Findings Of Fact At all times material to the allegations contained herein, Respondents held alcoholic beverage license No. 64-00029 for the Palatka Blue Diamond, located at 424 North 11th Street, Palatka, Florida. Alphonso S. Junious is a beverage investigator with the Fort Lauderdale office of the Division of Alcoholic Beverages and Tobacco and has been so since August 1971. [During that period of time, he has investigated seven cases for Petitioner which involved marijuana.] He has had considerable specialized training in drug identification, having been a drug and alcohol specialist while in the military, and since his discharge has taken several courses in drug identification and detection, including 80 hours training with the U.S. Drug Enforcement Agency. He is able to identify marijuana by sight and smell based not only on his formalized training and experience as an adult, but also from the fact that he used it when he was younger. On May 12, 1982, pursuant to instructions given him as a part of an investigation into Respondents' premises, he entered the Palatka Blue Diamond, went to the bar and ordered a beer. Leroy Lane and Queen Ester Simmons, whom he subsequently identified by name, were working behind the bar, selling drinks. While there, he noticed the smell of marijuana smoke and also saw people in the bar area making what appeared to him to be marijuana cigarettes. He identified them from the way they were rolled; a method consistent with what he recognized as hand-rolled marijuana cigarettes. The cigarettes were small and had crimped ends. The smokers utilizing these cigarettes were at the bar at the time in plain view of the bartenders, neither one of whom made any effort to stop this course of conduct. On May 14, 1982, he again went to the Palatka Blue Diamond and stood at the bar. The same two bartenders were there. He saw an unidentified black female sitting at the bar roll what appeared to him to be a marijuana cigarette. The paraphernalia with which she was making the cigarette was sitting out on top of the bar, and the bartenders were standing approximately 6 to 8 feet away. During the entire time he was there, he did not hear either bartender attempt to stop the young lady from making the cigarette. By the same token, he did not see her smoke it, either. He did, however, observe others smoking what appeared to be, and smelled to him like, marijuana while walking about the barroom and in the disco room. Some of these individuals could have been in view of the bartender, but the witness does not know if they were or if the bartenders in fact saw anything improper. Mr. Junious again was at the bar on May 16, 1982. At that time he observed a black male, subsequently identified to him as Luke Simmons, tending bar. Luke Simmons is Willie Lee Simmons, Jr., son of the licensee and Respondent Willie Lee Simmons. On this occasion, Officer Junious did not observe any marijuana being smoked, but he did observe Luke Simmons make sales of small manila envelopes to patrons at the bar. Junious could not hear the conversations regarding the sales and does not know what was in the envelopes sold to other people. However, somewhat later that day, he went over to Luke and asked Luke for a "nickel bag." In return, he was given a small manila envelope, folded and sealed at both ends, for which he paid $5. This bag closely resembled the bags he saw Luke Simmons sell to others. Junious did not look into the bag while on the premises, but it was subsequently turned over to the evidence custodian of the agency and thereafter properly identified as marijuana. Junious went back to the Palatka Blue Diamond on May 18, 1982, and again Luke Simmons was tending bar. Junious approached him and engaged him in general conversation. Again this evening, he saw several persons smoking what appeared to be hand-rolled marijuana cigarettes, and the smell of marijuana was prevalent both in the bar and in the disco room. Again, as in previous occasions, the individuals smoking these hand-rolled cigarettes were in plain view of the bartender had he looked, but Junious did not see or hear Luke Simmons attempt to stop any of this conduct. At approximately 9:30 that evening, Junious again approached Luke Simmons and asked for a "nickel bag" for which he paid Luke the sum of $5. In return, he got a similar manila envelope as on the previous occasion which was subsequently determined by the Florida Department of Law Enforcement crime lab in Jacksonville to contain marijuana. It was not until August 13, 1982, that Officer Junious went back to the Palatka Blue Diamond. When he entered on this occasion, he sat at the bar and ordered a beer. The bartender this time was a black female subsequently identified as Linda Simmons, who is not related to either Respondent. On this occasion, Linda Simmons was playing a card game which the witness called "Black Jack" with a black male at the bar. They appeared to be betting $1 per hand. Junious asked Linda if he could join the game and himself played two hands during which he bet on each hand and lost both times for a total of $2. Later that evening, he saw another black male subsequently identified as Rudy Swindler selling small manila envelopes similar to those he had purchased earlier in the year. He observed Linda in a conversation with Rudy and heard her try to convince him to give her three marijuana cigarettes. Rudy refused to do so, but offered to sell her a nickel bag. She did not offer to buy. Throughout this entire transaction between Swindler and Linda Simmons, at no time did Linda Simmons, acting in the capacity of an employee of the Respondent, make any effort to prevent Swindler from selling what both recognized as marijuana. Junious went back to the bar on August 26, 1982. When he entered this time, he immediately saw a black female identified as Marian MacRae and otherwise known as "Mulu," selling the similar type of manila envelope. Junious personally observed Mulu sell at least three while in the disco, but because of that location it is possible that the bartender, Linda Simmons, might not have seen her engaged in this type of conduct. This evening, Junious smelled what to him was marijuana pervading the establishment, but he cannot conclude that he actually saw anyone else smoking, selling, or in any way using that substance. When Officer Junious went into the bar again on September 3, 1982, he observed that the odor of marijuana was very heavy. Linda was the bartender along with Leroy Lane, and Junious saw people sitting at the bar smoking, as well as in other areas of the premises. The bartenders were between 4 and 6 feet away from people who were smoking. These cigarettes, smoked by these people sitting at the bar, were small, apparently hand-rolled, and twisted at the end; and Junious's training leads him to conclude that these cigarettes are usually marijuana. Another black female whose name is unknown came in and started tending bar. After this individual became the bartender, Officer Junious noticed an unidentified black male standing at the bar, selling the manila envelopes. This individual was close enough to Junious (directly opposite him) so that Junious could see what was going on. On this evening, he saw this individual make at least three sales of manila envelopes which he took from a cloth bag with a drawstrng. On this same date, there were at least five people selling these manila envelopes, including Marian MacRae, in the bar. Junious came back to the Palatka Blue Diamond on September 23, 1982. On this occasion, he did not observe anyone selling the manila envelopes, but he did see people sitting in the bar smoking what appeared to be, and smelled like marijuana. Linda Simmons and Leroy Lane were the bartenders that night, but it is quite possible that because of the fact that the smokers were in the disco, which was not readily observable from the bar, both Lane and Simmons might not have seen the smoking. However, in Junious's opinion, the smell of marijuana was so prevalent that it would have been difficult for them not to notice it. Junious again returned to the bar on September 24, 1982. As he walked up to the bar door from the outside, he saw a barbecue grill and a black male identified as "Short Man" tending the barbecue. Junious saw Short Man, otherwise identified as "Dunnell," selling the manila envelopes openly while working at the barbecue and while Junious was standing there talking to him. In fact, Junious himself bought a "nickel bag" from Dunnell, paying the $5. This bag was subsequently identified as containing marijuana. The barbecue was approximately 15 feet from the front door at the time that the sale was made. After leaving Dunnell, Junious went to his car and placed the manila envelope he had just bought inside. Then he went back to the Palatka Blue Diamond and, when he entered, he saw Marian MacRae again selling the manila envelopes both inside and outside the bar. While inside, she spent the majority of the time in the disco; and Junious later saw her seated with some other individuals smoking what appeared to be, and smelled like, marijuana. Junious noticed this when he passed her and went to sit at the next table to her, asking to buy from her a nickel bag. When he did this, she opened a black purse from which she took a small manila envelope, and he paid her the sum of $5. This envelope was subsequently identified as containing marijuana. When he came back into the bar after having put that manila envelope in the trunk of his car, he stood at the west end of the bar, from which he could see what was going on in the disco. He saw a black male, subsequently identified as "Quiller Elkins," shooting pool. This individual had a blue cloth bag with a drawstring in his pants pocket. When individuals would come up to him, he would take out the bag and make sales of small manila envelopes from it. Junious personally observed three of these sales being made before he went up to Elkins and commented on his pool skills. He also asked Elkins for a nickel bag, which he subsequently bought from Elkins for $5. This entire transaction was openly conducted, and Linda and Leroy were tending bar at the time. Because of the location of the pool table, he cannot be sure that this sale was observed. On October 15, 1982, Officer Junious went back to the Palatka Blue Diamond and found Linda Simmons and Leroy Lane again bartending. On this occasion, he observed the smoking by various people of what appeared to be, and smelled to be, marijuana, but saw no sales. The smokers were walking around inside and outside the bar, and others were inside the disco area. On no occasion did he see or hear the bartenders make any attempt to stop the patrons from smoking these cigarettes. When Junious went back to the Palatka Blue Diamond on October 22, 1982, Linda Simmons and Leroy Lane were again tending bar. On this occasion, Juniors did not see any sales of manila envelopes, but he saw people smoking what appeared to be, and smelled to be, marijuana; and again, as on previous occasions, in his opinion, the bartenders could see them smoking, but made no effort to stop them. His last visit to the Palatka Blue Diamond was on October 30, 1982, when again Linda Simmons and Leroy Lane were tending bar. On this occasion, he saw patrons smoking, but saw no sales. Again, as on previous occasions, he recognized the smell of the burning substance and the appearance of the cigarettes being smoked was that of the hand-rolled marijuana cigarette. On this occasion, while the bartenders could have seen what was going on, he does not know if, in fact, they did. In any case, no one in authority at the bar said anything about the smoking to any of the patrons. None of the cigarettes observed being smoked by Officer Junious nor the smoke, which he identified as marijuana smoke, was analyzed. However, the degree of expertise evidenced by Officer Junious, based on his experience and training, is sufficient to tip the evidentiary scale toward a finding that those hand-rolled cigarettes, which to him appeared to be marijuana cigarettes and to him smelled like marijuana cigarettes, were in fact marijuana cigarettes; and this finding is hereby made. With regard to the purchase from Quiller Elkins on September 24, 1982, Officer Junious does not know if anyone working for the Simmonses at that time saw him make that purchase or, even if they had seen the purchase made, that they would know what the purchase was. There is no evidence to establish that, in any case, Quiller Elkins was an employee of the Respondents. With regard to the purchase outside the establishment from the barbecue cook, Short Man, again Junious does not know if anyone in authority from inside the bar saw the sale being made or for that matter, if they had seen it, would know what was in the envelope. There is no evidence that Marian MacRae (Mulu) was an employee, and Officer Junious himself does not know whether she was or not. However, on the several occasions he was there, he never saw her tending bar or doing any other work there. He also cannot say that any employee of the establishment saw him make the buy from Mulu on August 26, at least. He also cannot state with any degree of certainty whether any of the employees saw him make the purchase from Rudy with regard to that purchase. This individual does not deny using marijuana with Officer Junious. While he does not recall the exact date, he states that Junious asked him if he, Rudy, knew where he could get any marijuana and he, Rudy, got it for him. They smoked it together on two separate occasions in Rudy's car. While Swindler's recitation that he smoked with Junious is somewhat suspect because of several inconsistencies, there is little doubt that he sold either directly or as an intermediary. In fact, Junious indicates Rudy was a connection with whom he, Junious, palled around while in Palatka on the investigation. He used Rudy to introduce him around in the neighborhood. Willie Lee Simmons, Sr., one of the Respondents and a longtime resident of Palatka, Florida, has been a co-owner of the Palatka Blue Diamond since 1970 or 1971, and he has had a state beverage license since that time. Though he is one of the owners of the establishment, he works there only on Sunday afternoons to tend bar, working from 5:30 in the evening until midnight for the last 7 or 8 years. During all this time, no one has ever approached him to buy marijuana; he does not smoke it himself; nor does he have any familiarity with it. He has seen people smoking there, but was under the impression that what was being smoked were cigarettes. He is in the migrant labor business, as well as a part-owner of the bar, and he recognizes many of his bar patrons as his employees in the field. These migrant workers, he says, often smoke a type of tobacco called "Bugle" tobacco, which they hand-roll into cigarettes. He feels these hand-rolled tobacco cigarettes could well be confused with marijuana cigarettes. Mr. Simmons contends he has a completely clean record in Putnam County and with the Division of Alcoholic Beverages and Tobacco. If he had had any knowledge that marijuana cigarettes were being smoked in his bar, he would have stopped it immediately, but he has never been given any indication that marijuana was a problem in his establishment. The police, who have been in his bar on many occasions, have never mentioned to him the smell of marijuana, nor have there ever been, to his knowledge, any marijuana arrests or searches conducted in his establishment prior to those set out in the Notice to Show Cause. Johnny Lee Simmons, the son of Willie Lee Simmons, is also a part- owner of the Palatka Blue Diamond. He works on Sundays during the day before his father comes on duty at night. He knows what marijuana is and has seen other people smoke it. He believes he could identify the smell of marijuana smoke. He admits that his patrons smoke in the bar. In fact, the bar sells cigarettes and cigars, as well as "Bugle" tobacco, a cheap, low-grade loose tobacco referred to by the other Mr. Simmons. On several occasions, he has stopped the smoking of what he thought was marijuana in the bar and found out that it was Bugle tobacco. When he does catch someone smoking marijuana, he immediately puts them out of the bar and, in fact, Mulu has been put out several times for trying to sell marijuana in the premises. To counter the threat of marijuana transfer, Leroy Lane was hired to keep out minors and drugs, and in this witness's opinion, has done a pretty good job of it. Mr. Simmons feels he has done a good job in exercising control over the place to keep narcotics out, but he admits that neither he nor anyone else is perfect. Sometimes he does not get it all. He contends he has contacted the police on several occasions to get help with drug traffic and gambling. He used to sell cards in the bar and has seen card games conducted there. However, when he reread the manual furnished by the Petitioner, which indicated that gambling is not appropriate or permitted, he immediately got rid of the cards; no longer sells them; and no longer permits card playing in the premises. His sister, the lady allegedly involved in the gambling transaction, is not a gambler. In his opinion, the card games she was in were probably friendly games engaged in to pass the time during the slack periods. To his recollection, the only gambling ever conducted in the Palatka Blue Diamond was carried on by old retired men who spent a lot of time there and who passed the time playing cards. These individuals got angry with him, he contends, when he stopped it The denial of the Simmonses that marijuana is frequently utilized in the Palatka Blue Diamond was supported by the testimony of John J. Melton, a Deputy sheriff with the Putnam County Sheriff's Office, who, himself, is familiar with both the appearance and the smell of marijuana and has made arrests for the possession of marijuana in the past. Officer Melton goes into the Palatka Blue Diamond frequently--three to four times a week--and has done so both on and off duty for the past three years. If he goes in while on duty, he is there for between 15 and 20 minutes; if off duty, for between three and four hours. In any case, he has never seen anyone selling the small manila envelopes when he was in there, nor has he ever seen any card playing or gambling going on. If he were to see anyone involved in any unlawful activity, he would arrest them if in uniform and on duty. If not, he would notify the manager. He does not believe that anyone would smoke in front of anyone who they knew to be a police officer. Palatka is a small town and, by his own admission, he and other police officers are well known to the general public both when in and out of uniform. Consequently, his testimony establishes only that no illegal activity went on while he was in there. These sentiments were echoed by Abraham Smith, a retired U.S. Customs agent who has a working familiarity with marijuana, its appearance, and its smell from his 32 years in Customs work. Since he moved to Palatka in May of 1982, he has been in the Palatka Blue Diamond three to four times a week for an hour or two at the time. He is familiar with the types of small manila envelopes used for the sale of small amounts of marijuana and has seen them many times, but never in the Palatka Blue Diamond. He has never smelled marijuana nor seen marijuana in that establishment. Harold Lightfoot, the salesman for the Eli Witt Tobacco Company who has been selling to the Palatka Blue Diamond for 15 years, including to the prior ownership, comes in once a week in the early afternoon. He also knows what marijuana is and can recognize the appearance and smell, but has never smelled the odor in the Palatka Blue Diamond nor ever seen any sales of manila envelopes while there. Another frequent patron is James Williams, Jr., a retired Army noncommissioned officer who has patronized the Palatka Blue Diamond daily since his retirement from the Army in June 1980. He usually goes in for several hours in midday and then for several hours in the evening. He is familiar with the appearance and smell of marijuana because of the training he received in the military and is also familiar with the small manila envelopes used in marijuana sales. To his knowledge, he has never smelled marijuana smoke in the Palatka Blue Diamond nor has he ever seen sales of small manila envelopes. Leroy Lane, the lead bartender at the Palatka Blue Diamond for the past six to nine years, lives upstairs from the bar and tends bar from early evening to closing. He has seen several marijuana cigarettes outside the bar. He is familiar with its appearance and its smell, and he has seen people in the bar start to smoke marijuana. When he observes it, he puts them out and, if they refuse to leave, calls the police. For the past three to four years, there have been signs on the wall prohibiting the use or sale of marijuana on the premises, placed there at the direction of the owners and, also at their direction, he patrols the bathrooms. Mr. Lane knows of Marian MacRae (Mulu) by reputation. At first he stated he would not know if he would recognize her if he saw her, but later indicated that she is outside the bar frequently. Because of her reputation, when she comes in the bar, he asks her to leave. He denies knowing Short Man and several other regular patrons by name because he does not ask customers their names nor does he ask them the stories of their lives. His credibility is not significant. Queen Esther Simmons, the wife of Johnny Simmons for 16 years, is also a bartender in the Palatka Blue Diamond. She swaps shifts with Linda Simmons, the sister of Johnny and the daughter of Willie Simmons. Queen Esther contends she has never seen marijuana nor has she seen any transfers of the envelopes in the bar. She claims she does not know what a marijuana cigarette is nor has anyone ever told her what they look like so she could keep them out. It is Leroy Lane's job to do that. However, never having seen nor smelled marijuana, if she smells what she thinks is marijuana, she calls out, "If anyone here is smoking marijuana, leave or I'll call the police." Queen Esther Simmons' credibility is totally lacking, and her testimony has no probative value whatsoever.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: Respondents' alcoholic beverage license No. 64-00029 be revoked. RECOMMENDED this 19th day of June 1984, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 19th day of June 1984. COPIES FURNISHED: Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Angus W. Harriett, Esquire 314 St. Johns Avenue Palatka, Florida 32077 Mr. Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Respondent Yazgi has an ownership interest in respondent Stop N Shop and is the only individual named on respondent Stop N Shop's license. Respondent Yazgi has a one-third interest in a different store at a different location in Jacksonville, which is also called Stop N Shop. Sometime before noon on October 15, 1976, Mr. Yazgi took one carton of Winston menthol cigarettes and one carton of Silver Thin cigarettes from this second store and transferred them to respondent Stop N Shop where they were offered for resale and where petitioner's agents discovered them, except for one package which was missing. The store from which respondent took the cigarettes is not a licensed cigarette wholesaler.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner impose a civil penalty against respondent in the amount of one hundred dollars ($100.00) DONE and ENTERED this 6th day of December, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Tom Yazgi c/o Stop N Shop 2039 West 12th Street Jacksonville, Florida Mr. J. M. Ogonowski District 3 Department of Business Regulation 1934 Beachway Road Jacksonville, Florida 32207 Mr. Francis Bayley, Esquire Department of Business Regulation Legal Section Johns Building 725 South Bronough Street Tallahassee, Florida 32304
Findings Of Fact At all times here relevant, Respondent, Howard W. Adams, held Florida teaching certificate number 237388, Graduate, Rank III, and Randy D. Ward held Florida teaching certificate number 404713, Graduate, Rank III. On or about 1 April 1979 Respondents were arrested by the Fort Myers police and charged with possession of marijuana. Respondent Adams, who was on continuing contract, was suspended without pay from his position in the Lee County school system and Respondent Ward, who was on annual contract, was fired from her position in the Lee County school system. Considerable publicity was given to the arrests and school board actions resulting therefrom. The criminal charges against these Respondents were subsequently dropped by the State Attorney's office for lack of evidence. This too received publicity in the local press. Suffice it to say the arrest and subsequent release of Respondent Adams was well-known by both faculty and students at Cypress Lake Middle School, where Adams taught orchestra, and by the adult population of Fort Myers with children attending the Lee County public schools. Both of the witnesses called by Petitioner testified that Respondent Adams' effectiveness in the school system had been seriously reduced as a result of the marijuana incident. This loss of effectiveness was caused by the belief that Adams had, in fact, violated the law by having in his possession marijuana. Since Adams was suspended from his position on the faculty at Cypress Lake Middle School as soon as the newspapers published the circumstances surrounding his arrest, no specific incidents to show how Adams' effectiveness had been reduced was available, let alone presented, to support these conclusions. No evidence regarding the loss of effectiveness of Respondent Ward was submitted. Fort Myers and Lee County are populated predominantly by residents with a conservative outlook on morals and moral values. As a result, possession of marijuana is deemed a more serious offense in Lee County than in more cosmopolitan areas. Students found in possession of marijuana on school premises are routinely expelled. Possession of drugs of any sort is deemed immoral in this area, and marijuana is included in the definition of drugs.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that their teaching certificates numbered 237388 and 404713 be revoked. DONE and ENTERED this 27th day of August, 1980, in Tallahassee, Leon County, Florida. K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1980. COPIES FURNISHED: Robert J. Vossler, Esquire 110 North Magnolia Dr., Ste. 224 Tallahassee, FL 32301 Philip Padavano, Esquire P. O. Box 527 Tallahassee, FL 32302
The Issue The issue is whether respondent's alcoholic beverage license should be disciplined for the reasons stated in the notice to show cause.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Santos Navarro Osornio (respondent or Santos), held alcoholic beverage license number 21-00850, series 2-COP, issued by petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). Respondent operated a bar known as Santos Corner or The Pink Panther located at 190 South Third Street, Immokalee, Florida. Respondent's license authorized him to sell beer and wine for consumption on the premises and package sales for off-premises consumption. Respondent has operated the lounge since October 1987. As a licensee, respondent's establishment was subject to inspection during regular hours of operation. The Division conducts spot checks of such establishments at random in addition to checking establishments that have been the subject of complaints. It is noted that when respondent was issued his license in October 1987, he signed a statement authorizing Division agents to inspect and search the licensed premises during normal business hours without a search warrant. In early May 1989 petitioner's Fort Myers district office received a request from other area law enforcement agencies to participate in "Operation Fast Track", an operation planned and coordinated by the United States Department of Immigration and Naturalization Services (INS) in an effort to apprehend illegal aliens residing in the Immokalee area. Among other things, the operation called for a raid on respondent's licensed premises. Besides INS agents, other law enforcement agencies participating in the raid were the "SWAT", team of the Collier County Sheriff's office, the fire marshal's office and the county health department. Petitioner agreed to send agent Thompkins, a certified law enforcement officer, whose sole purpose was to inspect respondent's premises to ascertain if the licensee was in compliance with alcoholic beverage and tobacco laws and regulations. The raid took place around 11:30 p.m. on Friday, May 12, 1989. The crowded and noisy bar was then filled with more than one hundred customers, primarily Hispanic, who were enjoying entertainment provided by a popular Spanish band from Homestead, Florida. The events which occurred after the agents stormed the premises are sharply in dispute. In reconciling this conflicting testimony, the undersigned has accepted the more credible and persuasive testimony and embodied this testimony in the findings below. After entering the bar through the front double doors, and going around the partition which lies immediately in front of the doors, the agents observed a bandstand, tables, booths and dance floor to the immediate right, a horseshoe shaped bar to the front, a long unused bar to the left, and, in the upper left rear of the bar, five pool tables sitting between the unused bar and the horseshoe bar. A diagram of the bar received in evidence as respondent's exhibit 7 provides a more precise description of the premises. A SWAT team and a single INS agent first entered the front doors yelling "police" and "immigration" in English and Spanish. They did not have a search warrant. The SWAT team members wore their uniforms and bullet-proof vests. They also carried billy clubs and weapons. The attire of the INS agent is unknown although all members in the operation were expected to wear something which identified them as law enforcement officers. The first group's mission was to secure the area, line the patrons against the wall and pat them down. The INS agent then checked the patrons for citizenship documents. After the first group of officers entered, they were followed by another group of deputies and other agents, including agent Thompkins, who wore a new dark blue t-shirt with the word "POLICE" encaptioned in bold yellow letters on its back. In smaller letters beneath that word were the words "Division of Alcoholic Beverages and Tobacco". As Thompkins entered the front door he yelled "police" and did so a second time once he entered the bar area. Shortly after entering the premises, Thompkins observed deputy sheriff Joe Jones talking with a lady behind the horseshoe bar. The lady was Olga Candia, who lived with Santos in an adjoining apartment. Candia, a woman of small stature, was dressed in a red dress and high heel shoes and occupied a chair in the entrance way to the bar. Jones asked Candia to come out from behind the bar so that he could secure the bar area. She refused because, in her words, she "wasn't no wetback" that was going to be lined up against the wall and patted down. After Candia refused several requests to move, Jones advised Candia that she would be arrested for obstruction of justice if she did not comply with his request. At that point Candia started for the back door, but after taking only a few steps, Jones pulled her face down on the floor between the bar and pool table. As Jones attempted to pull her arms behind her back to handcuff her, Candia began to squirm. Agent Thompkins then assisted Jones in holding Candia down while the handcuffs were placed on the detainee. It should be noted that Thompkins is a rather large man who stands over six feet, two inches tall and weighs three hundred plus pounds. Candia immediately began screaming "Santos" at the top of her voice. While the above events were occurring, Santos, who was described by one officer as being "very cooperative", had complied with a request of another deputy to install a light in the bandstand area. The purpose of this was to provide more light in the dimly lit lounge. From that vantage point, Santos could not see Candia being held on the floor since the horseshoe bar stood around four feet high and was between him and the area where she was being held. However, over the turmoil and yelling in the bar he heard the screams of his girlfriend and proceeded as quickly as he could towards the bar area bent on furnishing Candia assistance. He could not run because of a gimpy leg. After he rounded the horseshoe bar he ran into the back of Thompkins, who was in a bent over position holding Candia down. Thompkins described the bump as having a "battering ram effect" on him and caused him to "stumble". However, he did not lose his grip on Candia, probably because Santos weighs no more than half as much as Thompkins and is much shorter. To illustrate the confusion and conflicting versions of events surrounding the alleged battery, deputies Jones and Strickland recalled seeing Santos flying through the air into Thompkins, jumping on his back and placing his arms around Thompkins' neck. However, Thompkins did not recall anyone hanging onto his back and placing their hands around his neck. Instead, he remembered only that someone or something had rammed his back. Two defense witnesses disagreed and contended that respondent never touched Thompkins but was knocked to the floor by a deputy before he reached Thompkins and Candia. Santos also related this version of events. It is found, however, that as Santos rounded the bar at a quickened pace, he accidentally ran or was pushed into Thompkins' back and was thereafter immediately secured on the floor with handcuffs by deputies. It is found that Santos did not intend to batter the officer nor did he know that the person he was running or falling into was a law enforcement officer. Santos was then arrested and charged with felony counts of battery and obstructing justice. A county judge later reduced those charges to a misdemeanor. After the above events occurred, Thompkins conducted an inspection of the licensed premises but found no serious violations of alcoholic beverage and tobacco laws or agency rules. Except for the pending charges, Santos has never been disciplined for a violation. Finally, numerous patrons of the bar were arrested the evening of May 12 for being in the country illegally and were taken to an INS detention center for further processing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent be found not guilty of violating the cited statutes and that the notice to show cause be DISMISSED with prejudice. RECOMMENDED this 22nd day of May, 1990, in Tallahassee, Florida. DONALD ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1990.
The Issue Whether the Respondents purchased cigarettes and alcoholic beverages from other than licensed distributors contrary to statute.
Findings Of Fact On August 21, 2002, Cynthia Britt and Sabrina Maxwell, agents of the Petitioner, conducted a routine inspection of the Respondents’ convenience store. At the beginning of the inspection, Britt and Maxwell identified themselves as agents of the Petitioner and asked for access to the area behind the counter and to see Respondents' license. When Agent Britt moved behind the counter, she saw several packages of cigarettes in the overhead storage display that did not bear the State of Florida tax stamp. Agent Britt seized these packages of cigarettes. Agent Britt identified 55 packages of cigarettes she seized as Petitioner’s Composite Exhibit D. The trier of fact examined these cigarettes and returned the exhibit to the Petitioner to secure them as part of the record. Agent Britt asked Ms. Kemp for invoices for the purchase of their cigarettes. These receipts were produced and they were also seized. Agent Britt identified these receipts as Exhibit E, the receipts for purchases from unlicensed distributors, and Exhibit F, the receipts from licensed distributors.1 The receipts reflected that the Respondents had purchased cigarettes for resale from other retailers and from the Navy Exchange. The cigarettes that did not have tax stamps were purchased from the Navy Exchange. Ms. Kemp indicated to the agents that cigarettes were purchased from these retailers and the Navy Exchange because the wholesalers required that they purchase too many, or charged them so much for small quantities that they could buy them more cheaply at retail. In the process of reviewing the receipts for the purchase of the cigarettes, the Agent Maxwell discovered six receipts for the purchase of alcoholic beverages. She conducted a search of the premises and found beverages corresponding to the brands purchased on the receipts; however, there was no way to ascertain whether these beverages were the actual ones purchased.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Petitioner destroy the cigarettes seized and impose a fine of $250 on the Respondents for violation of Section 210.18(1), Florida Statutes; and impose a fine of $250 for violation of Section 210.15(1)(h), Florida Statutes. It is also recommended that the alleged violations of Section 561.14(3), Florida Statutes, be dismissed. DONE AND ENTERED this 2nd day of July, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 2nd day of July, 2002.
The Issue The issue in these cases is whether the allegations of the Administrative Complaints filed by the Petitioner against the Respondent are correct, and if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency responsible for licensure and regulation of nursing homes operating in the State of Florida. The Respondent operates a licensed skilled nursing facility in Englewood, Florida. The Petitioner surveyed the facility on July 26, 2002. Based on the surveyor's observations, the facility was charged with failure to ensure the safety of three residents who smoke tobacco. For purposes of maintaining the residents' privacy, the residents are identified in the survey and in this Recommended Order as Residents 4, 6 and 7. The Petitioner imposed a "conditional" license rating on the facility and imposed an administrative fine and survey fee forming the basis for this proceeding. The Respondent was resurveyed on August 5, 2002, and Petitioner determined that the deficiency had been remedied. As of August 26, 2002, the Respondent's license returned to "standard" rating. The facility has a smoking area in a courtyard, which lies in the center of the building and which is surrounded by the facility. The courtyard is visible from inside the facility. The Respondent's employees who smoke do so in the courtyard along with the facility's residents. Generally at the time of admission, incoming residents who smoke are assessed as to their ability to do so safely. The Petitioner asserts that the alleged failure of the facility to assess or to reassess the ability of smoking residents constitutes neglect of the residents. The parties do not dispute that facility residents have the "right" to smoke cigarettes if they chose to do so. There is no requirement that smokers wear protective clothing while smoking. Such clothing (such as a "smoker's apron") may be offered to smokers but the facility may not require that a resident use the clothing. The evidence establishes that two of the three residents (4 and 6) discussed herein had been offered smoking aprons and declined to use them. The facility may encourage residents to smoke during "group" smoking situations, but the facility may not require a resident to participate and may not limit a resident's smoking to such events. There is no legal requirement that cigarette smokers be supervised on a one-to-one basis. The evidence fails to establish that the observations of the Petitioner's surveyor caused, or were likely to cause, serious injury to the residents addressed herein. There is no credible evidence of any injury to any resident. Given the apparent frequency of smoking behavior by residents, it is reasonable to expect that there would be evidence of at least a minor injury to a smoker if such activity posed a credible threat of injury. The Respondent's submission of a required plan of correction does not establish that a cited deficiency existed at the time of the survey. Resident 4 Resident 4 was afflicted with "Fredereich's Ataxia" a degenerative condition which results in diminution of fine motor skills. She spoke and moved in a slow manner. Her head would "bob" in a manner that could suggest she was dozing off. Despite her condition, Resident 4's cognitive abilities were undiminished. She used a motorized wheelchair and was able to leave the facility on her own volition. She used a computer and could operate a television remote control without assistance. She could handle coins and obtain snacks from a vending machine. Resident 4's care plan provided that the resident could smoke cigarettes independently. Based on review of a nurse's notes, the Petitioner asserts that the Resident 4's smoking ability should have been reassessed following an incident on July 4, 2002, during which a "bib" lying on the floor nearby Resident 4 was discovered smoldering after ash from Resident 4's cigarette landed on it. The "bib" was extinguished, and there were no injuries. Although there is evidence that following the burning "bib" incident the staff was advised to monitor Resident 4's smoking more closely, there is no evidence that a formal smoking reassessment was completed for Resident 4. The evidence further establishes that the staff determining that Resident 4's smoking assessment did not need to be re-addressed was unaware of the "bib" incident. The monitoring advisory was not documented in Resident 4's care plan. The written care plan is the document which all facility staff access to determine the current status and condition of a resident. The Petitioner further asserts that the Respondent should have reassessed Resident's 4's ability to smoke cigarettes safely based on burn holes in her clothing and the appearance of an alleged burn mark on a leg brace used by Resident 4. The evidence establishes that Resident 4 wore clothing with burn holes, allegedly caused by the dropping of burning ashes on the clothing. There is no evidence as to the age of the clothing or the frequency with which such burn holes occurred. The evidence establishes that the Respondent's surveyor observed what she believed to be a burn mark on a leg brace worn by Resident 4. The evidence fails to establish that a burning cigarette caused the mark observed by the surveyor. The mark, located on a leather portion of a brace, exhibited no visible charring. No credible analysis of the mark was performed. The evidence establishes that Resident 4 reported to the Respondent's surveyor that she burned her thumb while smoking. The evidence fails to establish that a mark visible on Resident 4's thumb was the result of a cigarette burn. At the time of the survey, the Resident 4 was observed smoking in the courtyard area. The Respondent was wearing a cloth respiratory mask that was hanging freely from one ear. For reasons related to either physical condition or medication, the Respondent appeared to be periodically dozing as she was smoking. The evidence fails to establish whether Resident 4 was actually "nodding off" or whether the appearance was related to the head "bob" resulting from her diagnosis. The evidence fails to establish that additional smoking restrictions for Resident 4 were necessary. The evidence fails to establish that Resident 4, who apparently strongly valued her independence, would have accepted smoking restrictions or additional supervision. Resident 6 Resident 6 was admitted to the facility subsequent to suffering a stroke. His cognitive abilities were not impaired. Resident 6's care plan provided that he could smoke with minimal supervision. The Respondent's surveyor observed Resident 6 smoking in the facility's courtyard. A staff person was present, as was another resident. Resident 6 had cigarette ashes on his clothing. Articles of clothing in Resident 6's closet had burn holes in them. There is no evidence as to the age of the clothing or the frequency with which such burn holes occurred. The evidence fails to establish that Resident 6's plan of care was violated or that the Respondent was negligent in supervising the Resident 6's cigarette smoking. Resident 7 Resident 7 was admitted to the facility on July 17, 2002, with a diagnosis of organic brain syndrome. Although Resident 7's cognition was moderately impaired, he was permitted to move freely about the facility and smoked in the smoking area. At the time of the survey, Resident 7's care plan did not address his cigarette smoking. On July 25, 2002, a smoking evaluation was completed and included in Resident 7's written care plan. His cigarettes were stored for him and supplied to him upon request. He was to be accompanied by staff when he smoked. Resident 7 was also known to rummage through ashtrays looking for additional smoking material. Although the facility obtained tamper-resistant ashtrays, Resident 7 was nonetheless apparently able to obtain additional smoking material when staff was not present. The Respondent's surveyor observed Resident 7 smoking in the facility's courtyard. At the time of the surveyor's observation, Resident 7 appeared to be sitting alone and unsupervised in the courtyard. It is unknown whether the smoking material was obtained from the staff (in which case he should have been accompanied by a staff member) or had been obtained from the ashtray (in which case the staff was likely unaware that he was smoking). Burn holes were present in Resident 7's clothing. There is no evidence as to the age of the clothing or the frequency with which such burn holes occurred. The Respondent asserts that prior to completion of a written assessment, a smoking assessment care plan was orally communicated to all staff members working in Resident 7's unit. The evidence establishes that staff members were aware of Resident 7's smoking habits prior to completion of the written plan of care.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaints filed in these cases. DONE AND ENTERED this 22nd day of August, 2003, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2003. COPIES FURNISHED: Joanna Daniels, Esquire Ursula Eikman, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Donna H. Stinson, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302-1300 R. Davis Thomas, Jr. Qualified Representative Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302-1300 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
Findings Of Fact Felicia Katz, a resident of the State of New York, and operator of a cigarette business in that State, filed an application with the petitioner for licensure as a cigarette wholesale dealer in Florida. According to the application, she was the sole stockholder and officer of Respondent, Yoth, Inc. Petitioner's Cigarette Wholesale Dealer's License No. 23-230 was subsequently issued to Yoth, Inc., and that corporation began doing business as Merchants Tobacco & Candy Company in January of 1970 in Dade County, Florida. Katz had determined that her friend, David Valancy, would run her Florida business for her; and after it began its operation, the corporation was structured so that Felicia Katz served as the President, Alan Edelstein served as the Vice President, and David Valancy served as the Secretary-Treasurer. Additionally, the corporate stock was issued so that Katz held fifty percent, Edelstein held twenty-five percent, and Valancy held twenty-five percent. Katz visited her Florida business during the months of January and February, 1979. On February 8, Katz signed under oath the Petitioner's Cigarette Wholesale Dealer's Report for the mouth ending January 31, 1979, certifying that the report contained true and correct information. On February 11, David Valancy contacted Gary Levy, an auditor with the Division, to request Levy's assistance regarding information required to be contained within the January report. Levy, who had visited the business premises on January 19, accordingly reappeared at the premises on February 12, 1970. He met with Valancy and reviewed with him certain business records. One of the items discussed was an invoice from American Brands, Inc., reflecting the purchase of 21,000 packs of cigarettes. Levy initialed the invoice and instructed Valancy to report that purchase. That purchase was not so included in the January report filed on February 13. The failure to include that purchase in the January or any other report thereby affected carry-over figures and rendered each subsequent report through the last report filed for the month of November, 1979, inaccurate. The period of time involved in this proceeding is from January, 1979, when the Respondent began operating its business, through December, 1979, when the November report was filed and the Division began its investigation of Respondent's activities. Felicia Katz signed and swore to the accuracy of the reports filed with the Petitioner for the months of January and February. Thereafter, Valancy signed and filed the Respondent's reports for the months of March through and including November. On the August report, Valancy reported purchases of 12,008 packs of cigarettes from R. J. Reynolds on August 29, and 608 packs of cigarettes from Philip Morris on August 22. He failed to report purchases of 600 packs of cigarettes from French Tobacco, Inc., on August 14, and an additional 450 packs from French Tobacco, Inc., on August 31. When Maria D. Sanchez, an auditor for the Petitioner, reviewed the Respondent's August report, she determined that the report was inconsistent with the final reading of the meter utilized for marking packs of cigarettes for resale to Indians. She contacted Valancy to inquire whether there might be an error on the report, and Valancy replied by submitting replacement pages for the August report. The revised August report failed to report the purchases from R. J. Reynolds and from Philip Morris in addition to continuing to fail to report the two purchases from French Tobacco, Inc. On July 17, Harold Wasserman, General Manager of both Seminole Indian Plaza Store No. 1 and Store No. 2, purchased cigarettes for Store No. 2 from the Respondent in the amount of $30,226.00, according to Respondent's Invoice No. PC 2-514, which amount was paid by Seminole's Check No. 180. Respondent's copy of that invoice, which provides no information as to the location of the purchaser and which was attached to the monthly report from July, contains an additional eighty cartons of Vantage cigarettes, reflecting an additional sales price of $252.00. Those additional cartons were neither received, nor paid for, by Seminole Indian Plaza. On July 18, Wasserman purchased, on behalf of Seminole Indian Plaza Store No. 1, cigarettes from Respondent in the amount of $70,702.60, according to Respondent's Invoice No. PO 1-114, which amount was paid for by Seminole's Check No. 225. Respondent's copy of that Invoice, which provides no information as to the location of the purchaser and which was attached to the monthly report for July, contains an additional two hundred cartons of Salem cigarettes and increases the price by $630.00. Those additional cartons were neither received, nor paid for, by Seminole Indian Plaza. On July 25, Seminole Smokes, owned by Theodore Scott Nelson, purchased cigarettes from Respondent in the amount of $35,263.20, according to Seminole Smokes' copy of Respondent's invoice marked only "Nelson's" and paid for in that amount by Check No. 1794. That invoice not only fails to correctly identify the purchaser, but also fails to provide information as to the purchaser's location. The Respondent's copy of that Invoice which it filed with its July report reflects an additional purchase of forty-six cartons of Winston, for an additional charge of $144.90. Those additional cigarettes were neither received, nor paid for, by Seminole Smokes. Respondent's monthly report for September has attached to it Respondent's Invoice No. 3719, dated September 21, 1070, reflecting a sale in the amount of $474.02 to Seminole Indian Plaza without providing information regarding that purchaser's location. This invoice reflects that 137 cartons of "Kings" cigarettes were received by "R. Kaplan." The signature on the invoice is not the signature of Robert Kaplan, a shift manager for Seminole Indian Plaza, and Seminole has no record of this transaction. Likewise, attached to Respondent's October report is its Invoice No. 5331, dated October 20, reflecting a sale of 12,419 cartons of "Kings" cigarettes to Seminole Indian Plaza without any address in formation in the amount of $42,969.74. The signature on that Invoice purporting to be that of Harold Wasserman, the General Manager, is not the signature of Wasserman, and Seminole Indian Plaza has no record of this transaction either. The records of Marcellus Osceola Trading Post contain a copy of an invoice of Respondent, dated July 10, reflecting as the sole information regarding the purchaser "Marcellus Osceola," and showing a sale by Merchants of 1,530 cartons of cigarettes for a purchase price of $4,897.50. This purchase was paid for by Check No. 1093. This sale is not reported on Schedule "L" of the Respondent's July report, nor is a copy of this invoice attached to that report. Additionally, the purchaser's name is spelled Incorrectly, and no address is provided on the invoice. Respondent's August report contains information on Schedule "L" of certain sales made to Marcellus Osceola, without giving any information as to the address or county of residence of that business. Attached to that same report is Respondent's Invoice No. 263 dated August 16, showing only the purchaser as Marcellus Osceola Trading Post with no address information. Although marked "refused," the invoice indicates the sale took place by virtue of its attachment to the monthly report. Yet, this invoice is not reflected in Schedule "L" wits the other sales to "Marcellus Osceola."
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: Respondent's Cigarette Wholesale Dealer's License no. 23-230 be revoked. RECOMMENDED this 17th day of September, 1980, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Harold F. X. Purnell, Esquire General Counsel Department of Business Regulation 25 South Bronough Street Tallahassee, Florida 32301 William A. Hatch, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Charles L. Curtis, Esquire 1177 S.E. Third Street Fort Lauderdale, Florida 33316 Mr. John Harris Division of Alcoholic Beverages and Tobacco Department of Business Regulation Post Office Box 015269 Miami, Florida 33101 Mr. Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
