The Issue Whether the Respondents purchased cigarettes and alcoholic beverages from other than licensed distributors contrary to statute.
Findings Of Fact On August 21, 2002, Cynthia Britt and Sabrina Maxwell, agents of the Petitioner, conducted a routine inspection of the Respondents’ convenience store. At the beginning of the inspection, Britt and Maxwell identified themselves as agents of the Petitioner and asked for access to the area behind the counter and to see Respondents' license. When Agent Britt moved behind the counter, she saw several packages of cigarettes in the overhead storage display that did not bear the State of Florida tax stamp. Agent Britt seized these packages of cigarettes. Agent Britt identified 55 packages of cigarettes she seized as Petitioner’s Composite Exhibit D. The trier of fact examined these cigarettes and returned the exhibit to the Petitioner to secure them as part of the record. Agent Britt asked Ms. Kemp for invoices for the purchase of their cigarettes. These receipts were produced and they were also seized. Agent Britt identified these receipts as Exhibit E, the receipts for purchases from unlicensed distributors, and Exhibit F, the receipts from licensed distributors.1 The receipts reflected that the Respondents had purchased cigarettes for resale from other retailers and from the Navy Exchange. The cigarettes that did not have tax stamps were purchased from the Navy Exchange. Ms. Kemp indicated to the agents that cigarettes were purchased from these retailers and the Navy Exchange because the wholesalers required that they purchase too many, or charged them so much for small quantities that they could buy them more cheaply at retail. In the process of reviewing the receipts for the purchase of the cigarettes, the Agent Maxwell discovered six receipts for the purchase of alcoholic beverages. She conducted a search of the premises and found beverages corresponding to the brands purchased on the receipts; however, there was no way to ascertain whether these beverages were the actual ones purchased.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Petitioner destroy the cigarettes seized and impose a fine of $250 on the Respondents for violation of Section 210.18(1), Florida Statutes; and impose a fine of $250 for violation of Section 210.15(1)(h), Florida Statutes. It is also recommended that the alleged violations of Section 561.14(3), Florida Statutes, be dismissed. DONE AND ENTERED this 2nd day of July, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 2002.
The Issue This is a license discipline case in which Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged unlawful sale of an alcoholic beverage and cigarettes to a minor.
Findings Of Fact At all times relevant and material to this proceeding, the Respondent held license number 23-12104, series 2-APS, authorizing it to sell alcoholic beverages on the premises of New Hialeah Supermarket, located at 3201 East 4th Avenue, Hialeah, Dade County, Florida (hereinafter "the licensed premises"). Aleya Ribhi Maali (hereinafter "Maali") is the sole corporate officer and shareholder of the respondent corporation. On September 24, 1996, Special Agents Spayd, Smith, and Delmonte conducted random tests of alcoholic beverage licensees' compliance with laws prohibiting the sale of alcoholic beverages to persons under the age of 21 and tobacco to persons under the age of 18. On September 24, 1996, Investigative Aide C. R.2 entered the licensed premises in furtherance of the above referenced investigation. C. R.'s date of birth is August 15, 1979. She was 17 years of age at all times relevant to these proceedings. C. R. selected a can of Budweiser beer from the back of the store. She then approached Maali at the cash register counter and asked her for a pack of Marlboro cigarettes. Maali handed C. R. the pack of cigarettes which she had retrieved from the display behind the register counter. Respondent proceeded to sell C. R. the can of Budweiser beer and the Marlboro cigarettes. Maali did not request to see any identification as proof of legal age, nor did she ask C. R. her age. Maali was questioned by Agents Delmonte and Smith. Maali admitted that she had not been paying attention to what she had been doing. She said that she had been working in the store since 8:00 a.m. At the formal hearing she testified that the sale to C. R. was a consequence of being tired and confused because of the long work day. She testified that at the time of the sale she had been thinking about going home to make dinner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered in this case concluding that the Respondent is guilty of the two unlawful sales charged and imposing a penalty consisting of a 7-day license suspension and administrative fines in the total amount of $1,500.00 DONE AND ENTERED this 14th day of May, 1997, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1997.
The Issue Whether Respondent committed the violations alleged in the Second Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact AHCA is the agency responsible for the licensing and regulation of skilled nursing facilities in Florida pursuant to Chapter 400, Florida Statutes. At all times material hereto, Woodland Terrace was licensed by AHCA as a skilled nursing facility. Woodland Terrace is located in Deland, Florida, and operates a 120-bed facility. The May 2008 Survey On May 5 through 9, 2008, AHCA conducted an annual survey of Woodland Terrace. Shane Reed is a registered dietician employed by AHCA. One of her job duties is to survey nursing homes for compliance. She was part of the survey team during the annual survey that gave rise to the Second Amended Administrative Complaint and to this proceeding. Ms. Reed was assigned to review Resident #164. On May 6, 2008, Ms. Reed looked for Resident #164 in his room. He was not in his room, but, after being told that he was outside smoking, Ms. Reed found Resident #164 sitting in his wheelchair smoking outside in front of the facility. Because there is glass in the area near the door where he was located, Resident #164 could be seen through the glass. He did not have oxygen with him. Ms. Reed observed what appeared to be a cigarette burn hole in Resident #164’s housecoat, ashes on his lap, and noted that his cigarette was burning close to his fingers. Ms. Reed asked Resident #164 15 to 20 questions as part of stage I of the survey, which is for purposes of interviewing and getting data. Ms. Reed found him to be alert and oriented. When she asked him if he knew if he had a burn hole in his housecoat, he replied affirmatively, but indicated he did not care because he had two others. On May 7, 2008, Ms. Reed again reviewed Resident #164 as part of stage II of the survey, which is the investigative part. Resident #164 was one of the residents who was reviewed under stage II because he was also a hospice patient. Ms. Reed went to Resident #164’s room. She saw him lying in bed with his oxygen nasal cannula on while a certified nursing assistant (CNA) took his vital signs. Resident #164 was the only resident in the room. When Ms. Reed observed Resident #164, he was not smoking. However, she asked the CNA where Resident #164 kept his cigarettes. The CNA opened the drawer of the nightstand next to Resident #164’s bed. Ms. Reed observed a carton of cigarettes and a full, plastic cigarette lighter. At that point, Ms. Reed looked at Resident #164’s care plan. Because his care plan identified him as having a problem in the past with the facility’s smoking rules and indicated that his smoking materials were to be kept at the nurses’ station, Ms. Reed asked another surveyor, Linda Walker, RN, to come into the room. Ms. Walker is employed by AHCA as a registered nurse specialist and is responsible for conducting surveys of licensed facilities. Ms. Walker entered Resident #164’s room with Ms. Reed. She observed Resident #164 sitting in bed with an oxygen cannula in his nose, with the oxygen running. Ms. Walker also observed the smoking materials in Resident #164’s nightstand drawer. Ms. Walker than asked Resident #164 a few questions about where he went to smoke. Resident #164 informed Ms. Walker that when he smoked, he went outside. He also informed her that he was aware that he was not to smoke while on oxygen. Neither Ms. Reed nor Ms. Walker asked Resident #164 whether he was aware that the smoking materials were in his nightstand or if he knew they were supposed to be at the nurses’ station or on a cart. Ms. Reed then approached the team leader, Robert Pippin, RN, regarding her concerns about Resident #164 having smoking materials in his room. Ms. Walker and Mr. Pippin then went to Resident #164’s room. After a brief observation, Mr. Pippin and Ms. Reed left to call the area office for guidance. After discussions with the area office, Ms. Reed and Mr. Pippin contacted the Director of Nursing, Bonnie Gray, and the administrator, who did not testify, and took them to Resident #164’s room. Ms. Gray and the administrator saw the nightstand drawer open with the smoking materials inside. The administrator immediately removed the cigarettes and the lighter, while the Ms. Gray adjusted the oxygen cannula on Resident #164, which was slightly askew. The survey team then broadened their review to include all other smokers in the building. They found one other resident who was a smoker and on oxygen, but found no problems regarding that resident. They also found that another smoking resident, not on oxygen, had been once found smoking in his room. However, because that incident had been handled appropriately and quickly, they did not cite the facility for any violation regarding that resident. The survey team did not interview any other CNAs who provided care to Resident #164. According to Ms. Walker, the reason for the team’s determination to assign class I violations was that the cigarettes and lighter were found in the nightstand drawer by the CNA who did not immediately remove the smoking materials. According to Mr. Pippin, the decision to call the situation an “immediate jeopardy” came from the central office in Tallahassee. Immediate jeopardy is a term found in federal regulations. Ms. Nancy Marsh is the field office manager for AHCA in the Jacksonville area office, which covers Volusia County where Respondent is located. The survey team called Ms. Marsh during the survey visit. Based upon the information provided to her, and after discussions with the Tallahassee office of AHCA, a decision was made that a class I violation existed at Woodlands. According to Ms. Marsh, it was the degree of possible harm to Resident #164 that convinced her that a class I situation existed. Ms. Marsh based this opinion in part on her mistaken belief that Resident #164 was continually non-compliant regarding his smoking restrictions. Background-Resident #164 Resident #164 was admitted to Woodland Terrace on July 2, 2007. His diagnosis was end-stage chronic obstructive pulmonary disorder (COPD). Upon admission, he was evaluated, as are all persons admitted to the facility, by a nurse who completed a Nursing Evaluation Tool (evaluation). On this initial evaluation, Resident #164’s mental status was described as “alert,” and demonstrated no fluctuation in safety awareness due to cognitive decline. Section “G” of the evaluation is entitled “smoking screen.” In answer to the question, “Does the resident smoke?”, the nurse who completed the form checked “yes” and added the notation, “but not at the moment.” In answer to the next question, “If yes, is he/she interested in smoking cessation program?”, the notation appears “no, has nicotine patch.” A nurse’s note on the date of admission noted that Resident #164 was oxygen dependent and his nicotine patch was to be ordered only as long as he was not smoking. Because Resident #164 was not smoking at the time of admission, he was not screened for smoking under section “G.” The evaluation form also indicates that he was given a document entitled “Woodland Terrace Smoking Rules & Regulations,” which was signed by Resident #164’s power of attorney in his presence. Resident #164 was consistently described by staff who worked with him as alert and oriented. He was very likeable and known by everyone in the facility. He independently propelled himself in his wheelchair, and was one of the few residents who could carry on a conversation with staff. He was the only resident who was allowed to administer his own medication (eye drops). On July 16, 2007, a Minimum Data Set (MDS) for resident assessment and screening was completed for Resident #164. As with the Nursing Evaluation Tool, this form is completed by a nurse upon admission, readmission, quarterly, or when there has been a significant change in the resident. The MDS confirmed the initial evaluation regarding Resident #164’s cognitive ability. That is, his long and short- term memory was marked “OK”, he was able to recall the current season, the location of his own room, staff names and faces, and that he was in a nursing home. Additionally, the MDS assessment indicates that he had no limitation in range of motion and no loss in voluntary movement. The MDS generates a trigger sheet of specific areas of concern that are then addressed in care plans. A care plan addresses the needs of the resident and sets out interventions to meet those needs. A typical resident has 20-to-30 care plans. Resident #164’s care plans were first generated on July 16, 2007, shortly after the MDS was completed. The facility had care plans for Resident #164 for, among other things, COPD and Cognitive Loss/Dementia. The primary problem the facility had with Resident #164 was his noncompliance in taking oxygen. Staff observed that he apparently believed that if he could wean himself off oxygen, he could go home. Several staff members described him, initially at least, to be in denial of his terminal condition. Care plans are reviewed quarterly or earlier and are updated based upon the continuing assessment of the resident. Upon review, each care plan is not totally rewritten, but is updated. When changes are made, the changes are noted on the care plans. In the case of Resident #164, care plans were reviewed and changes made on July 16 and 17, 2007, October 18, 2007, January 17, 2008, and February 27, 2008. For example, his COPD care plan included the following as an intervention: “encourage [Resident #164] not to smoke and do teaching with him on benefits of not smoking.” At a later care plan review, the notation “provide education on” was added to the previous intervention regarding his smoking. From the time Resident #164 first was admitted into Woodland Terrace in July 2007, until approximately November 2007, he would attempt to go periods of time without his oxygen. This created problems because his oxygen level would drop in his blood and he would become short of breath. To address the occasional problem of his cognition being affected by either a drop in his oxygen level or other health issues, facility staff and hospice frequently worked with him to educate and encourage him to use his oxygen. While he was not smoking when he was admitted into the facility, Resident #164 started smoking again at some point. He would take the oxygen off and go outside to smoke. Because he had resumed smoking, his nicotine patch was discontinued by his doctor at the facility’s request, and, later, his oxygen prescription was changed from “continuous” to “as needed.” This was done because he had to remove the oxygen to smoke. Resident #164’s resident records are replete with notations that when he smoked, he went outside the facility. There was no indication that he ever took his oxygen with him when he went outside to smoke. On the contrary, most of the notes specifically state that he left his oxygen in his room when he went outside to smoke. When Resident #164 went outside to smoke, he would propel himself in his wheelchair and could be seen through glass near the door by the nurses at the nursing station. The October 31, 2007, Incident At 5:30 a.m. on October 31, 2007, a CNA went into Resident #164’s room and noticed the smell of cigarette smoke. She notified the unit manager, an LPN, who went into the room, smelled smoke, and saw cigarette ashes on the nightstand. The unit manager asked Resident #164 whether he had been smoking. He acknowledged to her that he had been smoking in his room and showed signs that he was confused, as he thought he was in a garage. The unit manager again explained to him the dangers of smoking in his room and he acknowledged that he understood this. An Incident Report was completed. The report does not indicate whether Resident #164 was or was not on oxygen at the time he was found smoking in his room.1/ A morning meeting is conducted every day at 9:00 a.m. When an Incident Report is filed, it is discussed at the next morning meeting. The incident was discussed at the next morning meeting. The Investigation Report form that was filled out at that meeting notes, “Nursing to hold cig and lighter for resident, to prevent further incident.” At that time, Ms. Gray was the Assistant DON. She called Resident #164’s power of attorney, his nephew, and informed him that all cigarettes and lighters that he or any visitors bring into the facility for Resident #164 were to be delivered to the nurses’ station, not to the resident’s room. This was important because it was well known by facility staff that Resident #164 had friends and relatives who would bring him cigarettes and lighters when they came to visit, or when they took him on outings outside of the facility. Resident #164’s Smoking Care Plan was reviewed to address the incident. That care plan required that a smoking assessment be done quarterly and as needed, that his smoking materials be kept at the nurses’ station, not in his room or on his person, that Resident #164 be given only one cigarette at a time, and that a nurse light the cigarette for him, and that he may smoke only with supervision. At hearing, Ms. Walker acknowledged that Woodland Terrace took appropriate action at that time in handling the incident. As a result of the Incident Report, a 72-Hour Incident Follow-Up was conducted and the form completed. During that 72- hour period, Resident #164 was closely monitored. He was not observed smoking during that time. However, on November 1, 2007, the day following the incident, a green lighter was found in his room and was removed by a nurse. On November 2, 2007, the Nursing Standards Committee discussed the smoking incident concerning Resident #164, and noted it on the summary of the committee’s discussion. This was not a notation of another smoking incident, just a recapitulation of the events of the week.2/ On November 15, 2007, Resident #164 left the facility and went out of the facility with a friend. When he returned, he stayed outside to smoke. Lawanda Stevens was the LPN on duty. Ms. Stevens went outside to the smoking area to check on him. She noticed that he had two cigarette lighters in a pack of cigarettes. When she asked him for the lighters, he initially refused to hand them over to her. Ms. Stevens noted in the nurse’s notes that he had possession of the lighters. When Resident #164 came inside the building, Resident #164 voluntarily handed the lighters and his cigarettes to Ms. Stevens. Ms. Stevens did not make a notation in the nurse’s notes that he voluntarily gave her the lighters when he re-entered the building, as she was going off shift and assumed the problem was solved. Ms. Stevens told the oncoming nurse what had happened regarding Resident #164 and the lighters. Woodland Terrace’s Smoking Policy and Smoking Safety Assessment Both Counts I and II reference Woodland Terrace’s “smoking policy.” Count I alleges that the facility failed to complete a smoking assessment for Resident #164, “which was not in keeping with the facility’s smoking policy and procedure for residents who smoke in the facility.” Count II alleges that the facility’s “smoking policy with Addendum A and Addendum B did not ensure precautions for individual safety in securing smoking items which created a fire hazard for all residents in the facility.” The Woodland Terrace Smoking Policy was given to Resident #164 upon admission, along with the Smoking Rules and Regulations referenced in paragraph 22 above. The Smoking Policy states in pertinent part: Smoking is prohibited in any room, ward or compartment where flammable liquids, combustible gases or oxygen is used or stored and in any hazardous location. Smokers who are residents must have the smoking safety assessment completed and in the medical record. * * * It shall be the responsibility of the nursing staff to develop and implement a smoking care plan for any resident that is determined to be incapable of abiding by the safe smoking policy. See Addendum A for Smoking Safety Assessment. All residents who smoke will sign the smoking rules and regulations upon admission into the facility. See Addendum B for Smoking Rules and Regulations. The Woodland Terrace Smoking Rules and Regulations clearly state that residents who smoke may only do so in designated areas if they are able to keep their cigarettes safely in their possession, and may not smoke in their rooms or in the bathrooms. The smoking rules also state that anyone who does not abide by the rules will lose the privilege of smoking and will be able to do so only with supervision. In addition to these policies, there is a form entitled “Smoking Safety Assessment.” According to the DON, Ms. Gray, Woodland Terrace interprets the facility’s policy to require a Smoking Safety Assessment to be completed when a resident exhibits an inability to follow the smoking policy and rules and regulations. Using the facility’s interpretation of the policy, it was not necessary for the Smoking Safety Assessment to be completed for Resident #164 until he began exhibiting an inability to follow the smoking rules. As discussed earlier, Resident #164 was not screened for smoking safety upon admission to the facility under section G of the Nursing Assessment Tool because he was not smoking at the time of admission. Following the October 31, 2007, incident, Woodland Terrace developed a Smoking Care Plan discussed in detail above. However, the Smoking Safety Assessment form was not completed for Resident #164 until January 12, 2008. The Smoking Safety Assessment form consists of a scoring system, wherein a resident can score between zero and 18 points. A score of six or higher required that a resident may only smoke with certain restrictions. Resident #164 scored 10 on the Smoking Safety Assessment. As a result of this score, the Smoking Safety Assessment noted that Resident #164 must request smoking materials from nursing staff and must be supervised by staff, a volunteer, or a family member at all times while smoking. The restrictions noted on the Smoking Safety Assessment Form are consistent with the more detailed smoking care plan, as updated immediately following the October 31, 2007, incident, which required that Resident #164's smoking materials were to be kept at the nursing station, that he would be supervised when smoking, and that he was to receive one cigarette at a time with a nurse lighting the cigarette. There was considerable testimony from nurses on all three shifts that Resident #164’s smoking supplies were kept on the nurse’s medicine cart, and that he would let a nurse know that he wanted to go outside and smoke. Once he was outside, a nurse would light his cigarette. Often, someone would stay with him, but, in any event, the nurses at the nursing station were able to observe Resident #164 through the glass near the door to the front of the building, which they could observe from the nursing station. Between October 31, 2007, and the May 2008 survey, Resident #164 was assessed for smoking in his smoking care plan on October 31, 2007, January 17, 2008, and again on February 27, 2008, when he was readmitted after going into the hospital. The next quarterly smoking assessment was not due until May 27, 2008, after the survey took place. Between October 31, 2007, and the survey in May 2008, Resident #164 did not smoke in his room, consistently went outside to smoke after a nurse got his cigarettes out of the medicine cart and assisted him. The facility staff is educated to follow a resident’s care plan which addresses the needs of the residents and interventions to meet those needs. Basic information and specific care issues from the care plan are noted on Care Cards to assist staff in remembering the needs of the residents. Resident #164’s care card had a notation reminding staff that he was on oxygen, that he smoked, and that the nurses kept his smoking materials. The staff, including the CNA who failed to remove the smoking materials from Resident #164’s drawer, received in-service training on care cards on March 11, 2008. The CNA who failed to remove the smoking materials also attended another in-service training on March 20, 2008, that included reminders to check rooms for inappropriate items. Despite this training, the CNA who was in the room on May 6, 2008, failed to remove the smoking materials. While she did not normally work with Resident #164, she had a duty to be familiar with the issues regarding his oxygen use, smoking and smoking materials that were on his care plan and on his care card. Because she failed to adequately familiarize herself with his care plan and care card, evidenced by her failure to remove the smoking materials, she was terminated from employment with Woodland Terrace. Other Fire Safety Requirements As noted in paragraph 43 above, AHCA alleges that the smoking policy did not ensure precautions for individual safety in securing smoking items, which created a fire hazard for all residents of the facility. Considerable evidence was presented as to whether or not Woodland Terrace’s smoking policy met or violated various federal regulations, as AHCA does not have rules or its own fire safety codes regarding smoking or smoking policies in nursing homes.3/ James Gregory works for AHCA in the Office of Plans and Construction. Mr. Gregory is an architect who manages the activities of 46 architects, engineers, and fire protection specialists who review and approve all of the new health care construction in Florida having to do with hospitals, nursing homes, and surgical centers. He also coordinates five fire protection specialists and training for ten fire safety inspectors who do all of the inspections of nursing homes for certification. Mr. Gregory was tendered at his deposition, without objection, as an expert in fire and life safety codes concerning long-term care facilities, and is accepted as such. Mr. Gregory had not visited Woodland Terrace, but answered questions regarding the facts and circumstances surrounding this case. In particular, Mr. Gregory focused on the dangers of smoking in the presence of oxygen use. Smoking in the presence of concentrated oxygen creates a high probability of fire. In order for such a fire to occur, there must be combustible materials and the ignition of those smoking materials. Although oxygen is not combustible, it supports combustion. Mr. Gregory and Ms. Marsh were particularly sensitive to the dangers of smoking in the presence of oxygen use because another nursing home had experienced a fire due to a resident smoking while using oxygen. The resident in that facility was getting smoking materials from other residents and smoking in his room while on oxygen, with his door closed. That facility was not fully sprinklered and did not have smoke detectors in residents’ rooms. Woodland Terrace is a fully sprinklered building, and its residents’ doors are not closed unless they are receiving care in their rooms. According to Mr. Gregory, the danger of fatality in a sprinklered facility is to the person in the room where the fire occurs. Also according to Mr. Gregory, there has never been a multiple death fire in a fully sprinklered health care facility. In its Life Safety Code inspection done in conjunction with the May 2008 survey, AHCA determined that the facility was in compliance with relevant portions of the National Fire Protection Association’s Life Safety Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing the Second Amended Administrative Complaint against Respondent, Woodland Terrace. DONE AND ENTERED this 28th day of April, 2009, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 28th day of April, 2009.
The Issue Should the Petitioner impose discipline against Respondent, holder of an alcoholic beverage license, for violations of laws pertaining to that license?
Findings Of Fact At times relevant to the inquiry Respondent held alcoholic beverage license no. 47-00190, series 4COP, issued by Petitioner. This license allowed Respondent to sell alcoholic beverages at the licensed premises known as Kent's Northside Lounge and Restaurant, located at 1133 Thomasville Road, Tallahassee, Florida. Respondent was the sole holder of that license. Respondent continues to hold the license. Beginning January 1997, and ending April 25, 1997, Petitioner, together with other law enforcement agencies, conducted an investigation of the licensed premises to determine if violations of law involving illegal narcotics were occurring. While involved in this investigation, Petitioner also investigated alleged violations involving tobacco. On January 7, 1997, Gordon Chesney entered the licensed premises. He was acting in the capacity of a paid law enforcement undercover operative. He was not a sworn law enforcement officer. Once in the bar he made the acquaintance of a person identified as "Wild Bill." Wild Bill refers to Bill Ferris, Respondent's bartender. Chip Kirby, another bartender, was also in the licensed premises. When Chesney introduced himself to Ferris, Chesney wanted to know "where the action is" in town. In conversation Chesney asked Ferris "Does it ever snow down here?" This reference was a slang term for cocaine. Ferris responded that "it would snow in a few days." This comment referred to the availability of cocaine. Chesney told Ferris he would like to get some "snow." After their initial meeting, Chesney telephoned Ferris at the bar. Ferris told Chesney to come to the bar. Chesney returned to the bar at around 6:30 p.m. on January 9, 1997. Once in the bar Chesney made contact with Ferris. Ferris took Chesney over to a booth in the premises. At this time there were customers in the bar, approximately ten to fifteen people. The other bartender, Kirby, was also in the premises. Respondent was not in the premises. Ferris referred to "she is not here yet," meaning the person who was supposed to deliver cocaine to Ferris. Ferris then invited Chesney to the bathroom in the premises. Chesney showed Ferris money he had brought to purchase cocaine. Ferris indicated that there wasn't enough money. Chesney promised to bring more money later. Chesney went away from the premises to obtain more money and returned to the bar at around 8:30 p.m. When Chesney first arrived at the bar on January 9, 1997, Ferris had not been on duty as a bartender. When Chesney returned to the bar, Ferris was on duty. When Chesney returned, he told Ferris that he was ready. Ferris replied that "she" would be here any minute. A girl then came into the bar. Ferris talked to her. Ferris then came to a booth and invited Chesney to go outside with Ferris. While at the booth, Ferris asked Chesney if he had the rest of the money. They went outside. Chesney gave money to Ferris. The money given to Ferris was in addition to the money which Chesney had given Ferris in the bathroom. Ferris gave Chesney a small baggie containing what was taken to be cocaine. The exchange of additional money and the baggie was made right outside the door of the premises. Chesney turned over the item that he had purchased from Ferris to Officer Kevin Taylor of the Tallahassee Police Department. In turn Detective Louis Donaldson of that department took custody of the item. On January 15, 1997, Chesney returned to the bar. His purpose was to obtain additional cocaine. Once in the bar Chesney contacted Ferris. Ferris was working behind the bar at the time. Chesney told Ferris he wanted to "get a quarter." This refers to a quantity of cocaine. Ferris told Chesney that "she will be here any minute." Chesney waited about half an hour. Then a girl came in the back door and talked to Ferris. Then Ferris went back to an area of the bar which is a restaurant. In about five minutes Ferris came out with a Styrofoam soup cup. He said "here is your soup." Chesney said "okay." Chesney gave Ferris $300 and walked out of the bar. On this occasion Respondent was in the premises seated at a table behind Chesney. That location was about eight feet from Chesney's location. Other people were seated with the Respondent. On this occasion music was playing. Sometimes the music was loud. Sometimes the music was not loud. Chesney cannot recall whether the music was loud during conversations held with Ferris concerning the purchase of the cocaine. But the conversation between Chesney and Ferris was in a normal tone. Once outside of the premises, Chesney turned his purchase over to an officer. Again Detective Donaldson took custody of the item. Detective Donaldson prepared a property receipt for those items seized on January 9 and 15, 1997, that were purchased by Chesney. The items were temporarily held in custody by the Tallahassee Police Department. Those items were then forwarded to and tested by the Florida Department of Law Enforcement, who having analyzed the items, discovered the presence of cocaine. On January 22, 1997, Chesney reentered the licensed premises with Officer Alan Wayne Davis, Jr., who worked for the Petitioner in an undercover capacity. Chesney introduced Davis to Ferris. Ferris was working as a bartender at that time. Specifically Ferris was serving beer and mixed drinks, and taking money. Because Davis was acting in an undercover capacity, he did not tell Ferris that he, Davis, was a law enforcement officer. Davis never revealed his position as a law enforcement officer to any persons who were the subject of the investigation. In pursuit of his undercover role, Davis told Ferris that he was a member of a motorcycle club. On this date a conversation held in a normal tone involved the subject of cocaine. This refers to a conversation between Davis and Ferris. Davis returned to the bar alone on January 23, 1997. He contacted Ferris who was working as a bartender. They discussed a prior cocaine deal between Ferris and Chesney in a normal tone. On January 23, 1997, Davis met Samuel H. Lewis at the bar. Davis was introduced by Ferris. Lewis was taking bets on the upcoming Superbowl football game. The bets were premised upon placing projected scores on a paper square for a cost of one dollar. The winner was to be determined by the individual who placed the bet and guessed the total score. The game was a game of chance, not skill. Davis gave Lewis five dollars to participate in the betting pool. An envelope of bets containing fifty-seven dollars was available when Lewis began to collect bets. Lewis received about twenty additional signatures (twenty dollars) in the bar representing individual bets. The overall pool had one hundred squares. Respondent was not at the bar on January 23, 1997, when the football pool was held. On January 23, 1997, Davis met Robert Strauss, Respondent's son. Robert Strauss was an employee at the bar. In conversation Davis was asked what kind of business he was in. Davis responded that he was in the business of making money. Before Davis met Robert Strauss, Ferris had asked Davis if Davis sold cigarettes, in that, as Ferris described the matter, Robert Strauss was always looking for a good price on cigarettes. Davis had answered Ferris in the affirmative. This led to the introduction to Robert Strauss. Conversations about cigarettes were open, in normal tones. In discussion Robert Strauss asked Davis if the cigarettes that Davis had for sale had stamps on them. Davis replied in the affirmative. On the other hand, Davis commented to Robert Strauss that the cigarettes were "so hot that you could feel it." Davis intended by his remarks to indicate that the cigarettes that he had were stolen. That intent would create the most likely inference to be gained from Davis' remarks. Davis did not indicate that he was a licensed wholesale cigarette distributor on that occasion or any other occasion. Through conversation Davis and Robert Strauss arrived at a price of eight dollars a carton for cigarettes, a price below the expected value of that merchandise. Robert Strauss asked Davis to bring him a case of cigarettes next Wednesday. Davis agreed to that request. When Robert Strauss made the overture to Davis concerning the purchase of cigarettes, Davis was not in control of cigarettes. To further the investigation, Petitioner purchased cigarettes from a wholesaler, SuperValue Warehouse. Petitioner caused stamps to be attached to those cigarettes. Those stamps were out of circulation and not involved in normal commerce. By this attachment, the impression that was created was that the cigarettes were properly stamped. The cigarettes were then turned over to Davis to be used in furtherance of the investigation. In a later conversation between Ferris and Davis on January 23, 1997, the subject of cocaine was discussed. This conversation took place in the bar. Davis told Ferris that he might want cocaine at a later time. Ferris invited Kirby into the conversation. Kirby tried to tell Davis what a good deal Kirby and Ferris could get Davis on some "coke." This refers to cocaine. At that point in time, Kirby was working at the bar. The price discussed was $750 for a half ounce of cocaine. Kirby indicated that the cocaine would be available Friday and that Davis could come back and purchase the cocaine from Kirby and Ferris. The conversation about cocaine was openly stated. Davis returned to the bar on January 29, 1997. Davis made contact with Ferris who was tending bar, and had a conversation about Davis' failure to purchase cocaine, causing Ferris and Kirby to be "stuck with the coke," trying to sell it to someone else. This conversation was held in a normal tone of voice. Robert Strauss was not at the bar on that occasion. Nonetheless, Ferris told Davis that, Robert, referring to Robert Strauss, wanted to purchase cigarettes. Ferris indicated he would contact Robert Strauss and return to purchase cigarettes from Davis. Ferris then made a telephone call. Ferris then purchased cigarettes from Davis for $100 in return for twelve cartons of Winstons. Those cigarettes sold by Davis on this occasion, and on other occasions, were the cigarettes that Petitioner had placed the out-of-date stamps on, after obtaining the cigarettes from the wholesaler SuperValue Warehouse. Davis returned to the licensed premises on February 5, 1997. While at the bar, Robert Strauss walked out of another part of the bar and yelled to Davis, "Hey, cigarette man, I will be right out." Robert Strauss was approximately twenty feet away from Davis when he made those remarks. Respondent was sitting in one of the booths of the bar at the time. On this visit to the bar, Davis engaged in a conversation with Ferris. Ferris was not on duty at that time. Then Davis spoke with Robert Strauss. Robert Strauss asked Davis what type of cigarettes Davis had brought. Davis replied that he had brought thirty cartons of Marlboro Lights and a Phillieblunt box full of cigars. Robert Strauss asked if the price of the cigarettes was still eight dollars a carton. Davis said yes. The cigarettes were delivered from Davis to Robert Strauss across the counter after Davis obtained the cigarettes from his vehicle. At that time patrons were at the bar. Robert Strauss paid Davis $240 for the cigarettes from the cash register at the bar, by openly handing Davis the money. Robert Strauss then took the cigarettes to a back portion of the premises. Davis purchased one pack of Marlboro Lights back from Robert Strauss for a price of three dollars out of the cigarettes that had just been sold from Davis to Robert Strauss. On this date, Davis also told Robert Strauss that the cigarettes "were so hot that they wouldn't even have to be lit," in conversation concerning the purchase of additional cigarettes beyond that point in time. At the bar, Davis then engaged in a conversation with Ferris about cocaine in a normal tone. Davis returned to the bar on February 12, 1997. At that time Ferris was working behind the bar, Robert Strauss was also on the premises in the kitchen area. Davis told Robert Strauss that he had thirty cartons of Winstons. Robert Strauss told Davis he would give Davis five dollars per carton for all thirty. They agreed. Davis sold Robert Strauss thirty cartons for five dollars each. Davis brought the cigarettes in from his car in a large box and placed them on the edge of the bar in making the exchange. Twelve to fifteen patrons were in the licensed premises. Robert Strauss took the money to pay for the cigarettes from a bank bag near the cash register. The transaction was openly conducted. On that same date Davis discussed with Ferris the purchase of cocaine while Ferris was working behind the bar. The amount discussed was an ounce. To facilitate the purchase, Ferris gave Davis his work and home telephone numbers; these included the number for the bar. Davis returned to the bar on February 19, 1997. Davis contacted Ferris who was working as a bartender. Patrons were in the bar at that time. Ferris asked Davis if Davis had brought the cigarettes for Robert Strauss. Kirby came over to Davis and asked if Davis was still looking to get an ounce, referring to the purchase of cocaine. Davis said yes. Davis gave Kirby $1,400 in cash in furtherance of a purchase. Kirby counted the money while at the bar without attempting to disguise his activities. Kirby put the money in his pocket and went to the business phone in the premises and made a call. Kirby then returned and told Davis he couldn't contact his main supplier, but that he had another source he could get it from who was in the bar. This discussion was held in a regular tone of voice. Kirby left the bar and then returned. Davis was instructed to follow Kirby and Ferris to a back room. Davis followed them to a storage room. Kirby then pulled a bag out of his shirt represented to be cocaine. Davis weighed the substance on scales. While this transaction took place, the parties were concealed by a door. The substance weighed approximately an ounce. When Davis left the licensed premises, he turned the substance over to a case agent for the Drug Enforcement Administration (DEA). On the same day, Davis sold Robert Strauss thirty cartons of cigarettes delivered to Ferris after Robert Strauss handed Ferris $100 to give to Davis. Davis delivered the cigarettes in a box from the trunk of his vehicle and placed them on the top of the bar during the exchange. Robert Strauss had obtained the money from a bank bag. On February 25, 1997, Ferris paged Davis. Davis called Ferris and Ferris told Davis he would give Davis an ounce of cocaine for $1,320. Davis said he wanted three ounces. An arrangement was made to meet on February 27, 1997, at the bar to carry out the transaction. On February 27, 1997, Davis returned to the bar in the company of a law enforcement officer, Agent Scirpan of the DEA. Davis met with Ferris after walking in the bar. Ferris told Davis to follow him outside. Ferris questioned Davis concerning the possibility that Davis was a cop or affiliated with law enforcement. Davis did not acknowledge his status as a law enforcement officer. They then went to Ferris' truck to count the money that would be used in purchasing cocaine. Respondent was seated at a table in the premises when Davis and Ferris left the premises to go to Ferris' truck. The truck was located by the side of the bar. Davis gave Ferris $4,000. They then went inside the bar. Ferris made a telephone call from the business phone in the premises. Ferris then exited the bar. While in the bar, Davis observed a girl sitting at the bar rolling what appeared to be a cannabis cigarette, known by its appearance to Davis to be cannabis, based upon his experience as a law enforcement officer. Robert Strauss was there at that time two to three feet away. Robert Strauss made no attempt to confront the patron concerning this practice. Davis ordered a pack of Marlboro Lights from the bartender and paid for them. To get the cigarettes, Respondent had to produce the keys to the storage room to obtain the cigarettes purchased. The cigarettes that Davis purchased bore the out-of-date stamp involved with the cigarettes that Davis had sold to Robert Strauss. On that same date an unidentified white male came in offering to sell cartons of cigarettes. The unidentified male was trying to sell cigarettes for ten dollars a carton. At that time Respondent had left the bar. Later Ferris returned to the bar and asked Davis to go outside with him. They got in Davis' car and rode around the block. Ferris gave Davis approximately three ounces of a substance as part of the arrangement to purchase cocaine. This item was turned over to a DEA agent. On March 6, 1997, Davis called Kirby at the bar and ordered an ounce of cocaine. The tone of the conversation was normal. On March 7, 1997, Davis went to the bar and contacted Kirby. Kirby was working. Kirby said the deal was off because of a death in the family. Kirby told Davis that they could talk later about doing one or two "keys" of coke. A "key" refers to a kilo of cocaine. This conversation was held in a normal tone of voice across the bar. On March 17, 1997, Davis called Ferris at the business phone number Ferris had given Davis. The call was about purchasing more cocaine. The phone number used was the number for the licensed premises. An arrangement was made to purchase cocaine of an undisclosed amount on the following Wednesday. On the following Wednesday, which was March 19, 1997, Davis returned to the bar and met with Ferris. Ferris was concerned about the rumor that there was an undercover officer working inside the bar. Davis did not acknowledge his undercover capacity in this conversation. It was decided to wait awhile before the parties did any more business. However, there was a conversation between Davis and Kirby in which Kirby said they could go to Miami and pick up cocaine. This conversation was in a normal tone of voice. As Davis was starting to leave, Robert Strauss approached Davis and asked Davis to bring back some cigarettes when Davis returned. On April 7, 1997, Davis called Ferris and discussed the purchase of one ounce of cocaine on the following Wednesday. This call was made to the telephone within the licensed premises. An agreement was made to purchase an ounce of cocaine, the cost of which was not determined. On April 16, 1997, Davis called the licensed premises and spoke with Kirby about the purchase of an ounce of cocaine. Then Davis went to the licensed premises and contacted Kirby who was working behind the bar. Kirby told Davis that the purchase of cocaine would cost $1,400 an ounce. This conversation was conducted in an open manner. Then Robert Strauss walked out from the back of the bar and asked Davis if Davis "had any hot cigarettes to sell." Davis said "they were all in the trunk." Robert Strauss followed Davis out to Davis' vehicle. In the trunk there were ten cartons of Camels and ten cartons of Marlboro Lights. Robert Strauss carried the cigarettes back into the bar in a box. Robert Strauss put the cigarettes up, went over to the cash register and obtained $100 which was given to Davis. The reference to putting the cigarettes up means that Robert Strauss took them to the storage room. Robert Strauss told Davis that he would buy more cigarettes if Davis would bring them to Robert Strauss. The transaction concerning the purchase of the cigarettes was made with no attempt to conceal the activity. Then Ferris came in and took over Kirby's assignment at the bar. Kirby then sat down next to Davis at the bar. They discussed the purchase of a key of coke, meaning a kilo of cocaine. They discussed that if that amount was broken down, the cost for an ounce would be $700. The purchase was to be made in Miami. This conversation was conducted openly. Davis and Kirby went outside and Davis gave Kirby $1,400 to purchase a smaller amount of cocaine. Kirby returned to the bar. Davis and Kirby then went to Davis' vehicle. Davis took the substance that had been offered as cocaine. This transaction took place after they drove away from the bar. Again, that substance was turned over to an agent with the DEA. On April 22, 1997, Davis called the bar and spoke to Kirby. They discussed the purchase of another ounce of cocaine for the next day. On April 23, 1997, Davis returned to the bar after arranging with Kirby, through a telephone call, to come to the bar. Kirby was tending the bar. Kirby and Davis discussed a cocaine deal. Kirby told Davis that basically all suppliers were sold out of cocaine. Kirby told Davis that some people were offering to sell for as much as $1,600 an ounce. This conversation took place at a little table next to the bar. Patrons were in the premises at that time. The conversation was held in a normal tone. Eventually Kirby told Davis that he had found someone that lives at the Gulf who could get an ounce of cocaine for $1,450. That price was agreed upon. After a person drove up, Kirby commented, "There's my man." At that moment Davis gave Kirby the money. Kirby counted the money. Kirby left the bar and returned. Kirby told Davis to go with Kirby to Kirby's van. They got in the van and drove around the block. Kirby gave Davis an ounce of a substance which was tendered as cocaine. That substance was turned over to an agent of the DEA. Davis returned to the bar on April 24, 1997. He met with Kirby who was tending bar. They discussed the purchase of cocaine. Kirby said he had an ounce of cocaine to sell and asked Davis if he wanted to purchase the cocaine. Davis agreed to purchase the cocaine for $1,400. Davis gave $1,400 to Kirby across the counter. Kirby told Davis to follow him to a bathroom. In the bathroom Kirby handed a substance in aluminum foil to Davis, represented to be cocaine. The substance was turned over to an agent of the DEA. On the same date, Kirby and Davis discussed making a trip to Miami to purchase cocaine, and what it would cost Davis if Kirby delivered the cocaine from Miami, as opposed to Davis and Kirby going to Miami to obtain the cocaine. A price of $32,000 for a kilo of cocaine was discussed. This conversation was held in an open manner. On April 25, 1997, the Tallahassee Police Department served a search warrant on the licensed premises looking for illegal drugs. Petitioner's agency was also involved in the search. During the search, underneath the bar on the right-hand side, an item was discovered, which through a field test revealed the presence of cocaine. The item was wrapped in tin foil. The tin foil was readily visible when standing behind the bar. In addition cigarettes were seized. The item that tested as cocaine in the field test was turned over to the resident agent in charge for the DEA. At the time the search was made on April 25, 1997, Petitioner was investigating the purchase of cigarettes from a non-wholesaler, as well as its interest in the sale of illegal narcotics. On that date, the Petitioner seized the cigarettes that Davis had sold to Respondent's employees. The cigarettes Davis sold had never had taxes remitted to the state of Florida based upon a wholesale transaction. Respondent identified that Kirby and Ferris were part- time bartenders who worked at night. Ferris also worked a Saturday day shift. Ordinarily a shift change to the night shift occurred at 6:00 p.m. Ferris had been a customer of the bar before being hired. Before being hired, Kirby was referred to Respondent by Respondent's friends. Respondent identified that Robert Strauss was more or less the supervisor in charge at the premises when the Respondent was not there. Robert Strauss cooked at the bar a couple of days a week. Robert Strauss was involved with purchasing supplies for the bar. Respondent indicated that Robert Strauss' duties in purchasing during the time in question involved the purchase of cigarettes. Beyond the time of the investigation described, within the last six months prior to the hearing, two employees had been dismissed for suspected drug use. This did not include Messrs. Ferris and Kirby. The dismissal of the other employees was made by Respondent. Respondent's day at the bar runs usually from 7:30 or 8:00 a.m. to 6:00 p.m. Prior to the events described in the facts, Respondent did not have a policy for his establishment concerning activity involving narcotics. Subsequent to the investigation, there is a written policy prohibiting employee activities involving narcotics. Respondent has no written policies advising his employees what the employees should do if they observe persons engaging in illegal narcotic activities. Respondent says that he explains to his employees verbally that if anyone discusses narcotics at the bar "they are out." Respondent has video cameras to monitor activities in the bar. The manner in which Robert Strauss solicited Davis for the purchase of cigarettes, Davis sold the cigarettes, and Respondent's employees sold the cigarettes obtained from the SuperValue Warehouse, creates the inference of impropriety by Robert Strauss and other employees affiliated with Respondent's licensed premises. The inference of impropriety is to the exclusion of any other inference to be gained from the conduct. The inference is that the cigarettes were not part of ordinary commerce and had questionable origins. Under the circumstances, it would be appropriate for an ordinary law-abiding person to suspect that the cigarettes which Davis presented to Robert Strauss and others in the premises, as solicited by Robert Strauss, were stolen. Davis billed the cigarettes as outside the bounds of ordinary commerce when describing the cigarettes as "hot." Davis also identified that the cigarettes were being purchased at a price that was more than a good bargain. The price helped in creating the appearance that the cigarettes were not part of legitimate commerce. As stated, the substances purchased by Chesney on January 9 and 15, 1997, were cocaine. The substance found during the search of the premises on April 25, 1997, was cocaine.1
Recommendation Based upon the findings of fact and conclusions of law, it is recommended that a final order be entered finding Respondent in violation of counts 1, 2, and 9 through 28, and finding that Respondent did not violate counts 2 through 8, and that imposes a penalty of revocation of license number 47-00190, series 4COP. DONE AND ENTERED this 17th day of June, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1998.
Findings Of Fact At all times material to the allegations contained herein, Respondents held alcoholic beverage license No. 64-00029 for the Palatka Blue Diamond, located at 424 North 11th Street, Palatka, Florida. Alphonso S. Junious is a beverage investigator with the Fort Lauderdale office of the Division of Alcoholic Beverages and Tobacco and has been so since August 1971. [During that period of time, he has investigated seven cases for Petitioner which involved marijuana.] He has had considerable specialized training in drug identification, having been a drug and alcohol specialist while in the military, and since his discharge has taken several courses in drug identification and detection, including 80 hours training with the U.S. Drug Enforcement Agency. He is able to identify marijuana by sight and smell based not only on his formalized training and experience as an adult, but also from the fact that he used it when he was younger. On May 12, 1982, pursuant to instructions given him as a part of an investigation into Respondents' premises, he entered the Palatka Blue Diamond, went to the bar and ordered a beer. Leroy Lane and Queen Ester Simmons, whom he subsequently identified by name, were working behind the bar, selling drinks. While there, he noticed the smell of marijuana smoke and also saw people in the bar area making what appeared to him to be marijuana cigarettes. He identified them from the way they were rolled; a method consistent with what he recognized as hand-rolled marijuana cigarettes. The cigarettes were small and had crimped ends. The smokers utilizing these cigarettes were at the bar at the time in plain view of the bartenders, neither one of whom made any effort to stop this course of conduct. On May 14, 1982, he again went to the Palatka Blue Diamond and stood at the bar. The same two bartenders were there. He saw an unidentified black female sitting at the bar roll what appeared to him to be a marijuana cigarette. The paraphernalia with which she was making the cigarette was sitting out on top of the bar, and the bartenders were standing approximately 6 to 8 feet away. During the entire time he was there, he did not hear either bartender attempt to stop the young lady from making the cigarette. By the same token, he did not see her smoke it, either. He did, however, observe others smoking what appeared to be, and smelled to him like, marijuana while walking about the barroom and in the disco room. Some of these individuals could have been in view of the bartender, but the witness does not know if they were or if the bartenders in fact saw anything improper. Mr. Junious again was at the bar on May 16, 1982. At that time he observed a black male, subsequently identified to him as Luke Simmons, tending bar. Luke Simmons is Willie Lee Simmons, Jr., son of the licensee and Respondent Willie Lee Simmons. On this occasion, Officer Junious did not observe any marijuana being smoked, but he did observe Luke Simmons make sales of small manila envelopes to patrons at the bar. Junious could not hear the conversations regarding the sales and does not know what was in the envelopes sold to other people. However, somewhat later that day, he went over to Luke and asked Luke for a "nickel bag." In return, he was given a small manila envelope, folded and sealed at both ends, for which he paid $5. This bag closely resembled the bags he saw Luke Simmons sell to others. Junious did not look into the bag while on the premises, but it was subsequently turned over to the evidence custodian of the agency and thereafter properly identified as marijuana. Junious went back to the Palatka Blue Diamond on May 18, 1982, and again Luke Simmons was tending bar. Junious approached him and engaged him in general conversation. Again this evening, he saw several persons smoking what appeared to be hand-rolled marijuana cigarettes, and the smell of marijuana was prevalent both in the bar and in the disco room. Again, as in previous occasions, the individuals smoking these hand-rolled cigarettes were in plain view of the bartender had he looked, but Junious did not see or hear Luke Simmons attempt to stop any of this conduct. At approximately 9:30 that evening, Junious again approached Luke Simmons and asked for a "nickel bag" for which he paid Luke the sum of $5. In return, he got a similar manila envelope as on the previous occasion which was subsequently determined by the Florida Department of Law Enforcement crime lab in Jacksonville to contain marijuana. It was not until August 13, 1982, that Officer Junious went back to the Palatka Blue Diamond. When he entered on this occasion, he sat at the bar and ordered a beer. The bartender this time was a black female subsequently identified as Linda Simmons, who is not related to either Respondent. On this occasion, Linda Simmons was playing a card game which the witness called "Black Jack" with a black male at the bar. They appeared to be betting $1 per hand. Junious asked Linda if he could join the game and himself played two hands during which he bet on each hand and lost both times for a total of $2. Later that evening, he saw another black male subsequently identified as Rudy Swindler selling small manila envelopes similar to those he had purchased earlier in the year. He observed Linda in a conversation with Rudy and heard her try to convince him to give her three marijuana cigarettes. Rudy refused to do so, but offered to sell her a nickel bag. She did not offer to buy. Throughout this entire transaction between Swindler and Linda Simmons, at no time did Linda Simmons, acting in the capacity of an employee of the Respondent, make any effort to prevent Swindler from selling what both recognized as marijuana. Junious went back to the bar on August 26, 1982. When he entered this time, he immediately saw a black female identified as Marian MacRae and otherwise known as "Mulu," selling the similar type of manila envelope. Junious personally observed Mulu sell at least three while in the disco, but because of that location it is possible that the bartender, Linda Simmons, might not have seen her engaged in this type of conduct. This evening, Junious smelled what to him was marijuana pervading the establishment, but he cannot conclude that he actually saw anyone else smoking, selling, or in any way using that substance. When Officer Junious went into the bar again on September 3, 1982, he observed that the odor of marijuana was very heavy. Linda was the bartender along with Leroy Lane, and Junious saw people sitting at the bar smoking, as well as in other areas of the premises. The bartenders were between 4 and 6 feet away from people who were smoking. These cigarettes, smoked by these people sitting at the bar, were small, apparently hand-rolled, and twisted at the end; and Junious's training leads him to conclude that these cigarettes are usually marijuana. Another black female whose name is unknown came in and started tending bar. After this individual became the bartender, Officer Junious noticed an unidentified black male standing at the bar, selling the manila envelopes. This individual was close enough to Junious (directly opposite him) so that Junious could see what was going on. On this evening, he saw this individual make at least three sales of manila envelopes which he took from a cloth bag with a drawstrng. On this same date, there were at least five people selling these manila envelopes, including Marian MacRae, in the bar. Junious came back to the Palatka Blue Diamond on September 23, 1982. On this occasion, he did not observe anyone selling the manila envelopes, but he did see people sitting in the bar smoking what appeared to be, and smelled like marijuana. Linda Simmons and Leroy Lane were the bartenders that night, but it is quite possible that because of the fact that the smokers were in the disco, which was not readily observable from the bar, both Lane and Simmons might not have seen the smoking. However, in Junious's opinion, the smell of marijuana was so prevalent that it would have been difficult for them not to notice it. Junious again returned to the bar on September 24, 1982. As he walked up to the bar door from the outside, he saw a barbecue grill and a black male identified as "Short Man" tending the barbecue. Junious saw Short Man, otherwise identified as "Dunnell," selling the manila envelopes openly while working at the barbecue and while Junious was standing there talking to him. In fact, Junious himself bought a "nickel bag" from Dunnell, paying the $5. This bag was subsequently identified as containing marijuana. The barbecue was approximately 15 feet from the front door at the time that the sale was made. After leaving Dunnell, Junious went to his car and placed the manila envelope he had just bought inside. Then he went back to the Palatka Blue Diamond and, when he entered, he saw Marian MacRae again selling the manila envelopes both inside and outside the bar. While inside, she spent the majority of the time in the disco; and Junious later saw her seated with some other individuals smoking what appeared to be, and smelled like, marijuana. Junious noticed this when he passed her and went to sit at the next table to her, asking to buy from her a nickel bag. When he did this, she opened a black purse from which she took a small manila envelope, and he paid her the sum of $5. This envelope was subsequently identified as containing marijuana. When he came back into the bar after having put that manila envelope in the trunk of his car, he stood at the west end of the bar, from which he could see what was going on in the disco. He saw a black male, subsequently identified as "Quiller Elkins," shooting pool. This individual had a blue cloth bag with a drawstring in his pants pocket. When individuals would come up to him, he would take out the bag and make sales of small manila envelopes from it. Junious personally observed three of these sales being made before he went up to Elkins and commented on his pool skills. He also asked Elkins for a nickel bag, which he subsequently bought from Elkins for $5. This entire transaction was openly conducted, and Linda and Leroy were tending bar at the time. Because of the location of the pool table, he cannot be sure that this sale was observed. On October 15, 1982, Officer Junious went back to the Palatka Blue Diamond and found Linda Simmons and Leroy Lane again bartending. On this occasion, he observed the smoking by various people of what appeared to be, and smelled to be, marijuana, but saw no sales. The smokers were walking around inside and outside the bar, and others were inside the disco area. On no occasion did he see or hear the bartenders make any attempt to stop the patrons from smoking these cigarettes. When Junious went back to the Palatka Blue Diamond on October 22, 1982, Linda Simmons and Leroy Lane were again tending bar. On this occasion, Juniors did not see any sales of manila envelopes, but he saw people smoking what appeared to be, and smelled to be, marijuana; and again, as on previous occasions, in his opinion, the bartenders could see them smoking, but made no effort to stop them. His last visit to the Palatka Blue Diamond was on October 30, 1982, when again Linda Simmons and Leroy Lane were tending bar. On this occasion, he saw patrons smoking, but saw no sales. Again, as on previous occasions, he recognized the smell of the burning substance and the appearance of the cigarettes being smoked was that of the hand-rolled marijuana cigarette. On this occasion, while the bartenders could have seen what was going on, he does not know if, in fact, they did. In any case, no one in authority at the bar said anything about the smoking to any of the patrons. None of the cigarettes observed being smoked by Officer Junious nor the smoke, which he identified as marijuana smoke, was analyzed. However, the degree of expertise evidenced by Officer Junious, based on his experience and training, is sufficient to tip the evidentiary scale toward a finding that those hand-rolled cigarettes, which to him appeared to be marijuana cigarettes and to him smelled like marijuana cigarettes, were in fact marijuana cigarettes; and this finding is hereby made. With regard to the purchase from Quiller Elkins on September 24, 1982, Officer Junious does not know if anyone working for the Simmonses at that time saw him make that purchase or, even if they had seen the purchase made, that they would know what the purchase was. There is no evidence to establish that, in any case, Quiller Elkins was an employee of the Respondents. With regard to the purchase outside the establishment from the barbecue cook, Short Man, again Junious does not know if anyone in authority from inside the bar saw the sale being made or for that matter, if they had seen it, would know what was in the envelope. There is no evidence that Marian MacRae (Mulu) was an employee, and Officer Junious himself does not know whether she was or not. However, on the several occasions he was there, he never saw her tending bar or doing any other work there. He also cannot say that any employee of the establishment saw him make the buy from Mulu on August 26, at least. He also cannot state with any degree of certainty whether any of the employees saw him make the purchase from Rudy with regard to that purchase. This individual does not deny using marijuana with Officer Junious. While he does not recall the exact date, he states that Junious asked him if he, Rudy, knew where he could get any marijuana and he, Rudy, got it for him. They smoked it together on two separate occasions in Rudy's car. While Swindler's recitation that he smoked with Junious is somewhat suspect because of several inconsistencies, there is little doubt that he sold either directly or as an intermediary. In fact, Junious indicates Rudy was a connection with whom he, Junious, palled around while in Palatka on the investigation. He used Rudy to introduce him around in the neighborhood. Willie Lee Simmons, Sr., one of the Respondents and a longtime resident of Palatka, Florida, has been a co-owner of the Palatka Blue Diamond since 1970 or 1971, and he has had a state beverage license since that time. Though he is one of the owners of the establishment, he works there only on Sunday afternoons to tend bar, working from 5:30 in the evening until midnight for the last 7 or 8 years. During all this time, no one has ever approached him to buy marijuana; he does not smoke it himself; nor does he have any familiarity with it. He has seen people smoking there, but was under the impression that what was being smoked were cigarettes. He is in the migrant labor business, as well as a part-owner of the bar, and he recognizes many of his bar patrons as his employees in the field. These migrant workers, he says, often smoke a type of tobacco called "Bugle" tobacco, which they hand-roll into cigarettes. He feels these hand-rolled tobacco cigarettes could well be confused with marijuana cigarettes. Mr. Simmons contends he has a completely clean record in Putnam County and with the Division of Alcoholic Beverages and Tobacco. If he had had any knowledge that marijuana cigarettes were being smoked in his bar, he would have stopped it immediately, but he has never been given any indication that marijuana was a problem in his establishment. The police, who have been in his bar on many occasions, have never mentioned to him the smell of marijuana, nor have there ever been, to his knowledge, any marijuana arrests or searches conducted in his establishment prior to those set out in the Notice to Show Cause. Johnny Lee Simmons, the son of Willie Lee Simmons, is also a part- owner of the Palatka Blue Diamond. He works on Sundays during the day before his father comes on duty at night. He knows what marijuana is and has seen other people smoke it. He believes he could identify the smell of marijuana smoke. He admits that his patrons smoke in the bar. In fact, the bar sells cigarettes and cigars, as well as "Bugle" tobacco, a cheap, low-grade loose tobacco referred to by the other Mr. Simmons. On several occasions, he has stopped the smoking of what he thought was marijuana in the bar and found out that it was Bugle tobacco. When he does catch someone smoking marijuana, he immediately puts them out of the bar and, in fact, Mulu has been put out several times for trying to sell marijuana in the premises. To counter the threat of marijuana transfer, Leroy Lane was hired to keep out minors and drugs, and in this witness's opinion, has done a pretty good job of it. Mr. Simmons feels he has done a good job in exercising control over the place to keep narcotics out, but he admits that neither he nor anyone else is perfect. Sometimes he does not get it all. He contends he has contacted the police on several occasions to get help with drug traffic and gambling. He used to sell cards in the bar and has seen card games conducted there. However, when he reread the manual furnished by the Petitioner, which indicated that gambling is not appropriate or permitted, he immediately got rid of the cards; no longer sells them; and no longer permits card playing in the premises. His sister, the lady allegedly involved in the gambling transaction, is not a gambler. In his opinion, the card games she was in were probably friendly games engaged in to pass the time during the slack periods. To his recollection, the only gambling ever conducted in the Palatka Blue Diamond was carried on by old retired men who spent a lot of time there and who passed the time playing cards. These individuals got angry with him, he contends, when he stopped it The denial of the Simmonses that marijuana is frequently utilized in the Palatka Blue Diamond was supported by the testimony of John J. Melton, a Deputy sheriff with the Putnam County Sheriff's Office, who, himself, is familiar with both the appearance and the smell of marijuana and has made arrests for the possession of marijuana in the past. Officer Melton goes into the Palatka Blue Diamond frequently--three to four times a week--and has done so both on and off duty for the past three years. If he goes in while on duty, he is there for between 15 and 20 minutes; if off duty, for between three and four hours. In any case, he has never seen anyone selling the small manila envelopes when he was in there, nor has he ever seen any card playing or gambling going on. If he were to see anyone involved in any unlawful activity, he would arrest them if in uniform and on duty. If not, he would notify the manager. He does not believe that anyone would smoke in front of anyone who they knew to be a police officer. Palatka is a small town and, by his own admission, he and other police officers are well known to the general public both when in and out of uniform. Consequently, his testimony establishes only that no illegal activity went on while he was in there. These sentiments were echoed by Abraham Smith, a retired U.S. Customs agent who has a working familiarity with marijuana, its appearance, and its smell from his 32 years in Customs work. Since he moved to Palatka in May of 1982, he has been in the Palatka Blue Diamond three to four times a week for an hour or two at the time. He is familiar with the types of small manila envelopes used for the sale of small amounts of marijuana and has seen them many times, but never in the Palatka Blue Diamond. He has never smelled marijuana nor seen marijuana in that establishment. Harold Lightfoot, the salesman for the Eli Witt Tobacco Company who has been selling to the Palatka Blue Diamond for 15 years, including to the prior ownership, comes in once a week in the early afternoon. He also knows what marijuana is and can recognize the appearance and smell, but has never smelled the odor in the Palatka Blue Diamond nor ever seen any sales of manila envelopes while there. Another frequent patron is James Williams, Jr., a retired Army noncommissioned officer who has patronized the Palatka Blue Diamond daily since his retirement from the Army in June 1980. He usually goes in for several hours in midday and then for several hours in the evening. He is familiar with the appearance and smell of marijuana because of the training he received in the military and is also familiar with the small manila envelopes used in marijuana sales. To his knowledge, he has never smelled marijuana smoke in the Palatka Blue Diamond nor has he ever seen sales of small manila envelopes. Leroy Lane, the lead bartender at the Palatka Blue Diamond for the past six to nine years, lives upstairs from the bar and tends bar from early evening to closing. He has seen several marijuana cigarettes outside the bar. He is familiar with its appearance and its smell, and he has seen people in the bar start to smoke marijuana. When he observes it, he puts them out and, if they refuse to leave, calls the police. For the past three to four years, there have been signs on the wall prohibiting the use or sale of marijuana on the premises, placed there at the direction of the owners and, also at their direction, he patrols the bathrooms. Mr. Lane knows of Marian MacRae (Mulu) by reputation. At first he stated he would not know if he would recognize her if he saw her, but later indicated that she is outside the bar frequently. Because of her reputation, when she comes in the bar, he asks her to leave. He denies knowing Short Man and several other regular patrons by name because he does not ask customers their names nor does he ask them the stories of their lives. His credibility is not significant. Queen Esther Simmons, the wife of Johnny Simmons for 16 years, is also a bartender in the Palatka Blue Diamond. She swaps shifts with Linda Simmons, the sister of Johnny and the daughter of Willie Simmons. Queen Esther contends she has never seen marijuana nor has she seen any transfers of the envelopes in the bar. She claims she does not know what a marijuana cigarette is nor has anyone ever told her what they look like so she could keep them out. It is Leroy Lane's job to do that. However, never having seen nor smelled marijuana, if she smells what she thinks is marijuana, she calls out, "If anyone here is smoking marijuana, leave or I'll call the police." Queen Esther Simmons' credibility is totally lacking, and her testimony has no probative value whatsoever.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: Respondents' alcoholic beverage license No. 64-00029 be revoked. RECOMMENDED this 19th day of June 1984, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 19th day of June 1984. COPIES FURNISHED: Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Angus W. Harriett, Esquire 314 St. Johns Avenue Palatka, Florida 32077 Mr. Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of race or sex in violation of Section 760.10, Florida Statutes (2006).1
Findings Of Fact Respondent is an employer within the meaning of Subsection 760.02(7). Respondent employs approximately 50 employees in its facility in Sanford, Florida (the facility). Respondent employed Petitioner at the facility from July 30, 2002, through February 15, 2007. Petitioner is a member of a protected class. Petitioner is an African-American male. On February 15, 2007, Petitioner suffered an adverse employment action. Respondent terminated Petitioner's employment for violating Respondent's zero tolerance smoking policy. Respondent maintains a written zero tolerance smoking policy. The policy prohibits smoking anywhere in the facility other than in designated smoking areas and other than during designated smoking breaks. Respondent prohibits smoking for the health and safety of its employees. Respondent manufactures components, such as roof trusses and other lumber products, for sale to contractors who construct residential housing. Fire is a significant threat in the manufacture of lumber products at the facility. Dry lumber and sawdust are present throughout the facility. The zero tolerance smoking policy prohibits smoking, among other places, in the front lot inside the entrance gate, in the office where the time clock is located for employees to begin and end their workdays, and in any production area. On February 15, 2007, Petitioner walked inside the front gate smoking a cigarette. Petitioner continued smoking the lighted cigarette in the plant yard and inside the office where the time clock is located. Petitioner continued smoking while he clocked in to begin his work day and continued smoking in non-designated areas. Petitioner smoked the cigarette during a time that was not a designated smoking break. Respondent adequately informed Petitioner of the zero tolerance smoking policy and the consequences of any violation. On February 6, 2007, Respondent provided all employees, including Petitioner, with written copies of the zero tolerance smoking policy. Each employee, including Petitioner, signed an acknowledgment that he or she had received a written copy of the zero tolerance smoking policy. The written policy expressly provides that any employee who violates the zero tolerance smoking policy will be fired. The policy provides that termination of employment will occur without further warnings and without second chances. Petitioner violated the written smoking policy on February 15, 2007, nine days after he attended a zero tolerance meeting. During that meeting, Respondent explained the zero tolerance policy to its employees, including Petitioner. The zero tolerance smoking policy superseded the previous smoking policy. Petitioner had twice violated the previous smoking policy. On August 16, 2006, Respondent issued a written reprimand to Petitioner for violating the previous smoking policy on August 15, 2006. The violation on August 15, 2006, was Respondent's second violation. The written reprimand for the violation on August 15, 2006, notified Petitioner that he would be suspended for three days if he subsequently violated the policy. After the written reprimand, the plant manager instituted the zero tolerance smoking policy that was required by direct orders from her superiors. Respondent adequately informed all employees at the facility, including Petitioner, of the new zero tolerance policy. Respondent treated similarly situated employees in a similar manner. Under the previous smoking policy, Respondent issued a written reprimand to an employee identified in the record as Mr. Joel Suarez. Although Mr. Suarez is Hispanic, he is also Caucasian.3 Each employee that Respondent disciplined for violation of the smoking policy was a member of a production crew. Petitioner alleges that Respondent treated Petitioner disparately from a similarly situated employee who was not a member of a protected class. Petitioner alleges that Respondent allowed Mr. Bill Thomas, a Caucasian employee, to smoke whenever and wherever Mr. Thomas wished and did not fire Mr. Thomas. Mr. Thomas was not similarly situated with Petitioner. Unlike Petitioner, Mr. Thomas is not a member of a production crew. Rather, Mr. Thomas is responsible for maintenance of the equipment used by production crews. Mr. Thomas frequently must work when production crews are not working, either because the crew is on break or the equipment used by the crew is not functioning, and Mr. Thomas must take smoking breaks at different times than production crews. Mr. Thomas smoked only during authorized smoking breaks and within designated smoking areas. Petitioner also complains that, prior to the termination of his employment, he suffered an adverse employment action sometime during the second half of 2006 when Respondent allegedly demoted Petitioner based on Petitioner's sex. Prior to the alleged demotion, Petitioner worked as a sawyer. A sawyer operates a saw that cuts lumber for products, including roof trusses, that are used in residential construction. Sometime in the second half of 2006, Respondent transferred Petitioner to a position as a loader. Petitioner's co-worker, Ms. Nora Dowling, retained her position as a sawyer. The plant manager, Ms. Tammi Pettis, is a Caucasian female and approved the transfer. The transfer was not an adverse employment action. Although Respondent considers a sawyer to be a position that requires more skill than a loader and compensates the two positions differently, the transfer did not result in a serious and material change in the terms, conditions, and privileges of employment for Petitioner. Petitioner did not suffer any reduction in pay or benefits, and the change in job responsibilities was not a material change in the terms, conditions, and privileges of employment. The transfer from sawyer to loader was not motivated by sexual bias. Although Petitioner had more experience than Ms. Dowling and provided Ms. Dowling with some training as a sawyer, production efficiency reports maintained by Respondent and personal observations of supervisors support a finding that Ms. Dowling was more productive than Petitioner, based on both quantitative and qualitative measures. The production manager was the primary decision-maker in the transfer of Petitioner as well as the termination of Petitioner's employment. The production manager is Mr. Myriel Reid, an African-American male. Ms. Pettis, the plant manager, merely approved the recommendation of Mr. Reid to transfer Petitioner and to terminate his employment. The decision to transfer Petitioner was based, in addition to production efficiency data, on economic conditions and a desire to retain both Petitioner and Dowling as employees at the facility. During the second half of 2006, Respondent experienced a decrease in business due to a significant slowdown in the housing industry. A work force reduction policy implemented in 2006 reduced employment at the facility from more than 100 employees to fewer than 50 employees. Respondent determined that it could spare both Petitioner and Ms. Dowling from layoff by reassigning Petitioner to an open position of loader. A loader must operate a forklift, and, between Petitioner and Ms. Dowling, Petitioner was the only employee with forklift experience and certification.4 Petitioner’s forklift experience and certification and Dowling’s performance efficiency were the two factors managers considered in transferring Petitioner. Ms. Dowling did not replace Petitioner. Ms. Dowling operated a saw before Petitioner was transferred in the fall of 2006. Ms. Dowling continued in the same sawyer position after Petitioner’s transfer. Respondent maintains an equal employment opportunity policy. The policy is set forth in Respondent's employee handbooks. Petitioner signed acknowledgments that he received, read and understood Respondent’s employee handbooks for the years 2002, 2003, 2004, 2005 and 2006. The employee handbooks include policies forbidding discrimination and harassment on the basis of race, gender, and other protected classes, as well as complaint procedures for employees. Respondent adequately explained its policy to Petitioner. Petitioner signed an acknowledgment that Respondent’s equal employment opportunity policy was explained to him on his first day of work. Except as stated otherwise in these Findings, Petitioner has a satisfactory record of job performance. Respondent hired Petitioner as an Assembler of wooden trusses and quickly promoted Petitioner to a sawyer. Petitioner earned five raises during his employment with Respondent. The raises were effective on October 23, 2003; March 27, 2004; March 26, 2005; June 4, 2005; and March 26, 2006. Petitioner presented no evidence that he sustained any lost wages as a result of the alleged discrimination by Respondent. Petitioner is currently employed, and there is no evidence that Petitioner has received less compensation at his new jobs or that he incurred any lost wages. The evidence does not establish a prima facie case of discrimination. However, that does not require a finding that Petitioner initiated this proceeding for a frivolous or improper purpose. Several justiciable issues of fact and law preclude a finding that Petitioner initiated this proceeding for a frivolous or improper purpose, including the issues resolved in paragraph 21 of these Findings of Fact. Two smoking policies were in effect between August 2006 and February 15, 2007, when Respondent terminated Petitioner's employment. The plant manager readily admits that she did not enforce the previous smoking policy with any consistency. Respondent conducted a meeting on October 25, 2006, in an attempt to stress the importance of complying with the former smoking policy. Respondent admits in paragraphs 36 and 40 of its PRO that a meeting to explain the new zero tolerance policy did not occur until February 6, 2007, approximately nine days before Respondent terminated Petitioner's employment. In the six months preceding the termination of his employment, Respondent transferred Petitioner to a loader position that Petitioner viewed as far beneath his experience and skills. The plant manager, a female, kept another female in the sawyer position. Petitioner felt that he should have kept his sawyer position because he had more training and experience than the female sawyer. Petitioner had helped train the female sawyer. Petitioner had an excellent employment history with Respondent and had consistently earned raises during each year of employment. Petitioner felt ambushed by the termination of his employment; felt that the smoking violation was a pretext, in light of the lax enforcement of the historical policy that preceded the zero tolerance policy; and reasonably alleged discrimination. The fact-finder resolved the foregoing factual issues in favor of Respondent. However, that does not mean that the issues presented by Petitioner were not justiciable issues. For example, the efficiency production reports are not readily discernable without witness explanation and, without that explanation, lend themselves to more than one interpretation. The fact-finder resolved the issue in favor of Respondent, but that does not deprive the issue of its justiciability.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order dismissing Petitioner's claim of discrimination and denying Respondent's request for attorney's fees. DONE AND ENTERED this 16th day of July, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 2008.
Findings Of Fact Felicia Katz, a resident of the State of New York, and operator of a cigarette business in that State, filed an application with the petitioner for licensure as a cigarette wholesale dealer in Florida. According to the application, she was the sole stockholder and officer of Respondent, Yoth, Inc. Petitioner's Cigarette Wholesale Dealer's License No. 23-230 was subsequently issued to Yoth, Inc., and that corporation began doing business as Merchants Tobacco & Candy Company in January of 1970 in Dade County, Florida. Katz had determined that her friend, David Valancy, would run her Florida business for her; and after it began its operation, the corporation was structured so that Felicia Katz served as the President, Alan Edelstein served as the Vice President, and David Valancy served as the Secretary-Treasurer. Additionally, the corporate stock was issued so that Katz held fifty percent, Edelstein held twenty-five percent, and Valancy held twenty-five percent. Katz visited her Florida business during the months of January and February, 1979. On February 8, Katz signed under oath the Petitioner's Cigarette Wholesale Dealer's Report for the mouth ending January 31, 1979, certifying that the report contained true and correct information. On February 11, David Valancy contacted Gary Levy, an auditor with the Division, to request Levy's assistance regarding information required to be contained within the January report. Levy, who had visited the business premises on January 19, accordingly reappeared at the premises on February 12, 1970. He met with Valancy and reviewed with him certain business records. One of the items discussed was an invoice from American Brands, Inc., reflecting the purchase of 21,000 packs of cigarettes. Levy initialed the invoice and instructed Valancy to report that purchase. That purchase was not so included in the January report filed on February 13. The failure to include that purchase in the January or any other report thereby affected carry-over figures and rendered each subsequent report through the last report filed for the month of November, 1979, inaccurate. The period of time involved in this proceeding is from January, 1979, when the Respondent began operating its business, through December, 1979, when the November report was filed and the Division began its investigation of Respondent's activities. Felicia Katz signed and swore to the accuracy of the reports filed with the Petitioner for the months of January and February. Thereafter, Valancy signed and filed the Respondent's reports for the months of March through and including November. On the August report, Valancy reported purchases of 12,008 packs of cigarettes from R. J. Reynolds on August 29, and 608 packs of cigarettes from Philip Morris on August 22. He failed to report purchases of 600 packs of cigarettes from French Tobacco, Inc., on August 14, and an additional 450 packs from French Tobacco, Inc., on August 31. When Maria D. Sanchez, an auditor for the Petitioner, reviewed the Respondent's August report, she determined that the report was inconsistent with the final reading of the meter utilized for marking packs of cigarettes for resale to Indians. She contacted Valancy to inquire whether there might be an error on the report, and Valancy replied by submitting replacement pages for the August report. The revised August report failed to report the purchases from R. J. Reynolds and from Philip Morris in addition to continuing to fail to report the two purchases from French Tobacco, Inc. On July 17, Harold Wasserman, General Manager of both Seminole Indian Plaza Store No. 1 and Store No. 2, purchased cigarettes for Store No. 2 from the Respondent in the amount of $30,226.00, according to Respondent's Invoice No. PC 2-514, which amount was paid by Seminole's Check No. 180. Respondent's copy of that invoice, which provides no information as to the location of the purchaser and which was attached to the monthly report from July, contains an additional eighty cartons of Vantage cigarettes, reflecting an additional sales price of $252.00. Those additional cartons were neither received, nor paid for, by Seminole Indian Plaza. On July 18, Wasserman purchased, on behalf of Seminole Indian Plaza Store No. 1, cigarettes from Respondent in the amount of $70,702.60, according to Respondent's Invoice No. PO 1-114, which amount was paid for by Seminole's Check No. 225. Respondent's copy of that Invoice, which provides no information as to the location of the purchaser and which was attached to the monthly report for July, contains an additional two hundred cartons of Salem cigarettes and increases the price by $630.00. Those additional cartons were neither received, nor paid for, by Seminole Indian Plaza. On July 25, Seminole Smokes, owned by Theodore Scott Nelson, purchased cigarettes from Respondent in the amount of $35,263.20, according to Seminole Smokes' copy of Respondent's invoice marked only "Nelson's" and paid for in that amount by Check No. 1794. That invoice not only fails to correctly identify the purchaser, but also fails to provide information as to the purchaser's location. The Respondent's copy of that Invoice which it filed with its July report reflects an additional purchase of forty-six cartons of Winston, for an additional charge of $144.90. Those additional cigarettes were neither received, nor paid for, by Seminole Smokes. Respondent's monthly report for September has attached to it Respondent's Invoice No. 3719, dated September 21, 1070, reflecting a sale in the amount of $474.02 to Seminole Indian Plaza without providing information regarding that purchaser's location. This invoice reflects that 137 cartons of "Kings" cigarettes were received by "R. Kaplan." The signature on the invoice is not the signature of Robert Kaplan, a shift manager for Seminole Indian Plaza, and Seminole has no record of this transaction. Likewise, attached to Respondent's October report is its Invoice No. 5331, dated October 20, reflecting a sale of 12,419 cartons of "Kings" cigarettes to Seminole Indian Plaza without any address in formation in the amount of $42,969.74. The signature on that Invoice purporting to be that of Harold Wasserman, the General Manager, is not the signature of Wasserman, and Seminole Indian Plaza has no record of this transaction either. The records of Marcellus Osceola Trading Post contain a copy of an invoice of Respondent, dated July 10, reflecting as the sole information regarding the purchaser "Marcellus Osceola," and showing a sale by Merchants of 1,530 cartons of cigarettes for a purchase price of $4,897.50. This purchase was paid for by Check No. 1093. This sale is not reported on Schedule "L" of the Respondent's July report, nor is a copy of this invoice attached to that report. Additionally, the purchaser's name is spelled Incorrectly, and no address is provided on the invoice. Respondent's August report contains information on Schedule "L" of certain sales made to Marcellus Osceola, without giving any information as to the address or county of residence of that business. Attached to that same report is Respondent's Invoice No. 263 dated August 16, showing only the purchaser as Marcellus Osceola Trading Post with no address information. Although marked "refused," the invoice indicates the sale took place by virtue of its attachment to the monthly report. Yet, this invoice is not reflected in Schedule "L" wits the other sales to "Marcellus Osceola."
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: Respondent's Cigarette Wholesale Dealer's License no. 23-230 be revoked. RECOMMENDED this 17th day of September, 1980, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Harold F. X. Purnell, Esquire General Counsel Department of Business Regulation 25 South Bronough Street Tallahassee, Florida 32301 William A. Hatch, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Charles L. Curtis, Esquire 1177 S.E. Third Street Fort Lauderdale, Florida 33316 Mr. John Harris Division of Alcoholic Beverages and Tobacco Department of Business Regulation Post Office Box 015269 Miami, Florida 33101 Mr. Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
