150.00. DONE and ENTERED this 5th day of February, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Department of Business Regulation The Johns Building Tallahassee, Florida 32304 Arthur Hayes, Jr. 1717 West 18th Street Sanford, Florida ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF BEVERAGE IN RE: DINAH'S WEST SIDE GROCERY 1717 West 18th Street CASE NO. 75-2011 Sanford, Florida DABT CASE NO. 5-75-94-A License No. 69-139 /
The Issue Whether Petitioner, the School Board of Sarasota County (the Board),1 proved Respondent, Betty Register (Ms. Register), committed misconduct in 1 The Board’s official name is The School Board of Sarasota County. § 1001.40, Fla. Stat. (2020). The case style has been amended accordingly. her employment as alleged in the Administrative Complaint (AC) dated November 17, 2020,2 and if so, the appropriate discipline.
Findings Of Fact Based on the competent substantial evidence adduced at the final hearing, the following Findings of Fact are made: The Parties The Board is responsible for operating the public schools in the Sarasota County School District and for hiring, firing, and overseeing both instructional employees and non-instructional “educational support” employees within Sarasota County, Florida. The Board employs approximately 300 school bus drivers each school year, each is considered an educational support employee. On or about September 22, 2020, Ms. Register was employed by the Board as a school bus driver. As a school bus driver Ms. Register was required to and did possess a Florida issued Commercial Driver’s License (CDL). Other Entities The Florida Department of Transportation (DOT) requires that anyone who holds a CDL to drive a commercial vehicle is subject to quarterly random drug and/or alcohol testing. Currently, DOT requires that fifty percent of the CDL holders be tested quarterly randomly. FSSolutions (FSS) is a third-party administrator that handles drug, alcohol, and other testing services for multiple clients. FSS has a contract with the state of Florida to provide these services, and individual entities may purchase the FSS services using the statewide contract. FSS also provides each entity with a list of companies that are approved collection agents. When an entity contracts with FSS to facilitate the testing, that entity will send a list of all its eligible employees to FSS. FSS will then generate a random list of the employees to be tested. The randomly selected employees are notified of the date, time, and location for a sample to be provided. The selected employees report to the collection site and provide a sample for testing. That sample is sent to a certified laboratory for analysis, and a test report is created for each sample tested. Each test report is reviewed by a trained medical doctor, who has been qualified to be a DOT medical review officer (MRO). The MRO will speak to “any donor whose laboratory result is not negative.” A non-negative test result could mean that the sample was positive, adulterated, or substituted. The test reports are then provided to the entity that ordered the test. The Board’s Process The Board requires quarterly random drug tests of its CDL holders, specifically its school bus drivers. Beginning in 2020, the percentage of the Board’s school bus drivers to be randomly drug tested rose from approximately 20 percent to 50 percent. The Board has a contract with FSS to administer the DOT required quarterly random drug and/or alcohol testing. FSS provided the Board a list of approved collection companies. The Board selected an approved collection company. Once the samples are collected, they are sent to a certified laboratory for testing. Each quarter, Ms. Peterson, the risk management supervisor, sends Ms. Clarke, the transportation and operations supervisor, an initial list of the Board’s school bus drivers. Ms. Clarke reviews that list and removes the names of school bus drivers who are no longer employed by the Board. Then Ms. Clarke adds the names of all newly hired school bus drivers to the list. That list is then sent to FSS. FSS then provides the Board with the randomly selected names of the school bus drivers to be tested. Once the randomly selected school bus drivers are identified, the Board’s transportation department sends out the notice to those employees to be tested. The notice contains the date, time, and location for each employee to report for testing. September 22, 2020, through October 6, 2020 The alleged conduct giving rise to this proceeding occurred on or about September 22, 2020. The Board’s quarterly testing period was July 1, 2020, through September 30, 2020. Ms. Peterson followed the routine set forth in paragraph 11 above. Ms. Register’s name was included in the initial list of school bus drivers sent to Ms. Clarke for her review. Following her review and necessary edits, Ms. Clarke returned the revised list, which included Ms. Register’s name, to Ms. Peterson. Ms. Peterson sent the revised list to FSS. FSS programed its random generator to select the requisite percentage of names required by DOT and the Board. FSS then provided the Board with the randomly generated list of employees to be tested. Ms. Register’s name was on that randomly generated list of employees to submit for the quarterly drug testing. Ms. Register was notified of her selection for the testing to be provided on September 22, 2020, at 10:30 a.m. Ms. Register reported to the collection location and provided a sample. Ms. Register’s sample was sent to the LabCorp location in Research Triangle Park, North Carolina, for testing. On October 6, 2020, the test reports were made available to Ms. Peterson, and she became aware that Ms. Register’s sample was positive for marijuana and opioids, specifically: “marijuana, hydrocodone, and hydromorphone.” Ms. Peterson called Ms. Clarke and notified her of Ms. Register’s positive test results. Ms. Clarke “automatically pulled [Ms. Register] from the route.” Further, Ms. Clarke testified Ms. Register never drove another school bus after that notification. District Policies Ms. Peterson testified that the Board is an alcohol and drug-free workplace. Ms. Peterson further testified that the Board’s policies provide that when there is a positive drug test, the employee is subject to an immediate termination of their employment. Ms. Peterson testified that Ms. Register’s employment was terminated based on her positive drug test, which constituted misconduct in office. Ms. Register is no longer employed by the Board. Ms. Register did not appear or testify during the hearing to offer any evidence to the contrary. Based on the greater weight of the evidence, the undersigned finds that the Board had sufficient just cause to terminate Ms. Register’s employment as a school bus driver.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Sarasota County affirm its termination of Ms. Register’s employment as a school bus driver. DONE AND ENTERED this 7th day of January, 2021, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 7th day of January, 2021. COPIES FURNISHED: Betty Register 4715 Greenwich Road Sarasota, Florida 34233 Robert K. Robinson, Esquire Rob Robinson Attorney, P.A. 500 South Washington Boulevard, Suite 400 Sarasota, Florida 34236 (eServed) Dr. Brennan Asplen, III, Superintendent Sarasota School Board 1960 Landings Boulevard Sarasota, Florida 34321 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issues for determination in this proceeding are: Whether Respondent sold alcoholic beverages on two occasions when the service of full course meals had been discontinued; Whether Respondent offered or allowed the operation of a football pool on the licensed premises; and If so, what disciplinary action is appropriate.
Findings Of Fact Arthur A. Peloso, doing business as Peloso's Spaghetti House, currently operates, and at all relevant periods was operating, under alcoholic beverage license number 59-129 SRX, Series 7-COP, a "special restaurant license." The premises are located at 1709 West Vine Street, Kissimmee, Florida. The premises consist of the main part of the restaurant, accessible by a door fronting the street; a lounge in the rear, accessible from the main restaurant and by a side door; and a kitchen, accessible to employees from both the lounge area and the main restaurant. The bar counter is located on the far end of the lounge, opposite the side entrance and adjacent to the kitchen. On September 22, 1986, at approximately 5:00 p.m., Beverage Agent Ronald P. Sullivan, visited the premises at the direction of his supervisor. The marquee in front read: "Restaurant Closed-Vacation. Lounge Open, 4-2." Sullivan entered through the side entrance and went back to the bar, where he was served a beer by the bartender, "Pat." Pat was serving drinks, mixing drinks and ringing up sales on the cash register. Sullivan asked what he could get to eat and Pat's response was, "popcorn." There was some conversation regarding the owner being on vacation and wanting to make some changes in the facility and that the kitchen was closed down. At the hearing, Sullivan identified Patrick Plunkett, also present, as the bartender. The same Beverage Agent returned to the licensed premises around 6:00 p.m. on September 25, 1986. Again, Pat was behind the bar and served him a beer. Again, Sullivan asked what he could get to eat and the response was, "popcorn." Pat also said he had a football pool that "Dale" who worked in a car lot helped him get going. Pat said it was Dale's idea and he pointed Dale out in the lounge. Pat pulled a sheet (Exhibit #3) from other sheets behind some whiskey bottles and showed Sullivan how to play. Sullivan filled it out and gave Pat $10.00. Sullivan returned on October 7, 1986. A woman identified as "Tina" was working behind the bar. Pat was not there. Sullivan asked Tina who won the football pool, and she replied that some guy at the car dealership won $350.00. Tina also told Sullivan that the restaurant had reopened after a three- week vacation, and a cook was on duty. On the occasions of his visits, Sullivan did not notice menus or meal set-ups on the tables in the lounge. He had to pass the tables to get to the bar, where he sat. He never tried to order food, as on the first two visits he had been told all they had was popcorn. On the third visit, he accepted the fact that the kitchen was open. He saw evidence of the football pool only on one occasion, the 25th of September; he did not see Arthur Peloso, or Peloso's son, the manager, on any occasion. In the three visits, Sullivan saw a total of six or seven people drinking in the lounge, but not eating. In his testimony, Patrick Plunkett admitted that he told Sullivan that only popcorn was available. The bartenders and waitresses are trained to cook and serve food and have been told to provide food to patrons when requested during business hours. Pat admitted that he did not serve food to Sullivan as the cook did not show up and he (Pat) was "too lazy to serve it." Pat also admitted that he assisted patrons in playing the football pool, but that he was doing it as a favor for a friend from the Pontiac dealership. This was a short-term arrangement and Pat did not receive a commission or any monetary gain from his participation. To Pat's knowledge, neither Peloso nor his son, the manager, were aware that food was not being served in the lounge during their vacation, nor were they aware that the football pool was being conducted. In his opinion, the Pelosos would have taken immediate corrective measures. This was confirmed by Arthur S. Peloso, Peloso's son, who serves as manager of the business. Their business is primarily food and they could not remain in business without the food. Their intent was that the lounge should serve as additional seating for the restaurant. He conceded that the restaurant was briefly closed, but insisted that the kitchen was never closed and the waitresses and bartender should have served food as they had been instructed. Captain Jack B. Wallace from the Division of Alcoholic Beverages and Tobacco described the policy of the agency with regard to investigations, enforcement and civil penalties for violations. The non-rule policy is to assess a $500.00 civil fine for a first-time offense. He said that the two counts relating to the sale of alcoholic beverages without food should be treated as a single violation. No testimony or other evidence of prior violations by Respondent was presented, and the two witnesses for Petitioner knew of none.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered by the agency, finding Respondent guilty of violation of Rule 7A-3.015, Florida Administrative Code, not guilty of violation of Section 561.29(1)(a), Florida Statutes, and assessing a civil penalty of $500.00. DONE and RECOMMENDED this 14th day of July, 1987, 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 14th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0844 The following constitute my rulings on the proposed findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact Adopted in paragraph #1. Adopted in paragraph #3. Adopted in substance in paragraphs #4 and #7. Rejected as unnecessary Adopted in substance in paragraphs #4 and #7. Adopted in paragraph #5. Adopted in part (as to availability of only popcorn) in paragraph #5; otherwise, rejected as unnecessary. Rejected as immaterial. Adopted in substance in paragraph #5. Adopted in paragraph #6. Adopted in paragraph #12. Respondent's Proposed Findings of Fact #1 and #2 The essential facts proposed here are adopted in my findings of fact #3, #9, #10 and #11, however, these facts alone are not dispositive of the issues in the proceeding. COPIES FURNISHED: Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Arthur A. Peloso 1960 Southeast 19th Street Pompano Beach, Florida 33062 Daniel Bosanko, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1007 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
