The Issue The issue for consideration in this hearing was whether the Department of Environmental Regulation's Amended Rule 17-105, F.A.C, Smoking Policy, was properly implemented and is a proper exercise of delegated legislative authority.
Findings Of Fact At all times pertinent to the issues herein, the Petitioners were employees of the Department. Petitioner Huck was employed in the Tallahassee headquarters and the other Petitioners were employed elsewhere. GENESIS The Florida Legislature, in 1985, enacted Chapter 386, Part 11, Florida Statutes, The Florida Clean Indoor Air Act, (Act), under the authority of which, in February, 1986, the Department promulgated its own "Smoking Policy" incorporated in Rule 17-105, F.A.C.. This rule prohibited smoking in all Department facilities except in those areas specifically exempted as designated smoking areas. These included private office areas and employee lounge areas as well as the first floor cafeteria. Dale Twachtmann was appointed Secretary of the Department in January, 1987. At the very beginning of his incumbency, he became aware of the ongoing controversy over smoking within the Department and concluded that a management decision to put the matter to rest was called for. He determined, from the information made available to him, that even before his arrival, the headquarters building in Tallahassee had serious air handling problems due partially, at least, to activities that had previously been carried on in parts of the building. A previously operating print shop and laboratory were moved shortly after his arrival. He could not determine how much of the "bad" air was attributable to each program. THE RULEMAKING PROCESS Mr. Twachtmann also determined that smoking within the building was considered, by a significant number of employees, to be a part of the air problem second only in seriousness to the laboratory. When the lab was moved, those proponents of clean air struck upon smoking as their bete noire. No studies of air quality were done during Mr. Twachtmann's tenure, however, nor had anything been done to curb smoking except for the promulgation of the original Rule 17-105. The controversy over smoking within the building continued, however, culminating in the drafting and circulation, in December, 1988, by an employee, Mr. Billy Kahn, of a petition to totally ban smoking in the facility. This petition was signed by approximately 275 of the 500 to 600 employees in the Tallahassee office. Though the Secretary did not recognize all the names thereon, he did recognize enough to satisfy him of its validity, notwithstanding a few irregularities on it, and he was influenced by it to do something. It reinforced his own observations of the smoking situation gathered while going about the building. For example, though he never noticed smoke in the halls, nor did he ever see anyone smoking in open areas, he would find some heavy and unpleasant odors in some of the break rooms and the lunchroom where smoking was allowed. Mr. Twachtmann thereupon decided, as Department Secretary, to take action which would resolve the smoking issue once and for all. He decided to initiate the rulemaking process with a view toward, if and after all legal requirements were met, banning smoking completely in all Department facilities and vehicles. Part of the process, which called for workshops to advise all employees of the proposed action and to solicit employee input, included consideration of alternative solutions to banning smoking. The process also included consideration by the Secretary of the substantial information available on both sides of the issue which was provided to him by his staff and by experts whose opinions on the matter were solicited. Much of this information was presented by advocates of both positions at a series of senior staff meetings held in early 1990 at which the senior staff voted unanimously to proceed with rulemaking to amend the smoking policy in Rule 17-105 to ban smoking. At this point, no studies had been made of air quality within the Tallahassee headquarters building. Nonetheless, after the vote was taken to amend the rule, in May, 1990, Mr. Shearer prepared and dispatched a memorandum to Department staff, referring to the "decision" by the Secretary to ban smoking from the headquarters building. This memo solicited personnel participation in the rulemaking process and instructed anyone who had any input to coordinate it through their supervisors. The task of drafting the amended rule was given to Mr. Peyton, the chief administrator of the Department, who, in turn, delegated the task initially to his counsel, Ms. Costas. Mr. Peyton was not told, when assigned his task, that he could not change the substance of the existing rule. Because Mr. Peyton was not satisfied with the draft of the proposed amendment prepared by Ms. Costas, he reassigned the task to one of his deputies, a nonlawyer, Ms. Drew. He instructions to her were to cut it down and make it simple, but to reflect the Department policy to ban all smoking in Department facilities and vehicles. The latter was an afterthought subsequent to Mr. Peyton's receiving comments regarding the smell in the Department's vehicles. After the draft of the rule was prepared, workshops to address the proposed rule were scheduled, noticed in the Florida Administrative Weekly, (F.A.W.), and conducted in various locations throughout the state. The published notice indicated discussion would include the need, if any, for the rule, and the proposed terms thereof. Instructions governing the conduct of the workshops and the method of handling employee comments were disseminated by Ms. Costas to the Deputy Assistant Secretary in each district. Those employees who held opinions on the need for or terms of the proposed rule were to be instructed to forward their comments in writing to the Department headquarters in Tallahassee. Hearings were held throughout the state in late June and early July, 1990. The comments received by Mr. Peyton, who conducted the Tallahassee workshop, and those submitted from elsewhere within the Department, were consolidated and summarized by Ms. Costas and thereafter forwarded, through Peyton, to the Secretary. Comments in writing were received from members in the Central, Northeast and Northwest Districts and orally from the Southeast District. There is no record of any comments having been received from any other district. All comments received were forwarded to, discussed with, and considered by the Secretary personally. Consistent with appropriate rulemaking procedure, a hearing on the rule was scheduled to be held by the Secretary regardless of whether there was a request therefor or not. In the interim, on June 20, 1990, copies of the hearing notice, the rule, the economic impact statement and the Statement of Facts and Circumstances Justifying the Proposed Rule were sent to the required agencies for coordination. Thereafter, based on the input received from employees and other pertinent sources, the rule was changed and notice thereof appropriately published in the F.L.W.. The secretarial hearing was held as noticed and did not result in any input sufficient to cause delay in the process. On July 27, 1990, the rule was certified to the Secretary of State by Secretary Twachtmann. MATTERS RELATING TO THE NEED FOR THE RULE There has been and continues to be discourse in the medical and lay communities on the harmful effect of secondhand tobacco smoke. While few disagree that the direct inhalation of tobacco smoke by smokers has harmful effects on the health of those individuals, controversy is still rampant as to what effect, if any, the forced inhalation by nonsmokers of tobacco smoke generated by smokers in the area, has on the health of these passive exposees. It is well recognized that chemicals shown to be carcinogens are found in tobacco, (cigarette) smoke. Responsible medical studies have also shown a higher incidence of lung cancer in persons exposed to second hand cigarette smoke than in those who have routinely been free of it. A secondary effect is a higher incidence of pulmonary disease and a detriment to lung development. "Secondary smoke" is that smoke generated by burning tobacco between puffs and that smoke exhaled by smokers. There is substantial evidence that the inhalation of secondary smoke for 8 or 9 hours per day over time increases the risk of cancer in an individual so exposed since tobacco smoke contains known carcinogens. Dr. Dennis Williams, a cardiologist accepted by the parties as an expert in the effect of tobacco on human health, is not aware of any showing of increased danger there in the workplace as a result of secondary smoke. However, studies have conclusively shown such an increased danger in the home and to children. Increased levels of nicotine and cotenine have also been observed in the blood and urine of nonsmokers in a workplace where smoking is permitted. Cotenine is a known carcinogen and nicotine, while not, itself, a carcinogen, is an addictive substance. The tar from cigarette smoke contains thousands of cancer causing chemicals. Admittedly, some of these can be found in substances other than cigarette smoke. However, lung cancer is now the leading cause of death among men and women in the United States, and 90% of all lung cancer deaths are due to the use of cigarettes and other tobacco products. Considering all the above, Dr. Williams feels there is no reasonable alternative to concluding that secondary smoke creates a health hazard to the nonsmoker who is frequently exposed to it. It is so found. It is also found that limiting smoking to a closed room does not protect the nonsmoking worker. Smoke quickly diffuses, through the ventilating system, throughout the total air of the facility. Cigarette smoking is a major cause of indoor air pollution and constitutes a major exposure of the worker to a carcinogen. Nonsmokers in the workplace have been found to have metabolized nicotine and cotenine in their urine which could have come only from secondary smoke to which they have been exposed there. The 1986 Report of the Surgeon General of the United States on the Health Consequences of Involuntary Smoking supports the conclusions drawn by Dr. Williams both as to the adverse health effects of secondary smoke and the ineffectuality of artificial separation, within the same air space, of smokers and nonsmokers. This report, along with other supporting information, was considered by Mr. Peyton during the rulemaking process and reported to Secretary Twachtmann prior to final decision. SPECIFICS The poor quality of air in the Department's headquarters building in Tallahassee has been known for some time. Studies of the building's air quality in both 1987 and 1988, while not dealing with the issue of cigarette smoking, both recognized the problem and recommended solutions. The building's ventilation is accomplished through two air handlers on each floor which re- circulate heated or chilled air, depending on the season. Interior air lost through doors and exhaust fans is replenished by outside air brought in by the air handlers. Approximately 88% of the air in the building at any time, however, is re-circulated. In very cold weather, when the introduction of cold outside air must be restricted, that percentage is increased. Any tobacco smoke in the air is, therefore, re-circulated again and again on the floor where it originates. Consequently, regardless of physical separation, nonsmokers sharing a ventilation system with smokers will be exposed to their smoke. In order to reduce that risk, internal air would have to be expelled and more outside air brought in. This cannot be done without a major modification to the building structure and a replacement of the existing air handling system. This is neither reasonable nor economically feasible. In order to reduce the air pollution problems within the building, the Department relocated two of the major polluting functions; the laboratory and the print shop. All these factors were known to and considered by the Department during the rulemaking process. Previous efforts were also made to accommodate the desires of both smoking and nonsmoking employees. Until the adoption of the total ban, smoking was allowed in private offices, in the break room on the fourth floor, and in the employee deli on the first floor. Since smoke concentration in the deli was heavy, many nonsmoking employees found it either unpleasant or impossible to eat there. Consequently, business and the resultant income therefrom was lost. On the other hand, since the ban on smoking, many smokers who formerly patronized the facility during their breaks no longer use it, with a resultant loss of business and income. The use of private offices for smoking was equally unsuccessful since not only were nonsmokers put off from entering either for business or other purposes, but smoke and the smell of smoke escaped through the ventilation system and open doors, and the odor of smoke, so unpleasant to many, would linger in an office long after the occupant thereof was gone. Taken together, the information available on the subject indicated that the only way to safely allow smoking in the building was to limit it to an area that was independently ventilated. This would require an independent access to the outside for the exhaust of old air and the re-supply of fresh air. Only one area in the building ever had an independent air exhaust, and that system, formerly in the laboratory, has been removed and is now being used in the Jacksonville district office. The former lab space is now an open office. As was found previously, physical modification of a currently operational building to accommodate the desires of a portion of the employee force is neither required nor justified. The issue regarding vehicles is somewhat different. The Department operates a fleet of state-owned vehicles, access to which is available to all Department employees. These vehicles are not separated into groups reserved for smokers or nonsmokers. Department employees are sometimes required to travel in Departmental vehicles. Some trips are of several hours duration, and while so occupied, the employees are on Department business. The vehicles also may be used, under proper authorization, to carry individuals other than state employees. Nonsmoking passengers, whether employees or not, may be in the position of riding with another passenger who smokes or in a vehicle which has previously been occupied by a smoker. There have been complaints regarding both situations, with the latter relating primarily to the objectionable smell left in the vehicle by the former smoking occupant. Dr. Williams opined that occupying a vehicle with another, smoking, individual poses the same risk to the nonsmoker's health as does occupying a room with such an individual. However, the residual odor of smoke left in a vehicle by a previous smoking passenger, while offensive, normally is not harmful. It is so found. All these factors were considered by the Department during the rulemaking process. The Department has taken the position that when Departmental vehicles are occupied by its employees, the vehicles are the employees' assigned workplace and individuals are, therefore, afforded the protection of the Act. OPERATION AND EFFECT Penalties for violation of the rule are incorporated therein and provide for a fine of $100.00 for the first violation, and of $500.00 for each subsequent violation in addition to discipline in accordance with the provisions of Chapter 17-130, F.A.C., the Department's disciplinary rule. Those provisions for fine are taken directly from the terms of the Act, Section 386.208, Florida Statutes. The disciplinary rule previously mentioned, (Section 17- 130.300(7)(b)2, F.A.C.), makes it a violation to smoke in a restricted area, an area in which smoking is prohibited. Penalties are outlined in the rule for the various violations which might occur, and each employee is provided with a copy of that rule upon employment with the Department. The Department claims it incorporated the fine provisions of the Act into its amended rule to "reference those disciplinary actions what would be involved" as a result of a violation of the rule and that they are informative only and do not create any additional disciplinary rules. This may be so, but any provision for discipline of an employee for violation of the terms of an agency rule should be incorporated in the agency's employee discipline rule to which reference is made in the instant rule. OTHER PROBLEMS Petitioners have objected to the use of the term, "right" in the amended rule which refers to the objection of nonsmokers to the effects of having to work in closed areas with smokers. Petitioners urge that the Department has sought to create and utilize a new "constitutional" right and that such action is unlawful and unsupportable. A thorough review of all the evidence presented in relation to the promulgation of this rule and its predecessor 1986 rule clearly demonstrates that the use of the term, "right" was no more than an in-artful word choice and in no way dispositive of the smoking issue. To be sure, the Legislature has, by implementation of the Act, encumbered the freedom of the smoker to engage in his passion in a public place, absent an affirmative designation of a smoking area. The use of the term, "public", does not necessarily mean only open to the general public. A building is public if it is owned or operated by a governmental agency. Here, the Department's use of the word, "right", in its rule is no more than a recognition of the differences of opinion which separate the ranks of the smoker and nonsmoker and a recognition of the proposition that the interests of one are as important as are those of the other. The Petitioners have also argued that in its implementation of the amended rule, the Department has denied them due process, specifically referring to the May 8, 1990 memorandum, and the participation in the rulemaking process of Ms. Drew, who was a signatory to the anti-smoking Petition solicited and presented by Mr. Kahn. In his memo, Assistant Secretary Shearer indicated that, "...a decision ha[d] been made .... " to ban smoking, and Petitioners claim that that "decision" having been made, the entire subsequent rulemaking process was a sham. Again we see what appears to be, in light of all that followed, no more than in-artful phraseology to announce the recognition of a Departmental problem and the initiation of a process designed to correct that problem. Admittedly, the use of that phrase raises a spectre of improper influence and a closed mind on the part of the Department hierarchy. However, the testimony of the principals, Secretary Twachtmann and Assistant Secretary Shearer, as to their intent from the beginning of the process, and the uncontroverted testimony regarding the openness of the succeeding activity toward the ultimate determination of a need for and the drafting of the proposed rule, clearly dispels any shade of impropriety. The process was conducted in the open. Employee comment was solicited and several forums were employed in which these comments, pro or con, could be made known to the Secretary. Inquiry was solicited and none who now object to the rule either asked questions or made recorded comment at the time. Petitioners have not shown by any definitive evidence of record, that any interested party who wished to object was prevented from doing so or dissuaded from negative comment by fear of reprisal. To the contrary, the evidence clearly demonstrates that all required notices were published, and that management went far beyond that which was required to insure the opportunity for fair comment and to, as best as possible, guarantee the maximum available input to the Secretary before the final decision was made. As for the participation of Ms. Drew in the process, the evidence shows that she is Mr. Peyton's deputy. When Mr. Peyton received Ms. Costas' draft of the proposed amended rule and was dissatisfied with it, he requested Ms. Drew, with Ms. Costas, rework it. His guidelines were to cut excessive wordage and make it simple. The operating thesis was also simple and left little room for interpretation. There is little risk that Ms. Drew, or anyone else, could have, in this instance, gone beyond the basic instructional premise upon which she was to work because of her own feelings about the subject matter. The lines were simply drawn on this issue. There were those who favored allowing smoking and those who favored abolishing it. To claim that one who supported abolition could not, thereafter, work on a rule to bring about that end is unrealistic and inappropriate. Petitioners also claim that the Department failed to provide a statement of data and methodology with its Economic Impact Statement, (EIS). Review of the EIS filed with the Joint Administrative Procedures Committee, (Respondent's Exhibit K), reveals that it contains the required statement which appears to demonstrate that the agency's methodology for information collection was appropriate. There was no evidence presented by Petitioners to demonstrate to the contrary. Petitioners further claim that the Department was not the appropriate agency to take the action regarding smoking, assuming, arguendo, such action was appropriate. The Act, which formerly provided that the government entity "responsible for the management and maintenance" of a government building should "implement" the provisions of the Act, was amended in 1988 to require that agency only to report observed violations of the Act to the Department of Health and Rehabilitative Services. In this case, the management and maintenance of Departmental buildings is accomplished through contracts entered through leases on the buildings let through the Department of General Services, (DGS). Petitioners claim that as a result, the rule, if appropriate, should have been promulgated and implemented by DGS. Petitioners overlook the fact that the Department is ultimately responsible for the headquarters building and the activities therein, and is the major employer therein. Petitioners raise the issue that the Department should have, under the Act, designated a smoking area since it claims to be the agency charged with enforcing the Act. This claim presupposes that the Act requires a smoking area be designated in all buildings where smoking is otherwise regulated. Such is not the case. Section 386.202 specifically noted that the Act shall not be interpreted to require the designation of smoking areas. The Department has construed the Act to indicate that as the employer, it implements smoking policy in its facilities. This interpretation conforms to that of other state agencies, including the Department of Education, the Department of Transportation, and the Division of Administrative Hearings, all of which have implemented smoking policies in their facilities. The Department's interpretation appears to be correct, even though different agencies than those listed have provided for separate smoking areas.
The Issue Whether proposed rules 10D-105.009, 10D-105.011 and 10D-105.012, Florida Administrative Code, related to the Florida Indoor Clean Air Act constitute an invalid exercise of delegated legislative authority.
Findings Of Fact Garrison Corporation, Inc., (Garrison) operates a chain of retail tobacco outlets, doing business as "Smoke & Snuff" stores in 16 Florida mall locations. In addition to tobacco products, Garrison sells tobacco-related accessories and various gift items. Garrison is a family-owned business in existence since November of 1973. As a retail store primarily in the business of selling tobacco or tobacco related products, the Garrison stores are exempt from the smoking restrictions set forth in the Florida Clean Indoor Air Act (Act). Customers of the Garrison stores can smoke within Smoke & Snuff stores without restriction. At least two of the malls in which Garrison stores operate have advised that smoking will be prohibited within mall common areas. Some mall operators have implemented smoking prohibitions on their own unrelated to requirements of the Act. Garrison asserts that the imposition of mall smoking restrictions results in a decrease in customer traffic in the mall and declining sales for the tobacco retailer. The chief operating officer for Garrison testified at hearing that the imposition of tobacco smoking restrictions in Florida malls has caused and will continue to result in a diminution in business for the Smoke & Snuff stores. In support of its position, Garrison offered unaudited sales and income figures for the Smoke & Snuff stores. A review of the sales figures indicates that sales in many Smoke & Snuff stores have declined in past years. The decline in Garrison sales has not been limited merely to tobacco products, but has impacted non-tobacco merchandise lines sold in the Smoke & Snuff stores as well. Over the past five years, smoking by adults has decreased in the United States. As smoking has declined, the adult customer base for tobacco products has been reduced. Further, other factors such as store personnel, weather and economic conditions can affect retail sales. There are no studies on the extent of sales impact, if any, caused by the imposition of tobacco smoking restrictions in malls. There are no studies which indicate that the imposition of smoking restrictions in malls results in a decline in customer traffic. The evidence fails to establish that customer traffic declines as a result of the imposition of smoking restrictions. The evidence fails to establish that the Garrison sales decline is directly or primarily related to the imposition of smoking restrictions in the malls where the Smoke & Snuff stores are located. The evidence fails to establish that Petitioner Garrison has standing to challenge the proposed rules. As to MacKoul Distributors, the prehearing stipulation states that MacKoul Distributors operates a place of employment and as such is subject to the Act and the proposed rules. Part II of Chapter 386, Florida Statutes, is the Florida Clean Indoor Air Act (Act). As stated at section 386.202, Florida Statutes, the purpose of the Florida Clean Indoor Air Act is as follows: ...to protect the public health, comfort, and environment by creating areas in public places and at public meetings that are reasonably free from tobacco smoke by providing a uniform statewide maximum code. The Act does not require the designation of smoking areas.... The Act provides at Section 386.204, Florida Statutes, as follows: A person may not smoke in a public place or at a public meeting except in designated smoking areas. These prohibitions do not apply in cases in which an entire room or hall is used for a private function and seating arrangements are under the control of the sponsor of the function and not of the proprietor or person in charge of the room or hall. Section 386.203, Florida Statutes, provides definitions as follows: "Public place" means the following enclosed, indoor areas used by the general public: Government buildings; Public means of mass transportation and their associated terminals not subject to federal smoking regulation; Elevators; Hospitals; Nursing homes; Educational facilities; Public school buses; Libraries; Courtrooms; Jury waiting and deliberation rooms; Museums; Theaters; Auditoriums; Arenas; Recreational facilities; Restaurants which seat more than 50 persons; Retail stores, except a retail store the primary business of which is the sale of tobacco or tobacco related products; Grocery stores; Places of employment; Health care facilities; Day care centers; and Common areas of retirement homes and condominiums. * * * "Smoking" means possession of a lighted cigarette, lighted cigar, lighted pipe, or any other lighted tobacco product. "Smoking area" means any designated area meeting the requirements of ss. 386.205 and 386.206. "Common area" means any hallway, corridor, lobby, aisle, water fountain area, restroom, stairwell, entryway, or conference room in any public place. The Act provides no definition of "retail store" or "place of employment." The Act does not specifically include "malls" within the definition of "public places." Section 386.205, Florida Statutes, addresses the matter of designation of smoking areas, and provides as follows: Smoking areas may be designated by the person in charge of a public place. If a smoking area is designated, existing physical barriers and ventilation systems shall be used to minimize smoke in adjacent nonsmoking areas. This provision shall not be construed to require fixed structural or other physical modifications in providing these areas or to require operation of any existing heating, ventilating, and air conditioning system (HVAC system) in any manner which decreases its energy efficiency or increases its electrical demand, or both, nor shall this provision be construed to require installation of new or additional HVAC systems.. (2)(a) A smoking area may not be designated in...any common area as defined in s 386.203.... * * * In a workplace where there are smokers and nonsmokers, employers shall develop, implement, and post a policy regarding designation of smoking and nonsmoking areas. Such a policy shall take into consideration the proportion of smokers and nonsmokers. Employers who make reasonable efforts to develop, implement, and post such a policy shall be deemed in compliance. An entire area may be designated as a smoking area if all workers routinely assigned to work in that area at the same time agree. With respect to the square footage in any public place as described in subsection (4), this square footage shall not include private office work space which is not a common area as defined in s. 386.203(6) and which is ordinarily inaccessible to the public. No more than one-half of the total square footage in any public place within a single enclosed indoor area used for a common purpose shall be reserved and designated as a smoking area. This square footage limitation does not apply to restaurants as defined in s. 386.203(1)(p). However, such a restaurant must ensure that no more than 65 percent of the seats existing in its dining room at any time are located in an area designated as a smoking area. A smoking area may not contain common areas which are expected to be used by the public. Section 386.206, Florida Statutes, provides as follows: The person in charge of a public place shall conspicuously post, or cause to be posted, in any area designated as a smoking area signs stating that smoking is permitted in such area. Each sign posted pursuant to this section shall have letters of reasonable size which can be easily read. The color, design, and precise place of posting such signs shall be left to the discretion of the person in charge of the premises. In order to increase public awareness, the person in charge of a public place may, at his discretion, also post "NO SMOKING" or "NO SMOKING EXCEPT IN DESIGNATED AREAS" signs as appropriate. Section 386.207, Florida Statutes, addresses the administration and enforcement of the provisions of the Act and provides as follows: The department or division shall enforce ss. 386.205 and 386.206 and to implement such enforcement shall adopt...rules specifying procedures to be followed by enforcement personnel in investigating complaints and notifying alleged violators, rules defining types of cases for which exemptions may be granted, and rules specifying procedures by which appeals may be taken by aggrieved parties. Public agencies responsible for the management and maintenance of government buildings shall report observed violations to the department or the division. The State Fire Marshal shall report to the department or division observed violations of ss. 386.205 and 386.206 found during its periodic inspections conducted pursuant to its regulatory authority. The department or division, upon notification of observed violations of ss. 386.205 and 386.206 , shall issue to the proprietor or other person in charge of such public place a notice to comply with ss. 386.205 and 386.206. If such person fails to comply within 30 days after receipt of such notice, the department or division shall assess a civil penalty against him not to exceed $100 for the first violation and not to exceed $500 for each subsequent violation. The imposition of such fine shall be in accordance with the provisions of chapter 120. If a person refuses to comply with ss. 386.205 and 386.206, after having been assessed such penalty, the department or division may file a complaint in the circuit court of the county in which such public place is located to require compliance. A person may request an exemption from ss. 386.205 and 386.206 by applying to the department or division. The department or division may grant exemptions on a case-by- case basis where it determines that substantial good faith efforts have been made to comply or that emergency or extraordinary circumstances exist. Section 386.208, Florida Statutes, provides as follows: Any person who violates s. 386.204 commits a noncriminal violation as provided for in s. 775.08(3), punishable by a fine of not more than $100 for the first violation and not more than $500 for each subsequent violation. Jurisdiction shall be within the appropriate county court. This case involves the Petitioners' challenge to proposed rules 10D- 105.009(1), (2), (3), (4), (8), (10) and (11), proposed rule 10D-105.011, and proposed rule 10D-105.012(2). In relevant part, proposed rule 10D-105.009 provides as follows: 10D-105.009 - On-Site Investigations of Public Places -- During inspections or investigations of any Clean Indoor Air Act complaint, HRS personnel shall document all observed violations of Florida Statutes sections 386.205 or 386.206. Such violations include the following: In any workplace where there are smokers and nonsmokers, employers shall develop a policy with regard to the designation of smoking areas. Should there be no written policy, a violation of section 386.205(3), F.S., exists and will be documented as "Failure to develop a smoking policy regarding smoking and nonsmoking areas." Employers are required to implement a written smoking policy. If employees are observed violating a workplace smoking policy, a violation of section 386.205(3), F.S. exists and will be documented as "Failure to implement an existing smoking policy." Should a smoking policy exist for a workplace but not be posted, a violation of section 386.205(3), F.S. exists and will be documented as "Failure to post a smoking policy." When a common work area is designated as a smoking area, all workers assigned to work within that single enclosed area must agree to such a designation. (Partitioned work spaces and rooms not separated by closed doors, floor to ceiling moveable walls or similar floor to ceiling barrier do not constitute separate work areas.) This violation of the Florida Clean Indoor Air Act will be documented as: failure to post signs in a designated smoking area, a violation of section 386.206, F.S., and failure to implement a smoking policy regarding smoking and nonsmoking areas, a violation of section 386.205(3), F.S. * * * (8) If single occupancy offices have not been counted in the calculation of the square footage of a designated smoking area where both smokers and nonsmokers routinely assigned to work at the same time and the doors of those offices are left open, then a violation of section 386.205(3), exists and will be documented as "Square footage calculation for designation of smoking areas is incorrect." * * * If smoking is allowed anywhere in an enclosed shopping mall concourse, then a violation of section 386.205, F.S., exists and shall be documented as :"Smoking permitted or designated in a prohibited area." If smoking is allowed in an enclosed shopping mall food court and is not specifically regulated by the Department of Business and Professional Regulation, then a violation of section 386.205, F.S., exists and shall be documented as "Smoking permitted or designated in a prohibited area." In relevant part, proposed rule 10D-105.011 provides as follows: 10D-105.011 - Types of Cases for which Exemptions may be Granted; Procedures by which Appeals may be taken by Aggrieved Parties. -- The proprietor or other person in charge of a public place may request an exemption from Florida Statutes sections 386.205 or 386.206, by submitting their request in writing to the HRS State Health Officer. On the recommendation of the State Health Officer, the department may grant any exemptions from the requirements of section 386.205(4) or 386.206, F.S., as an emergency or extraordinary circumstances which justifies exemption when compliance with the Florida Clean Indoor Air Act would result in a greater hazard to public health than would result from granting an exemption. Temporary exemptions of limited duration may be granted under emergency or extraordinary conditions when good-faith efforts to comply have been made. Public places which have received a letter of complaint as described by Florida Statutes section 386.207(2), and intend to request exemption from the requirements of the law, must file such a request with the State Health Officer within 30 days of receipt of the notice of the alleged violation. Proprietors or persons in charge of public places who have been assessed penalties under Florida Statutes sections 386.205 or 386.206, may seek administrative review of the assessment pursuant to the provisions of Florida Statutes Chapter 120. In relevant part, proposed rule 10D-105.012 provides as follows: 10D-105.012 - Minimum Standards for Assessing Fines by HRS Personnel Against Public Places Found to be in Violation of the Florida Indoor Clean Indoor Air Act. When the proprietor or other person in charge of a public place has been notified of observed violations and has failed to correct those violations, the department shall assess fines in accordance with the provisions of Chapter 120, Florida Statutes.... (The subsection includes a list of violations with increasing fines depending on whether the violation is a first, second or third offense.) * * * For every offense after the third offense, the maximum penalty of $500.00 shall be assessed. Each day that a violation continues shall constitute a separate violation. Separate fines shall be assessed for each observed violation, and for each day that each violation persists.
Findings Of Fact At all times pertinent to the allegations contained in the Notice To Show Cause, Respondent was issued Florida Alcoholic Beverage License 2APS Number 66-248 for the Plaza Grocery located at 2233 North 25th Street, Ft. Pierce, Florida. The parties stipulated, and it is found, that Respondent had the cigarettes as alleged in the Notice To Show Cause in the quantities referred to and that said cigarettes were, in fact, untaxed. The parties further stipulated that on September 15, 1983, during a search conducted by officers of the St. Lucie County Sheriff's Department and the Division of Alcoholic Beverages and Taxation in Respondent's premises, the officers found in the retail rack behind the counter, twenty (20) packages of Salem Menthol 100's, and nine (9) packages of Salem Menthol Light 100's, that were untaxed. The nine (9) packages indicate that one package out of a carton of ten (10) packs was missing. In addition to the above, officers found in a box behind the counter, three (3) cartons of Salem Menthol Light 100's and four (4) cartons of Salem Menthol 100's; all untaxed and mixed in the box with cartons of taxed cigarettes. In a storeroom off from the sales area, officers found fifty-one (51) cartons of Salem Menthol Light 100's and nineteen (19) cartons of Salem Menthol 100's. Detective Alfonzo Washington who has served in that capacity for two (2) years and for the Sheriff's office in other capacities for ten (10) years has known Respondent for twenty- five (25) years. On September 15, 1983, he received a report from a friend who runs a convenience store in that area that someone had offered untaxed cigarettes for sale. Because of his relationship with Respondent, Officer Washington went to the Respondent's store to warn him. Arriving sometime between 11:30 a.m. and noon, Washington talked with Respondent outside the store near his unmarked police car. Washington was in the car and Respondent was outside it. He advised Respondent that if anyone tried to sell him cigarettes to contact him; that he wanted Respondent to, "help me." Washington did not ask Respondent to buy the cigarettes if offered: only to be a lookout and to contact him if anyone offered to sell. Whether there was an actual request or not, it is clear that Respondent thought there was and he acted on what he considered to be the request of a bona fide law enforcement officer. A finding of this nature was subsequently made in Respondent's criminal trial in the same facts and while not binding in this hearing, that court order is of some probative value. Respondent did not, however call Washington when, as it appears, an individual did in fact offer to sell him cigarettes, the cigarettes in question here, later on in the day. Respondent, Boatwright, in addition to running the Plaza Grocery Store, a convenience store which sells mostly dried and prepackaged foods, wine, beer, and cigarettes, operates a fruit harvesting and hauling business. He confirms Washington's story that he was leaving his store approximately noon on September 15 when Washington approached him and asked him if anyone had offered to sell him cigarettes. Boatwright also confirms Washington's testimony that he explained what had happened but contends that Washington asked for his help in solving the case. Respondent agreed that Washington left after a very short conversation and no detailed instructions were given. Respondent then ran some errands, going to the bank, and to a car dealership, arriving back at the grocery store at approximately 2 or 2:30 p.m. While he was working on some equipment in his repair shop in back of the store, a black male who he knew as "Peanut" drove up in a blue and white Cadillac. Peanut asked Respondent if he was interested in buying any cigarettes. This immediately rang a bell with Respondent who then asked Peanut how many he had and how much he wanted. Peanut said he had about eighty (80) cartons and was willing to sell them for $400.00. When Respondent asked if he would take less, Peanut, after talking with the other individual in the car, agreed to sell the entire lot for $300.00. At this point, Respondent advised Peanut he would have to come back later in the day because he, Respondent, did not have that much money with him. If fact, Respondent did have $300.00 with him at the time and contends he used this subterfuge only to allow him time to attempt to get Washington to the store. After talking with his friends in the car, Peanut agreed to come back later and he, Peanut, took the cigarettes which were in unopened cartons packed in two (2) brown boxes, into the store and in the storeroom where Respondent told him to put them. This was approximately 3:00 p.m. in the afternoon. The cigarettes were placed just inside the storeroom door next to some groceries, completely out in the open. After depositing the cigarettes, Peanut indicated that he would be back between 4:00 and 5:00 p.m. Respondent contends that he expected Officer Washington to come by on his way home from work somewhere around 4:00 p.m. Washington agreed that he, usually, got off work and passed by the Plaza Grocery on his way home and that he sometimes stopped in to talk with Respondent. However, while Washington indicated he failed to come in more than he stopped in, Respondent contends that Washington stopped in more often than not and that it was because of this that he did not call Washington intending to see him on the way home. He indicates that if Washington went by without stopping, he was going to call Washington at home and have him come over to be there when Peanut returned. On balance, it would appear Respondent is in error here. As it happened, however, approximately a half an hour after Peanut left, beverage agents and sheriff's department detectives, as their last stop in their check of several area convenience stores for the stolen cigarettes, came into the store while Respondent was outside talking. The agents came up in a brown car and Respondent thought it was relating to fruit harvesting. Respondent went inside the store to see what the agents wanted and found that several of the officers, including Officer White, had already gone behind the counter to the cigarette rack. At this point Respondent asked what was the problem. White replied that he wanted to check cigarettes and when White asked who Respondent bought the cigarettes from, Respondent who did not know who any of these people were replied, the Eli Witt Company. When one detective asked him if he had any more cigarettes, he said "yes" and attempted to show him where the cigarettes were in the storeroom. Ultimately the detectives advised Respondent of his right to remain silent, but he waived this right and fully explained what had happened. When Investigator White, a new beverage agent with whom respondent was not familiar, found cigarettes that were untaxed in the cigarette retail rack, he advised Respondent of his testimonial rights and Respondent indicated a desire to make a statement. In this statement, respondent reiterated the story outlined above to the effect that Washington had approached him earlier in the day to solicit his help in watching for untaxed cigarettes. He then went on to indicate the story of how Peanut had come and left the cigarettes there. September 15, 1983 was on a Thursday. The following Sunday, Investigators Young's wife called White and indicated that Respondent had called her in an effort to talk to Young. White called Respondent back and was told by Respondent that Peanut had come back that day in another car to threaten him into either returning the cigarettes or paying for them. Respondent advised White that he had a partial tag number and a description of the vehicle. He also advised White that he had reported this to the Sheriff's Department through the 911 number. At this, White advised Respondent to keep an eye out and to call if anything else developed. The cigarettes in the retail rack were in plain view and were not hidden as were the cigarettes in the box behind the counter. Investigator White confirms Respondent's story that the cigarettes in the storeroom were not hidden and were left out in the boxes with the end labels of each carton showing. This was somewhat contradicted by the testimony of Petitioner's rebuttal witness, Detective Williams from the County Sheriff's office, who stated that the cigarettes were somewhat concealed. Nonetheless, it would appear that the cigarettes were not concealed and there is no evidence to show that Respondent attempted to hide the cigarettes or make them unavailable to the investigating officers. In fact, it appears the cigarettes were where Peanut had left them with the exception of those few cartons taken from the storeroom and put into the retail rack behind the counter. In that regard, Respondent denies having moved the cigarettes and contends his five (5) employees denied moving them. It is clear that they were moved, however, more likely by an employee who now denies it.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to the charges herein, respondent Strickland was an Industrial Arts teacher at Everitt Junior High School in Panama City, Florida. The Personnel Record filed at Everitt contains spaces on the back for "teaching experience and record." Written in pencil for the years 1965 through 1969 is "Macon Co. Bd. of Ed., Tuskeegee, Ala., Ass. Supt., Dir. of Psy." (Exhibit 1) Respondent denies that this was his handwriting. Mr. John T. May, the Principal of Everitt, called the Superintendent at Tuskeegee, a Mr. Byas, to verify this. He was told by Byas that respondent had been a counselor for the Title 1 program there, and had not been an assistant superintendent. A letter from Joe C. Wilson, who is listed as respondent's supervisor for those years on respondent's application for employment with the Bay County Public Schools, states that respondent was employed as a school psychologist. The letter further states: "His specific assignments were to coordinate the statewide testing program, to test students referred to E. M. R. classes, and handle psychological services in the Head Start Program. On occasions Mr. Strickland was assigned other duties, such as repre- senting the school in lieu of the Superin- tendent and the handling of some admini- strative details." (Exhibit H) Respondent submitted to Principal May five "temporary leave" forms requesting sick leave for the following dates: October 30, 1974; January 20, 1975; January 24, 1975; February 28, 1975; and April 11, 1975. Each of the leave forms were submitted from one to three days after the leave was taken. On two of these forms, respondent stated in the space provided for "explanation of request" that he was sick. (Exhibit 2) In reality, respondent was attending personal business in Mobile, Alabama on those dates. (Exhibit 3) In the manual for instructional personnel of Bay County Schools, "sick leave" is defined as "personal illness or disability of the teacher or illness or death of a member of the immediate family." Said manual also provides for personal leave without pay for absences for personal reason, the leave to be requested and approved prior to the absence. Also, it is provided that two days of sick leave may be used with pay for personal business. In such event, the teacher is to notify the principal at least five days in advance, except in cases of emergency. Respondent testified that he told Mr. May that he had personal business to attend to in Mobile, Alabama, and that May instructed him to arrange for a substitute and take sick leave. During a class period, respondent walked by the home economics room when the class was preparing food. The male students in the class were required to wear aprons and hairnets. Respondent was near the window and made remarks to Bobby Golding to the effect that he looked sweet and would make a nice housewife. This disrupted the class and embarrassed Mr. Golding. The home economics teacher, Ms. Collins, testified that other male students in her class had complained that respondent had teased them about wearing hairnets and/or aprons. At a time when a group of students were present, respondent confronted Ms. Collins in the school hallway. She did not wish to talk to him at that time and walked away from him. Respondent pursued her and continued to call her name in a demanding tone. Ms. Shipbaugh, a guidance counselor, also testified that respondent embarrassed her on several occasions in front of other faculty members by either degrading her qualifications as a counselor or by yelling at her. A teacher's aide at Everitt testified that she and respondent, along with about 25 other persons, were standing in line at a post office on a Saturday in January of 1976. According to her, respondent began making remarks about Mr. May being intoxicated at a school Christmas party. While others overheard his remarks, she did not recognize any students, parents or faculty members among those present. Respondent denied this incident at the post office. After several verbal and written announcements had been made to the faculty at Everitt, a faculty meeting was held on the morning of February 3, 1976. The Vice-Principal, Ms. McGill, testified that respondent was not present at this meeting, and she wrote a letter to him reprimanding him for this. (Exhibit L) A speaker at that meeting remembered seeing respondent in the hall after the meeting, but could not recall whether respondent was present during the meeting. No roll call was taken during the meeting. Respondent testified that he did attend this faculty meeting. Principal Mays received several complaints from students regarding remarks made to the students by respondent in his classroom. Two students testified that respondent had put his hand on their chest or his arm around their neck during class. Bobby Golding testified that respondent had made a remark to him in shop class concerning the hair on Golding's head being similar to the hair in respondent's pants. Golding said he knew that at least one other student heard this remark because they discussed it immediately thereafter. Four students who attended Everitt Junior High School testified that they had seen respondent smoke marijuana. Three of these four students took industrial arts from respondent. Kenneth Lynch saw respondent smoke marijuana at the Parker ball park and at the home of Vito Knowles. Bobby Golding was present and saw the same two incidents. Gary Guidas saw respondent smoke marijuana at the home of Vito Knowles and behind Guidas' house. The ball park and the Knowles' resident incidents occurred in the presence of other students, who were also smoking marijuana at the same time. During the gathering at the Knowles residence, "mushroom tea," an hallucinogenic substance, was also being consumed by the students. It is not clear from the testimony whether or not respondent was partaking of the "tea." One student testified that respondent supplied him with a marijuana cigarette on one occasion. None of the smoking was done on the school grounds, according to the students. Respondent denied having ever smoked marijuana as related by these students. It was his testimony that he never went to the Parker ball park or to Vito Knowles' home.
Recommendation Based upon the findings of fact and conclusions of law recited above, as well as the seriousness and number of the offenses of which respondent has been found guilty, it is recommended that respondent's Florida teaching certificate be revoked for a period of four (4) years, said period commencing on the date that the final order is rendered by the State Board of Education. Respectfully submitted and entered this 20th day of July, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. David Holder, Esquire Barrett, Boyd and Holder Post Office Box 1501 Tallahassee, Florida 32302 Fred Turner, Esquire Post Office Box 1120 Lynn Haven, Florida 32444 Ms. Angela Peterson Professional Practices Council 319 West Madison Street- Room 1 Tallahassee, Florida 32304 Mr. Hugh Ingram, Administrator Professional Practices Council Room 3, 319 West Madison Street Tallahassee, Florida 32304
The Issue Whether Respondent nursing home has committed a violation of Section 400.102 (1), Florida Statutes (2007), by an intentional or negligent act materially affecting the health or safety of nursing home residents, so that Petitioner may impose a $15,000, administrative fine, a "survey fee" of $6,000, for surveys every six months for two years, and a conditional license for the period of April 24, 2008, through and including May 5, 2008, based on a cited Class I widespread deficiency.
Findings Of Fact Petitioner Agency for Health Care Administration (AHCA) is the State agency responsible for licensing and evaluating nursing homes under Chapter 400, Part II, Florida Statutes, and Section 408.802(13), Florida Statutes. Respondent Sandalwood is a skilled nursing facility located in Daytona Beach, Florida. It is one of roughly 15 nursing facilities managed by Sterling Healthcare. The dispute in this case arose from a survey conducted by AHCA at the Sandalwood facility on April 23, 2008. Effective October 23, 2006, the Code of Federal Regulations, 42 C.F.R. Section 483.70(7), was amended to require installation of battery-operated single station smoke alarms, in accordance with the manufacturer's recommendation, in every nursing home resident’s sleeping room and in common areas of all nursing homes, unless the facility were "fully sprinklered" or if the facility had system-based smoke detectors in residents' rooms and common areas. "Fully sprinklered" means sprinklers installed throughout the facility, including in each resident’s room. On November 1, 2006, the United States Center for Medicare and Medicaid Services (CMS) issued a letter to State Survey Agency Directors, including AHCA, advising them of this new requirement. There was a phase-in period for this regulation based on the cost of implementing it. It is AHCA's general practice to issue letters to nursing home facilities advising them of changes to laws that affect them. In this situation, AHCA issued a letter to nursing homes requiring that they become fully-sprinklered by December 31, 2010, but AHCA did not send out a letter advising nursing homes, including Respondent, that at least until the nursing home became fully sprinklered, smoke detectors were required in residents' rooms. There also may not have been any other readily accessible private publication notifying nursing homes in the relevant time frame.1/ A telephone conference occurred on April 22, 2008, between Polly Weaver, AHCA's Bureau Chief for Field Operations; Skip Gregory, Chief Fire Marshal for AHCA; and all of AHCA’s Field Office Managers, including Nancy Marsh, the Field Office Manager for AHCA's Area Four, which comprises seven counties, including Volusia, where Respondent is located. During that April 22, 2008, telephone conference, a decision was made to survey all nursing home facilities on a list of 26 nursing homes (out of a total of 670 such homes in the State) that were not yet fully sprinklered. The impetus for the telephone conference had been a fire at a nursing home outside Area Four and unrelated to Respondent Sandalwood. Ms. Marsh may not even have been aware of the smoke detector issue until shortly before April 22, 2008. After the April 22, 2008, conference, Ms. Marsh telephoned Lewis Hubbard, the licensed nursing home administrator of Respondent Sandalwood. Ms. Marsh inquired as to whether Sandalwood had smoke detectors in each resident’s room, and Mr. Hubbard candidly admitted there were not. Ms. Marsh did not indicate any urgency concerning her inquiry, did not mention anything about issuing a complaint against Sandalwood, and did not alert Mr. Hubbard that an emergency survey was about to occur. Mr. Hubbard has been Respondent's administrator since March 2006. He first became licensed in 2004, and is an expert in nursing home administration. On April 23, 2008, Ms. Marsh sent Don Gray, an AHCA Fire Protection Specialist from AHCA's Area Seven, to Respondent Sandalwood, which is in Area Four, to do a "pinpoint" survey to see if the facility had smoke detectors in residents’ rooms. Mr. Gray had never inspected Sandalwood. Nick Linardi is the AHCA surveyor who normally inspects Sandalwood. On April 23, 2008, Mr. Gray inspected Sandalwood for a "fully-sprinklered" system and checked for smoke detectors in 30 residents' sleeping rooms. Informed that there were no smoke detectors in any of the residents’ sleeping rooms, Mr. Gray did not inspect the remaining sleeping rooms. At his request, Sandalwood provided Mr. Gray with a resident census and condition report that gave the surveyor a synopsis of the type of residents currently at the facility on the day of his inspection: 14 Medicare patients and 53 Medicaid patients, which meant the facility was subject to CMS regulations. At the time of the survey, seven patients were bedfast and would require special assistance from staff if an emergency situation occurred, such as a fire. Mr. Gray assessed a risk of harm that could possibly befall at least 53 Sandalwood residents who would need help in moving to a secure area if a fire broke out. Respondent Sandalwood is a nursing home built in 1962, and composed basically of concrete. Its ceilings and the walls between residents' rooms are made of concrete. It is in the shape of a big "capital H". There are two nurses' stations on each wing, so that staff can view all the residents' rooms. On the day of Mr. Gray’s pinpoint survey, Respondent Sandalwood had six designated fire zones. There also were smoke detectors placed about every 15 feet throughout the hallways. This placed smoke detectors in close proximity to the door of each resident’s room. Smoke detectors were also located in all the common areas (dining area, receptionist desk, etc.) Sandalwood utilizes a Def-Con fire detection system, so that if any smoke detector sounds, the alert goes immediately to the nearest nurses' station and simultaneously to the local fire department. This type of system is called a "core” smoke detection system. On April 23, 2008, Respondent Sandalwood also had sprinklers located in the utility and linen closets. On April 23, 2008, Respondent Sandalwood had plans in place to have the facility "fully-sprinklered" by the established deadline of December 31, 2010. That deadline has since been extended by CMS/AHCA to December 2013. Mr. Gray normally completes handwritten notes during, or immediately after, his survey or whenever he “gets time." His notes for this case reflect an inspection for battery- operated smoke detectors in residents’ rooms and a check for sprinkler heads. A conference call was held later on April 23, 2008, among Ms. Weaver, Mr. Gregory, Jim Tinkin (AHCA Administrator for Safety and Life Safety for Tallahassee), Brian Smith, Molly McKistry (sic), Bernard Hudson, Joel Libby, a Paul (last name unknown but as recalled by Mr. Gray) and Nick Linardi, the previously unavailable AHCA surveyor. They discussed Mr. Gray’s findings that the facility was not "fully-sprinklered" and that there were no battery-operated smoke detectors in residents' rooms. Based on Mr. Gray's notes, a consensus was reached to charge the lack of sprinklers and lack of smoke detectors as a "K023 & F454, violation." During the foregoing conference call, Mr. Gray was the first one to recommend a Class I violation, claiming that there was an issue of immediate jeopardy. However, this opinion, as he recollected it at final hearing, was based on his assessment that Sandalwood’s situation "could possibly, potentially cause harm to a client or resident," or “could be fatal . . . harmful." Mr. Gray gave examples of fires which had occurred in other facilities in his home Region in the prior month, none of which fires had started in residents’ rooms, and one of which had occurred outside on a smoking patio to a resident in a wheelchair. It is difficult to see how smoke detectors in sleeping rooms would have prevented the foregoing situations. He was additionally concerned with arson attempts, sometimes by residents. According to Mr. Gray’s handwritten notes, before leaving the facility on April 23, 2008, he advised Respondent's administrator, Mr. Hubbard, that Mr. Hubbard would have to correct the smoke detector issue in the "next few days." Mr. Hubbard wanted clarification concerning the codes regarding these issues. Apparently, Mr. Gray called the administrator on April 24, 2008, to confirm the need for smoke detectors in all the residents' rooms. Early on April 24, 2008, Mr. Hubbard began searching nearby stores to locate smoke detectors. He purchased 10 smoke detectors meeting the Federal requirements. Identifying the facility’s “high risk” rooms or rooms most susceptible to fire, Mr. Hubbard assisted in placing the smoke detectors in the rooms of residents who were smokers and residents who used oxygen, whether or not they were smokers. Later on April 24, 2008, Linda Walker, another AHCA surveyor, appeared at Respondent facility. Ms. Walker is a Registered Nurse Specialist and does nursing surveys of nursing homes for AHCA. If this had been a normal complaint survey or a periodic survey, Ms. Walker and Mr. Gray would have surveyed Sandalwood at the same time on the same date, and deferred to each other in their respective areas of control/expertise. In this instance, Ms. Walker’s superiors had sent her to Respondent’s facility after Mr. Gray’s survey, specifically to assess, from a nursing perspective, any danger to certain types of residents. Mr. Gray, in addition to being a Fire Specialist, is also a Licensed Practical Nurse, but he stated that he would defer to Ms. Walker on all nursing issues. Among other things, Registered Nurse Walker was sent to the facility to check on the progress of the smoke detector installation and the status of resident smokers and those residents using oxygen. Ms. Walker did more than a "pinpoint" inspection involving just a few sprinkler heads, smoke detectors, and a patient census. In this case, Registered Nurse Walker’s survey amounted to a more thorough assessment of any jeopardy to the resident population in Respondent’s facility than Mr. Gray’s assessment. Ms. Walker determined that when a resident is admitted to Sandalwood, she/he is assessed on whether she/he is, or is not, a smoker. An assessment form is filled out to determine if the resident is safe to smoke on his or her own. A care plan is also established concerning smoking for each resident who smokes. To keep an ongoing assessment of each resident in regards to smoking, Sandalwood also utilizes quarterly assessments for each of their smokers. Ms. Walker observed "No Smoking" signs on the doors of residents who used oxygen. Ms. Walker also observed that the one smoker on the well-ventilated smoking porch was wearing a smoking apron. A smoking apron is a flame-resistant apron used for residents who may have difficulty holding a cigarette. It protects the designated resident if a cigarette, match, or lighter is dropped. Such a precaution would have eliminated one of Mr. Gray's examples of potential concern. (See Finding of Fact No. 21.) Ms. Walker also observed ashtrays and a fire extinguisher on the smoking porch. Ms. Walker interviewed various residents concerning Sandalwood’s smoking policy and procedures, and all reflected an understanding of the policies and procedures. Two residents were identified as those with oxygen orders. One of these residents was interviewed and understood the need not to smoke around oxygen, even though she no longer used oxygen. The other resident could only smoke with supervision of staff. One resident, who was observed by Ms. Walker, had been identified by the nursing staff as being unsafe to smoke when alone, needing supervision, and needing to wear a smoking apron. That resident's cigarettes and lighter were kept at the nursing station, except when actually in use. Ms. Walker noted that particular resident's file contained the resident’s assessment and care plan, and quarterly reviews of the resident’s care plan. Ms. Walker further noted that Respondent’s smoking assessments and care plans were proper. She concluded that Respondent’s quarterly assessments of smokers which are used by some, but not all, nursing homes, were complete for all smokers at Respondent's facility. There is evidence herein that the nursing home fire which started this chain of events (see Finding of Fact No. 8) did not have adequate care plans. Respondent's staff was also interviewed by Ms. Walker. They expressed an understanding of the facility’s smoking policy and procedures, including the rule that smokers could not smoke in their rooms. During Ms. Walker’s survey on April 24, 2008, Sandalwood's maintenance director and Mr. Hubbard were already placing smoke detectors in 10 residents' rooms. Mr. Hubbard had purchased as many of the appropriate smoke detectors as he could, and these detectors were being placed in the rooms of the nine residents who used oxygen and/or who smoked. After placing those nine smoke detectors, the tenth smoke detector was placed in a randomly selected room. Ms. Walker completed a three-page handwritten note about her survey on April 24, 2008, and followed-up with a typed report of the same date. Ms. Walker returned to Sandalwood on April 25, 2008. By that time, Mr. Hubbard had purchased enough smoke detectors for the remaining residents’ rooms, and Ms. Walker determined that a compliant smoke detector had, in fact, been placed in every resident’s room by April 25, 2008. The smoke detectors had been placed out of reach of the residents and were affixed with heavy-duty "two-way" tape, mostly to ceilings, but occasionally to walls. It would be extremely difficult to remove the smoke detectors from the concrete walls. Affixing the smoke detectors to the ceilings and walls arguably constituted a change to the physical facility. On April 28, 2008, Mr. Hubbard prepared a "Plan of Correction," indicating that all smoke detectors had already been installed in all residents' rooms on April 25, 2008. He forwarded this "Plan of Correction" to Petitioner AHCA. On May 5, 2008, AHCA sent Mr. Hubbard a 2567 survey form. He added his foregoing Plan of Correction (see, supra.) to this form, signed it, and sent it back to AHCA the same day. However, as noted previously, the corrections had already been made as of April 25, 2008, even though AHCA did not issue its survey form mandating the corrections until May 5, 2008. According to Ms. Marsh, the single station battery- operated smoke detectors located in residents' rooms in nursing homes only need to be checked annually by AHCA surveyors in order to comply with the applicable rules and regulations. Ms. Marsh testified that in the future, surveyors would only check on a yearly basis to determine if nursing home facilities met the requirement concerning smoke detectors. Presumably, this would be to check on the timely replacement of batteries, because the smoke detector batteries last approximately one year. Mr. Hubbard testified that his Plan of Correction called for Sandalwood staff to check each battery monthly. Anthony Mongelluzzo has been Daytona Beach's Fire Inspector for 20 years, 15 years of which have involved inspecting 150 nursing homes. He is an expert in Fire Safety Inspections. He has inspected the Sandalwood facility on an annual basis and is familiar with its physical plant. Mr. Mongelluzzo had completed his most recent annual inspection of Respondent in March 2008, the month preceding the material time frame of AHCA’s pinpoint survey. Mr. Mongelluzzo’s March 2008, inspection noted that there were only two corrections that Sandalwood needed to make. Both corrections involved an extension cord deficiency and the use of multi-plug power strips. Both issues were subsequently corrected, and Mr. Mongelluzzo sent a letter acknowledging that fact to Mr. Hubbard. Mr. Mongelluzzo also had reviewed the Fire Safety Plan that Sandalwood had submitted to the City of Daytona Beach for the year 2008. As a result, he had issued an April 15, 2008, letter, approving Sandalwood's 2008 Fire Safety Plan. This approval occurred approximately nine days before AHCA targeted Sandalwood and sent in AHCA surveyors, Mr. Gray and Ms. Walker. The Fire Safety Plan submitted by Sandalwood to the City of Daytona Beach sets forth the facility’s procedures in the event of a fire, such as closing doors, evacuation of all occupants of the facility, and where the residents and staff are to rendezvous outside of the facility in order for there to be a meaningful headcount. It is specific, where Mr. Gray's assessment of evacuation situations was more general or an estimate. (See, supra.) In issuing the City of Daytona Beach’s approval letter for Sandalwood’s Fire Safety Plan, Mr. Mongelluzzo did not imply that the facility was not required to follow federal laws. Mr. Mongelluzzo is not familiar with 42 C.F.R. Section 483.70. The City of Daytona Beach’s Plan approval letter only approved Sandalwood's procedures, staff, and the staff’s assigned responsibilities in case of a fire, in connection with the Life Safety Code, National Fire Protection Association (NFPA) 101, which standard is utilized by municipalities across the State of Florida and which standard has been adopted by the City of Daytona Beach. The Life Safety Code NFPA-101 is the Code that Mr. Mongelluzzo relies upon when inspecting nursing home facilities. The Life Safety Code NFPA-101, addresses construction, protection, and occupancy features necessary to minimize danger to life from the effects of fire, including smoke, heat, and toxic gases created by fire. The Life Safety Code also addresses features and systems, building services, operating features, maintenance activities, and other provisions in recognition of the fact that to achieve an acceptable degree of Life Safety depends on additional safeguards providing adequate facility egress, time for that egress, and protection for people exposed to a fire. However, 42 C.F.R. Section 483.70(a), states that facilities must meet the applicable provisions in the 2000 Edition of the Life Safety Code of the National Fire Protection Association. Florida Administrative Code Rule 59A-4.130, also states that a licensee must comply with the Life Safety Code requirements and Building Code standards applicable at the time of departmental approval of the facility’s Third-Stage construction documents. The Life Safety Code NFPA-101 does not require smoke detectors in residents’ rooms when a facility has a core smoke detection system, like the one utilized by Sandalwood. (See Finding of Fact No. 15.) Sandalwood also had been surveyed in standard rotation by Respondent AHCA on a regular basis over the years, the most recent survey having occurred on April 10, 2007, approximately a year before the survey in the instant case. AHCA issued a survey report thereafter which was signed by the Administrator, Mr. Hubbard, in May 2007. AHCA’s survey on April 10, 2007, had not identified as a deficiency the lack of smoke detectors in residents' rooms. There is no competent evidence that the AHCA surveyors at that time even looked for them, even though the CMS requirement therefor would have applied at that time. Respondent AHCA also makes quarterly monitoring reports on nursing home facilities. These are confidential reports for the facility to use for purposes of correcting any issues identified by the monitor. The monitor has the same or better qualifications than a typical nursing home surveyor. Monitor reports contain a disclaimer that the report is not to be construed as evidence of compliance or noncompliance with applicable sections of Florida Statutes, the Florida Administrative Code, or the Code of Federal Regulations. However, the quarterly monitoring reports are designed to advise the facility of any perceived issue and to advise of any unusual, out of character, or problematic issues. Sandalwood had received AHCA monitoring reports for May 17, 2007, October 15, 2007, January 22, 2008, and May 5, 2008. There was no mention of the need for smoke detectors in residents' rooms in any of the AHCA reports prior to the May 5, 2008, report, which post-dated the survey at issue herein. In the May 5, 2008, report, the notation was included under the heading "Safety Issues." CMS compiles what is termed a "Special Focus Facility" list that identifies facilities that it believes need to be monitored closely. Sandalwood is not on this list. Two unrelated facilities are on this list. AHCA has filed administrative complaints against each of those facilities. The allegations in those cases appear to be more severe than in the instant case. Ms. Marsh completed a "Request for Sanctions" (RFS) form in which she recommended a Class I penalty for Sandalwood. Section 120.53, Florida Statutes, requires that agencies compile a list of prior final orders in a subject matter index, so as to ensure uniformity and fairness in assessing penalties in cases before each respective Agency. The Subject Matter Index is supposed to be used as administrative precedent and should be made public. Ms. Marsh did not know what a Subject Matter Index is, or rely on a Subject Matter Index in assessing the penalty in this case. Instead, she relied on prior RFSs, which are not public documents. She testified that the Agency's recommendation for sanctions takes into account the class and severity of a deficiency which is established through Agency procedure, protocol, and guidelines. She described parameters related to Class I, Class II, and Class III, deficiencies, as set out in the Florida Statutes. From her viewpoint, Sandalwood either had two Class I deficiencies or a single Class I deficiency in a specified timeframe, when consideration is given to the prior history of the facility. In light of Sandalwood's excellent survey history, the foregoing viewpoint was not fully explained. Despite AHCA’s sudden cessation of prior notification of changes in the law, Ms. Marsh brooks no excuse for a facility administrator not knowing his facility must be in compliance with State laws. She considered Sandalwood’s history of not having been previously cited for the absence of smoke detectors by an AHCA survey as of minimal importance.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED: That the Agency for Health Care Administration enter a Final Order finding Respondent not guilty of the charges contained in the Amended Administrative Complaint, and dismissing the Amended Administrative Complaint. DONE AND ENTERED this 5th day of August, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 5th day of August, 2009.
Findings Of Fact Teresa A. Collins was certified by the Criminal Justice Standards and Training Commission on April 19, 1985, and was issued Certificate No. 35-85-002- 02. On February 22, 1985, Respondent was employed by the City of Tampa Police Department as a police recruit and commenced training at the Police Academy. At this time, Respondent was considered to be a civilian employee of the police department. When Respondent applied for employment with the Tampa Police Department, a background investigation, polygraph test and physical examination including a urinalysis was done. Respondent acknowledged experimenting with marijuana in 1982 while in college. Following the background investigation and tests, Respondent was recommended as morally fit for duty as a police officer. On an evening in April 1985, Gloria Thomas observed Respondent, who she knew only by sight, sitting at a table in the rear parking lot at McDonald's with another woman. Ms. Thomas saw Respondent pass a cigarette to the other woman who held it between her thumb and forefinger while taking a puff off the cigarette. Ms. Thomas passed within five feet of the table and thought the smoke smelled like marijuana smoke. She did not see Respondent smoke the cigarette and could not definitely state the cigarette was a marijuana cigarette. At the time Respondent commenced her training at the police academy she roomed with Gina Rodriguez with whom she had formerly roomed at Florida State University. Sometime in mid February 1985, Respondent and Rodriguez had a fight during which Respondent struck Rodriguez in the face with her fist breaking her cheekbone. The date of this fight was not clear. Respondent testified it occurred in mid-February and that Rodriguez made demands on her for money for medical bills up to 21 February--the night before she was sworn-in as a police officer. The parties stipulated that Respondent was sworn in April 19, 1985, as a law enforcement officer and she entered the police academy February 22, 1985. Although not completely clear, it appears that Respondent and Rodriguez roomed together in Tampa from February 1, 1985 until the end of March, 1985. Following the fight Rodriguez threatened to see that Respondent never worked in Tampa. Gloria Thomas' observation of Respondent in the parking lot at McDonald's got back to the Tampa police by word of mouth as a rumor and an investigation was launched. On May 8, 1985, Rodriguez was interviewed by the police to inquire if Respondent smoked marijuana while she roomed with Rodriguez. At this interview Rodriguez denied Respondent ever smoked marijuana at the apartment. On May 29, 1985, Rodriguez contacted the police to give another statement about Respondent. At this interview Rodriguez told the police that she saw Respondent frequently use marijuana in late February and March 1985. At the hearing Rodriguez acknowledged making several conflicting statements about Respondent's use of marijuana but insisted that she saw Respondent smoke marijuana at least once in their apartment between February 22, 1985 and the end of March 1985, but could not identify the time of day this occurred, whether anyone else was present, or any detail at all regarding the circumstances in which this event occurred. Rodriguez also acknowledged she had threatened to "get" Respondent after the fight and they are still on unfriendly terms. These factors made her testimony less credible. Elaine Daniels, a friend of Rodriguez at the time of the fight, was interviewed by the police regarding Respondent's use of marijuana. She told the police she traveled in a car one night when Respondent had a package of marijuana with her. The exact date of this trip was not ascertained, but at the time the incidents were related to the police, Daniels was angry at Respondent for hurting her friend Rodriguez, and had been encouraged by Rodriguez to help her "get" Respondent. Daniels testified that she, herself, was stoned most of the time during this period and the only time she could definitely state she saw Respondent smoke marijuana was the end of January 1985. Daniels also testified to a party on Rodriguez's birthday, March 15, at which a marijuana joint was passed around while Respondent was present but she cannot recall Respondent taking a hit. Four women, who associated with Respondent from January through March 1985, never saw Respondent smoke marijuana during that period, but some of them had seen Respondent smoke marijuana a year or so prior to that period of time. In her testimony Respondent categorically denied smoking marijuana in April 1985 at the McDonald's parking lot and could not recall being there at that time; although she has been to this particular McDonald's on several occasions. Respondent acknowledged the "bad" fight she had with Rodriguez and that she had agreed to pay part of the medical bills resulting from that fight. However, Rodriguez never provided her with copies of bills for medical treatment. Respondent categorically denied smoking marijuana or possessing marijuana at any time subsequent to her entry into the police academy on February 22, 1985.
The Issue Whether respondent's alcoholic beverage license should be disciplined on charges that she, her agent or employee, purchased cigarettes for retail from other than a wholesaler, failed to maintain invoices for cigarette purchases on the premises for three years, and possessed on the premises lottery tickets or paraphernalia used in connection with a lottery.
Findings Of Fact Respondent holds alcoholic beverage license No. 23-3145, Series 2-APS, and operates a business known as Shirley's Grocery at 5500 Northwest 17th Avenue, Miami, Florida (Testimony of John Harris; P-4, P-6) Based on information received from a confidential informant, Beverage Officer Carol Houston conducted an inspection of respondent's licensed premises on October 2, 1981. Officer Houston, accompanied by two other beverage officers, identified herself to Willie Mae Robinson, an employee behind the cash register. Officer Houston then examined the beverage license displayed on the wall and began checking cigarette tax meter numbers on the cigarettes displayed for sale behind the counter. (Testimony of Houston) The officers questioned Ms. Robinson about a padlocked cabinet located in the southeast portion of the premises, the area where alcoholic beverages were stored. She disclaimed any knowledge of the packaged cigarettes which were visible through the locked cabinet doors. The officers opened the cabinet with a key from the cash register and found 837 packages of cigarettes and a shotgun. The cigarette packages were marked with tax meter numbers which DABT had previously assigned to Atlantic Tobacco Company, The Southland Corporation, Eli Witt Company, Winn Dixie Stores (which do not wholesale cigarettes) and Miami Tobacco Company. (Testimony of Houston; P-2) Ms. Robinson, who could produce no invoices for these cigarettes, called respondent Shirley Donovan to the premises. Ms. Donovan stated she had no invoices for the cigarettes, which she said belonged to her night manager, Willie Lovette. (She later executed a sworn statement to this effect.) Mr. Lovette was then called to the premises and signed a sworn statement that he bought the cigarettes, for resale, from two unidentified black males while working at the licensed premises on September 28, 1982. (Testimony of Houston; P-5, P-6) The cigarettes were partially visible through the locked cabinet doors, the cabinet was in full view in the alcoholic beverage storage area of the licensed premises, and the key in the cash register opened the cabinet. These facts support an inference that respondent either knew of the illicit cigarettes or failed to diligently supervise the licensed premises. Before leaving the licensed premises on October 2, 1981, Officer Houston served respondent with a written notice that DABT rules require that cigarette invoices be retained on the licensed premises. The packages of cigarettes found in the cabinet were then seized and placed in the DABT evidence vault. (Testimony of Houston; P-3, P-7) On October 15, 1981, Officer Houston and Beverage Officer Edward Pfitzenmaier returned to respondent's licensed premises to serve notice of the Division's intent to file administrative charges relating to the October 2, 1981 inspection. Willie Mae Robinson, again behind the cash register, summoned respondent who, when questioned, stated that she bought cigarettes only from Cantors, Miami Tobacco Company and, on one occasion, from Eagle Discount. Cantors and Miami Tobacco Company were cigarette wholesalers; Eagle Discount was not. Invoices on the premises substantiated cigarette purchases from Cantors on August 10, 17, 18, 19, 20, and October 2, 11, 14, 1981. (Testimony of Houston, Pfitzenmaier) Further inspection of the cigarettes on display behind the-cash register disclosed 476 cigarette packages which bore cigarette tax meter numbers previously assigned by DABT to the following businesses: 41597 - Atlantic Tobacco Company 43936 - Winn Dixie Stores, Inc. 40501 - Eckerd Tobacco Company 41247 - Two Brothers Tobacco Company 43025 - The Southland Corp. 40875 - Eagle Family Discount 41851 - Eagle Family Discount 46087 - The Southland Corp. Respondent could produce no invoices for these cigarettes, some of which bore the same meter numbers as the packages found on the premises in the locked cabinet on October 2, 1981. The cigarettes were seized by Officer Houston and placed in the DABT evidence vault. (Testimony of Houston, Pfitzenmaier; P-7) During the October 15, 1982, inspection and search for invoices on the licensed premises, Officer Pfitzenmaier found numerous slips of paper, booklets and calendars in a cigar box and loosely scattered behind the counter. The calendars were marked for different dates with numbers in series. The booklets, including "King Tut's Dream Book," contained various numerical listings based upon such topics as horoscopes, lucky days, lucky numbers, and racing results. Such materials are commonly used in connection with lotteries. The markings support an inference that these materials had been used or were being used in connection with a lottery. They were seized by Officer Pfitzenmaier and placed in the DABT evidence vault. (Testimony of Pfitzenmaier; P-8) On at least three previous occasions, DABT fined respondent for purchasing cigarettes from other than a wholesaler and for failing to maintain, on the premises, invoices for cigarette purchases. On the third occasion, DABT also suspended her license. (Testimony of Houston)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license no. 23-3145 Series 2-APS, be revoked. DONE AND RECOMMENDED this 11th day of February, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1983.
The Issue Whether or not on or about August 10, 1978, the Respondent, Brian H. Strickland, a wholesale dealer, handling, transporting or possessing cigarettes for sale or distribution within the State, failed to file with the Division of Alcoholic Beverages and Tobacco all reports on or before the tenth day of the month, contrary to Subsection 210.09(2), Florida Statutes. Whether or not on or about September 10, 1978, the Respondent, Brian H. Strickland, a wholesale dealer, handling, transporting or possessing cigarettes for sale or distribution within the State, failed to file with the Division of Alcoholic Beverages and Tobacco all reports on or before the tenth day of the month, contrary to Subsection 210.09(2), Florida Statutes. Whether or not on or about October 10, 1978, the Respondent, Brian H. Strickland, a wholesale dealer, handling, transporting or possessing cigarettes for sale or distribution within the State, failed to file with the Division of Alcoholic Beverages and Tobacco all reports on or before the tenth day of the month, contrary to Subsection 210.09(2), Florida Statutes.
Findings Of Fact This cause comes on for consideration based upon a Notice to Show Cause filed by the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, against Brian H. Strickland, who trades as Smoke Rise Vending Service, located at 8454 Royalwood Drive, Jacksonville, Florida. The purpose of the Notice to Show Cause was for taking action against the permit No. 26-128 CWD, issued to the Respondent, Brian H. Strickland, as permittee, by the State of Florida, Division of Alcoholic Beverages and Tobacco. The allegations contained in the Notice to Show Cause are these allegations as set forth in the issue statement of this Recommended Order. At the beginning of the hearing, the parties, by an oral stipulation, agreed that the Respondent, Brian H. Strickland, no longer held the permit No. 26-128 CWD after October 31, 1978. In view of this fact, the threshold question arises concerning the jurisdiction of the Petitioner to take further action against the Respondent, Brian H. Strickland, when in fact this Respondent no longer holds a permit issued by the Petitioner. Section 210.16, Florida Statutes, establishes the right of the Petitioner to take disciplinary action against permitees. The language of that provision states: "210.16 Revocation or suspension of permit.-- The Division of Alcoholic Beverages and Tobacco is given full power and authority upon sufficient cause appearing of the violation of any of the provisions of this chapter by any wholesale dealer receiving a permit to engage in business under this chapter to revoke the permit of such wholesale dealer. The division may suspend for a reasonable period of time, in its discretion, the permits of wholesale dealers issued under the provisions of this chapter for the same causes and under the same limitations as is authorized hereunder to revoke the permits of such wholesale dealers. No wholesale dealer whose permit for any place of business has been revoked shall engage in business under this chapter at such place of business after such revocation until a new permit is issued to him. No wholesale dealer whose permit for any place of business has been revoked shall be permitted to have said permit renewed, or to obtain an additional cigarette permit for any other place of busi- ness, for a period of 6 months after the date such revocation becomes final. In lieu of the suspension or revocation of permits, the Division of Alcoholic Beverages and Tobacco may impose civil penalties against holders of permits for violations of this chap- ter or rules or regulations relating thereto. No civil penalty so imposed shall exceed $1,000 for each offense, and all amounts collected shall be deposited with the State Treasurer to the credit of the General Revenue Fund. If the holder of the permit fails to pay the civil penalty, his permit shall be suspended for such period of tins as the division may specify. An analysis of these provisions leads to the conclusion that the Petitioner may not take action against a Respondent, unless that Respondent is currently the "holder" of a permit. Therefore, in view of the fact that Strickland's permit has not been effective since October 31, 1978, the Petitioner has no right to seek further action against the permit either in the form of revocation, suspension or fine.
Recommendation It is recommended that the case reported as Division of Alcoholic Beverages and Tobacco, No. 27011-A, which has been filed against the Respondent, Brian H. Strickland, t/a Smoke Rise Vending Service, be DISMISSED. DONE AND ENTERED this 13th day of April, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Francis Bayley, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Brian H. Strickland t/a Smoke Rise Vending Service 8454 Royalwood Drive Jacksonville, Florida J. M. Ogonowski Richard P. Daniel State Building, Suite 514 111 East Coast Line Drive Jacksonville, Florida
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent and his license, including suspension or revocation of the license, on the basis of allegations that the Respondent interfered with a DABT law enforcement sergeant who was inspecting his licensed premises, committed battery on the sergeant, and resisted arrest with violence.
Findings Of Fact Since June 27, 1990, the Respondent, Heck Prowse, has continuously held license number 23-11121, series 2-APS, issued by the Division of Alcoholic Beverages and Tobacco. That license authorizes him to sell alcoholic beverages on the business premises known as Five Boros Food Mart, Inc., located at 19817 Northwest 2nd Avenue, Miami, Dade County, Florida. At approximately 4:45 p.m. on July 1, 1990, Sergeant Carol Houston entered the licensed premises described above. Sergeant Houston's purpose for visiting the licensed premises was to inspect the premises for compliance with a new cigarette floor tax and to make sure that licensees were aware of the new tax. On that day Sergeant Houston was acting in her capacity as a sworn law enforcement officer of the Division of Alcoholic Beverages and Tobacco and was in the course of performing her official duties as a sworn law enforcement officer. Upon entering the licensed premises described above, Sergeant Houston approached the Respondent, who was inside the licensed premises, identified herself to the Respondent, and explained to the Respondent her reason for being there. In the course of identifying herself to the Respondent, Sergeant Houston displayed to him her law enforcement credentials which contained both a photo identification card and a badge, both of which identified her as a law enforcement officer of the Division of Alcoholic Beverages and Tobacco. At Sergeant Houston's request, the Respondent counted all of his visible cigarette inventory and reported a total of 176 packages of cigarettes. Based on her experience with similar size stores, Sergeant Houston was of the opinion that the reported inventory was unusually low, and she asked to see the Respondent's invoices for cigarette purchases. Shortly after the request for the invoices, the Respondent became very uncooperative. Along with trying to prevent Sergeant Houston from seeing the invoices, the Respondent began to speak to Sergeant Houston in a very vulgar and abusive manner. Once things had calmed down, Sergeant Houston again showed her credentials to the Respondent and explained to him that she was authorized by law to inspect everything in the premises. Eventually the Respondent provided the invoices. After reviewing the invoices, Sergeant Houston asked if there were any more cigarettes on the licensed premises. The Respondent replied that there were not. Thereupon, Sergeant Houston began to inspect storage cabinets on the licensed premises, but was unable to inspect one cabinet because the Respondent was standing in front of it blocking access to the cabinet. Once again the Respondent became angry and spoke to Sergeant Houston in a very vulgar and abusive manner. Sergeant Houston eventually prevailed upon the Respondent to move out of the way. Inside the cabinet that had been blocked by the Respondent, Sergeant Houston found approximately 40 additional cartons of cigarettes. At that point Sergeant Houston orally advised the Respondent that he was under arrest for interfering with the performance of her official duties. Sergeant Houston then told the Respondent to sit down, which he did, and to provide identification, which the Respondent refused to do. Sergeant Houston then proceeded to call her office to report the situation and while she was talking on the telephone the Respondent attempted to leave the premises. Sergeant Houston dropped the telephone, chased after the Respondent, and put an arm around his neck to keep him from leaving the building. The Respondent thereupon shoved and hit Sergeant Houston several times, including hitting her in the chest with his fist, in an effort to get away. Once Sergeant Houston succeeded in restraining the Respondent, she returned to the telephone and advised her supervisor of her location. The supervisor, who had heard the struggle over the telephone, was concerned for Sergeant Houston's safety. The supervisor called the Metro Dade Police and asked them to send assistance to Sergeant Houston, which they did. In cases involving battery on a law enforcement officer, obstruction of a law enforcement officer, or resisting arrest with violence, if the violation is committed by the licensee, it is the established policy of the Division of Alcoholic Beverages and Tobacco to revoke the license. The sale of cigarettes, beer, and wine account for more than half of the sales volume at the Respondent's store on the licensed premises. Revocation of the Respondent's alcoholic beverage license would have a devastating impact on the economic viability of the Respondent's business.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco issue a Final Order in this case finding that the Respondent is guilty of the violations charged in the first three counts of the Amended Notice To Show Cause and concluding that the appropriate penalty is the revocation of Respondent's license number 23-11121, series 2-APS, for the premises located at 19817 Northwest 2nd Avenue, Miami, Dade County, Florida. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 17th day of March 1992. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March 1992.
