Findings Of Fact Respondent Paul N. Fjell is a 45-year-old graduate of Eastern Illinois University. In 1970, he was employed as a teacher by Petitioner, the School Board of Dade County, Florida. He subsequently was placed on continuing contract and continued in his capacity as a teacher for Petitioner until December 5, 1990, when he was suspended from his employment and this termination proceeding was commenced. Respondent has a long history of alcohol abuse. Since 1984, Petitioner has encouraged Respondent to avail himself of the services offered by Petitioner's Employee Assistance Program (hereinafter "EAP"). Respondent has been referred on a number of occasions to the EAP by his supervisors since his alcohol problem appeared to be a fitness-related problem. On April 25, 1986, Respondent was admitted to the Addiction Treatment Program at Mount Sinai Medical Center, where he remained hospitalized for 28 days. His admitting diagnosis was poly-drug dependency and alcoholism. Respondent had been referred to that program by Petitioner's EAP. During the 1988-1989 school year Respondent again came to the attention of the Office of Professional Standards when he was removed from his position at Horace Mann Middle School because of absences and a resulting referral to EAP. Respondent was next assigned to two Cope Centers (North and South). He was assigned to work one-half day at each Center as a Work Experience Coordinator. Respondent's duties were to teach a class of young, pregnant students, locate part-time jobs for them, and monitor them at their places of employment. A Work Experience Coordinator occupies a highly visible position since the Coordinator must visit businesses and other organizations in the community in order to locate jobs for students. After approximately two months, Respondent was removed from his position at both Centers because of his non- performance and because of complaints from students, staff, faculty, and a School Board member that Respondent had the odor of alcohol on his breath at work. Respondent was next assigned to the Office of Vocational, Adult, Community, and Career Education (hereinafter "OVACCE"). The offices of OVACCE are located in the School Board Administration Building; consequently, Respondent had little contact with students or the public. While he was assigned there, Respondent was repeatedly absent, did not produce any work that could be used, and his supervisor detected an alcohol odor about Respondent. As a result, prior to the end of the 1989-1990 school year, Respondent was removed from OVACCE and relocated to the Dorsey Skill Center for a few months to complete the school year. In August, 1990, Respondent was arrested and charged with driving under the influence, leaving the scene of an accident, and violation of driving restrictions. On August 15, 1990, a conference-for-the-record was held in Petitioner's Office of Professional Standards (hereinafter "OPS"). At that time, Respondent's arrest record and employment history were reviewed, and he was given specific directives as to the procedures he must thereafter follow regarding absences. Respondent was then placed on alternate assignment pending court disposition of his DUI arrest. Respondent was temporarily placed in the Physical Education Department at the School Board Administration Building at the end of August, 1990. His duties were essentially clerical in nature: stuffing envelopes, collating documents, distributing mail, and re-arranging the mail boxes. Within five weeks, his supervisor requested that OPS remove Respondent from that work assignment. His supervisor complained that Respondent reported late for work, left early, took long breaks, and was frequently absent. He also complained that other workers in the area were becoming demoralized because Respondent did not carry his share of the work. On one occasion Respondent's supervisor thought he smelled alcohol on Respondent's breath. Several times during this period Respondent was observed taking his shoes and socks off and elevating his feet to relieve swollen joints. Even after being instructed to not remove his shoes and socks and elevate his feet while at work, Respondent did so again and was observed by the Deputy Superintendent. Respondent was next placed in Petitioner's Security Investigative Unit (hereinafter "SIU"), where he performed clerical chores. On November 2, 1990, Respondent reported to his work location in an impaired state. This was discovered when other employees at the work site noted that Respondent was talking to himself, his clothing was disheveled, his speech was slurred, he had bloodshot eyes which he was trying to conceal by wearing dark glasses, he kept repeating himself, the content of his speech was nonsensical, and he had a strong odor of alcohol on his breath. Later that morning, a blood specimen was drawn from Respondent, which upon analysis showed an ethanol content of at least 50 milligrams per deciliter. During October, 1990, it had been determined that further psychological evaluation of Respondent was medically indicated, and he was directed by OPS to submit to further evaluation. An appointment was scheduled for him by OPS. Respondent, however, rescheduled that appointment several times and never did submit for further evaluation. Respondent disregarded directives given to him by OPS on August 15, 1990, regarding absence and leave procedures. Between November 5 and 14, 1990, Respondent was absent from work and failed to contact OPS regarding his absences in accordance with the directives previously given to him. Respondent understood that he was to contact OPS. The reason that Respondent did not contact OPS when he failed to report to work between November 5 and 14 was as a result of his drinking and not as a result of any lack of understanding of the directives which he had been given. Petitioner's EAP has had 140 contacts directly with Respondent or with his medical providers in an attempt to assist Respondent in dealing with his fitness-related alcoholism. Respondent is generally non-compliant with the recommendations made to him by professionals for dealing with his alcohol problem. Recommendations for long-term residential treatment have been ignored. Although Respondent has voluntarily admitted himself for treatment in hospital mental health units, his stays there are short and do not appear to be assisting him in dealing with his long-term alcohol problem. Although Respondent is currently attending daily AA meetings, his attendance may be related as much to his pending traffic charges and this termination proceeding as to any commitment on his part to finally resolve his alcohol problem. When Respondent was a patient at Mount Sinai, once he was detoxified, he exhibited no personality disorder or psychiatric condition. His problem was alcoholism and poly-drug dependency; his behavior was secondary to that problem. Based upon protocols established by the American Society of Addiction Medicine, a physician cannot, with certainty, diagnose a mental condition while the patient is still under the influence of alcohol or other mind-altering drugs. Although Respondent has been receiving treatment from a psychiatrist on an irregular basis over the last few years, that physician's opinion that Respondent suffers from a manic depressive disorder requiring the administration of anti-depressant medication is rejected. That physician has not had the benefit of seeing Respondent on a regular basis. It is uncertain whether that physician has had the benefit of treating Respondent in a detoxified state since approximately 1985. Although it is believed that Respondent has been in a detoxified state during certain time periods since 1985, there is no assurance that the recovery program Respondent has created for himself is working. Respondent received acceptable annual evaluations for the 1988-1989 and 1989-1990 school years and was recommended for reemployment at the conclusion of each of those school years. Each year's annual evaluation was based upon one classroom observation only. Although fitness-related issues such as active alcoholism appear to be included within Category VII, Professional Responsibilities, on Petitioner's annual evaluation form, principals completing annual evaluations of teachers are prohibited from considering fitness-related issues. By union contract, only the Office of Professional Standards can deal with issues relating to a teacher's fitness for duty. Over the years, Respondent's drinking problem has become known to more and more students, staff, medical professionals, and members of the community. His failure to ultimately resolve his alcohol problem has achieved some degree of notoriety.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Respondent's suspension as of December 5, 1990, was proper and dismissing Respondent from his employment as a teacher for the School Board of Dade County, Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of May, 1991. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-10 13-15, and 17 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 11, 12, and 16 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed findings of fact numbered 1-3, 5-7, and 9 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4, 8, and 11 have been rejected as not being supported by the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 10 and 12-14 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. transmitting transcript, together with Petitioner's exhibits numbered 1-14 and Respondent's exhibits numbered 1-4. COPIES FURNISHED: Octavio J. Visiedo, Superintendent Dade County School Board 1450 Northeast 2nd Avenue Miami, Florida 33132 William Du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 Southwest Third Avenue Suite One Miami, Florida 33129 James C. Bovell, Esquire 75 Valencia Avenue Coral Gables, Florida 33134 Honorable Betty Castor, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The primary issues for determination are whether Brother J. Inc., d/b/a A.J.’s Sports (Respondent) violated Section 561.29(1)(a), Florida Statutes; and secondarily, if Respondent committed such a violation, what penalty should be imposed?
Findings Of Fact Petitioner is the agency vested with general regulatory authority over the alcoholic beverage industry within the state, including the administration of the laws and rules relating to the sale of alcoholic beverages. Respondent is subject to the regulatory jurisdiction of Petitioner, having been issued license number 47-02607, Series 4-COP by Petitioner. That license allows Respondent to make sales for consumption on premises of liquor, wine, and beer at his establishment located in Tallahassee, Florida. Events at issue in this proceeding revolve around a fraternity/sorority party held at Respondent’s establishment on the evening of March 30/April 1, 2005. Members of the Phi Kappa Psi fraternity and the Delta Nu Zeta sorority decided that they would host a “construction” theme party. To facilitate the party, the social chairman of Phi Kappa Psi contacted Respondent to make arrangements. Respondent’s establishment has several large areas on its ground floor and a single, 1,800 square foot room on the second floor. Respondent agreed to reserve its upstairs room for the Phi Kappa Psi/Delta Nu Zeta party, to waive its cover charge for party patrons, and to make “dollar wells, dollar beers” (i.e. discounted prices on certain alcoholic beverages) available to party participants for a fee of $300.00. On the night in question, most of the participants met at the Phi Kappa Psi house before going out for the evening. They gathered around 10:00 p.m. and socialized. Some people were getting their “construction” costumes together; others were “pre- partying” –-drinking before going out to minimize the size of the bar bill when they go out later. The majority of the people at the frat house at that time were drinking. At some point around 10:30 or 11:00 p.m., the party moved from the Phi Kappa Psi house to Respondent’s establishment, with party members leaving in groups of three or four to drive from the fraternity house to Respondent’s establishment. It was estimated that 15 or so sorority members and 15 to 30 fraternity brothers attended the party, and that somewhere between a third and a-half of those people were not of legal drinking age. When they arrived at Respondent’s establishment, the sorority and fraternity party makers used a side entrance set up for them by Respondent for use in getting to the party. A doorman was posted at the side entrance that checked the age of each of the patrons. He would place a “Tybex®” wristband on those persons who were over the age of 21 and would mark the hand of those under 21 with an indelible marker. Once inside, party members would go upstairs, where there was a bar with a bartender, a disk jockey, and a dance floor. The party continued on until around 2:00 a.m. on the morning of April 1, 2005, at which time the bar closed and the patrons left. During the course of the evening, 244 alcoholic beverages were served at the upstairs bar at Respondent’s facility. No evidence was presented that established with any degree of accuracy how many fraternity and sorority members actually were at the party and how many were of legal drinking age. The evidence of party attendance provided at hearing varied widely and was in each instance an estimate or a guess. Numerous persons who were not members of Phi Kappa Psi or Delta Nu Zeta were in attendance. There is no accurate estimate of how many legal drinkers were at the party or how many drinks each legal patron may have had. The Underage Drinkers Shane Donnor was observed drinking at the frat house that night. He did not, however, appear to be intoxicated when he left the frat house. He had a wristband indicating that he was over 21, which allowed him to drink at Respondent’s establishment, even though he was not of legal age. It is unknown how he obtained his wristband. Donnor was observed to have a glass in his hand while at Respondent’s establishment, but no one could confirm that he was drinking alcohol. While at Respondent’s establishment, various witnesses described him as appearing under the effects of alcohol and thought he appeared quite intoxicated. By 2:30 a.m. on April 1, Donnor had a blood alcohol level of 0.27. This corresponds to at least 10 drinks and probably more. It is an extremely high level of intoxication, which could result in a coma or even alcohol toxicity in some persons. He was quite drunk and had been so for some time. Stephanie Reed was carded upon entering Respondent’s establishment, as was her boyfriend and all the others in her party. She had one or two drinks, but she didn’t buy them herself. One of the fraternity brothers purchased her drinks for her. Reed testified at one point that she did not receive a wristband when she entered the establishment (signifying legal drinking age); later, she testified that she did due to the intervention of some unknown man who told the doorman to give her a bracelet. Reed’s testimony on this point is inconsistent and cannot be credited. Christopher Lowe was carded as he entered Respondent’s establishment. He received marks on the back of his hand indicating that he was underage. Although he was marked as being underage, Lowe was able to purchase two drinks from the bartender. He ordered the drinks; did nothing to conceal the underage marks on his hand; was served; and left money on the bar. Tania Vasquez was carded upon entering Respondent’s establishment and was marked as being underage. She did not buy any drinks while at the party, but was given an alcoholic beverage by a friend that she consumed while on the premises. Elizabeth McKean, and everyone who entered with her, were carded when they arrived at the party. McKean was marked as being underage. She did not buy any drinks for herself, but was given a shot of tequila by someone else. She drank the shot quickly to avoid detection by Respondent’s staff. David Moser had a roommate who manufactured fake i.d. cards. When he entered Respondent’s establishment, he was carded and presented a false drivers license that made it appear that he was over the age of 21. He was marked as though he was over the legal drinking age and was able to buy and consume drinks at the bar, which he did. Lee Habern had several sips of a friend’s drink that was “snuck” to him. Prevention Of Underage Drinking It is well recognized that underage persons will seek to obtain alcoholic beverages at bars. This action by underage youths results in a “cat and mouse” game whereby the bar will change its tactics in trying to prevent underage drinking and the underage drinkers will change their methods of trying to obtain drinks. Respondent tries to combat underage drinking by creating a culture of compliance. This starts with the initial hiring of employees by Respondent. Respondent’s policy is that no underage drinking will be tolerated. This policy is stated in the Employee’s Handbook. Every employee is given a copy of the handbook upon becoming employed and is required to sign an acknowledgement that he or she received it. The policy is reiterated in informal training at every staff meeting. Every new employee at Respondent’s establishment is required to go through formal training with regard to liquor laws, the effect of alcohol on the human body, dealing with customers who have had too much to drink, and related topics. These courses are known as “PAR”, “TIPS”, and “Safe Staff” and are offered by the Florida Restaurant Association and Anheiser-Busch. Respondent has also offered training provided by agents of Petitioner. These formal training programs are offered continuously to employees, and at least one of the programs is offered three times each year. The initial formal training is accomplished within 30 days of the employee being hired. Records are maintained by Respondent as to who receives what training, and when it is provided. Respondent has a policy that everyone who is served alcohol is to have his or her age checked. When the bar is not busy, this is accomplished by having the waitress check the patron’s I.D. When the bar is busier, a doorman is posted at the entrance to check the patron’s I.D. If the patron is over age 21, he or she is given a wristband; if under age 21, an indelible mark is placed on the back of the hand. Since Respondent has experienced persons copying their “over 21” designation, it is changed on a nightly basis. Fake identification cards, if detected, are confiscated. On busier nights, Respondent might confiscate 20 to 30 of such fake identifications. On the night in question, the doorman confiscated five altered cards. Respondent also has a floor manager on duty at all times that the bar is open. The floor manager will circulate throughout the establishment to make sure that all of the policies and procedures, including the prevention of underage drinking, are being carried out. On the night in question, the floor manager, Bo Crusoe, is documented to have worked and in the nominal course of events would have checked the upstairs area of the premises several times. On busy nights, Respondent will hire one or more off- duty City of Tallahassee police officers to serve as security at the bar. The officers work in their police uniforms. These officers serve first and foremost as high visibility deterrents to unlawful activity. Their mere presence serves to minimize underage drinking. Respondent regularly has off-duty law enforcement on the premises. Respondent also has a security consultant, Officer John Beemon, who is a Tallahassee Police officer. He evaluates the need for additional security and communicates those needs to the owners. When he becomes aware of a new wrinkle in underage persons obtaining alcohol, he works with Respondent to prevent the practice. He assists the doormen in identifying fraudulent I.D.s. Respondent has always implemented whatever recommendations Beemon makes to them. Generally, the security measures used by Respondent have proven effective. From time to time, Petitioner will try a “sting operation” at Respondent’s establishment by sending a minor into Respondent’s bar to see if they are able to purchase alcohol. On every such “sting operation” Petitioner’s decoy was identified and stopped at the front door and was not allowed to purchase alcoholic beverages. Carrie Bruce is Petitioner’s special agent for the Tallahassee area. She is familiar with most Tallahassee alcoholic establishments and her testimony establishes that Respondent’s establishment is not considered a “problem bar” by Petitioner and is considered to be better than other area bars in preventing underage drinking. To the best of the owner’s knowledge and Beemon’s knowledge, no one has ever knowingly served a drink to a minor at Respondent’s establishment. Further, Respondent has never previously been charged with serving alcohol to minors.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is
The Issue The issues for determination are whether the undisputed actions of Respondent constitute just cause to terminate his employment as an educational support employee, and, if not, what penalty is reasonable.
Findings Of Fact Most of the material facts in this proceeding are undisputed. The parties dispute the reasonableness of the proposed termination of Respondent's employment. From December 3, 2001, through April 3, 2007, when Petitioner suspended Respondent without pay, Petitioner employed Respondent as an educational support employee, defined in Subsection 1012.40(1)(a), Florida Statutes (2006).1 Petitioner employed Respondent as an Electrician in Petitioner's Maintenance Services Department. The terms of employment are governed by the collective bargaining agreement between Petitioner and the Support Personnel Association of Lee County (the CBA).2 Respondent is a recovering alcoholic, but his alcoholism has not previously affected his job performance. That changed on January 12, 2007. After receiving work assignments on the morning of January 12, 2007, Respondent became loud and agitated. Respondent's supervisor asked Respondent what was wrong, and Respondent indicated he was having problems at home. The supervisor asked if Respondent had been drinking alcohol. Respondent denied the implicit accusation. After the encounter with the supervisor, Respondent drove one of Petitioner's vans to his home and consumed vodka for most of the day. At about 3:00 p.m. that day, Respondent returned the van to the parking lot of the Maintenance Department and had difficulty parking, according to the observations of Respondent's supervisor. Respondent stopped the van and got out. He was unable to walk without staggering. His eyes were red and watery. He had difficulty standing, and his shirt was soiled with vomit. The supervisor asked Respondent again if Respondent was intoxicated, and Respondent voluntarily reported his alcohol- related problem. Respondent's supervisor and two zone service managers called for assistance from the Fort Myers Police Department (the police). The police first attempted to have Respondent admitted to the Detoxification Unit, but the Unit was full. The police drove Respondent to the hospital, and the hospital admitted Respondent. The incident on January 12, 2007, was not the first time Respondent had voluntarily reported his alcohol-related problem to a member of management. In November of the previous year, Respondent experienced some personal problems and resumed the compulsive consumption of alcohol. Respondent voluntarily reported the alcohol-related problem to his supervisor and to his department director and obtained a 30-day leave of absence to complete a 28-day residential alcohol treatment program. Respondent completed only 17 days of the 28-day program. Respondent exhausted his insurance benefits after 17 days and could not afford the daily rate of $833 to complete the remaining 11 days. Respondent returned to duty sometime between January 8 and 10, 2007. Respondent informed his supervisor that Respondent had not completed the residential treatment program because he had exhausted his insurance benefits. Petitioner did not refer Respondent to another treatment program. After the incident on January 12, 2007, Respondent voluntarily entered an outpatient treatment program with Southwest Florida Addiction Services. Respondent successfully completed the program on March 30, 2007. Petitioner paid for the outpatient program and Respondent kept Petitioner notified of his progress. Respondent has maintained after-care treatment with a physician who specializes in addiction disorders and has regularly attended Alcoholic Anonymous meetings. Respondent has no prior disciplinary history. During the period of employment that began on December 3, 2001, Respondent received one probationary performance assessment and four annual performance assessments. Petitioner consistently evaluated Respondent at an "effective level of performance" in all areas targeted for assessment, with the exception that the assessment for the 2002-2003 school year scored two areas as "focus for development/feed back." The comment section in three annual assessments provides that Respondent "continues to do an excellent job." The department director recommended renewal of Respondent's contract for the five school years ending in 2007.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order suspending Respondent from his employment without pay for four months from April 3, 2007, as a penalty for personal business on school time and driving a school vehicle for personal use, and requiring Respondent, as a condition of his continued employment, to maintain his current regimen of addiction treatment with a physician and regular intervention from Alcoholics Anonymous. DONE AND ENTERED this 23rd day of August, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 2007.
Findings Of Fact Respondent is now and at all relevant times has been a licensed registered nurse in Florida under license number 1074052. She is currently on active status. Her latest license renewal expires on March 31, 1989. Respondent was hired in April, 1986, as a charge nurse at John Knox Village Medical Center in Tampa. John Knox Village Medical Center is a long- term care facility divided into two wings. The wing to which Respondent was assigned houses between 24 and 32 patients requiring skilled nursing care. For the first three weeks on the job, Respondent performed her duties quite well. She learned the names of all of the long-term patients. She was a good manager and motivator of her employees. She was not absent from work. After about three weeks on the job, Respondent began to exhibit minor lapses of memory. Her hands began shaking. Her face became puffy and pale. She often became withdrawn and subject to mood swings. Occasionally, she could not be located for short periods of time by her nurse's aides, who required her supervision. A coworker smelled what was clearly alcohol on Respondent's breath one evening while Respondent was on duty. Shortly thereafter, on or about May 21, 1987, Respondent admitted to the Director of Nursing, Cary Boylan, that Respondent was an alcoholic. Respondent agreed, at Ms. Boylan's urging, to enter an alcohol treatment program sponsored by Alcohol Community Treatment Services, Inc. ("ACTS"). Respondent had been working at John Knox Village Medical Center for about six weeks at the time of her departure to enter the ACTS Program. Respondent underwent extensive residential treatment in the ACTS program from June 9, 1986 through July 7, 1986. She received counseling seven days a week. On July 14, 1986, Respondent successfully completed the intensive phase of the ACTS program and returned to work. She was rehired on that date, but was no longer the charge nurse. For the first few weeks after her return, Respondent was compliant, exhibited no signs of alcohol consumption, and generally performed her duties quite well. Respondent subsequently began a pattern of absenteeism starting at the end of August, 1986. At first, Respondent would notify her supervisors in advance of her absence. By September, it was "no call, no show." At one point, she missed six working days during a two-week period. About ten absences were unexplained. Others were accompanied by a doctor's excuse. By this time, the hand tremors had returned. Respondent's failure to show up for work or even alert her supervisor in advance of her absence left the floor short-handed. Other nurses were suddenly required to work overtime or report to work early. Sometimes a temporary nurse had to be called in. Respondent evaded Ms. Boylan's attempts to discuss Respondent's behavior. Generally, she avoided Ms. Boylan's telephone calls. When Ms. Boylan terminated Respondent from employment, Respondent's face had the pale and puffy look that it had prior to her entering the ACTS program. There were no charting or care problems with Respondent while she was employed at John Knox Village Medical Center. Ms. Barbara Burhop, a nurse responsible for the orientation of new employees at John Knox Village Medical Center, testified affirmatively to this fact. Also, Respondent was preoccupied at the time with the hospitalization of her father who was suffering from an illness that later claimed his life on November 14, 1986. However, Ms. Boylan and Rosemary Myers, a licensed practical nurse who worked with Respondent at John Knox Village Medical Center, both opined that Respondent could not practice nursing safely while at John Knox Village Medical Center, before and after the ACTS treatment, due to alcohol use. After leaving John Knox Village Medical Center, Respondent worked for six or seven months for a temporary nurse pool. On November 2, 1987, Respondent was hired to work as a staff curse at Centro Espanol Memorial Hospital in Tampa. She was assigned to the med-surg unit, but was first required to undertake two weeks of orientation and employee training. Respondent never completed the orientation training program. On the first day, she fell asleep while another nurse was training Respondent in a one- on-one session. Other times, Respondent appeared to be nodding off while on duty; often, she appeared to be trying hard to stay awake. Other nurses detected the odor of alcohol on Respondent's breath. Respondent frequently left her nurse's station for short periods of time for no apparent reason and during which she could not be found. There was no competent evidence of any charting or care problems during Respondent's short term of employment at Centro Espanol Memorial Hospital. In one instance, Respondent failed to release an in-going catheter, but Respondent's unrebutted testimony was that she told the nurse who followed her on the next shift about the unreleased catheter. Her chart entries were difficult to read, but "made sense" and were not illegible in the strict sense of the word. However, Ms. Gloria Carper, who is Assistant Director of Nursing at Centro Espanol Memorial Hospital, opined that Respondent was impaired due to alcoholism. Respondent admits that she is an alcoholic and has been for 2 1/2 to 3 years. She admits that she does not abstain from alcohol consumption. She testified that she did not drink while on duty. On days that she felt that she could not adequately care for a patient, Respondent stated that she would not report to work. She has attended various alcoholic treatment groups, including Alcoholics Anonymous, but has not successfully completed her recent treatment programs. On February 19, 1987, the Impaired Nurses Program ("INP") found Respondent noncompliant in her treatment program. On March 17, 1987, her noncompliance necessitated an extension of her INP two-year monitoring to February 4, 1989. Respondent was again found noncompliant by INP by letter dated May 11, 1987. Respondent was dismissed for noncompliance from Petitioner's Intervention Project by letter dated May 22, 1987. By letter dated June 25, 1987, Respondent was also unfavorably terminated from the post- residential, out-patient counseling phase of the ACTS program. Her ACTS counselor noted Respondent's sporadic attendance, closed attitude, and insistence upon her alcohol and drug-free status, which insistence was belied upon her uncooperative behavior. Although there is no direct, clear and convincing evidence of alcohol intoxication or even consumption while on duty, the evidence is clear and convincing that Respondent consumed alcohol during the terms of her employment at John Knox Village Medical Center and Centro Espanol Memorial Hospital. The most reasonable inference is that she consumed alcohol excessively the night before work. As a result, Respondent was either so tired and sick the next morning that she was unable to work or, if not quite so tired and sick, she would report to work and doze off.
The Issue The issues in this case are whether Petitioner, in response to a question on the application for licensure as a practical nurse, knowingly misrepresented a material fact by denying prior participation in an alcohol recovery program for treatment of alcohol abuse, and, if so, whether Respondent has grounds to deny Petitioner's application.
Findings Of Fact On December 10, 2014, Petitioner Stephanie DeCelestino ("DeCelestino") submitted an Initial Application for Licensure to Respondent Board of Nursing (the "Board"). Because DeCelestino is a licensed practical nurse ("LPN") in another state, she applied for a Florida LPN license by endorsement (a process which allows an applicant to avoid sitting for another examination). The Board is responsible for reviewing such applications and determining which should be certified for licensure to the Department of Health ("Department"), and which denied. Under the heading "Criminal History," the application which DeCelestino completed asked a single question: "Have you EVER been convicted of, or entered a plea of guilty, nolo contendre, or no contest to, a crime in any jurisdiction other than a minor traffic offense?" DeCelestino answered, "NO." Under the heading "Health History," the application which DeCelestino completed contained five questions, as follows: In the last five years, have you been enrolled in, required to enter into, or participated in any drug or alcohol recovery program or impaired practitioner program for treatment of drug or alcohol abuse that occurred within the past five years? In the last five years, have you been admitted or referred to a hospital, facility or impaired practitioner program for treatment of a diagnosed mental disorder or impairment? During the last five years, have you been treated for or had a recurrence of a diagnosed mental disorder that has impaired your ability to practice nursing within the past five years? In the last five years, were you admitted or directed into a program for the treatment of a diagnosed substance- related (alcohol/drug) disorder or, if you were previously in such a program, did you suffer a relapse in the last five years? During the last five years, have you been treated for or had a recurrence of a diagnosed substance-related (alcohol/drug) that has impaired your ability to practice nursing within the past five years? DeCelestino answered "NO" to all five questions. The Department orders a criminal background check on all applicants. The results for DeCelestino suggested that she had an undisclosed criminal history. Accordingly, by letter dated December 23, 2014, the Department notified DeCelestino that her application might contain false information and invited her to "modify [her] response to the criminal history question" and provide "a typed self explanation of each charge" together with "all available court dispositions" among other items. DeCelestino complied. By letter dated February 7, 2015, DeCelestino informed the Department (as she would later testify credibly at hearing) that she had been arrested in Tennessee on February 14, 2014, for committing a crime after "consuming large amounts of alcohol." For this offense, DeCelestino had been sentenced, on April 22, 2014, to six months' probation on the conditions that she "continue counseling" and have no contact with the victim. The mandatory "counseling" consisted of attending Alcoholics Anonymous ("AA") meetings, which DeCelestino did from April to September 2014. Later, DeCelestino voluntarily received group counseling through ADAP Counseling Services ("ADAP") in Florida, which she completed on November 9, 2014. DeCelestino disclosed these facts to the Department in her February 7, 2015, correspondence, writing: "I attended AA meetings and a strict counseling group here in Florida called Adap." Together with her letter, DeCelestino furnished the Department with a copy of the Order for the Expungement of Criminal Offender Record dated November 20, 2014, by which the Tennessee court having jurisdiction over her criminal offense had dismissed the charge and ordered "that all PUBLIC RECORDS relating to such offense . . . be expunged and immediately destroyed." She also submitted an Application Update on which she switched her answer to "Yes" in response to the criminal history question. The Board accepted DeCelestino's explanation of the criminal charge and does not currently allege that she knowingly misrepresented a material fact by denying the arrest in Tennessee, given that the record thereof had been expunged. On June 30, 2015, however, the Board executed a Notice of Intent to Deny DeCelestino's application for certification as a practical nurse by endorsement, relying upon other grounds in support of such proposed action. In the notice, the Board alleged: As part of a pretrial intervention agreement, the applicant was required to attend substance abuse counseling sessions. The applicant was discharged from the sessions on or about November 9, 2014. The Board accused DeCelestino of having attempted to obtain a license by bribery, misrepresentation, or deceit when she denied, in response to the first health history question on the application, having participated in an alcohol recovery program for treatment of alcohol abuse that occurred within the past five years. The Board's factual allegations are not entirely accurate. The counseling provided by ADAP, which DeCelestino completed on November 9, 2014, was not court ordered, but rather involved services that DeCelestino sought on her own. There is no evidence in the record persuasively establishing that these services were provided as part of a "drug or alcohol recovery program" for the purpose of treating "drug or alcohol abuse."1/ Perhaps more important, there is no persuasive evidence supporting a finding that DeCelestino knew that the ADAP counseling services met these criteria, even assuming that they did, which to repeat was not proven. The undersigned accepts as credible DeCelestino's testimony that she did not interpret the health history question as an inquiry about such counseling as she received at ADAP. As for her court ordered attendance at AA meetings, which DeCelestino was "required to enter into," the undersigned accepts as credible her testimony that she did not consider AA to be an "alcohol recovery program . . . for treatment of drug or alcohol abuse." There is, to explain, no evidence in the record establishing the nature of AA meetings, and, although the undersigned has a general idea of what AA does given that it is a well-known organization with which most adults in the U.S. have at least a passing familiarity through common experience and exposure to the popular culture, it is not clear to the undersigned that AA constitutes an "alcohol recovery program" within the meaning of the health history question.2/ Because the question does not unambiguously inquire about AA, DeCelestino's conclusion that nondisclosure of her attendance at AA meetings was permissible is arguably correct and at worst an honest mistake. Based on DeCelestino's credible testimony, which the undersigned credits, it is found that DeCelestino had no intention of deceiving the Board in hopes her attendance at AA meetings or ADAP counseling sessions would not be discovered. She readily disclosed this information when asked for an explanation of her criminal background, even though no issue had been raised concerning her response to the health history question. Had she intended to conceal her participation in an "alcohol recovery program," DeCelestino surely would not have mentioned AA or ADAP in her February 7, 2015, letter to the Department because she could have responded truthfully to the inquiry about her criminal charge without doing so. The order sentencing her to probation, recall, required her to "continue counseling" but said nothing about attending an "alcohol recovery program." The fact that she volunteered the information while making no attempt to update her application to conform thereto persuasively corroborates her testimony that she did not understand the health history question to be asking about AA meetings or ADAP counseling. Determinations of Ultimate Fact DeCelestino is not guilty of attempting to procure an LPN license by knowing misrepresentations, which is a disciplinable offense and grounds for denial of licensure under section 464.018(1)(a), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order approving DeCelestino's application for licensure by endorsement as a practical nurse unless it determines that she might be impaired as a result of alcohol abuse, in which case a referral should be made pursuant to section 456.076(3) with further proceedings to follow in accordance therewith. DONE AND ENTERED this 29th day of March, 2016, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2016.
The Issue Whether Respondent, the holder of a license to sell alcoholic beverages, sold an alcoholic beverage to a minor as alleged in the Administrative Action dated June 17, 1997, and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent, Mahmoud Mohamed, was doing business as Kwik Stop, which is a convenience store located at 1200 Broadway, Riviera Beach, Florida. Respondent holds license number 60-02476, series 2APS, which authorizes him to sell alcoholic beverages at his business location (the licensed premises). On June 13, 1997, the Division initiated a general investigation to determine whether persons under the age of 21 were being sold alcoholic beverages by licensees of the Division. As part of that general investigation, two special agents employed by the Petitioner and an investigative aide employed by the Petitioner made a random stop at the licensed premises between 8:30 p.m. and 9:00 p.m. One of the special investigative agents was Andrew Panzer, an experienced law enforcement officer. The other special agent was Agent Panzer's partner, who did not testify. The investigative aide was Casey Fand, a seventeen-year-old high school student. The special agents instructed Mr. Fand to enter the licensed premises and to attempt to purchase a beer. Mr. Fand entered the premises first, and shortly thereafter, Mr. Panzer entered the store. The other agent remained outside the premises. Mr. Fand went to the cooler, selected a 12-ounce can of Budweiser beer, and walked to the counter where Respondent was working. Mr. Panzer selected a soft drink and followed Mr. Fand to the counter. Mr. Panzer stood behind Mr. Fand and was in position to observe and hear what transpired between Mr. Fand and the Respondent. There is a dispute in the record as to what happened next. Respondent testified that when Mr. Fand came to the counter with the beer, Respondent asked him for identification. Respondent further testified that Mr. Panzer then took the beer from Mr. Fand. Respondent testified that Mr. Panzer paid for the beer and the soft drink. The testimony of Mr. Fand and Mr. Panzer conflicted with Respondent's testimony. Both Mr. Fand and Mr. Panzer testified that Respondent never asked Mr. Fand for identification and that Mr. Fand paid for the beer and left the store. They both testified that Mr. Panzer thereafter paid for the soft drink and left the store. Mr. Panzer testified that after he conferred outside with his partner and Mr. Fand, he re- entered the premises, advised Respondent of the violation, and issued him a notice to appear. In resolving the conflicts in the evidence, it is determined that the clear and convincing testimony of Mr. Fand and Mr. Panzer is more credible than that of the Respondent. In reaching this conclusion, the undersigned has considered the demeanor of the witnesses, the training and experience of Mr. Panzer, and the fact that neither Mr. Panzer nor Mr. Fand has an apparent motive to fabricate evidence. Based on the more credible testimony, it is found that on June 13, 1997, Respondent sold a beer, which is an alcoholic beverage, to a minor, Mr. Fand, without asking for identification. Respondent's license has not been previously disciplined by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that incorporates the findings of fact and conclusions of law contained herein. It is further recommended that the Final Order impose an administrative fine against Respondent in the amount of $1,000 and suspend his license for a period of seven days. DONE AND ENTERED this 5th day of December, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1997. COPIES FURNISHED: James D. Martin, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Mark R. Hanson, Esquire 415 Fifth Street West Palm Beach, Florida 33401 Captain Debbie Beck 400 North Congress Avenue, Suite 150 West Palm Beach, Florida 33401 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times relevant to this proceeding, Respondent held alcoholic beverage license No. 26-1715. The licensed premises is located at 621 Davis Street, Jacksonville, Florida. Petitioner's undercover investigator and confidential informant (CI) entered the licensed premises on March 9, 1982. Thereafter, the CI purchased cannabis from a patron of the licensed facility (Count 3) Petitioner's investigator returned to the licensed premises with the CI on March 10, 1982, on which date both the CI and the investigator purchased cannabis from a patron. On this occasion the patron was identified as a seller by the bartender when she was asked who would sell cannabis. These transactions were carried out openly (Count 4) Petitioner's investigator was again in the licensed premises on March 11, 1982, and observed the open sale and use of cannabis. He identified the substance sold and smoked by its appearance and smell (Count 5) . In those instances where Petitioner's investigator and CI made purchases, the substances were tested by the Florida Department of Law Enforcement Crime Lab, and confirmed to be cannabis. See Petitioner's Exhibit One. On March 24, 1982, Petitioner's investigator visited the licensed premises where he again observed the open sale and use of cannabis by patrons as well as by an employee (barmaid) of Respondent. The investigator also purchased cannabis from patron during this visit (Count 8). On March 25, 1982, Petitioner's investigator was on the licensed premises and observed the open sale and use of cannabis. He made purchases of this substance from a patron around 2:00 pm. and again about 11:30 p.m. (Count 9). Petitioner's investigator was in the licensed premises on March 26, 1982. He again purchased cannabis from a patron (Count 10). Respondent was not observed on the premises during any of the above periods. It was not, therefore, demonstrated that he had actual knowledge of the illegal activity.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order suspending Respondent's alcoholic beverage license for a period of 45 days. DONE and ENTERED this 7th day of December, 1982, in Tallahassee, Florida. R. T. CARPENTER, 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 7th day of December, 1982.
