The Issue Whether or not on or about the 2nd day of April, 1976, the Respondent, Charter Distributing Company, licensed under the Cigarette Laws, did unlawfully attempt to evade or defeat the state tax by attempting to gain a cigarette tax rebate on unstamped cigarettes, contrary to s. 210.18(1), F.S.
Findings Of Fact At all times material to the Notice to Show Cause, the Respondent, Charter Distributing Company was licensed under License No. 26-106, CWD, with the State of Florida, Division of Beverage. On April 2, 1976, Mr. Jesse Bob Cooper, an Excise Auditor II, with the State of Florida, Division of Beverage went to the licensed premises at 975 Broad Street, Jacksonville, Florida to cancel certain cigarette imprints to enable the licensee to get a refund of cigarette taxes paid. Those cigarettes upon which the imprints were to be cancelled were cigarettes which were taken out of commercial circulation because they were stale. These cigarettes were part of a quantity of cigarettes which were being returned by manufacturers representatives of the various cigarette companies to Charter Distributing Company. The arrangement was to have the cigarette company representative bring the cigarettes into the warehouse area and stack those cigarettes in a "dump area" and receive credit for them. The amounts being brought in by the manufacturers representatives were from 30 to 250 cartons on each occasion. The president of the Respondent, William Moore, would then ask the manufacturers representative if the cigarettes had the appropriate stamps for cancellation. When he was prepared, he would contact the Petitioner's representative to come over and cancel the cigarettes for refund. On April 2, 1976, when Mr. Cooper arrived to cancel the Cigarettes, the cigarettes were placed on a table and examined for proper stamps. On that date, eleven (11) packs of cigarettes were discovered which had inappropriate stamps. Nine of those packs of cigarettes were meter stamped, that is, had meter imprints that were inappropriate. One pack of the eleven packs had the heat or Addco stamp and the final pack had a hand stamp. Although the latter two packs of cigarettes had the appropriate form of stamp, the cellophane wrapper around the pack had been taped there and the stamps were not correct for those two packs. The process was being conducted by having Mr. Moore cancel the packs of cigarettes that were being examined, while Mr. Cooper witnessed. There was no effort at concealing the inappropriate packages of cigarettes made on the part of Mr. Moore. The eleven packs of cigarettes had been brought in by some undisclosed manufacturer's representative and had not been discovered until the point of checking for tax refunds, which was the activity on April 2, 1976. The Respondent, after discovery of the inappropriate stamps had been made, did not make any further request for tax refund and has not received such refund. Finally, there was no showing that the Respondent had any knowledge of the impropriety of the stamps prior to the discovery on April 2, 1976 when these eleven packs and other cigarettes were being cancelled.
Recommendation It is recommended that the Respondent, Charter Distributing Company, License No. 26-106, CWB, be released from further responsibility to answer to the Notice to Show Cause herein. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles T. Collette, Esquire Division of Beverage Department of Business Regulation The Johns Building 725 Bronough Street Tallahassee, Florida 32304 Stephen D. Busey, Esquire 500 Barnett Bank Building Jacksonville, Florida 32202
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating entry into the profession of licensed respiratory therapists. It is also responsible for regulating the practice standards of such professionals, including enforcing the disciplinary provisions embodied in Chapter 468, Florida Statutes. The Respondent, at all times pertinent hereto, has been a licensed respiratory therapist. He holds License No. TT0003956 issued by the State of Florida. He was employed as a technician in the Respiratory Therapy Department of Citrus Memorial Hospital (CMH) in Inverness, Florida, during an 18-month period ending on or about January 23, 1996. A respiratory therapy technician, such as the Respondent, is frequently called upon to make independent decisions and exercise a great deal of discretion and autonomy with regard to the clinical support provided to patients to whom they are assigned. Therapists working an evening shift, as the Respondent did, at times critical hereto, generally exercise a greater degree of autonomy and discretion than the technicians working on day shifts. The Respondent, in his capacity as a respiratory therapy technician (RTT), with CMH, frequently cared for critically-ill patients. In his capacity as an RTT, the Respondent makes decisions which affect the health, safety and welfare of patients to whom he is assigned. The Respondent was first terminated from CMH for an unexcused absence of more than five days during the month of August, 1995. He maintained that he had a personal emergency which called him out of state at that time. The time period, however, corresponds to his own assertions concerning the period when he was "binging" on crack cocaine. He was re-hired by CMH on the condition that any further problems with absenteeism would result in his immediate termination. On or about January 22, 1996, he reported to work at CMH and advised his supervisor, Clarence Davis, that he would return to work after going to cash his paycheck. He left CMH during his shift on that occasion, ostensibly for that purpose, but did not return to work at all that evening. He did not return several calls made to his pager. He never offered his employer any explanation for his absence. His employment was, therefore, terminated on or about January 23, 1996. The Respondent was aware of the fact that his failure to return to work, based upon the previous warning, would result in his termination from CMH. On or about January 26, 1996, the Respondent acknowledged that he had a drug-dependency problem and voluntarily admitted himself to Charter Springs Hospital (CSH) in Ocala, Florida. This followed a five-day binge on crack cocaine, which was the reason for the January, 1996 absence from work. Upon admission to CSH, the Respondent's urine drug screen was positive for cocaine and cannabinoids, or marijuana. Upon his admission to CSH, the Respondent reported a previous history of treatment for drug abuse in 1987 at the KOALA facility in Bushnell, Florida. Kenneth Thompson, M.D., a physician and addiction specialist, who practices at CSH, is certified in addiction medicine and practices almost exclusively in that area. The doctor evaluated the Respondent upon his admission to CSH on or about January 26, 1996. The evaluation consisted of a diagnostic interview by Dr. Thompson and a physical examination performed by Larry Rick, a physician's assistant. The Respondent advised Dr. Thompson that he had recently been on a five-day binge on crack cocaine and had been unable to return to his work with CMH as a respiratory therapist. The Respondent further revealed that he had spent approximately $1,200.00 buying the drug on his recent binge on crack cocaine. He also acknowledged that he smoked marijuana on a daily basis. The Respondent appeared agitated and distraught during the evaluation by Dr. Thompson and advised the doctor that he had had suicidal thoughts and was depressed. He explained that he felt out of control with his cocaine use and revealed that at times, he thought he might smoke crack cocaine "until my heart blew out." During his stay at CSH, he was also psychologically tested by William Benet, Ph.D. The Respondent advised Dr. Benet, as he had Dr. Thompson, that he had used crack cocaine in the past and that he had recently been on a five-day binge using crack cocaine. He also advised Dr. Benet that he had the habit of smoking marijuana on a daily basis. The Respondent was thus admitted to the Chemical Dependency Unit at CSH with a diagnosis of cocaine and marijuana dependence. After that admission, he experienced withdrawal symptoms associated with his use of crack cocaine. After completing a five-day detoxification and evaluation regimen at CSH, the Respondent began an outpatient program, including entering an "advocacy contract" with the Physicians Recovery Network (PRN). Roger A. Goetz, M.D. is the Director of PRN. He directs PRN's efforts and, among other things, accepts referrals regarding individuals who are unable to practice their health-related professions with reasonable skill and safety due to substance abuse, mental illness or physical disability. He refers individuals to treatment and reports to the Petitioner whenever the continued practice by a health-care professional presents an immediate and serious danger to the health, safety and welfare of the patient public. The PRN devised a treatment regimen for the Respondent, to include unannounced bodily fluid examinations, abstention from all medications, participation in group therapy, and an agreement that he would not work as a respiratory therapist pending successful completion of the treatment. The Respondent, however, failed to comply with the PRN contract by failing to attend required outpatient therapy meetings and by returning to work as a respiratory therapist, without PRN approval. Dr. Goetz determined that the Respondent's continued practice as a respiratory therapist, under these circumstances, presented an immediate, serious danger to the health, safety and welfare of the public. An emergency suspension of the Respondent's license to practice as a respiratory therapist was recommended by Dr. Goetz. Crack cocaine is known to be the most highly-addictive form of cocaine. Users may mistakenly feel that use can be controlled. The Respondent has an admitted history of drug dependence and treatment regarding the use of crack cocaine, as early as 1987. He himself has reported a history of recent crack cocaine binges in August, 1995 and January, 1996. He himself has admitted that he was unable to control his use of crack cocaine. The potential for recovery from cocaine addiction is poor. Use of crack cocaine changes the user's perception of himself and is associated with paranoia and sometimes a tendency toward violence. The Respondent has admitted having a chemical dependency problem and has admitted to using both crack cocaine, powdered cocaine, and marijuana. He sought treatment for his chemical dependency and was diagnosed as chemically dependent. Thereafter, he failed to complete the prescribed treatment. He was provided alternatives by PRN to obtain the necessary treatment to overcome the dependency and, in turn, allow him to again practice respiratory therapy. He rejected their alternatives and chose not to complete the necessary treatment program. A respiratory therapist has increased access to drugs in the workplace. The Respondent's return to practice of respiratory therapy, where he will have increased access to drugs, prior to completing his prescribed treatment program for chemical dependency, made his continued practice of his profession an immediate danger to the public. His assertions that he refused to continue treatment for his dependency, because of Dr. Thompson's unethical practice, were not borne out by the evidence. The Respondent essentially admitted that he made the decision not to continue treatment because of disagreement with Dr. Thompson and because he felt that the treatment program was too costly. He further admitted that, although he favored obtaining treatment from Petra Rosenzweig, a therapist in whom he had previously expressed confidence, he had actually stopped seeking treatment from her. This is additional confirmation that his purported ethical conflict with Dr. Thompson was not really the reason he discontinued treatment. In summary, it has been established that the Respondent is chemically dependent and has not yet successfully completed the treatment program. At the present time, he is unable to practice respiratory therapy with reasonable skill and safety to patients by reason of this impairment due to chemical dependency. The Respondent's supervisors established that he has an exemplary practice record, in terms of the competency and skills with which he cares for patients. The Respondent's attitude and testimony at the hearing, coupled with the strong support of his wife, who testified at hearing, leads the judge to believe that there is a substantial opportunity for him to overcome his chemical dependency and be able, in the future, to return to unfettered practice of respiratory therapy, provided he continues his cooperative spirit and agrees, once and for all, to objectively and wholeheartedly submit himself to a treatment program and successfully complete it.
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered finding the Respondent guilty of violating Section 468.365(1)(x), Florida Statutes, in the particulars delineated in this Recommended Order, and that, in that Final Order, the Respondent's license to practice respiratory therapy be suspended for a minimum of one year or until such time as he receives treatment from a board-approved physician or physicians for his chemical dependency and is pronounced safe to resume the practice of respiratory therapy by a board-approved physician and on the condition that he thereafter comply with any and all terms of a PRN advocacy contract with regard to his chemical dependency. DONE AND ENTERED this 21st day of November, 1996, in Tallahassee, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1996. COPIES FURNISHED: Britt Thomas, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Keith A. Klausner 1725 Springlake Road Fruitland Park, Florida 34731 Marm Harris, Executive Director Agency for Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
The Issue The issue for consideration in this case is different in the three cases. As to DOAH Cases 98-5173 and 98-5216, the issue is whether a moratorium on admissions should be imposed on the licensed facility as a result of alleged deficiencies identified in an inspection dated October 12, 1998. As to DOAH Case No. 98-5297, the issue is whether the facility's license should be disciplined by imposition of an administrative fine as a result of the alleged deficiencies. The third action involved, that in DOAH Case No. 98-5527, is whether a conditional license should be issued to the facility instead of a regular license.
Findings Of Fact At all times relevant to the issues herein the Agency for Health Care Administration (Agency) was the state agency in Florida responsible for the licensing and regulation of nursing homes in Florida, and Respondent, Gulf Coast Nursing and Rehabilitation Center, was a nursing home licensed by the Agency and operating at 905 South Highland Avenue in Clearwater, Florida. On or about October 12, 1998, Ann DaSilva, a registered nurse specialist, a surveyor for the Agency, received a telephone report from Respondent's director of nursing advising that a resident at the facility, for the purpose of this inquiry identified as resident No. 6, had set himself afire when he tried to light a cigarette. The fire department and an ambulance were called, and resident No. 6 was transferred to Tampa General Hospital with second and third degree burns to his chest. The report also indicated that another resident, who had tried to put out the fire, was also slightly burned, As a result of this report, Dawn Cushman, a health facility evaluator, and Leslie Bower, a fire protection specialist-surveyor, both from the Agency's Clearwater office, went to the facility at approximately 2:00 p.m. on the day of the incident to investigate the circumstances. Upon arrival, Ms. Cushman and Mr. Bower met with the director of nursing who discussed with them what she believed to have happened and who showed them the site of the incident. Cushman and Bower also reviewed the resident No. 6's medical records, went to his room to look at his clothing and possessions, and spoke with other residents who had been present at the time of the incident. The facility maintained both an open and a closed record on the injured resident. The first day she was there, Ms. Cushman was shown only the open record. When she asked for the other, it was released. Review of resident No. 6's medical records showed that he had fallen before, and agency records revealed that in a prior survey in June 1998, the facility had been cited for failing to properly supervise him, which resulted in his falling, and for an increased safety awareness on that basis. Examination of his clothing and lap board indicated the shirt he was wearing at the time of the fire was approximately 40 percent consumed but the lap board had no fire damage. The remainder of his clothes and the lap board had numerous burn holes, most likely due to cigarette ash, but no more so than on any other smoker. The agency's investigation revealed that resident No. 6 was competent to make his own decisions and had no guardian. He was, however, somewhat challenged and was addicted to smoking. Because of his preoccupation with smoking a care plan was developed for him which called for his cigarettes to be kept in the control of the staff who would dole them out to him on a periodic basis and ensure he was accompanied by a smoking staff member who would go outside with him when he smoked. He was to have no more than two cigarettes over a two-hour period. This plan worked for quite awhile. However, the resident smoked to excess, and on October 6, 1998, a planning meeting was held regarding him, which was also attended by the resident and his father, where the necessity to control his smoking under supervision was again stressed. Investigation after the incident revealed that notwithstanding the matter discussed at this meeting, on October 11, 1998, while the resident was on leave outside the facility, he was provided with cigarettes and a cigarette lighter by his father. The following day, while the resident was on the patio outside the facility, not accompanied by a staff member, his shirt caught on fire as a result of his smoking, and the fire was extinguished by another resident who used a water hose nearby without serious injury to the resident. It is not unusual for the resident's father to give him cigarettes. Nursing notes show that whenever he visited his son he would bring them. At the October 6, 1998 meeting, the father was asked not to give cigarettes directly to his son. A minimum data set (MDS), an overview picture of the resident, had been prepared on all aspects of resident No. 6 which refers to his use of tobacco. This was contained in the Resident Assessment Protocol included in the resident's records. However, neither Ms. Cushman nor Mr. Bower saw or spoke with Resident No. 6. Based on her examination of the resident's records and his clothing and possessions, Ms. Cushman concluded that no significant preventive measures had been put in place to safeguard this resident. He was supervised for falls on the patio, but not for smoking. She reasoned that based on his history, there should have been some identifier on his records to denote him as a fire risk. Further, in her opinion, the facility should have had a smoking policy in place and did not. This determination is not supported by the other evidence of record, however. Though perhaps not in writing, there was a facility smoking policy in effect which called for smokers considered to be at risk of burns from smoking to be accompanied to the patio by a smoking staff member. Carol Hembree, also an evaluator for the Agency, went to the Respondent's facility for a survey after Cushman and Bower had been there. Upon her arrival, Ms. Hembree asked for a list of residents who were felt by the staff to be at risk for injury related to smoking. A list of seven or eight residents was provided which included resident No. 15 who is discussed further in this Order. Ms. Hembree examined report of incidents at the facility for the prior three months and interviewed staff to see what interventions were in place to prevent similar accidents from recurring. She found there was no such plan in a preponderance of the cases into which she inquired, and when she asked the administrator about this, was told there was no formal system in place. It was the facility's practice to look at each incident when it happened and work from there. Ms. Hembree concluded that had a system of evaluating residents who had difficulties with smoking been in place, the incident involving resident No. 6 might have been avoided. Under the circumstances of this incident however, with the intervention of the father, that is not likely. A team of surveyors inspected the Respondent's facility on October 14 and 15, 1998, as a follow-up to the inquiry by Cushman and Bower into the fire. The statement of deficiencies which was issued as a result of the survey defined three tags, F 324, F 272, and F 279 which relate to certain requirements of federal and state law governing the operation of a nursing home. Tag F 272 deals with the requirement for resident assessments and states: The facility must make a comprehensive assessment of a resident's needs which is based on a uniform data set . . . [which] describes the resident's capability to perform daily life functions, and significant impairments in functional capacity. The comprehensive assessment must include at least the following information: Medically defined conditions and prior medical history. Medical status measurement. Physical and mental functional status. Sensory and physical impairments. Nutritional status and requirements. Special treatments or procedures. Mental and psychosocial status. Discharge potential. Dental condition. Activities potential. Rehabilitation potential. Cognitive status. Drug therapy. Tag F 279 also relates to the requirement for resident assessment and states: The facility must develop a comprehensive care plan for each resident that includes measurable objectives and timetables to meet a resident's medical and psychosocial needs that are identified in the comprehensive assessment. Tag F 324 relates to quality of care, and in this case deals primarily with residents No. 6 and No. 15. It alleges a lack of adequate supervision in that no preventive measures were in place in regards to supervision of these residents while smoking. Ms. Bacinello, a federally-certified surveyor participated in the Agency's survey of Respondent's facility which took place on October 14 and 15, 1998. She and the other surveyors looked at Respondent's operation more broadly than did Cushman and Bower and listed deficiencies in the survey report under the tags listed above. Resident No. 8 identified on the survey report was an elderly resident with dementia and other medical problems who was sleeping on a low bed. Review of the facility record revealed no need for this resident to be using this type of bed which was eight inches off the floor and which had no head or foot board. A bed of this type is normally used for residents with a history of falling out of bed. In the instant case, with no head or foot board, Ms. Bacinello concluded there was no way the resident could get in or out of bed without help. Though the facility records showed this resident was at risk of falls, perhaps from a wheel chair or other types of falls, there was no history of her falling out of bed. Ms. Bacinello could find no written history in the facility files, other than the use of the generic term "falls," justifying use of this type of bed for this resident. The reason for this citation is the determination that the facility failed to conduct a proper assessment, compounded by the fact that the use of this type of bed could contribute to the risk of a resident fall. This is a valid finding. Ms. Bacinello also identified the case of resident No. 14 as inappropriate. Upon interviewing the resident, Ms. Bacinello learned she was a woman in her sixties who had been diagnosed with multiple sclerosis. She had been in the facility for an extended period and had lost use of her hands and feet. She was a total-care resident who could not even use the call bell. Her bed was located farthest from the door. Her condition, and her barely audible voice, had not been identified in the facility's assessment of the resident. When Ms. Bacinello spoke with the facility staff about what she had learned regarding this resident, they agreed the problems had not been recognized. This, too, is a valid finding. A third resident identified by Ms. Bacinello was resident No. 13, an elderly resident suffering from dementia, hypertension, fainting, and depression. The resident slept in a bed of standard height with a very thin mattress and no head or foot board. The resident assessment on record showed a history of falls, but there was no specific information regarding when they took place or under what circumstances. Admittedly, the records did not show any falls from the bed at night or when the resident attempted to get in or out of bed. Ms. Bacinello contends this lack of information identifies the problem. The records indicate the bed may have been ordered by a physician, but that is not, by itself, sufficient. The issue here is not whether the type of bed was appropriate, but the sufficiency of the assessment done. The resident was found sitting on the floor by the bed. Even though she is a resistive individual and climbs out of bed, and even though she was monitored closely by the staff in an effort to prevent falls, the written assessment in the resident's records is not sufficient to provide the information required to ensure a continuity of appropriate care by successor staff. Another evaluator, Ms. Procissi, identified the case of resident No. 11 as representing a deficiency in assessment. This resident suffers from Alzheimer's dementia. Facility records reflect that she wanders off from group activities. Even though the resident has a right not to attend these activities, and the deficiency does not relate to her failure to participate, there was a lack of a comprehensive assessment of the resident's needs. Based on the existing assessment, Ms. Procissi could not tell what the resident did, and could, therefore, not determine what she needed. In light of the description of the resident's wandering, the staff is on notice of a need to provide special care. No deficiency has been established in this case. Resident No. 12 suffered from dementia, psychosis, diabetes, and obstructive pulmonary disease. He occupied a low bed because he had fallen in the past. The assessment did not show the way he fell, and the assessment, in the opinion of Ms. Procissi, did not justify the use of a low bed. The assessment indicated that the resident fell because of his dementia, but that condition does not cause falling. The pulmonary disease did not cause or pre-dispose falling, either. As in the other cases cited, the citation here was based not so much on the use of the low bed, but on the perception of a failure to provide adequate assessment of the resident to justify the use of the low bed which, itself, could cause problems for the resident. The issue is what the resident needs, and there must be some support for the decision made, regardless of what it is. This is a valid finding. Resident No. 5 came to Respondent's facility from a mental hospital and was known to be a wanderer. The assessment that was done on this resident coded her as having no mood or behavior problems, to include wandering, but she was placed in a secure unit part-time. In the opinion of Ms. Cushman, the assessment done on this resident did not accurately describe her condition or give any justification for placing her in a secured unit in the afternoon. Since the resident was known to wander, the failure to identify this condition on the assessment constitutes a deficiency. Another deficiency relating to this resident dealt with the care plan which was developed for her. The care plan called for the resident to be in a secure unit, but she was there only part-time. Her wandering had been reduced, but nothing was done to ensure her safety. The care plan did not match the resident's current needs nor was it implemented. It is so found. Resident No. 15 was described in the facility records as a schizophrenic who wandered and who demonstrated disruptive behavior. Facility records indicated the resident was housed in a special care unit, but Ms. Cushman found this was not so. In addition, Ms. Cushman determined the resident was identified as being at risk of harm for smoking due to her cognitive condition, but there was no assessment to show why she was so classified. Resident No. 18, who suffered from Alzheimer's dementia, was assessed as being at risk for falls and was sleeping on a low bed. However, the assessment indicated no balance or range of motion problems, and Ms. Cushman observed that the resident wandered, but with a steady gait. Though described as at risk for falls, there was no assessment to establish conditions justifying that determination. There were numerous other deficiencies identified by the surveyors which, though identified under independent finding of fact numbers in the survey report, all relate to the same basic issue of the inadequacy of the assessments and the care plans. The issue here is not so much the failure to provide adequate care, but a failure to justify, in the resident assessments and the care plans, the actions taken. Ms. Hembree noted, for example, that resident No. 7, who suffered from osteoporosis, gout, obesity, and gait disturbance, was identified as having problems with incontinence. This called for care plan intervention to manage the incontinence, but review of the care plan showed none was developed. All of the assessment and care plan deficiencies, Class III deficiencies, were corrected by October 20, 1998. Ms. Brown, the nursing supervisor on the 7:00 a.m. to 3:00 p.m. shift, referring to the previously-described resident No. 6, who set his clothing on fire, described him as a continual chain smoker. The procedure in place, as she recalls it, called for him to request a cigarette from the nurse at the nurse's station. A staff member would then go outside with him to light his cigarette and to stay with him while he smoked. The resident was not allowed to keep his own matches or cigarettes with him, and to her knowledge, he was not smoking a cigarette from the nurse's station when he caught himself on fire. When she was informed by one of the housekeeping staff that the resident was on fire, she ran outside and observed him with a cigarette in one hand and his lighter in the other. Ms. Brown contends this incident would not have occurred if the smoking procedure in place had been followed by the resident. However, both the resident and his father were very non- compliant, and she is satisfied it was the joint misconduct of the resident and his father which caused the incident. Ms. Tanagon, the director of nursing, concurs. After the incident, she talked with the resident's father who admitted to her that he had given the cigarettes and lighter to his son while he was on-pass over the weekend. Notwithstanding the fact that she and other staff members had spoken with the father in an attempt to have him stop providing cigarettes to his son directly, the father continued to do so. Ms. Tanagon also described another resident, M.H., herein referred to as resident No. 15, who was ambulatory, cognizant, and able to care for herself. She had no tremors and no other problems, but she smoked cigarettes which she obtained from the nurse's station under the procedure described for Resident No. 6. In Ms. Tanagon's opinion, residents were not hazards merely because they smoked, and not all the smoking residents properly were described as at risk because they smoked. This opinion is shared by Mr. Flores, the institution's MDS and care plan coordinator. Mr. Flores knew resident No. 15 and prepared the care plan and assessment for her. In his opinion, she was in no danger of injury due to her smoking. She was an independent lady who could feed and dress herself and take care of her own activities of daily living. She needed minimal assistance with hygiene and grooming, but due to her cognitive impairment, also needed some supervision in her decision-making. Denise F. Baultrip-Cuyjet knew both resident No. 6 and resident No. 15 when she was director of social services at Respondent's facility, and was part of the team which prepared the assessments and care plans there. She does not believe resident No. 15 was at risk due to her smoking. The resident was somewhat anti-social and wanted to be left alone. She was not easily approached, and when smoking, concentrated fully upon that. Nonetheless, she knew the routine for smoking at the facility and was compliant with it. She knew where and how to get cigarettes, how to use them, and how to put them out. The danger to resident No. 15 was not her smoking, but her wandering, and her lack of judgement relates not to her smoking but to her tendency to leave the facility to go to the store for cigarettes. Ms. Baultrip-Cuyjet also described resident No. 6 as agitated, belligerent, threatening, assaultive and impatient. Nonetheless, she could approach him when others could not. There is no doubt he was addicted to nicotine, and though he was independent, they were able to work out the procedure by which he could get the cigarettes he wanted. There was no restriction placed on his going outside to the patio when he wanted, and in her opinion, it would have been a violation of his resident rights to search him when he would do so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaints filed in DOAH Case No. 98-5297 proposing the imposition of administrative fines in the total amount of $11,400; withdrawing the letter dated October 27, 1998, imposing an immediate moratorium on admissions to the Respondent's facility as noted in DOAH Case Nos. 98-5173 and 98-5276; and withdrawing the letter dated October 20, 1998, changing the facility's rating to Conditional, as noted in DOAH Case No. 98-5527. DONE AND ENTERED this 18th day of June, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 1999. COPIES FURNISHED: Karel Baarslag, Esquire Agency for Health Care Administration State Regional Service Center 2295 Victoria Avenue Room 309 Fort Myers, Florida 33901 Alfred W. Clark, Esquire 117 South Gadsden Street Suite 201 Tallahassee, Florida 32302 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox, Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact Felicia Katz, a resident of the State of New York, and operator of a cigarette business in that State, filed an application with the petitioner for licensure as a cigarette wholesale dealer in Florida. According to the application, she was the sole stockholder and officer of Respondent, Yoth, Inc. Petitioner's Cigarette Wholesale Dealer's License No. 23-230 was subsequently issued to Yoth, Inc., and that corporation began doing business as Merchants Tobacco & Candy Company in January of 1970 in Dade County, Florida. Katz had determined that her friend, David Valancy, would run her Florida business for her; and after it began its operation, the corporation was structured so that Felicia Katz served as the President, Alan Edelstein served as the Vice President, and David Valancy served as the Secretary-Treasurer. Additionally, the corporate stock was issued so that Katz held fifty percent, Edelstein held twenty-five percent, and Valancy held twenty-five percent. Katz visited her Florida business during the months of January and February, 1979. On February 8, Katz signed under oath the Petitioner's Cigarette Wholesale Dealer's Report for the mouth ending January 31, 1979, certifying that the report contained true and correct information. On February 11, David Valancy contacted Gary Levy, an auditor with the Division, to request Levy's assistance regarding information required to be contained within the January report. Levy, who had visited the business premises on January 19, accordingly reappeared at the premises on February 12, 1970. He met with Valancy and reviewed with him certain business records. One of the items discussed was an invoice from American Brands, Inc., reflecting the purchase of 21,000 packs of cigarettes. Levy initialed the invoice and instructed Valancy to report that purchase. That purchase was not so included in the January report filed on February 13. The failure to include that purchase in the January or any other report thereby affected carry-over figures and rendered each subsequent report through the last report filed for the month of November, 1979, inaccurate. The period of time involved in this proceeding is from January, 1979, when the Respondent began operating its business, through December, 1979, when the November report was filed and the Division began its investigation of Respondent's activities. Felicia Katz signed and swore to the accuracy of the reports filed with the Petitioner for the months of January and February. Thereafter, Valancy signed and filed the Respondent's reports for the months of March through and including November. On the August report, Valancy reported purchases of 12,008 packs of cigarettes from R. J. Reynolds on August 29, and 608 packs of cigarettes from Philip Morris on August 22. He failed to report purchases of 600 packs of cigarettes from French Tobacco, Inc., on August 14, and an additional 450 packs from French Tobacco, Inc., on August 31. When Maria D. Sanchez, an auditor for the Petitioner, reviewed the Respondent's August report, she determined that the report was inconsistent with the final reading of the meter utilized for marking packs of cigarettes for resale to Indians. She contacted Valancy to inquire whether there might be an error on the report, and Valancy replied by submitting replacement pages for the August report. The revised August report failed to report the purchases from R. J. Reynolds and from Philip Morris in addition to continuing to fail to report the two purchases from French Tobacco, Inc. On July 17, Harold Wasserman, General Manager of both Seminole Indian Plaza Store No. 1 and Store No. 2, purchased cigarettes for Store No. 2 from the Respondent in the amount of $30,226.00, according to Respondent's Invoice No. PC 2-514, which amount was paid by Seminole's Check No. 180. Respondent's copy of that invoice, which provides no information as to the location of the purchaser and which was attached to the monthly report from July, contains an additional eighty cartons of Vantage cigarettes, reflecting an additional sales price of $252.00. Those additional cartons were neither received, nor paid for, by Seminole Indian Plaza. On July 18, Wasserman purchased, on behalf of Seminole Indian Plaza Store No. 1, cigarettes from Respondent in the amount of $70,702.60, according to Respondent's Invoice No. PO 1-114, which amount was paid for by Seminole's Check No. 225. Respondent's copy of that Invoice, which provides no information as to the location of the purchaser and which was attached to the monthly report for July, contains an additional two hundred cartons of Salem cigarettes and increases the price by $630.00. Those additional cartons were neither received, nor paid for, by Seminole Indian Plaza. On July 25, Seminole Smokes, owned by Theodore Scott Nelson, purchased cigarettes from Respondent in the amount of $35,263.20, according to Seminole Smokes' copy of Respondent's invoice marked only "Nelson's" and paid for in that amount by Check No. 1794. That invoice not only fails to correctly identify the purchaser, but also fails to provide information as to the purchaser's location. The Respondent's copy of that Invoice which it filed with its July report reflects an additional purchase of forty-six cartons of Winston, for an additional charge of $144.90. Those additional cigarettes were neither received, nor paid for, by Seminole Smokes. Respondent's monthly report for September has attached to it Respondent's Invoice No. 3719, dated September 21, 1070, reflecting a sale in the amount of $474.02 to Seminole Indian Plaza without providing information regarding that purchaser's location. This invoice reflects that 137 cartons of "Kings" cigarettes were received by "R. Kaplan." The signature on the invoice is not the signature of Robert Kaplan, a shift manager for Seminole Indian Plaza, and Seminole has no record of this transaction. Likewise, attached to Respondent's October report is its Invoice No. 5331, dated October 20, reflecting a sale of 12,419 cartons of "Kings" cigarettes to Seminole Indian Plaza without any address in formation in the amount of $42,969.74. The signature on that Invoice purporting to be that of Harold Wasserman, the General Manager, is not the signature of Wasserman, and Seminole Indian Plaza has no record of this transaction either. The records of Marcellus Osceola Trading Post contain a copy of an invoice of Respondent, dated July 10, reflecting as the sole information regarding the purchaser "Marcellus Osceola," and showing a sale by Merchants of 1,530 cartons of cigarettes for a purchase price of $4,897.50. This purchase was paid for by Check No. 1093. This sale is not reported on Schedule "L" of the Respondent's July report, nor is a copy of this invoice attached to that report. Additionally, the purchaser's name is spelled Incorrectly, and no address is provided on the invoice. Respondent's August report contains information on Schedule "L" of certain sales made to Marcellus Osceola, without giving any information as to the address or county of residence of that business. Attached to that same report is Respondent's Invoice No. 263 dated August 16, showing only the purchaser as Marcellus Osceola Trading Post with no address information. Although marked "refused," the invoice indicates the sale took place by virtue of its attachment to the monthly report. Yet, this invoice is not reflected in Schedule "L" wits the other sales to "Marcellus Osceola."
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: Respondent's Cigarette Wholesale Dealer's License no. 23-230 be revoked. RECOMMENDED this 17th day of September, 1980, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Harold F. X. Purnell, Esquire General Counsel Department of Business Regulation 25 South Bronough Street Tallahassee, Florida 32301 William A. Hatch, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Charles L. Curtis, Esquire 1177 S.E. Third Street Fort Lauderdale, Florida 33316 Mr. John Harris Division of Alcoholic Beverages and Tobacco Department of Business Regulation Post Office Box 015269 Miami, Florida 33101 Mr. Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent violated Sections 569.006 and 569.007, Florida Statutes (1995), by selling cigarettes to a person under 18 years of age and by failing to have the cigarette vending machine in the line of sight, and, if so, what, if any, penalty should be imposed pursuant to Florida Administrative Rule 61A-2.022, 2/
Findings Of Fact Petitioner is the state agency responsible for regulating the sale of retail tobacco products. Respondent holds retail tobacco products permit number 58-05704T. The licensed premises are located at 8445 International Drive, Orlando, Florida (the "licensed premises"). Respondent operates the licensed premises for the sale of liquor at tables and a bar. On August 7, 1996, special agents Walter Russell and Linda Greenlee initiated a routine tobacco compliance investigation of the licensed premises. Agents Russell and Greenlee directed investigative aide Megan Holbrook, age 15, to enter the licensed premises and attempt to buy cigarettes from the vending machine. Ms. Holbrook and agents Russell and Greenlee entered the licensed premises at approximately 3:30 p.m. The cigarette vending machine was located just inside the doorway of the licensed premises. Agents Russell and Greenlee sat at the bar. Ms. Holbrook inserted the necessary amounts into the vending machine and purchased one package of Winston cigarettes. None of Respondent's employees questioned Ms. Holbrook concerning her age or identification. Approximately three employees were engaged in a conversation behind the bar during the time that Ms. Holbrook purchased the cigarettes. No patrons were present at the time except Ms. Holbrook and agents Russell and Greenlee. The cigarette vending machine was positioned so that a person standing behind the bar could not see the face of anyone purchasing cigarettes unless the purchaser was at least six feet tall. A view of the purchaser is obstructed by beams and shelves. The vending machine is approximately five feet tall. It is not in the direct line of sight of an employee who is responsible for monitoring the purchase of cigarettes. Ms. Holbrook and agents Russell and Greenlee exited the premises after the purchase. Ms. Holbrook turned over the cigarettes to agents Russell and Greenlee. Agents Russell and Greenlee returned inside the premises. They advised the employees inside that an unlawful sale of cigarettes had occurred and served the required documents.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Sections 569.06 and 569.07 and imposing a fine of $750. DONE AND ENTERED this 18th day of November, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1997.
The Issue The issue for consideration in this hearing was whether the Department of Environmental Regulation's Amended Rule 17-105, F.A.C, Smoking Policy, was properly implemented and is a proper exercise of delegated legislative authority.
Findings Of Fact At all times pertinent to the issues herein, the Petitioners were employees of the Department. Petitioner Huck was employed in the Tallahassee headquarters and the other Petitioners were employed elsewhere. GENESIS The Florida Legislature, in 1985, enacted Chapter 386, Part 11, Florida Statutes, The Florida Clean Indoor Air Act, (Act), under the authority of which, in February, 1986, the Department promulgated its own "Smoking Policy" incorporated in Rule 17-105, F.A.C.. This rule prohibited smoking in all Department facilities except in those areas specifically exempted as designated smoking areas. These included private office areas and employee lounge areas as well as the first floor cafeteria. Dale Twachtmann was appointed Secretary of the Department in January, 1987. At the very beginning of his incumbency, he became aware of the ongoing controversy over smoking within the Department and concluded that a management decision to put the matter to rest was called for. He determined, from the information made available to him, that even before his arrival, the headquarters building in Tallahassee had serious air handling problems due partially, at least, to activities that had previously been carried on in parts of the building. A previously operating print shop and laboratory were moved shortly after his arrival. He could not determine how much of the "bad" air was attributable to each program. THE RULEMAKING PROCESS Mr. Twachtmann also determined that smoking within the building was considered, by a significant number of employees, to be a part of the air problem second only in seriousness to the laboratory. When the lab was moved, those proponents of clean air struck upon smoking as their bete noire. No studies of air quality were done during Mr. Twachtmann's tenure, however, nor had anything been done to curb smoking except for the promulgation of the original Rule 17-105. The controversy over smoking within the building continued, however, culminating in the drafting and circulation, in December, 1988, by an employee, Mr. Billy Kahn, of a petition to totally ban smoking in the facility. This petition was signed by approximately 275 of the 500 to 600 employees in the Tallahassee office. Though the Secretary did not recognize all the names thereon, he did recognize enough to satisfy him of its validity, notwithstanding a few irregularities on it, and he was influenced by it to do something. It reinforced his own observations of the smoking situation gathered while going about the building. For example, though he never noticed smoke in the halls, nor did he ever see anyone smoking in open areas, he would find some heavy and unpleasant odors in some of the break rooms and the lunchroom where smoking was allowed. Mr. Twachtmann thereupon decided, as Department Secretary, to take action which would resolve the smoking issue once and for all. He decided to initiate the rulemaking process with a view toward, if and after all legal requirements were met, banning smoking completely in all Department facilities and vehicles. Part of the process, which called for workshops to advise all employees of the proposed action and to solicit employee input, included consideration of alternative solutions to banning smoking. The process also included consideration by the Secretary of the substantial information available on both sides of the issue which was provided to him by his staff and by experts whose opinions on the matter were solicited. Much of this information was presented by advocates of both positions at a series of senior staff meetings held in early 1990 at which the senior staff voted unanimously to proceed with rulemaking to amend the smoking policy in Rule 17-105 to ban smoking. At this point, no studies had been made of air quality within the Tallahassee headquarters building. Nonetheless, after the vote was taken to amend the rule, in May, 1990, Mr. Shearer prepared and dispatched a memorandum to Department staff, referring to the "decision" by the Secretary to ban smoking from the headquarters building. This memo solicited personnel participation in the rulemaking process and instructed anyone who had any input to coordinate it through their supervisors. The task of drafting the amended rule was given to Mr. Peyton, the chief administrator of the Department, who, in turn, delegated the task initially to his counsel, Ms. Costas. Mr. Peyton was not told, when assigned his task, that he could not change the substance of the existing rule. Because Mr. Peyton was not satisfied with the draft of the proposed amendment prepared by Ms. Costas, he reassigned the task to one of his deputies, a nonlawyer, Ms. Drew. He instructions to her were to cut it down and make it simple, but to reflect the Department policy to ban all smoking in Department facilities and vehicles. The latter was an afterthought subsequent to Mr. Peyton's receiving comments regarding the smell in the Department's vehicles. After the draft of the rule was prepared, workshops to address the proposed rule were scheduled, noticed in the Florida Administrative Weekly, (F.A.W.), and conducted in various locations throughout the state. The published notice indicated discussion would include the need, if any, for the rule, and the proposed terms thereof. Instructions governing the conduct of the workshops and the method of handling employee comments were disseminated by Ms. Costas to the Deputy Assistant Secretary in each district. Those employees who held opinions on the need for or terms of the proposed rule were to be instructed to forward their comments in writing to the Department headquarters in Tallahassee. Hearings were held throughout the state in late June and early July, 1990. The comments received by Mr. Peyton, who conducted the Tallahassee workshop, and those submitted from elsewhere within the Department, were consolidated and summarized by Ms. Costas and thereafter forwarded, through Peyton, to the Secretary. Comments in writing were received from members in the Central, Northeast and Northwest Districts and orally from the Southeast District. There is no record of any comments having been received from any other district. All comments received were forwarded to, discussed with, and considered by the Secretary personally. Consistent with appropriate rulemaking procedure, a hearing on the rule was scheduled to be held by the Secretary regardless of whether there was a request therefor or not. In the interim, on June 20, 1990, copies of the hearing notice, the rule, the economic impact statement and the Statement of Facts and Circumstances Justifying the Proposed Rule were sent to the required agencies for coordination. Thereafter, based on the input received from employees and other pertinent sources, the rule was changed and notice thereof appropriately published in the F.L.W.. The secretarial hearing was held as noticed and did not result in any input sufficient to cause delay in the process. On July 27, 1990, the rule was certified to the Secretary of State by Secretary Twachtmann. MATTERS RELATING TO THE NEED FOR THE RULE There has been and continues to be discourse in the medical and lay communities on the harmful effect of secondhand tobacco smoke. While few disagree that the direct inhalation of tobacco smoke by smokers has harmful effects on the health of those individuals, controversy is still rampant as to what effect, if any, the forced inhalation by nonsmokers of tobacco smoke generated by smokers in the area, has on the health of these passive exposees. It is well recognized that chemicals shown to be carcinogens are found in tobacco, (cigarette) smoke. Responsible medical studies have also shown a higher incidence of lung cancer in persons exposed to second hand cigarette smoke than in those who have routinely been free of it. A secondary effect is a higher incidence of pulmonary disease and a detriment to lung development. "Secondary smoke" is that smoke generated by burning tobacco between puffs and that smoke exhaled by smokers. There is substantial evidence that the inhalation of secondary smoke for 8 or 9 hours per day over time increases the risk of cancer in an individual so exposed since tobacco smoke contains known carcinogens. Dr. Dennis Williams, a cardiologist accepted by the parties as an expert in the effect of tobacco on human health, is not aware of any showing of increased danger there in the workplace as a result of secondary smoke. However, studies have conclusively shown such an increased danger in the home and to children. Increased levels of nicotine and cotenine have also been observed in the blood and urine of nonsmokers in a workplace where smoking is permitted. Cotenine is a known carcinogen and nicotine, while not, itself, a carcinogen, is an addictive substance. The tar from cigarette smoke contains thousands of cancer causing chemicals. Admittedly, some of these can be found in substances other than cigarette smoke. However, lung cancer is now the leading cause of death among men and women in the United States, and 90% of all lung cancer deaths are due to the use of cigarettes and other tobacco products. Considering all the above, Dr. Williams feels there is no reasonable alternative to concluding that secondary smoke creates a health hazard to the nonsmoker who is frequently exposed to it. It is so found. It is also found that limiting smoking to a closed room does not protect the nonsmoking worker. Smoke quickly diffuses, through the ventilating system, throughout the total air of the facility. Cigarette smoking is a major cause of indoor air pollution and constitutes a major exposure of the worker to a carcinogen. Nonsmokers in the workplace have been found to have metabolized nicotine and cotenine in their urine which could have come only from secondary smoke to which they have been exposed there. The 1986 Report of the Surgeon General of the United States on the Health Consequences of Involuntary Smoking supports the conclusions drawn by Dr. Williams both as to the adverse health effects of secondary smoke and the ineffectuality of artificial separation, within the same air space, of smokers and nonsmokers. This report, along with other supporting information, was considered by Mr. Peyton during the rulemaking process and reported to Secretary Twachtmann prior to final decision. SPECIFICS The poor quality of air in the Department's headquarters building in Tallahassee has been known for some time. Studies of the building's air quality in both 1987 and 1988, while not dealing with the issue of cigarette smoking, both recognized the problem and recommended solutions. The building's ventilation is accomplished through two air handlers on each floor which re- circulate heated or chilled air, depending on the season. Interior air lost through doors and exhaust fans is replenished by outside air brought in by the air handlers. Approximately 88% of the air in the building at any time, however, is re-circulated. In very cold weather, when the introduction of cold outside air must be restricted, that percentage is increased. Any tobacco smoke in the air is, therefore, re-circulated again and again on the floor where it originates. Consequently, regardless of physical separation, nonsmokers sharing a ventilation system with smokers will be exposed to their smoke. In order to reduce that risk, internal air would have to be expelled and more outside air brought in. This cannot be done without a major modification to the building structure and a replacement of the existing air handling system. This is neither reasonable nor economically feasible. In order to reduce the air pollution problems within the building, the Department relocated two of the major polluting functions; the laboratory and the print shop. All these factors were known to and considered by the Department during the rulemaking process. Previous efforts were also made to accommodate the desires of both smoking and nonsmoking employees. Until the adoption of the total ban, smoking was allowed in private offices, in the break room on the fourth floor, and in the employee deli on the first floor. Since smoke concentration in the deli was heavy, many nonsmoking employees found it either unpleasant or impossible to eat there. Consequently, business and the resultant income therefrom was lost. On the other hand, since the ban on smoking, many smokers who formerly patronized the facility during their breaks no longer use it, with a resultant loss of business and income. The use of private offices for smoking was equally unsuccessful since not only were nonsmokers put off from entering either for business or other purposes, but smoke and the smell of smoke escaped through the ventilation system and open doors, and the odor of smoke, so unpleasant to many, would linger in an office long after the occupant thereof was gone. Taken together, the information available on the subject indicated that the only way to safely allow smoking in the building was to limit it to an area that was independently ventilated. This would require an independent access to the outside for the exhaust of old air and the re-supply of fresh air. Only one area in the building ever had an independent air exhaust, and that system, formerly in the laboratory, has been removed and is now being used in the Jacksonville district office. The former lab space is now an open office. As was found previously, physical modification of a currently operational building to accommodate the desires of a portion of the employee force is neither required nor justified. The issue regarding vehicles is somewhat different. The Department operates a fleet of state-owned vehicles, access to which is available to all Department employees. These vehicles are not separated into groups reserved for smokers or nonsmokers. Department employees are sometimes required to travel in Departmental vehicles. Some trips are of several hours duration, and while so occupied, the employees are on Department business. The vehicles also may be used, under proper authorization, to carry individuals other than state employees. Nonsmoking passengers, whether employees or not, may be in the position of riding with another passenger who smokes or in a vehicle which has previously been occupied by a smoker. There have been complaints regarding both situations, with the latter relating primarily to the objectionable smell left in the vehicle by the former smoking occupant. Dr. Williams opined that occupying a vehicle with another, smoking, individual poses the same risk to the nonsmoker's health as does occupying a room with such an individual. However, the residual odor of smoke left in a vehicle by a previous smoking passenger, while offensive, normally is not harmful. It is so found. All these factors were considered by the Department during the rulemaking process. The Department has taken the position that when Departmental vehicles are occupied by its employees, the vehicles are the employees' assigned workplace and individuals are, therefore, afforded the protection of the Act. OPERATION AND EFFECT Penalties for violation of the rule are incorporated therein and provide for a fine of $100.00 for the first violation, and of $500.00 for each subsequent violation in addition to discipline in accordance with the provisions of Chapter 17-130, F.A.C., the Department's disciplinary rule. Those provisions for fine are taken directly from the terms of the Act, Section 386.208, Florida Statutes. The disciplinary rule previously mentioned, (Section 17- 130.300(7)(b)2, F.A.C.), makes it a violation to smoke in a restricted area, an area in which smoking is prohibited. Penalties are outlined in the rule for the various violations which might occur, and each employee is provided with a copy of that rule upon employment with the Department. The Department claims it incorporated the fine provisions of the Act into its amended rule to "reference those disciplinary actions what would be involved" as a result of a violation of the rule and that they are informative only and do not create any additional disciplinary rules. This may be so, but any provision for discipline of an employee for violation of the terms of an agency rule should be incorporated in the agency's employee discipline rule to which reference is made in the instant rule. OTHER PROBLEMS Petitioners have objected to the use of the term, "right" in the amended rule which refers to the objection of nonsmokers to the effects of having to work in closed areas with smokers. Petitioners urge that the Department has sought to create and utilize a new "constitutional" right and that such action is unlawful and unsupportable. A thorough review of all the evidence presented in relation to the promulgation of this rule and its predecessor 1986 rule clearly demonstrates that the use of the term, "right" was no more than an in-artful word choice and in no way dispositive of the smoking issue. To be sure, the Legislature has, by implementation of the Act, encumbered the freedom of the smoker to engage in his passion in a public place, absent an affirmative designation of a smoking area. The use of the term, "public", does not necessarily mean only open to the general public. A building is public if it is owned or operated by a governmental agency. Here, the Department's use of the word, "right", in its rule is no more than a recognition of the differences of opinion which separate the ranks of the smoker and nonsmoker and a recognition of the proposition that the interests of one are as important as are those of the other. The Petitioners have also argued that in its implementation of the amended rule, the Department has denied them due process, specifically referring to the May 8, 1990 memorandum, and the participation in the rulemaking process of Ms. Drew, who was a signatory to the anti-smoking Petition solicited and presented by Mr. Kahn. In his memo, Assistant Secretary Shearer indicated that, "...a decision ha[d] been made .... " to ban smoking, and Petitioners claim that that "decision" having been made, the entire subsequent rulemaking process was a sham. Again we see what appears to be, in light of all that followed, no more than in-artful phraseology to announce the recognition of a Departmental problem and the initiation of a process designed to correct that problem. Admittedly, the use of that phrase raises a spectre of improper influence and a closed mind on the part of the Department hierarchy. However, the testimony of the principals, Secretary Twachtmann and Assistant Secretary Shearer, as to their intent from the beginning of the process, and the uncontroverted testimony regarding the openness of the succeeding activity toward the ultimate determination of a need for and the drafting of the proposed rule, clearly dispels any shade of impropriety. The process was conducted in the open. Employee comment was solicited and several forums were employed in which these comments, pro or con, could be made known to the Secretary. Inquiry was solicited and none who now object to the rule either asked questions or made recorded comment at the time. Petitioners have not shown by any definitive evidence of record, that any interested party who wished to object was prevented from doing so or dissuaded from negative comment by fear of reprisal. To the contrary, the evidence clearly demonstrates that all required notices were published, and that management went far beyond that which was required to insure the opportunity for fair comment and to, as best as possible, guarantee the maximum available input to the Secretary before the final decision was made. As for the participation of Ms. Drew in the process, the evidence shows that she is Mr. Peyton's deputy. When Mr. Peyton received Ms. Costas' draft of the proposed amended rule and was dissatisfied with it, he requested Ms. Drew, with Ms. Costas, rework it. His guidelines were to cut excessive wordage and make it simple. The operating thesis was also simple and left little room for interpretation. There is little risk that Ms. Drew, or anyone else, could have, in this instance, gone beyond the basic instructional premise upon which she was to work because of her own feelings about the subject matter. The lines were simply drawn on this issue. There were those who favored allowing smoking and those who favored abolishing it. To claim that one who supported abolition could not, thereafter, work on a rule to bring about that end is unrealistic and inappropriate. Petitioners also claim that the Department failed to provide a statement of data and methodology with its Economic Impact Statement, (EIS). Review of the EIS filed with the Joint Administrative Procedures Committee, (Respondent's Exhibit K), reveals that it contains the required statement which appears to demonstrate that the agency's methodology for information collection was appropriate. There was no evidence presented by Petitioners to demonstrate to the contrary. Petitioners further claim that the Department was not the appropriate agency to take the action regarding smoking, assuming, arguendo, such action was appropriate. The Act, which formerly provided that the government entity "responsible for the management and maintenance" of a government building should "implement" the provisions of the Act, was amended in 1988 to require that agency only to report observed violations of the Act to the Department of Health and Rehabilitative Services. In this case, the management and maintenance of Departmental buildings is accomplished through contracts entered through leases on the buildings let through the Department of General Services, (DGS). Petitioners claim that as a result, the rule, if appropriate, should have been promulgated and implemented by DGS. Petitioners overlook the fact that the Department is ultimately responsible for the headquarters building and the activities therein, and is the major employer therein. Petitioners raise the issue that the Department should have, under the Act, designated a smoking area since it claims to be the agency charged with enforcing the Act. This claim presupposes that the Act requires a smoking area be designated in all buildings where smoking is otherwise regulated. Such is not the case. Section 386.202 specifically noted that the Act shall not be interpreted to require the designation of smoking areas. The Department has construed the Act to indicate that as the employer, it implements smoking policy in its facilities. This interpretation conforms to that of other state agencies, including the Department of Education, the Department of Transportation, and the Division of Administrative Hearings, all of which have implemented smoking policies in their facilities. The Department's interpretation appears to be correct, even though different agencies than those listed have provided for separate smoking areas.
The Issue Whether Petitioner, Marion County School Board (“Petitioner” or “Board”), had just cause to terminate Respondent for misconduct in office as alleged in the Administrative Complaint (“Complaint”) dated December 10, 2019.
Findings Of Fact Petitioner is the constitutional entity authorized to operate, control, and supervise the public schools within Marion County. See Art. IX, § 4(b), Fla. Const.; § 1001.32(2), Fla. Stat. Petitioner is authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. At all times relevant hereto, Respondent was employed as a Student Services Manager at Belleview High School in Marion County, pursuant to a professional services contract with the Board. On November 5, 2019, following an incident in which Respondent intervened in a physical altercation between students, Respondent complained to administration that he may have been injured. Respondent was referred to a doctor who provides treatment to Board employees who are injured on the job. As part of his evaluation for a possible workers’ compensation covered injury, Respondent was administered a routine urine drug screen. The results of the drug screen were positive for THC and marijuana metabolites. Respondent does not dispute either the test administration or results. Respondent is approved by the State of Florida through the medical marijuana use registry to obtain medical marijuana for his personal medical treatment. Respondent obtained his medical marijuana card in October 2018, and uses medical marijuana to treat pain associated with injuries he received while serving in the U.S. Marines in Desert Storm in 1991. The Board maintains Alcohol and Drug-Free Workplace Policy 6.33. Section II.B. of that policy provides that “it is a condition of employment for [a Board] employee to refrain from reporting to work or working with the presence of drugs or alcohol in his or her body.” Section IV.B. includes marijuana within a list of substances use of which is considered illegal, pursuant to section 202 of the Controlled Substances Act, 21 C.F.R., §§ 1300.11 through 1300.15. However, this section notes that “when the use of a controlled substance is pursuant to the instructions of a physician, the employee shall immediately notify his/her supervisor.” At no time prior to his positive drug screen did Respondent notify his supervisor that he was using medical marijuana. Respondent has been employed by the Board since 2010. He began as a physical education coach at Horizon Academy, where he was subsequently promoted to a dean’s position. After the dean’s position at Horizon Academy was eliminated, Respondent transferred to Emerald Shores Elementary where he served as a dean. The record does not establish the date on which Respondent transferred to Belleview, but Respondent served as a dean of students at Belleview until he was placed on unpaid administrative leave on January 13, 2020. Respondent was placed on paid administrative leave on January 29, 2020, where he remains pending the outcome of this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Marion County School Board enter a final order upholding the charges against Respondent Michael Hickman, and terminate Respondent, or impose other discipline consistent with Florida Administrative Code Rule 6A-5.056.2 1 Respondent additionally argues that the Board’s position is unfair because it penalizes him for use of medical marijuana to treat chronic pain, but would allow him to continue teaching under the influence of opioid pain medications, which he took for years prior to the availability of medical marijuana. 2 The undersigned notes that the remedy of suspension is also available under the applicable rule. Further, the parties made no argument that the Board’s discretion to impose a different penalty is foreclosed, or that the Board may not consider mitigating circumstances. DONE AND ENTERED this 2nd day of September, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 2nd day of September, 2020. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761-1526 (eServed) Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. Suite 100 1477 West Fairbanks Avenue Winter Park, Florida 32789 (eServed) Dr. Diane Gullett, Superintendent Marion County School Board 512 Southeast 3rd Street Ocala, Florida 34471 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether proposed rules 10D-105.009, 10D-105.011 and 10D-105.012, Florida Administrative Code, related to the Florida Indoor Clean Air Act constitute an invalid exercise of delegated legislative authority.
Findings Of Fact Garrison Corporation, Inc., (Garrison) operates a chain of retail tobacco outlets, doing business as "Smoke & Snuff" stores in 16 Florida mall locations. In addition to tobacco products, Garrison sells tobacco-related accessories and various gift items. Garrison is a family-owned business in existence since November of 1973. As a retail store primarily in the business of selling tobacco or tobacco related products, the Garrison stores are exempt from the smoking restrictions set forth in the Florida Clean Indoor Air Act (Act). Customers of the Garrison stores can smoke within Smoke & Snuff stores without restriction. At least two of the malls in which Garrison stores operate have advised that smoking will be prohibited within mall common areas. Some mall operators have implemented smoking prohibitions on their own unrelated to requirements of the Act. Garrison asserts that the imposition of mall smoking restrictions results in a decrease in customer traffic in the mall and declining sales for the tobacco retailer. The chief operating officer for Garrison testified at hearing that the imposition of tobacco smoking restrictions in Florida malls has caused and will continue to result in a diminution in business for the Smoke & Snuff stores. In support of its position, Garrison offered unaudited sales and income figures for the Smoke & Snuff stores. A review of the sales figures indicates that sales in many Smoke & Snuff stores have declined in past years. The decline in Garrison sales has not been limited merely to tobacco products, but has impacted non-tobacco merchandise lines sold in the Smoke & Snuff stores as well. Over the past five years, smoking by adults has decreased in the United States. As smoking has declined, the adult customer base for tobacco products has been reduced. Further, other factors such as store personnel, weather and economic conditions can affect retail sales. There are no studies on the extent of sales impact, if any, caused by the imposition of tobacco smoking restrictions in malls. There are no studies which indicate that the imposition of smoking restrictions in malls results in a decline in customer traffic. The evidence fails to establish that customer traffic declines as a result of the imposition of smoking restrictions. The evidence fails to establish that the Garrison sales decline is directly or primarily related to the imposition of smoking restrictions in the malls where the Smoke & Snuff stores are located. The evidence fails to establish that Petitioner Garrison has standing to challenge the proposed rules. As to MacKoul Distributors, the prehearing stipulation states that MacKoul Distributors operates a place of employment and as such is subject to the Act and the proposed rules. Part II of Chapter 386, Florida Statutes, is the Florida Clean Indoor Air Act (Act). As stated at section 386.202, Florida Statutes, the purpose of the Florida Clean Indoor Air Act is as follows: ...to protect the public health, comfort, and environment by creating areas in public places and at public meetings that are reasonably free from tobacco smoke by providing a uniform statewide maximum code. The Act does not require the designation of smoking areas.... The Act provides at Section 386.204, Florida Statutes, as follows: A person may not smoke in a public place or at a public meeting except in designated smoking areas. These prohibitions do not apply in cases in which an entire room or hall is used for a private function and seating arrangements are under the control of the sponsor of the function and not of the proprietor or person in charge of the room or hall. Section 386.203, Florida Statutes, provides definitions as follows: "Public place" means the following enclosed, indoor areas used by the general public: Government buildings; Public means of mass transportation and their associated terminals not subject to federal smoking regulation; Elevators; Hospitals; Nursing homes; Educational facilities; Public school buses; Libraries; Courtrooms; Jury waiting and deliberation rooms; Museums; Theaters; Auditoriums; Arenas; Recreational facilities; Restaurants which seat more than 50 persons; Retail stores, except a retail store the primary business of which is the sale of tobacco or tobacco related products; Grocery stores; Places of employment; Health care facilities; Day care centers; and Common areas of retirement homes and condominiums. * * * "Smoking" means possession of a lighted cigarette, lighted cigar, lighted pipe, or any other lighted tobacco product. "Smoking area" means any designated area meeting the requirements of ss. 386.205 and 386.206. "Common area" means any hallway, corridor, lobby, aisle, water fountain area, restroom, stairwell, entryway, or conference room in any public place. The Act provides no definition of "retail store" or "place of employment." The Act does not specifically include "malls" within the definition of "public places." Section 386.205, Florida Statutes, addresses the matter of designation of smoking areas, and provides as follows: Smoking areas may be designated by the person in charge of a public place. If a smoking area is designated, existing physical barriers and ventilation systems shall be used to minimize smoke in adjacent nonsmoking areas. This provision shall not be construed to require fixed structural or other physical modifications in providing these areas or to require operation of any existing heating, ventilating, and air conditioning system (HVAC system) in any manner which decreases its energy efficiency or increases its electrical demand, or both, nor shall this provision be construed to require installation of new or additional HVAC systems.. (2)(a) A smoking area may not be designated in...any common area as defined in s 386.203.... * * * In a workplace where there are smokers and nonsmokers, employers shall develop, implement, and post a policy regarding designation of smoking and nonsmoking areas. Such a policy shall take into consideration the proportion of smokers and nonsmokers. Employers who make reasonable efforts to develop, implement, and post such a policy shall be deemed in compliance. An entire area may be designated as a smoking area if all workers routinely assigned to work in that area at the same time agree. With respect to the square footage in any public place as described in subsection (4), this square footage shall not include private office work space which is not a common area as defined in s. 386.203(6) and which is ordinarily inaccessible to the public. No more than one-half of the total square footage in any public place within a single enclosed indoor area used for a common purpose shall be reserved and designated as a smoking area. This square footage limitation does not apply to restaurants as defined in s. 386.203(1)(p). However, such a restaurant must ensure that no more than 65 percent of the seats existing in its dining room at any time are located in an area designated as a smoking area. A smoking area may not contain common areas which are expected to be used by the public. Section 386.206, Florida Statutes, provides as follows: The person in charge of a public place shall conspicuously post, or cause to be posted, in any area designated as a smoking area signs stating that smoking is permitted in such area. Each sign posted pursuant to this section shall have letters of reasonable size which can be easily read. The color, design, and precise place of posting such signs shall be left to the discretion of the person in charge of the premises. In order to increase public awareness, the person in charge of a public place may, at his discretion, also post "NO SMOKING" or "NO SMOKING EXCEPT IN DESIGNATED AREAS" signs as appropriate. Section 386.207, Florida Statutes, addresses the administration and enforcement of the provisions of the Act and provides as follows: The department or division shall enforce ss. 386.205 and 386.206 and to implement such enforcement shall adopt...rules specifying procedures to be followed by enforcement personnel in investigating complaints and notifying alleged violators, rules defining types of cases for which exemptions may be granted, and rules specifying procedures by which appeals may be taken by aggrieved parties. Public agencies responsible for the management and maintenance of government buildings shall report observed violations to the department or the division. The State Fire Marshal shall report to the department or division observed violations of ss. 386.205 and 386.206 found during its periodic inspections conducted pursuant to its regulatory authority. The department or division, upon notification of observed violations of ss. 386.205 and 386.206 , shall issue to the proprietor or other person in charge of such public place a notice to comply with ss. 386.205 and 386.206. If such person fails to comply within 30 days after receipt of such notice, the department or division shall assess a civil penalty against him not to exceed $100 for the first violation and not to exceed $500 for each subsequent violation. The imposition of such fine shall be in accordance with the provisions of chapter 120. If a person refuses to comply with ss. 386.205 and 386.206, after having been assessed such penalty, the department or division may file a complaint in the circuit court of the county in which such public place is located to require compliance. A person may request an exemption from ss. 386.205 and 386.206 by applying to the department or division. The department or division may grant exemptions on a case-by- case basis where it determines that substantial good faith efforts have been made to comply or that emergency or extraordinary circumstances exist. Section 386.208, Florida Statutes, provides as follows: Any person who violates s. 386.204 commits a noncriminal violation as provided for in s. 775.08(3), punishable by a fine of not more than $100 for the first violation and not more than $500 for each subsequent violation. Jurisdiction shall be within the appropriate county court. This case involves the Petitioners' challenge to proposed rules 10D- 105.009(1), (2), (3), (4), (8), (10) and (11), proposed rule 10D-105.011, and proposed rule 10D-105.012(2). In relevant part, proposed rule 10D-105.009 provides as follows: 10D-105.009 - On-Site Investigations of Public Places -- During inspections or investigations of any Clean Indoor Air Act complaint, HRS personnel shall document all observed violations of Florida Statutes sections 386.205 or 386.206. Such violations include the following: In any workplace where there are smokers and nonsmokers, employers shall develop a policy with regard to the designation of smoking areas. Should there be no written policy, a violation of section 386.205(3), F.S., exists and will be documented as "Failure to develop a smoking policy regarding smoking and nonsmoking areas." Employers are required to implement a written smoking policy. If employees are observed violating a workplace smoking policy, a violation of section 386.205(3), F.S. exists and will be documented as "Failure to implement an existing smoking policy." Should a smoking policy exist for a workplace but not be posted, a violation of section 386.205(3), F.S. exists and will be documented as "Failure to post a smoking policy." When a common work area is designated as a smoking area, all workers assigned to work within that single enclosed area must agree to such a designation. (Partitioned work spaces and rooms not separated by closed doors, floor to ceiling moveable walls or similar floor to ceiling barrier do not constitute separate work areas.) This violation of the Florida Clean Indoor Air Act will be documented as: failure to post signs in a designated smoking area, a violation of section 386.206, F.S., and failure to implement a smoking policy regarding smoking and nonsmoking areas, a violation of section 386.205(3), F.S. * * * (8) If single occupancy offices have not been counted in the calculation of the square footage of a designated smoking area where both smokers and nonsmokers routinely assigned to work at the same time and the doors of those offices are left open, then a violation of section 386.205(3), exists and will be documented as "Square footage calculation for designation of smoking areas is incorrect." * * * If smoking is allowed anywhere in an enclosed shopping mall concourse, then a violation of section 386.205, F.S., exists and shall be documented as :"Smoking permitted or designated in a prohibited area." If smoking is allowed in an enclosed shopping mall food court and is not specifically regulated by the Department of Business and Professional Regulation, then a violation of section 386.205, F.S., exists and shall be documented as "Smoking permitted or designated in a prohibited area." In relevant part, proposed rule 10D-105.011 provides as follows: 10D-105.011 - Types of Cases for which Exemptions may be Granted; Procedures by which Appeals may be taken by Aggrieved Parties. -- The proprietor or other person in charge of a public place may request an exemption from Florida Statutes sections 386.205 or 386.206, by submitting their request in writing to the HRS State Health Officer. On the recommendation of the State Health Officer, the department may grant any exemptions from the requirements of section 386.205(4) or 386.206, F.S., as an emergency or extraordinary circumstances which justifies exemption when compliance with the Florida Clean Indoor Air Act would result in a greater hazard to public health than would result from granting an exemption. Temporary exemptions of limited duration may be granted under emergency or extraordinary conditions when good-faith efforts to comply have been made. Public places which have received a letter of complaint as described by Florida Statutes section 386.207(2), and intend to request exemption from the requirements of the law, must file such a request with the State Health Officer within 30 days of receipt of the notice of the alleged violation. Proprietors or persons in charge of public places who have been assessed penalties under Florida Statutes sections 386.205 or 386.206, may seek administrative review of the assessment pursuant to the provisions of Florida Statutes Chapter 120. In relevant part, proposed rule 10D-105.012 provides as follows: 10D-105.012 - Minimum Standards for Assessing Fines by HRS Personnel Against Public Places Found to be in Violation of the Florida Indoor Clean Indoor Air Act. When the proprietor or other person in charge of a public place has been notified of observed violations and has failed to correct those violations, the department shall assess fines in accordance with the provisions of Chapter 120, Florida Statutes.... (The subsection includes a list of violations with increasing fines depending on whether the violation is a first, second or third offense.) * * * For every offense after the third offense, the maximum penalty of $500.00 shall be assessed. Each day that a violation continues shall constitute a separate violation. Separate fines shall be assessed for each observed violation, and for each day that each violation persists.
