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.
Findings Of Fact Respondent holds Florida Teacher's Certificate 435362, issued by the Florida Department of Education, covering the area of substitute teaching, valid through June 30, 1987. At all times material to the Administrative complaint, Respondent was employed by the Dade County Public Schools as an emergency substitute teacher. On August 10, 1981, Respondent was hired as the manager of an apartment house. On August 17, 22 and 26, 1981, Respondent collected cash payments totaling $843 representing rents and deposits from tenant Rolando Delgado. Although Respondent was supposed to deposit all payments from tenants into the apartment house bank account, he failed to do so. On August 24, 1981, Respondent's employment was terminated. On August 27, 1981, the owner of the apartment house returned to find power tools and $100 in cash missing from the manager's office. Based upon these facts, a warrant for Respondent's arrest was issued on September 1, 1981, charging him with the offense of grand theft in the second degree. Following Respondent's arrest, he was ordered by the court to undergo a psychiatric evaluation. The report of the psychiatric evaluation was ordered to be filed with the court by November 25, 1981. On December 1, 1981, Respondent's attorney requested further psychiatric evaluation of Respondent. There is no evidence which indicates the ultimate disposition of the grand theft charge. On October 21, 1981, at 2:30 a.m., Respondent was arrested and charged with disorderly intoxication. According to his affidavit, the arresting officer responded to a disturbance at the Bilmar Lounge and found numerous people outside the bar. Respondent was screaming and shouting at the crowd. He was hostile toward the police officers upon their arrival. The arresting officer described Respondent as intoxicated, with bloodshot eyes, flushed face, slurred speech, and the odor of alcoholic beverages. On October 28, 1981, Respondent was released on his own recognizance. No criminal information was filed by the State Attorney on this charge, so Respondent was not criminally prosecuted based upon that arrest. On October 29, 1981, the day after Respondent's release, he was arrested at 1:15 a.m. for the offenses of burglary of an occupied residence and battery, and on an outstanding bench warrant for driving under the influence of alcoholic beverages. In his arrest affidavit, the arresting officer reported that Respondent forced his way into the victim's home through the front door by striking the victim on and about the head. The victim struggled with Respondent and subdued him until police arrived. The victim indicated that Respondent was the former boyfriend of a member of the family and that Respondent had been harassing the family and threatening to kill various members of the family during the previous week. On December 14, 1981, a medical examination of Respondent was ordered. At the time of that Order, Respondent was incarcerated in the Dade County jail. On January 11, 1982, the court entered an Order withholding adjudication of guilt and placing Respondent on probation for a period of 18 months, beginning January 11, 1982. As special conditions of his probation, Respondent was ordered to enter and successfully complete an alcohol or other rehabilitation program, to have no contact with the victim or any member of her family, and to seek psychological counseling through the probation department. A little over a month later, on February 13, 1982, Respondent was once again arrested and charged with, disorderly intoxication. According to the arresting officer's affidavit, Respondent was observed fighting with another person in the street. Respondent showed signs of being intoxicated (slurred speech, staggering walk, and the odor of an alcoholic beverage on his breath). When the officers separated Respondent and the other individual, Respondent became verbally abusive to the police officers. The officers asked Respondent to calm down, and he responded by shouting obscenities at them, causing people in the immediate area to exit their homes to see what was happening. On March 17, 1982, Respondent was arraigned for trial on the charge of disorderly intoxication. Respondent entered a plea of guilty to the charge, was adjudicated guilty, and was sentenced to time served, which was 28 days. On February 18, 1982, Respondent's probation officer filed an Affidavit with the court alleging that Respondent violated the terms of his probation by failing to comply with the special condition requiring successful completion of the comprehensive Alcohol Program. The Affidavit alleged that on February 15, 1982, Respondent was discharged from said program for violation of the program's rules. On March 8, 1982, the court entered an Order of Modification of Probation finding that Respondent violated his probation. The court modified Respondent's probation by extending its term for an additional six months (from 18 months to 24 months). In addition, the court ordered Respondent to serve 90 days in the Dade County stockade with credit for time served. Respondent was further ordered to participate in the Dade County stockade Alcohol Program and, upon his release from the stockade, to attend the Alcohol and Drug Abuse Program and Alcoholics Anonymous. Respondent was further ordered to make reports to the court every 30 days. After learning of Respondent's various arrests on these criminal charges, Dr. Desmond Patrick Gray, Jr., Executive Director of the Division of Personnel Control for the Dade County Public Schools, held a conference for the record with Respondent on October 26, 1982. Respondent's arrests and criminal records were reviewed with him during the conference. Based upon his consideration of Respondent's criminal record and his conference with Respondent, Dr. Gray recommended that Respondent be removed from the list of authorized substitute teachers for the Dade County Public schools. On October 27, 1982, Respondent was notified of his removal from the list of authorized substitutes. Based upon his review of the criminal charges against Respondent and his conference for the record with Respondent on October 26, 1982, Dr. Gray's professional opinion is that Respondent's effectiveness as an employee of the school board has been seriously reduced. It is Dr. Gray's judgment that Respondent's teaching certificate should be permanently revoked.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained within the Administrative Complaint filed against him and permanently revoking Respondent's Florida Teacher's Certificate. DONE and RECOMMENDED this 20th day of December, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 20th day of December, 1983. COPIES FURNISHED: J. David Holder, Esquire 128 Salem Court Post Office Box 1694 Tallahassee, Florida 32302 Mr. Stephen C. Lind 1503 North 207th Street, Manager's Apt. #234 Miami, Florida 33169 Donald L. Griesheimer, Executive Director Education Practices Commission The Knott Building Tallahassee, Florida 32301
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Agency for Health Care Administration is the state agency charged with the responsibility for investigating complaints filed against health care professionals. The Board of Medicine ("Board") is organized within the Agency and charged with determining and issuing final orders in disciplinary cases involving physicians within its jurisdiction. At all times relevant to this proceeding, the respondent was licensed to practice medicine in Florida and holds the license numbered ME 0008667. From 1973 until his retirement in the summer of 1993, the respondent was a staff radiologist at Good Samaritan Hospital in West Palm Beach, Florida. He was a founding member of the group of radiologists now known as Palm Beach Imaging Associates. In December 1990, the respondent was going through a divorce, drinking three to four drinks each evening during the week and more on the weekends, dating several women, and generally "living hard." He was concerned about his lifestyle and intended to spend the month of February 1991, at a spa, resting and getting himself back to his normal condition. Instead, on December 17, 1990, he checked into South Miami Hospital for a five-day evaluation at the urging of Drs. Walter H. Forman and Donald W. Goodwin, his partners in Palm Beach Imaging Associates. Although they had been concerned about the respondent's health and his consumption of alcohol for years, Drs. Forman and Goodwin had been afraid to confront him about it previously. Upon his admission to South Miami Hospital, the respondent's blood pressure was taken and he was sent to the laboratory for a lab work-up and x- rays. He was then given a large dose of librium, which he continued to receive regularly until December 19. On December 19, the respondent was discharged from South Miami Hospital against medical advice because he was dissatisfied with his treatment and with the evaluation procedure. The respondent was diagnosed at South Miami Hospital as suffering from chronic alcoholism. When he left South Miami Hospital, the respondent drove himself to West Palm Beach. He was still heavily drugged and drove off the road twice. When he arrived in West Palm Beach, he learned from his estranged wife that Drs. Forman and Goodman had called and advised her that the respondent needed treatment for alcoholism and that he would lose his medical license if he failed to get it. Dr. Goodman was contacted by the hospital when the respondent was discharged, and the Physician's Recovery Network ("PRN") 2/ was also notified by South Miami Hospital of the respondent's discharge. This was the PRN's first involvement with the respondent. Upon being told that his medical license could be in jeopardy, the respondent immediately made arrangements to be admitted to the Talbott Recovery Systems ("Talbott"), a chemical dependency evaluation and treatment center in Atlanta, Georgia. He was admitted to Anchor Hospital, a part of the Talbott system, on December 20, remaining there for twenty-eight days before being transferred on January 17 to the Talbott Recovery Center. At the Talbott Recovery Center, the respondent lived in an apartment with several other patients and attended counseling sessions several times a day. The treatment was patterned after the twelve-step Alcoholics Anonymous Program. In January 1991, the respondent wrote a letter to three of his partners, Drs. Forman, Goodwin, and Wimbush, as part of the first step in his treatment. In the letter, he admitted that he needed to quit drinking but that he was too addicted to do it by himself, and he acknowledged that he could get himself and the radiology group into trouble if he didn't get his drinking under control. He described the treatment program as "totalitarian" but stated that he knew it would really help him. The respondent completed the twelve steps of the treatment program and was discharged from Talbott on April 13, 1991. Before his discharge, Talbott required the respondent to sign a five-year monitoring contract with Florida's PRN. He signed this contract on April 9, 1991. The terms of the contract required the respondent to attend weekly chemical dependency follow-up group meetings for two years, to submit to random urine and blood testing for two years, and to notify the PRN whenever he was going out of town. The contract also gave the PRN the power to order the respondent to be reevaluated if the PRN received any negative information about the respondent's behavior. After a two-week vacation, the respondent returned to West Palm Beach and, in late April or early May 1991, resumed the active practice of medicine. He rejoined his group, Palm Beach Imaging Associates, and worked as a staff radiologist at Good Samaritan Hospital. The respondent did not begin attending the follow-up meetings required by the PRN contract for several weeks after his return to practice, when he was notified that he must attend the meetings to be in compliance with the contract. The meetings were held at 6:00 p.m. in Stuart, Florida, about an hour's drive from Good Samaritan Hospital. The PRN expected attendance at all fifty-two meetings per year, and a participant who missed a meeting was required to have a good excuse for doing so. In a letter dated June 15, 1993, Gordon S. Bohl, President of Recovery Associates, Inc., wrote to the PRN affirming that the respondent had successfully completed his participation in the follow-up group meetings. As required by the PRN monitoring contract, the respondent submitted to random blood and urine testing for two years following his release from Talbott. He had approximately fifty blood tests and approximately twenty urine tests over the two-year period. He would usually receive a telephone call in the morning telling him to report to the office of a local physician in the afternoon. He never tested positive for alcohol. 3/ From early May 1991 until the end of May 1993, the respondent worked at the diagnostic center run by Palm Beach Imaging Associates in the professional office building adjacent to the Good Samaritan Hospital. The center was a very busy place, and the respondent spent more time working there than any of his partners. He handled the business of the center alone during the mornings, and, in the afternoons, all the partners shared in the responsibility. For approximately one year after his return from Talbott, the respondent did an excellent job. He routinely handled a very large workload, and the quality of his work was outstanding. However, beginning in the summer of 1992 and continuing into the fall, Dr. Goodwin and Dr. Forman noticed that his work habits were deteriorating and his personality changing. He still worked well in the mornings, but he began to take longer lunch hours and would run errands in the afternoons which took longer than seemed reasonable. Although the quality of his work was good, Dr. Forman noticed that the respondent's behavior was reverting back to what it had been prior to his treatment at Talbott. In November 1992, word came to Dr. Forman, and from him to Dr. Goodwin, that a technician had told another Palm Beach Imaging Associates partner, Donald Russell, that a patient had remarked that she smelled alcohol on the respondent's breath as he gave her an injection. Neither Dr. Forman nor Dr. Goodwin learned the name of the patient, and they did not attempt to verify the accuracy of the information conveyed to Dr. Russell by the technician. As a result of this report, as well as the changes they had observed in the respondent's work habits and personality, Drs. Forman and Goodwin decided to confront the respondent regarding their perception that he had resumed drinking and that his drinking might have an adverse effect on his work. In December 1992, Dr. Forman prepared a letter in which he set out the partner's concerns and offered the respondent three career choices: He could retire immediately from the group, undergo evaluation and treatment for his drinking, or work part-time in the diagnostic center for six months at a reduced salary and then retire. When the partners delivered this letter and confronted the respondent, he was furious and refused to accept any of the three alternatives. He told his partners that he was drinking, that he intended to continue drinking, that he was not an alcoholic, and that he would not cause the partners any trouble. In the face of the respondent's angry denials, the partners took no further action at the time, and the respondent continued to work full-time in the diagnostic center. Dr. Forman smelled alcohol on the respondent's breath several times between December 1992 and May 1993 and talked to him about it. The respondent denied any problem, but he continued to take long lunches and to be absent from work for long periods during the afternoons. In May 1993, the partners were told that, on three occasions, the respondent had asked a technologist to perform a procedure that, pursuant to the policies of the Palm Beach Imaging Associates, was to be performed by a radiologist. The partners met again in May 1993 to discuss their ongoing concerns regarding the respondent's behavior. They asked Dr. Goodwin to contact the PRN and ask for guidance in handling the problem. Dr. Goodwin telephoned the PRN and eventually spoke with Dr. Roger A. Goetz, a Florida-licensed physician who is the Director of the Physician's Resource Network/The Impaired Practitioner's Program of Florida, which includes the PRN. During their long professional association with the respondent, Dr. Forman and Dr. Goodwin never observed him in an impaired condition while at work, and they never heard any complaints that the respondent had been observed in an impaired condition while acting in his professional capacity. Dr. Forman and Dr. Goodwin never had reason to criticize the quality of the respondent's work, which they felt was consistently good and sometimes outstanding, and they never heard any complaints from other physicians or from patients regarding the quality of his work. Even so, Dr. Goodwin told Dr. Goetz that, although the partners had no evidence that the respondent had ever been intoxicated on the job or that the respondent had ever made a mistake in his work as a result of the use of alcohol, they were concerned about his behavior. Dr. Goodwin identified the bases for this concern as the respondent's previous history of alcohol abuse and the change in his work habits and behavior; he included the information that a patient had reported smelling alcohol on the respondent's breath. The partners followed up Dr. Goodwin's telephone call with a letter to Dr. Goetz dated May 26, 1993. They also notified the respondent that they had made a report to the PRN. The respondent ceased practicing medicine at the end of May 1993. On the basis of the information received from the respondent's partners, Dr. Goetz requested in a letter dated June 3, 1993, that the respondent present himself for an in-depth evaluation at one of the several PRN- approved facilities listed in the letter. The respondent found these facilities unacceptable because they were affiliated with the PRN, and he proposed three other facilities. Dr. Goetz agreed that the respondent could be evaluated at one of these, but he refused to agree to the respondent's suggestion that the evaluation be conducted without the examining physician having access to his medical history or, alternatively, that the medical history be provided only after the submission of the evaluation report. As a result, the respondent refused to undergo the requested evaluation. In September 1993, the respondent received an order from the Agency compelling him to submit to both a physical and a mental examination. The Agency chose the doctors and told the respondent when to appear for the appointments. On September 9, the respondent was seen at approximately 10:00 a.m. by Dr. Rohit Dandiya, a Florida-licensed physician board-certified in internal medicine. Dr. Dandiya performed a physical examination at the request of the Agency for the purpose of determining whether the respondent could practice medicine with reasonable skill and safety. Tests were run for several blood chemistries, including liver function, and, with the respondent's consent, for alcohol. The blood test results showed that two liver functions were abnormal. In Dr. Dandiya's opinion, the abnormalities could be related to injuries to the liver from the use of alcohol, but they could also be related to injuries to the liver from numerous other sources. The blood test results showed an alcohol level of twenty- seven milligrams per decaliter, which Dr. Dandiya considered very unusual given that the blood was drawn between 10:00 a.m. and 11:00 a.m. In Dr. Dandiya's opinion, this result indicated that the respondent had consumed alcohol within two or three hours before the blood was drawn. Dr. Dandiya did not receive any information regarding the respondent's medical history from the Agency. The information contained in the report was obtained solely from the respondent, who told Dr. Dandiya that he did not have any problems related to the use of alcohol; that he consumed four to six drinks per day, two to three before going home in the evening and two to three with dinner; that his consumption of alcohol had been at this level for the past twenty years; and that he had been treated at Talbott from January to April 13, 1991, for chemical dependency. Based on the results of the physical examination and on the history provided by the respondent, it is Dr. Dandiya's opinion that the respondent suffers from the disease of alcoholism. Although Dr. Dandiya included in his report to the Agency his opinion that the respondent's ability to practice medicine was questionable, he refused to state an opinion as to whether the respondent can currently practice medicine with reasonable skill and safety, explaining that he had examined the respondent fifteen months previously and had no knowledge of the respondent's current condition. On September 10, 1993, the respondent was seen by Dr. Neville S. Marks, a Florida-licensed psychiatrist with considerable experience in the diagnosis and treatment of alcohol dependency. Dr. Marks conducted the examination of the respondent at the Agency's request and received from the Agency the respondent's records from South Miami Hospital, Anchor Hospital, and the Talbott Recovery Center. Dr. Marks reviewed these records and performed a psychiatric examination in which he took a full history from the respondent, conducted a mental status examination, and performed two psychological tests. At the respondent's request and expense, Dr. Marks interviewed him a second time. The psychological tests administered were the 16PF Test Profile and the Minnesota Multiphasic Personality Inventory. The results of both of these tests were in the normal range, although the results suggested that the respondent was dependent and had a need for social approval. Dr. Marks concluded that the respondent had no significant pathology. In the history the respondent gave Dr. Marks, he stated that his father and two relatives on his mother's side were alcoholics and that his daughter had been treated for chemical dependency. He confirmed that, at the time he went into South Miami Hospital, he routinely consumed four to six drinks per day and six to twelve beers on Saturdays and Sundays. He described himself as very sharp and feeling very good for about a year after his release from the Talbott treatment program. He admitted that he likes to drink and that he had been drinking vodka and soda the night before the examination. He stated that he did not experience any effects from the use of alcohol, and he denied that he was an alcoholic. Dr. Marks observed the respondent's physical appearance and demeanor during the interviews, and he telephoned the respondent's partner, Dr. Goodwin, for additional information about the respondent, a normal procedure in evaluations of this type. Dr. Goodwin told Dr. Marks that the respondent had never been impaired on the job but that he had missed certain procedures, could be gruff over the telephone, and shown poor judgment at times. Based upon this information, Dr. Marks is of the opinion that, within a reasonable degree of medical certainty, the respondent suffers from chemical dependency of the alcohol type and that, until he obtains treatment and is motivated to stop using alcohol, the potential exists for him to practice medicine below the acceptable standard. In forming this opinion, Dr. Marks considered it significant that, even though his license to practice medicine was at stake, the respondent stated that he had consumed alcohol the night before his examination, that he had been drinking for many years, and that he wanted to continue to drink. As Director of the PRN, Dr. Goetz provides consulting services to the Agency with respect to impaired physicians, pursuant to the PRN's contract with the Agency. In his capacity as consultant to the Agency, Dr. Goetz, by letter dated September 30, 1995, notified the Agency that the respondent was not in compliance with his PRN monitoring contract and that, in his professional opinion, the respondent posed a serious danger to the public health, safety, and welfare. In making this assessment, Dr. Goetz considered the respondent's medical records, including oral reports from the Agency regarding the results of the examinations performed by Dr. Dandiya and Dr. Marks; the respondent's progress through the follow-up group meetings and the PRN monitoring process as reported by the treatment providers; and the behavioral and attitudinal changes and complaints reported by the respondent's partners. The respondent's medical license was suspended on October 5, 1993. Two letters were written to the respondent by Dr. John J. Purcell, a psychiatrist practicing at the Harvard Medical School, setting out his observations and opinions regarding the respondent's condition. In a letter dated November 23, 1991, Dr. Purcell reported that, based on three one-hour meetings with the respondent, it was his personal opinion that the respondent was merely a heavy social drinker, not an alcoholic. In a letter dated December 4, 1993, Dr. Purcell reported on his November 11, 1993, meeting with the respondent. He expressed his conclusions that the respondent's consumption of alcohol was less than that of a social drinker, that the respondent was being treated unfairly, and that there was no reason the respondent should be prevented from working. On December 20, 1993, the respondent was seen for a three-day evaluation by the staff of the Meninger Foundation in Topeka, Kansas, a well- respected chemical dependency evaluation and treatment facility. In the examination report, dated December 23, 1993, Roy W. Meninger, M.D., a psychiatrist, stated that the examining staff could find no basis for a diagnosis of alcohol abuse at the time of the examination, although they could neither affirm nor negate the earlier diagnoses at South Miami Hospital and Talbott. Likewise, the staff found no basis for concluding that the respondent was not competent to practice medicine or posed a public hazard. On August 19, 1994, the respondent was admitted to St. Mary's Hospital by Dr. William Donovan, with an admission diagnosis of gastroenteritis or hepatitis. Dr. Jeffrey S. Wenger, a gastroenterologist, was asked by Dr. Donovan to consult with regard to the condition of the respondent's liver. When he first examined the respondent, Dr. Wenger had no chronic history and was aware only of the acute history reported by Dr. Donovan that the respondent presented with acute intoxication and that he needed to undergo detoxification. Dr. Wenger's diagnosis on consultation was that the respondent suffered from acute hepatitis, likely alcohol related, and he ordered serologies which eliminated other causes of the liver disease. The respondent was discharged on August 29, 1994, to the Hanley-Hazelton Center for rehabilitation; he was released after four days. When Dr. Wenger spoke with the respondent on August 19, 1994, shortly after his admission, he admitted drinking about three glasses of vodka and soda per day, although the respondent claimed that the amount had decreased over the previous few months. Given his acute intoxication on admission, Dr. Wenger ordered that seventy-five milligrams of librium be administered to the respondent three times per day to prevent delerium tremens; this dosage was decreased incrementally during the respondent's hospitalization. Dr. Wenger has no opinion as to whether the respondent suffers from the disease of alcoholism or whether he is presently capable of practicing medicine with reasonable skill and safety. He is of the opinion that, during his hospitalization at St. Mary's, the respondent was not capable of practicing medicine with reasonable skill and safety. The respondent denies that he is an alcoholic and believes that all of his troubles originated with an incorrect "non-diagnosis" of chronic alcoholism made by a physician's assistant at South Miami Hospital in December 1990. During the summer and fall of 1990, he was having marital problems and was 'living life pretty hard.' Although he was drinking two to four drinks per day, he felt that he did not have a problem with alcohol but that he was just not getting enough rest. The respondent went into the Talbott Recovery System only because Drs. Forman and Goodwin threatened him with the loss of his license to practice medicine. He claims that he was not evaluated when he was in Anchor Hospital, and he believes that the staff at Anchor and Talbott merely accepted the incorrect diagnosis of chronic alcoholism made at South Miami Hospital and forced him to participate in a four-month inpatient treatment program on this basis alone. He felt he never belonged in the Talbott treatment program, so he lied and made things up in order to progress through the program's twelve steps. Specifically, the respondent claims that the January 1991 letter to his partners was written under duress, that his first draft was rejected because he didn't adequately admit his alcoholism, and that the letter he actually sent was essentially dictated to him. He would not have agreed to sign the PRN monitoring contract if it were not a condition of his release from Talbott. The respondent denies each allegation made by his partners in the confrontation of December 1992: He never took -longer than thirty minutes for lunch; he did not ever leave the diagnostic center unattended or for long periods of time; it was impossible for anyone to have smelled alcohol on his breath because at the time he was drinking no more than one or two beers on Saturday after playing golf. He was furious at the accusations and believes that his partners were trying to force him to retire because they knew he would never again submit to the humiliation and degradation of treatment. From December 1992 until May 1993, when his partners contacted the PRN, he settled back into his old pattern of having two drinks with his friends each evening after work. The respondent disputed the validity of the examination performed by Dr. Dandiya. According to the respondent, Dr. Dandiya did a very cursory, five- minute physical examination and took no past medical history whatsoever. The only conversation the respondent claimed he had with Dr. Dandiya was to tell him why he was there and to request that he draw blood to test for alcohol. The respondent testified that Dr. Dandiya drew the blood as requested but that he used an alcohol swab when he did so, thus contaminating the blood and ensuring a positive test result. Dr. Marks likewise did an inadequate psychiatric examination, according to the respondent. The respondent testified that Dr. Marks already had his notes prepared when the respondent arrived, having taken them from the records of his previous hospital admissions and of his time at Talbott. The respondent claims that Dr. Marks spent only fifteen minutes asking him about the things written in his notes; the remaining forty-five minutes of the first visit were spent in the secretary's office taking psychological tests. The respondent told Dr. Marks he thought he had not been evaluated at all and arranged for a second visit. The respondent described the second visit as much like the first, and he insisted that, in the only discussion he and Dr. Marks had, he told Dr. Marks he drank nothing more than an occasional beer. The respondent admits he was extremely ill when he was admitted to St. Mary's Hospital in August 1994. He concedes that he was drinking at that time but that he really wasn't keeping track of how much he was drinking. He did not think, however, that he was drinking enough to cause hepatitis. The respondent testified that, since his release from the Hanley-Hazelton Center, his alcohol consumption has been "almost" nonexistent. He is aware that he cannot drink without becoming seriously ill. The respondent has never been reported by a physician or other health care professional or by a patient as impaired on the job as a result of the use of alcohol or otherwise. None of the physicians for whom he has done work have complained that his work was of less than acceptable quality. Because the respondent has not practiced medicine since May 1993, except for a period of about one week in late September 1993, there is no current evidence regarding his ability to practice with reasonable skill and safety. Alcoholism is a disease characterized by the use of alcohol in an amount excessive for a particular person. This excessive use of alcohol can impair a person's ability to work; it can cause physical damage such as liver damage and brain damage manifested as loss of concentration and memory lapses; and it can adversely affect social and interpersonal relationships. The consumption of alcohol need not be compulsive; a person can decide that drinking will be part of his or her life and then continue drinking as a matter of choice even though it is clear that there are adverse effects and deterioration in the ability to function on a day-to-day basis. After a period of time, the consumption of alcohol becomes a pattern, and the person becomes dependent on drinking, both physically and psychologically. One of the classic symptoms of alcoholism is denial, denial of adverse effects on one's life as a result of continued drinking and denial that it would be physically and emotionally healthier to quit drinking. Alcoholism is a chronic, relapsing condition which, if left untreated, will get progressively worse. Alcoholism can only be treated and controlled. It cannot be cured. The testimony of the respondent, summarized above in paragraphs 41 through 47, is not credible to prove that he is not an alcoholic and that his ability to practice medicine with reasonable skill and safety has never been, is not now, and never will be, affected by his use of alcohol. The respondent accused all of the health care professionals who have diagnosed him as an alcoholic of incompetence, malpractice, and lying; he offered excuses for behavior which his partners considered questionable and denied every allegation they raised in December 1992; he blamed his troubles on conspiracies mounted against him because of greed - the greed of his partners to split his $600,000 annual salary among themselves and the greed of Dr. Goetz and those running state- approved treatment programs to enrich themselves at the expense of professionals like himself, who have been deliberately misdiagnosed as alcoholic. The respondent did not admit to a single fault and even explained away his deteriorated condition in December 1990 as the result of the lack of sufficient rest. Rather than support his assertion that, in spite of his drinking, he is not an alcoholic, this testimony merely confirms the extent of his denial of all signs and symptoms of the adverse effects of his consumption of alcohol. The respondent has shown a consistent pattern of drinking which, since December 1990, has been broken only by the one-year period following his discharge from Talbott in April 1991. He was diagnosed in August 1994 with alcohol-related hepatitis after being admitted to St. Mary's Hospital acutely intoxicated, yet he still drinks alcohol. The letters of Dr. John J. Purcell are not credible evidence to prove that the respondent is not an alcoholic and that his ability to practice medicine with reasonable skill and safety is not affected by his use of alcohol. At best, this hearsay evidence merely supplements the respondent's self-serving testimony that he is nothing more than a social drinker and that he is being treated unfairly. Nor is the Meninger report sufficient to prove that the respondent is not an alcoholic and that his ability to practice medicine with reasonable skill and safety is not affected by his use of alcohol under the standards recognized by the State of Florida. The staff was equivocal about whether the respondent is an alcoholic, concluding only that there was no present evidence of alcohol abuse. The staff's opinion that the respondent was competent to practice medicine was based on the assessment of his condition in December 1993. The evidence is clear and convincing that the respondent suffers from the disease of alcoholism. Even though there have been no complaints regarding the quality of his work and no indication that he has been impaired or intoxicated on the job, the respondent has shown extremely poor judgment regarding his consumption of alcohol in personal life. The evidence is clear and convincing that the respondent is an impaired physician and cannot practice medicine with reasonable skill and safety unless he abstains completely from the consumption of alcohol. This can be assured only if the respondent successfully completes an approved treatment program and keeps his alcoholism in remission.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order finding that James P. Bowman, M.D., is unable to practice medicine with reasonable skill and safety to patients by reason of the use of alcohol and Suspending his medical license until he appears before the Board and demonstrates that he is able to resume the practice of medicine with reasonable skill and safety; Requiring that this demonstration be supported, at a minimum, by satisfactory mental and physical evaluations performed by experts approved by the Board and by evidence of successful completion of an approved alcohol rehabilitation program; Placing Dr. Bowman on probation for five (5) years subject to terms and conditions set by the Board to ensure his continued ability to practice medicine with reasonable and safety, if or when the terms of the suspension are satisfied; Imposing an administrative fine of $3,000.00. DONE AND ENTERED this 28th day of August 1995, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 28th day of August 1995.
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 issue for consideration in this matter is whether Respondent’s alcoholic beverage license, Series 3-PS, No. 39- 01099, for the premises located at 13508 Florida Avenue, Tampa, should be disciplined because of the matters alleged in the Administrative Action filed herein.
Findings Of Fact At all times pertinent to the allegations herein, Petitioner, Division of Alcoholic Beverages and Tobacco, was the state agency in Florida responsible for the licensing of outlets for the retail sales of alcoholic beverages, and for the enforcement of the liquor laws of this state. By stipulation of fact, the parties agreed than on or before August 7, 1996, Benjamin Nenno, a male under the age of 18 at the time, became involved in an investigation of Respondent’s retail sales facility in issue by the Division. On the evening of August 7, 1996, Nenno was briefed and searched by agents of the Division and allowed to carry with him only a certain amount of cash and a driver’s license which clearly showed him to be under 21. He was instructed by the agents to indicate he was only 17 if he were to be asked by a store employee and to produce the driver’s license if it were to be requested. Specifically, he was instructed not to make any misrepresentation of fact in order to get the clerk to make a sale to him. Thereafter, Nenno entered the Respondent’s store number 620, located at 13508 Florida Avenue in Tampa and asked to purchase a bottle of Captain Morgan’s Special Rum, an alcoholic beverage which would be unlawful for him to purchase. When he did so, the Respondent’s clerk, identified as Freddy Posey, asked to see Nenno’s identification and Nenno produced the driver’s license which reflected he was under 21. Posey looked at it but made the sale anyway. The sale was witnessed by Special Agent Randall West who confirmed the facts stated above. When Nenno left the premises he met with Special Agents West and Miller who confiscated the beverage. West then entered the store and issued a notice of Violation as well as a vendor check list to Posey which was to be filled out by him and returned to the Division. The investigation continued on August 13, 1996 when Nenno, again under the control of the Division personnel, was again searched and instructed and sent back into the Respondent’s premises by Agents Hamilton and Fisher to again attempt to purchase a bottle of Captain Morgan’s Special Rum. This time Nenno dealt with James Davison, an employee of the Respondent, who asked Nenno to produce a driver’s license. When Nenno did as he was asked, Davison looked at it but nonetheless made the sale even though the license clearly showed Nenno was under 21. This sale was witnessed by Agent Fisher. In this case, however, after having made the sale, Davison came outside the store after Nenno, but after looking around the parking lot, re-entered the store. The Division agents again issued a Notice of Violation and a checklist which was subsequently returned to the Division filled out. On August 20, 1996, the investigation continued with the Division agents this time using Nicole Finch, a female under age 21, who was instructed and briefed as Nenno had been. She, too, was left with only some cash and her driver’s license which reflected her to be under 21. This time, Finch entered the Respondent’s store Number 621 in the company of Agent West and purchased a 200 ml bottle of Bacardi Rum, an unlawful alcoholic beverage for her to buy, from Steven Wilder, the clerk on duty. Before making the sale, Wilder asked to see Finch’s driver’s license, which she showed to him, but after seeing it, he still made the sale. When she left the store, Ms. Finch met Special Agents West and Fischer who subsequently issued a Notice of violation to the Respondent. When questioned by West, Wilder indicated he had received no training nor was he aware of any training program in place regarding sales to underage persons. Special Agent West, who has been an investigator with the Division for more than 18 years, and who has participated in many beverage investigations such as this, entered the Respondent’s store on August 7, 1996 after Nenno had left. He arrested the clerk, Mr. Posey and issued the Notice of Violation. In the course of the transaction, he questioned Posey about how he was trained regarding the sales of alcohol to minors with specific emphasis on whether Respondent has an ongoing training program and whether there were signs or other notices proscribing the sale of alcohol to minors. In response to these questions, Posey indicated he had received verbal training but no formal classroom or video training and had been given no forms to read and sign regarding this. When West looked for signs relating to the practice of checking patrons’ identification or indicating a policy of “no sales to those under 21”, he could find no signs posted or buttons worn by employees to notify prospective patrons of the company’s practice, though the Florida Beverage law does not require buttons to be worn. West made the same observations when he entered the store after the August 20, 1996 purchase by Finch. On this second occasion, in response to West’s questions about the training given by Respondent, Wilder, the clerk involved in that sale, indicated no training programs were in place. At that time, Mr. West could see no changes that had been made in the premises since he was last there on August 7, 1996. Further, West could not find any indication that the Respondent had posted a qualifying birth date for the purchase of alcoholic beverages. In response, Respondent offered into evidence a copy of a sign which, it claims, is posted on the cash register in each store, which refers to the requirement for a person to be 21 years old, (born before the purchase date in 1975) to purchase alcohol. Mr. West, who went behind the cash register to obtain information from the liquor license, did not see a copy of this sign posted in Respondent’s store on either August 7 or August 20, 1996. The Notice of Violations issued by the Division agents were to put the licensee on notice that a violation had occurred so that the employee cannot keep the information from the license holder. Agent Fisher observed the sale to Nenno which took place on August 13, 1996. When he went into the store after the purchase took place, Fisher asked the sales clerk if he had asked to see Nenno’s identification and he had. Fisher also asked the clerk about training offered by Respondent regarding the checking of identification. This employee, who has worked for the company for approximately 16 years, indicated he had seen at least one video which concerned checking identification and admitted he had been required to sign a certificate that he was aware of the rules. Agent Fisher also looked for signs in the store regarding the Respondent’s policy regarding sales to minors but did not see any. When he participated in the operation there on August 20, 1996, he asked the clerk on duty at that time if he had been trained regarding buyers’ identification and was told that since he had been hired by the company in January 1996 he had worked in the warehouse exclusively and had subsequently worked in the store only two days. He had been given no training at all in customer identification before he started working in the store. When Fisher looked behind the counter for some sort of warning sign, he could find none, nor could he find any in the back near the beer cooler. Mr. Davison worked for the Respondent for approximately 16 years prior to his discharge because of the instant sale to a minor. He had worked as manager of store number 620 for about two years before his firing, and his job was to maintain stock and insure the store was properly manned at all times it was open. He employed two other individuals at the liquor outlet to cover the entire week. Only one person was on duty at a time. On the day he made the sale which caused him to be fired, he was the only person on duty. Periodically, he would receive a document from the company containing the company’s policies which he was to read and sign, but nothing more than that, and even they did not come very often. He claims, and it is found, that he was never told he was to train his employees regarding sales of alcohol to minors. He claims that he was never shown a training video even though he signed the document saying he did. He did that because on the one occasion he asked a manager about it, he was told to sign it and not worry about it. Even though each store had a VCR, the entire training process to which Davison was exposed consisted of the reading and signing of this document which was given to him by Mr. Odorosio, the store manager. None of the training reflected on his personnel records as having been given him was, in fact, not given. Davison claims that when he was hired 16 years ago he was not given any training about sales of alcohol to minors and has never been given any since. However, he admits that each store is furnished a chart reflecting the various endorsements to driver’s licenses which are used. He also noted that his store had one sign relating to lawful alcohol sales, given to him by a beverage salesman, which, about two months before the incident, he put on the front of the counter where the customers could see it. He claims that on the evening the agents came to the store, they did not ask to see it. If they had done so, he would have shown it to them. Davison recognized one of the signs placed in evidence as one he has seen in other of Respondent’s stores. He has never seen the other one. As Davison recalls it, Respondent’s policy is to terminate anyone caught selling alcohol to minors. After the incident of August 7, 1996, Mr. Odorosio advised him to be on the lookout because he felt the Division agents would be back. Davison admits having made the sale to the teenager in question. However, he claims, the individual had just had a birthday which Davison mistakenly believed was the 21st. In fact it was the individual’s 17th birthday. He also claims that in the two years he worked at store 620, he always asked potential underage patrons for identification unless he knew the person. He claims he has always refused to sell alcohol and would not knowingly sell alcohol to minors. In fact, on the night he sold to Nenno, August 13, 1996, when he realized he had sold to a minor, he went outside, he claims, to find Nenno and give him back his money. The four-year difference in age belies Davison’s claim of mistake and that claim is rejected. Mr. Wilder, the assistant manager on the grocery store night shift since January 30, 1996, had worked in the liquor store, temporarily, for only a day and a half at the time of the incident. He was filling in until a new clerk could be brought in from another store. When he received his orientation training in January 1996, he was shown a video and exposed to a group class on paperwork, the handbook of rules and regulations, and the sale of alcohol, after which a test was administered. That was the only time he was shown any video or was involved in any personnel meeting relating to alcohol sales. When he went to work at the liquor store, he was given training only on the operation of the cash register. The liquor store registers do not have the capability to punch in the buyer’s date of birth. However, the day he started in the liquor store, Mr. Odorosio told him to always check a purchaser’s identification and never to sell to anyone under the age of 21. This was the day before he sold the rum to Ms. Finch, and he claims this sale was caused by human error. That very day, he claims, he had make “cheat sheets” which showed the lawful dates for the purchase of tobacco and alcohol, and claims he merely read from the wrong sheet. Officials of the Division have made themselves available to work with retailers of alcoholic beverages to bring them up to the sales standards set for a reasonable industry standard as outlined in the Florida Statutes. The information contained on the alcohol compliance instructional guidelines utilized by Respondent on which clerks and cashiers acknowledge their understanding that violation of those policies may result in termination of their employment is not sufficient orientation from an educator’s standpoint. In the opinion of Agent Miller, the minimum acceptable standards call for training of personnel in alcohol control three times a year, as once a year is not enough. Mr. Miller indicates he has discussed the Respondent’s situation with Mr. Heuermann, the Respondent’s vice-president in charge of personnel training, at Heuermann’s behest on approximately four occasions, and explained his concerns over the violations and what Respondent could do to improve its program. The first discussion took place in June 1996, shortly after an arrest of another Respondent employee and two months before the instant arrests. At that time they discussed what could be done to alert personnel and modify registers to require checking of ID. It was reported at that time that some employees were overriding this; however, the company is in the process of converting all their cash registers to those which require the customer’s birth date be inserted. They were put in grocery stores first and not in the liquor stores because the liquor stores use a different system. As funds for conversion become available the registers in the liquor stores will also be converted. Company trainers also discusse training standards for employees and Respondent’s need to insure that the lowest level of employees, who deal with the public, are properly trained. Though Mr. Miller made several suggestions as to what Respondent could do to improve its educational program, neither he nor any other Division agent was asked to participate in the training. According to Mr. Heuermann, Respondent has over 100 grocery stores and 34 liquor stores and employs approximately 10,000 people, only 1,500 to 2,000 of whom are involved in the sale of alcohol. No one under the age of 18 is hired to work in a liquor store. Company trainers check to insure the age of employees as does the main office. By the same token, the company would not hire anyone as a liquor store manager who had been convicted within the prior five years of a violation of the liquor law, of prostitution, drugs or a felony. The company’s application for employment has a space for listing such an offense and the company completes a background check on its applicants. Respondent contends it has a formal training program for alcohol law compliance. The orientation program for all new employees includes a video tape, a work sheet, and instructional guidelines, all dealing with alcohol compliance, to be signed by all new hires. At training, the trainer goes through the employee handbook, which treats alcohol compliance, sexual harassment, AIDS, ADA, etc., and this training is required of all new employees, both managerial and non-managerial, but it is sketchy at best. Until 1995, such training as existed was centralized but then was made the responsibility of the individual store manager. Sometime thereafter, the training was placed under the human resources directorate and it is again centralized whenever possible, as in the metropolitan areas where employees from several stores easily can be brought together for training. The company also has a formal substance abuse policy under which the use of illegal drugs or alcohol at work is prohibited because of its impact on safety and other workers. When Mr. Heuermann was advised by the store manager of the incident involving Mr. Posey he immediately instructed the manager to fire Posey and sent the information concerning the incident to all his managers for use in training in the individual stores. He also instructed the district managers to reinforce alcohol training in the stores because he wanted to insure this training met all requirements. He called Mr. Miller at the Division to see what could be done and implemented everything Miller suggested. When Heuermann learned of the Davison case he again reviewed the facts and determined to fire Davison as well. He met with the senior vice-president of operations for Respondent who directed that no one but management personnel be put in that store and reemphasized the need for training. Heuermann also went to the store and advised the district manager that his job was in jeopardy if another violation occurred. When the third violation thereafter occurred, Mr. Heuermann called Agent Miller, Mr. Odorisio, Mr. Metcalfe and the corporations CEO. At that time, Miller made some suggestions which included a paycheck reminder which Heuermann implemented with a copy being stapled to every one of the 10,000 paychecks issued that month. Mr. Heuermann noted that after the incident involving Mr. Posey, Agent Miller advised him that Division agents would be back. Heuermann passed that information on to the district and store managers and instructed them to advise their employees to be careful. Jacqueline N. Iglesias, Respondent’s district training coordinator since October 1996’ was previously the orientation director. Employee training for the Respondent’s Hillsborough district, as noted previously herein, is done in group sessions involving between 12 and 25 people, on Mondays, Thursdays and Saturdays for three-hour sessions conducted twice a day on those days. The instruction covers safety, alcohol compliance and employee appearance and standards. With regard to the instruction concerning alcohol compliance, a form containing relevant information is used along with a video presentation and a multiple choice examination on the provisions of the alcohol compliance law which is administered while the video is playing. The video shown covers hours of sale, sales to minors, sales to those already intoxicated and how to handle unruly patrons. The course material advises the employee to call management in a questionable situation. It also covers acceptable and altered identification, what to look for and what to do in a case of suspected alteration. Specifically, employees are advised to refuse a sale to anyone whose identification is suspect, and employees are warned of the consequences, including job loss, if strict compliance with the law and the company’s policies are not followed. This training program has been in effect since August, 1996. Before that time, the training was done by the individual managers who, according to Iglesias, covered the same information. Though this program appears thorough at first blush, in reality it is considerably less than comprehensive and appears to have been minimally effective. An example of this can be seen in the history of Mr. Posey. Mr. Posey went through the company’s training program training when he was first hired. Company records reflect that he missed seven of the questions on the checklist test but, nonetheless, was still hired since performance on the test is not used to disqualify prospective employees. He supposedly was thereafter given supplemental on the job training under an experienced cashier at his employment location. Kevin Sosa has been employed as a full time liquor store clerk at Store 619-620 for more than two years. He identified a decal which, for some time, including in August 1996, was stuck to the check-out counter just in front of the register. Sosa also claimed that there is, in addition, a decal on the beer cooler located in the back of the store, in the back hallway and on the wall near the register which refer in some way to the legal age for purchasing alcohol. With regard to these signs, Special Agent Hamilton, who participated in the operation involving Mr. Davison on August 13, 1996, did not observe any signs in the store as were described by Mr. Sosa even he claims he looked for them. However, he admitted he did not go behind the counter to where the cashier stood to see if any signs were posted there, nor did he specifically look near the beer cooler. Mr. Sosa also has seen the alcohol compliance guidelines which he has been required to sign at least two or three times during the term of his employment and which he has seen more frequently when training others. He has also been exposed several times to the training guidelines which accompany the alcohol video. The last time he saw it was during the summer of 1996 after the incidents in question, but on each occasion nothing more was done than to show the video. After Mr. Posey was caught and after another incident at another company store, but before the incident involving Mr. Davison took place, he and Davison often discussed how easy it was to become complaisant and not check identification properly. Both recognized they had to be careful. They were frustrated and somewhat angry with the Division over these arrests because they felt anyone could make a mistake and fail to check identification. The efforts at control and procedures described as being in place at Respondent’s stores were reiterated in the testimony of Mr. Stickles, second assistant manager at Respondent’s store in issue, who indicated that numerous and repeated efforts are made to train employees in the proper compliance with the alcohol laws and to get out appropriate and necessary information. Included within these measures used are the use of the company’s DBX system by which individual managers can electronically communicate with headquarters and other managers to identify problems and suggested solutions; memoranda on pertinent topics sent through the mail; consistent verbal reminders from management to clerks; provision of extra stickers for registers and elsewhere in the stores; reminders on employee paychecks and, after the first incident, a mandatory repeat viewing of the alcohol control video by all employees. Aside from the above, however, Mr. Stickles could point to little in the way of formal training. Mr. Odorisio, the store manager at the facility in question related his practice of insuring that all new employees are sent to the centralized orientation program conducted by the company. He attends periodic manager meeting at least three times a year after which he briefs his clerks on any relevant material he picked up. After the incident involving Mr. Posey he again briefed the remaining clerks, including Davison and Sosa, repeatedly advising them that the Division agents would be back and to be sure to card all suspicious customers Mr. Montoto, Respondent’s district manager over the store in question, indicated his efforts to insure proper alcohol compliance included, in addition to those previously noted, a requirement that all employees have attended the pre-hiring orientation program; conduct of store manager meetings at least two or three times a year; and specific posting of managers in the stores who were trained in how to handle alcohol compliance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Alcoholic Beverages and Tobacco enter a final order imposing an administrative fine of $3,000 against Respondent’s alcoholic beverage license number 39-01099, series 3-PS. DONE and ENTERED this 4th day of March, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1997. COPIES FURNISHED: Miguel Oxamendi, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Craig E. Behrenfeld. Esquire Barnett, Bolt, Kirk & long 601 Bayshore Boulevard, Suite 700 Tampa, Florida 33606 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Richard Boyd Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007
The Issue Whether Respondent violated Subsection 466.028(1)(s), Florida Statutes (2000-2005), and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state department charged with regulating the practice of dentistry pursuant to Section 20.43 and Chapters 456 and 466, Florida Statutes (2006). Dr. Driggers is a licensed dentist in the State of Florida, having been issued license number 5473. The Professional Resource Network (PRN) is the impaired practitioner program for the Board of Dentistry, pursuant to Section 456.076, Florida Statutes (2006). PRN monitors the evaluation, care, and treatment of impaired healthcare professionals. Dr. Driggers has a long history of problems with alcohol. On January 15, 1987, he was arrested for driving under the influence (DUI). He was adjudicated guilty of that offense. In 1990, Dr. Ken Thompson did an intervention on Dr. Driggers based on Dr. Driggers' alcohol abuse. As a result, Dr. Driggers was admitted to Glenbeigh Hospital of Tampa for a three-day evaluation of alcoholism and chemical dependency. Dr. Driggers was diagnosed with alcohol abuse and benzodiazepine abuse. Dr. Martin Zfaz, who evaluated Dr. Driggers, recommended that Dr. Driggers attend an outpatient treatment program with Dr. Ken Thompson five days a week, attend 90 Alcoholic Anonymous (AA) and Narcotics Anonymous (NA) meetings in 90 days, and obtain a sponsor. On December 17, 1990, Dr. Driggers entered into an Impaired Practitioner Program of Florida Physicians Recovery Network Advocacy Contract. The contract required that he "abstain completely from the use of any medications, alcohol, and other mood altering substances." He agreed to attend a self-help group meeting such as AA or NA three times per week, to participate in continuing care group therapy one time per week, and to attend a 12-step program of recovering professionals every other week. The contract was for five years, with renewal subject to review by PRN. Dr. Driggers did complete an outpatient treatment program with Dr. Thompson by February 1991. He did attend some meetings of recovering professionals. In January 1992, PRN referred Dr. Driggers to Anton M. Krone, M.D., for an evaluation of Dr. Driggers' status. Dr. Driggers told Dr. Krone that he had not completely abstained from consuming alcohol, but that his consumption had not caused a problem. He was not attending AA meetings and did not have a sponsorship. Dr. Driggers did not consider himself to be an alcoholic and was opposed to attending AA meetings and abstaining completely from drinking. Dr. Krone opined that "it would be very difficult to engage [Dr. Driggers] in a recovery process at this time which is abstinence based." Dr. Krone suggested that "PRN follow him on an informal basis and watch to be sure that he is not getting into future trouble and to be ready to intervene with him promptly if such trouble begins to appear." The contract between Dr. Driggers and PRN dated December 17, 1990, was voided as of February 1992. On October 6, 2000, Dr. Driggers was again arrested for DUI. He drove his car into the back of a car stopped at a red light. He was given a breathalyzer test, which showed a blood alcohol level of .23, which is almost three times the limit for a presumption of DUI in Florida.1 Dr. Driggers did not feel like he was intoxicated and blamed the accident on his leaning over to prevent carry-out food from falling to the floor. He was adjudicated guilty of DUI in October 2001. Dr. Driggers reactivated with PRN and agreed to an inpatient evaluation. On November 13, 2000, he went to Shands at Vista for the evaluation. Dr. Thompson evaluated Dr. Driggers and concluded that he was concerned about Dr. Driggers' ability to practice with reasonable skill and safety. He made the following recommendation for the treatment of Dr. Driggers: "Return for inpatient detoxification with further assessment. I do not believe that in view of his denial, stress, shame, and anxiety level that he would likely be very successful in detoxing himself on an outpatient basis even with supervision." Dr. Driggers remained at Shands at Vista until he was discharged on March 9, 2001, with a diagnosis of alcohol dependence, sedative dependence, and anxiety disorder. On April 1, 2001, Dr. Driggers signed another five- year Impaired Practitioners Program of Florida Physician Recovery Network Advocacy Contract. As before, Dr. Driggers agreed to abstain completely from the use of any medications, alcohol, and other mood altering substances. He agreed to attend self-help meetings such as AA or NA three to four times per week. He agreed to attend a PRN monitored professional support group. Dr. Driggers agreed to participate in a random urine drug or blood screen program within 12 hours of notification. On June 23, 2004, Dr. Driggers tested positive for a metabolite of alcohol based on an ethyl glucuronide test, which detects metabolites of alcohol in urine. On July 12, 2004, Dr. Driggers again tested positive for a metabolite of alcohol based on an ethyl glucuronide test. His July score was higher than his June score. Dr. Driggers admits that he had not completely abstained from the use of alcohol and that he occasionally had a glass of wine with his new wife. Dr. Driggers rationalized his consumption of alcohol with the following comment: "I didn't think that the--that a glass of wine on a particular day would--would not only show in urine, but I didn't think that it was any major thing at the time. It was--it was something I did that I regret." On August 16, 2004, Dr. Driggers was referred by PRN to Martha E. Brown, M.D., for an evaluation. Dr. Driggers admitted to Dr. Brown that he had not abstained completely from alcohol. He told her that he went to PRN group meetings for a while, but quit going to the meetings. Dr. Brown concluded that she did "not feel Dr. Driggers can practice with reasonable skill and safety. He has been diagnosed with Alcohol Dependency in the past, yet has again resumed drinking. He appears to have much minimization of his alcohol use with rationalizations about it is okay that he has returned to drinking." Dr. Brown recommended that Dr. Driggers continue to participate in PRN, follow PRN recommendations, enter into a long-term residential treatment for chemical dependency, and abstain from all mood altering substances, including alcohol. In September 2004, Dr. Driggers sought a second opinion from Chowallur Dev Chacko, M.D., who is board-certified by the American Board of Psychiatry in general psychiatry, addiction psychiatry, and forensic psychiatry. Based on Dr. Driggers' long history of alcohol abuse and his continuing to drink while under a monitoring contract with PRN, Dr. Chacko opined that Dr. Driggers was not able to practice his profession with reasonable skill and safety and recommended that Dr. Driggers receive long-term residential treatment for his alcoholism. Dr. Driggers refused to follow the recommendations of either Dr. Brown or Dr. Chacko. On November 9, 2004, PRN sent notice to the Department advising that Dr. Driggers was not in compliance with his PRN monitoring contract. On June 17, 2005, Dr. Driggers returned to Dr. Brown for a new evaluation. Dr. Brown was still of the opinion that Dr. Driggers had a substance dependency problem and needed treatment. During her evaluation of Dr. Driggers, he told her that he would not be in PRN and would not follow PRN's recommendations. He was in severe denial concerning his chemical dependency. Dr. Brown recommended that Dr. Driggers should participate in PRN and follow the recommendations of PRN; that Dr. Driggers should minimally enter a partial hospitalization program with a step-down to an intensive out- patient program for his chemical dependency; that he should abstain from all mood altering substances, including alcohol; that he should attend 90 meetings of a self-help program in 90 days; and that he should turn in a signed list for attendance at 12-step meetings for six months to document his recovery. Dr. Driggers was evaluated by Jeffrey A. Danziger, M.D., on September 8, 2005, at the request of Dr. Driggers' attorney. Dr. Danziger opined that Dr. Driggers did not meet the criteria for alcohol dependence or active alcohol abuse at the time of the evaluation. Dr. Danziger diagnosed Dr. Driggers with posttraumatic stress disorder, in remission, and alcohol abuse, in sustained full remission. It was Dr. Danziger's "opinion that, from a psychiatric standpoint, Dr. Driggers did not have any substance abuse or psychiatric problems that would impair his ability to safely function as a dentist." Dr. Danziger explained that much of his evaluation was focused on whether Dr. Driggers posed an immediate danger that would justify an emergency suspension. Dr. Brown reviewed Dr. Danziger's evaluation report on Dr. Driggers and her prior evaluations of Dr. Driggers. On January 30, 2006, she opined as follows: I continue to believe that Dr. Driggers has a diagnosis of Alcohol Dependency as evidenced by having a BAL [blood alcohol level] of .2 at the time of one of his second DUI, indicating tolerance to the use of alcohol as "social" drinkers at a BAL of .2 would not have been able to get in their car to drive; he has been unsuccessful in his efforts to control his substance use while in PRN (he had continued to drink while in PRN) and again, if he was a social drinker, should have been able to completely abstain from substance use in PRN without any difficulty; and he has continued to use alcohol despite knowledge of having a persistent and recurrent problem with alcohol. Certainly of note is the fact that he has had not one but 2 DUIs in his past. He continues to have a great denial about the disease of chemical dependency and the need to abstain from all mood altering substances. This type of thinking poses an extreme risk to the public for him practicing without appropriate monitoring of his status by PRN. Alcohol Dependency is a permanent medical disease that does not go away once you develop it. A healthcare professional that has Alcohol Dependency must have long-term, appropriate treatment and monitoring to ensure they do well and can practice. In the most recent records you sent, numerous individuals gave affidavits that they have never seen him impaired while practicing. However, I would point out that simply not drinking at work, or not looking impaired, does not translate into whether one can practice their profession with reasonable skill and safety. Dr. Brown continued to recommend abstention from alcohol and mood altering substances, outpatient treatment, and participation in PRN monitoring. If those recommendations were followed, she felt that he could practice with reasonable safety and skill. However, Dr. Driggers has continued to refuse to participate in any PRN monitoring. On September 27, 2006, Dr. Danziger again evaluated Dr. Driggers. He was still of the opinion that Dr. Driggers had a diagnosis of alcohol abuse rather than alcohol dependence. Once you have a diagnosis of alcohol abuse, you will always have alcohol abuse, but it can be in remission. He agrees with Dr. Brown that Dr. Driggers is in need of outpatient treatment and monitoring. Whether Dr. Driggers' drinking problem is labeled alcohol abuse or alcohol dependence, the consensus of the experts in addiction psychiatry who evaluated Dr. Driggers is that Dr. Driggers must have some type of treatment and must be monitored in order for him to be able to practice dentistry with reasonable skill and safety. Dr. Driggers has been disciplined previously by the Board of Dentistry in 1989.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Driggers has violated Subsection 466.028(1)(s), Florida Statutes (2004); giving Dr. Driggers a written reprimand; requiring Dr. Driggers to undergo a new evaluation by a PRN- approved evaluator; requiring Dr. Driggers to comply with PRN recommendations; and suspending his license until he undergoes further evaluation and begins compliance with PRN recommendations. DONE AND ENTERED this 17th day of April, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 17th day of April, 2007.
The Issue The issues in this case are whether Respondent violated section 464.204(1)(b), Florida Statutes, by intentionally violating section 456.072(1)(z), Florida Statutes, due to being unable to practice as a nursing assistant with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, or chemicals or any other type of material or as a result of any mental or physical condition; and, if so, what penalty shall be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of nursing assistants, pursuant to section 20.43, and chapters 456, and 464, Florida Statutes. At all times material to the Administrative Complaint, Respondent was a certified nursing assistant (C.N.A.) in the State of Florida, having been issued Certificate No. CNA 165217. Respondent is a convicted felon, having been convicted in 1988 of the felony offenses of grand theft and forgery. The conviction constitutes a crime of dishonesty. In 1989, Respondent was convicted of felony possession of cocaine and sale of cocaine. In 1992, Respondent was convicted of robbery, a felony. In 1998, Respondent was convicted of possession of cocaine, a felony. Respondent was sentenced and incarcerated in 2003 to a term of three-and-a-half years. In addition to the numerous felony charges, Respondent committed multiple misdemeanors over the past 30 years. In 2007, Respondent applied to be a C.N.A. in Florida. Respondent explained her criminal history in her application to become a C.N.A., as follows: The charges that were committed happen [sic] at a time in my life when I was living on the streets. I stole out of stores in order to get clothes to wear and sell to support my addiction. I use [sic] drugs and alcohol to escape. I hung around a lot of wrong people who did drugs and stole for a living. To me this was normal. I did everything under the sun in order to get high. My life was very unmanageable. I wrote checks out of my mother’s checking account to purchase drugs and alcohol. I unchanging [sic] sex for drugs, so before long the relationships that I got involved in boyfriend’s would dealt [sic] drugs. I would sell drugs in order to get the drugs to [sic] and get enough money to make whomever I was dating at the time happy [sic]. I have been drug free since 2000. I have maintained steady employment, and stable housing. I attend A.A. meeting [sic] on a regular basis. I have successfully completed Parenting, and Behavioral Healthcare Technical training classes given by the Operation PAR Incorporation. I am currently in my second year of school at St. Petersburg College in the Human Service Program. With hopes [sic] of earning a [sic] associate degree in Substance Abuse Counseling. I have positive friends and role models that do not indulge in any criminal activities or drugs. I also attend church services, and participate in church functions. Also, I have been raising two children as a single parent. In conclusion, I have successfully completed probation and as well have not committed any new offenses. Respondent was first licensed as a C.N.A. in the State of Florida in April 2008. On April 24, 2015, Respondent attended a party where she consumed alcohol. Early the next morning, SPPD Officer Daniel L’Esperance observed a vehicle parked at an odd angle in the parking lot of a closed gas station. Respondent was asleep behind the wheel of the vehicle with the keys in the ignition. The officer noticed a strong odor of alcohol coming from her breath, slurred speech, unsteadiness on her feet, and watery, bloodshot eyes. Officer L’Esperance told Respondent to call a friend to come pick her up because he believed she was under the influence of alcohol or drugs. Respondent could not find her phone and gave Officer L’Esperance consent to look for her phone in the vehicle. While searching for Respondent’s phone, Officer L’Esperance found a crumpled up dollar bill in the driver’s seat containing what he believed to be cocaine residue. The officer arrested Respondent for the felony offense of cocaine possession. On or about April 26, 2016, at approximately 11:15 p.m., SPPD officers responded to a car accident involving two motor vehicles. Respondent was one of the drivers involved. She had consumed alcohol prior to the accident. Respondent was wearing black scrubs at the time of the car accident. She had slurred speech; glassy, watery, and bloodshot eyes; and alcohol on her breath. She was unsteady on her feet and was disoriented. She exhibited further signs of impairment while participating in the field sobriety exercises. SPPD Officer Michael Karayianes arrested Respondent for driving under the influence of alcohol or drugs. Respondent refused to provide a breath sample for alcohol testing. On August 3, 2016, Lawrence S. Wilson, M.D., a physician specializing in addiction medicine, and hereby found to be an expert in this field, evaluated Respondent pursuant to Department order. Respondent admitted she first consumed alcohol at age 15. She reported that in her past she would consume 12 beers in one drinking session, and she would consume approximately 750ml of liquor every weekend. She consumed alcohol approximately once or twice per month in the two to three months leading up to the evaluation. Respondent reported consuming a maximum of four alcoholic drinks in one sitting during this time period. She stated she had most recently consumed alcohol two days prior to her evaluation. Respondent acknowledged to Dr. Wilson that she is an alcoholic. Respondent acknowledged she first used cocaine at age 15. She most recently used cocaine two days prior to the evaluation. Respondent stated that, other than the use of cocaine two days prior to the evaluation, she had not used cocaine in approximately 20 to 30 years. She acknowledged she has a problem with cocaine. Respondent told Dr. Wilson that she had not admitted herself nor been admitted to any detox facilities, any inpatient treatment, or any outpatient treatment programs. During the evaluation and in her testimony at hearing, Respondent claimed to be in active recovery, attending Alcoholics Anonymous (AA) meetings three to five times per week for the past year. Respondent claimed to have a sponsor and home group. Respondent chaired meetings, but had never told her story as a speaker. On August 3, 2016, Respondent submitted to toxicology tests at Dr. Wilson’s request. The tests were positive for both cocaine and alcohol. These results, which were professionally obtained and are deemed credible, were inconsistent with Respondent’s reported use of alcohol and cocaine. The toxicology results indicated repetitive and frequent use of cocaine in the past two to three months. The toxicology results indicated heavy repeated alcohol use or binging. Respondent’s participation in AA has not prevented her from continuing both alcohol and cocaine use. Her “participation” in AA, at best, can be described as passive and, at worst, as embellished or untrue. Dr. Wilson agrees with the latter assessment, calling Respondent’s reporting of her alcohol and drug abuse “dishonest and deceptive.” He further concluded that Respondent’s minimization and deceptive reporting of her drug and alcohol use indicated that she was in denial of her alcohol and cocaine use disorders. Not surprisingly, Dr. Wilson diagnosed Respondent with severe alcohol use disorder and severe cocaine use disorder. Dr. Wilson recommended Respondent participate in an Intervention Project for Nurses (IPN) monitoring agreement and complete an inpatient treatment program for her cocaine use disorder and alcohol use disorder. Due to Respondent’s current addictions, Dr. Wilson concluded that Respondent is not able to practice as a nursing assistant with the necessary skill and safety to adequately serve patients. Dr. Wilson stated that his opinion would not change even if Respondent participated in AA meetings multiple times a week because the Respondent’s participation in AA is not effectively treating her addiction disorders. He believes she needs more intensive treatment due to her disease and addiction being active. The undersigned finds Dr. Wilson’s opinions and ultimate findings credible and well-substantiated. Respondent has not actively entered into an IPN monitoring agreement nor has she entered or completed an inpatient treatment program for her cocaine use disorder and alcohol use disorder. As recently as August 9, 2016, Respondent submitted a urine sample for a drug screening as a condition of her criminal probation. The sample returned positive for cocaine. In order to have a positive result, the individual tested must have consumed cocaine within 48 to 72 hours of submitting the sample. Even the witnesses called by Respondent to testify at hearing confirmed her alcohol abuse issues. Her sister, Candace Thomas testified that she had last drunk alcohol with Respondent a month or two prior to the hearing, and recalled having drinks with Respondent at least once a week. Another witness called by Respondent, Jakayla Hudson, testified that Respondent’s drinking habits were about the same as they had been years earlier, before she had been incarcerated. Respondent denied the allegations of alcohol and drug abuse. She claims that Dr. Wilson and Officers Karayianes and L’Esperance fabricated their testimony to exaggerate the extent of her impairment. Respondent claims to have last consumed alcohol on or about August 1, 2016, which is inconsistent with her sister’s testimony at the hearing. She testified that she is not an alcoholic and does not have a problem with alcohol. Respondent’s testimony was inconsistent with her statement that alcohol is her drug of choice, her history of alcohol abuse, her regular attendance at AA meetings since 2007, and her own previous statements. When asked if she still used cocaine, Respondent testified that alcohol is her drug of choice. She testified she had not used cocaine in many years, yet a drug test showed she had ingested cocaine within the past year. When these conflicting statements are viewed with her history of alcohol and cocaine abuse, her regular hosting of AA meetings, regardless of her active participation in them, since 2007, and her own previous statements about the frequency of her drinking and cocaine abuse, the evidence clearly and convincingly strongly supports her being both an alcohol and cocaine abuser. Respondent’s criminal history, combined with the established fact that she has been and continues to suffer from severe alcohol use disorder and severe cocaine use disorder, both of which appear to be voluntary, prove she is unable to practice as a nursing assistant with reasonable skill and safety to patients.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent violated sections 464.204(1)(b) and 456.072(1)(z); imposing a suspension of her license until such time as Respondent personally appears before the Board and can demonstrate the present ability to engage in the safe practice of a nursing assistant, and the demonstration shall include at least one IPN evaluation, in which the evaluator finds Respondent is presently able to engage in the safe practice of a nursing assistant or recommend the conditions under which safe practice could be attained; requiring compliance with IPN recommendations and contract conditions, if any; requiring the payment of an administrative fine in the amount of $150; and awarding costs incurred in the prosecution of this case to the Department. DONE AND ENTERED this 18th day of May, 2017, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 18th day of May, 2017. COPIES FURNISHED: Rob F. Summers, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Lannette Thompson, C.N.A. 4718 9th Avenue South St. Petersburg, Florida 33711 Lindsey H. Frost, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-3252 (eServed) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 (eServed) Jody Bryant Newman, EdD, EdS, Chair Board of Nursing Department of Health 4052 Bald Cypress Way, Bin D-02 Tallahassee, Florida 32399
Findings Of Fact Bell holds license no. ME 0008297 issued by the State of Florida. His license was active from January 7, 1959, until December 31, 1991, at which time Bell's license became inactive because of his failure to pay the renewal fee. Bell is a board certified child and adult psychiatrist. In addition to his practice of psychiatry, Bell practiced general medicine for a year in 1979, worked as a contract physician in several emergency room in Georgia during 1986 and 1987, and worked as a parts warehouseman for an automobile dealership between February and September, 1989. Bell has a long history of alcohol related problems, beginning in August, 1982, when Bell was charged in South Carolina with driving under the influence of alcohol and was later convicted of reckless driving, which Bell acknowledges to have been alcohol related. In 1987, Bell called Roger A. Goetz, M.D., Director of the Florida Physicians Recovery Network (PRN), because he could not find employment in Georgia. He told Goetz that he was an alcoholic and agreed to enter the South Miami Hospital's addiction treatment program. This was not the first alcohol treatment program from which Bell had received treatment. Lynn A. Hankes, M.D., evaluated and observed Bell during his treatment at South Miami Hospital. Dr. Hankes also saw Bell in August, 1988, for a reevaluation. When Bell entered South Miami Hospital, he gave an extensive history of alcohol abuse and he acknowledged that he was an alcoholic. Alcoholism is a primary disease characterized by continuous or periodic impaired control, drinking to excess, preoccupation with the drug of alcohol, the use of alcohol despite adverse consequences, and distortions in thinking, most notably, denial. The disease of alcoholism is progressive, causing multi- system impairment. The alcoholic is impaired and cannot predict or control when his drinking is going to be out of control. Denial is an integral part of the illness and a major obstacle to recovery. According to Dr. Hankes, at the time of his evaluations of Bell, Bell suffered from the disease of alcoholism. Despite the treatment and a period of abstinence after his release, Bell's attitude, awareness, and belief system, as manifested by his denial and lack of insight, indicated to Dr. Hankes that Bell would be unable to change his behavior, vis-a-vis alcohol. In his testimony, Dr. Hankes expressed an opinion that Bell is unable to practice with reasonable skill and safety due to his alcoholism and use of alcohol. However, Dr. Hankes' opinion was based only on his personal knowledge from 1988 and on his review of the reports of the other experts and the interviews with Bell. On August 23, 1988, Bell entered into a five-year contract with PRN in which he agreed to abstain from use of alcohol, to have Dr. Hankes as his monitoring physician, to attend AA three times per week, to attend aftercare, to notify PRN in case of a relapse, to contact PRN two times per month, to withdraw from practice on evaluation at the request of PRN, and to be reported to DPR by PRN if he failed to comply with the contract. Bell claims to have unilaterally "cancelled" his contract about two weeks after signing it, but he failed to advise PRN or anyone else about this cancellation. He cancelled the contract because Dr. Goetz did not find him a job which Bell believed Dr. Goetz had agreed to do if he went to treatment and signed a contract. PRN and Bell corresponded in 1989 and 1991 regarding the contract and Bell's alcohol usage. In August, 1991, Bell advised Dr. Goetz and PRN that he had no problem with alcohol. In May, 1991, Bell was arrested after an alcohol-related incident. The events leading up to this arrest involved a drinking binge Bell had with a lady friend who lived in a trailer next to him. Bell believed that the friend had stolen his carton of cigarettes and bottle of vodka while Bell was "asleep." He went to retrieve these items and entered the friend's trailer through the floor air duct. An altercation ensued involving a butcher knife. On August 22, 1991, Bell pled no contest to the charge of trespass in an occupied structure. At the time of the arrest, Bell's trailer was unkempt and strewn with empty liquor bottles. In December, 1991, at the request of DPR, Bell was examined by two physicians, John E. Perchalski, a family practitioner, and Ernest C. Miller, a psychiatrist and expert in addiction medicine. Bell reported to Dr. Perchalski and acknowledged at hearing that his average daily alcohol intake was 14.5 ounces and that his alcohol intake had remained at that level for many years. Dr. Perchalski assessed this information and determined that Bell had a history of chronic excessive alcohol intake. Additionally, Bell had a high corpuscular volume which can be indicative of excessive alcohol intake. According to Dr. Perchalski, while Bell has no physical disability that would prevent him from practicing medicine, his long history of maladaptive behavior and excessive, regular alcohol intake would make it very difficult for Bell to be able to perform in a completely rational and safe way in his care for his patients. Bell told Dr. Miller that he consumed an average of 14.5 ounces of alcohol per day and that he suffered from occasional blackouts and hangovers. Bell's further discussions with Dr. Miller supported Dr. Miller's opinion that Bell has no insight into his problem with dealing with, relating to, and controlling the use of alcohol and that treatment programs have thus far been unsuccessful. Bell's refusal to admit that he is an alcoholic is consistent with the level of Bell's denial regarding his problems with alcohol. The history given by Bell, the physical examination results, and the evaluation and assessment of Dr. Miller support Dr. Miller's diagnosis of chronic alcoholism, alcohol abuse, alcohol dependency, and gamma alcoholism. Dr. Miller's opinion is that in light of the progressive dysfunctional aspects of the disease, Bell will become incapable of sustaining an effective clinical role. As Bell drinks, which is inevitable without treatment, he will not function effectively and his functioning will become less effective as the disease asserts itself on the various aspects of Bell's being. While Dr. Miller acknowledges that Bell may be able to practice currently, the probability is that he will be or will become unable to practice safely until his disease of alcoholism and its disease process are successfully treated. Bell is not currently practicing so no immediate evidence of impaired practice exists. Additionally, Miller indicated that the ingestion of 14.5 ounces of alcohol would take 20 hours to dissipate from Bell's system and any work with patients before the alcohol dissipated would be affected. Bell maintains that he has no problem with alcohol and that at no time has there been any allegation that he treated any patient while under the influence of alcohol.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order and therein: Suspend the medical license of Robert E. Bell, Jr., M.D., for a period of one year or until he appears before the Board of Medicine and demonstrates that he is able to resume the practice of medicine with reasonable skill and safety. If or when the terms of the suspension have been satisfied, place Dr. Bell on probation for five (5) years with terms and conditions to be set by the Board to insure his continued ability to practice with reasonable skill and safety. At a minimum, the demonstration of skill and safety should be supported by satisfactory mental and physical examinations by Board approved experts and by evidence of successful completion of an acceptable alcohol rehabilitation program. DONE and ENTERED this 26th day of August, 1992, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-2204 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 4(2); 5(3); 7(4); 8(12); 9(13); 10(16); 12(6); 13(5); 14(6 & 7); 15(7); 18(9 & 10); 20(15); 21(16); 22(18); 23(19); 24(19); 25(20); 26(21); and 27(23). Proposed findings of fact 2, 3, and 17 are unnecessary. Proposed findings of fact 6, 11, and 16 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 19 is unsupported by the credible, competent and substantial evidence in that Goetz's opinions were based on the evaluations and opinions of other experts and have insufficient support to stand alone. Proposed finding of fact 28 is irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Robert E. Bell, Jr., M.D. Proposed findings of fact 1a, 1b, 1d, 1e, 1f, 1g, 2a, and 2b are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 1c, 1h, and 1i are irrelevant. Proposed finding of fact 2c is unnecessary. COPIES FURNISHED: Larry G. McPherson, Jr. Barbara W. Makant Attorneys at Law Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Robert E. Bell, Jr., M.D. Route 3, Box 503 Starke, FL 32091 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
