The Issue The issue is whether Petitioner had just cause to terminate Respondent's employment for being under the influence of alcohol while on duty.
Findings Of Fact At all times material to this proceeding, Petitioner employed Respondent as a facilities maintenance technician at Pathways Elementary School. Respondent's job required him to maintain the school's heating and air conditioning equipment and all electrical equipment. Respondent's position was safety-sensitive because his work occasionally exposed him to as much as 220 volts of electricity. Respondent was aware of Petitioner's personnel policy regarding illegal drug or alcohol abuse. This policy is set forth in policy No. 415, which states as follows in relevant part: It is the intention of the School Board of Volusia County to maintain a drug-free workplace and school environment for its employees and students . . . . An employee of the school board shall not manufacture, distribute, dispense, possess or use alcoholic beverages on school grounds, on school board property, or at school board activities (on or off school board property) at which students are present . . . . * * * Disciplinary action, including, but not limited to termination of employment and referral for prosecution, if appropriate will be taken against any employee who violates this policy. . . . Procedures shall be developed to effectuate the intent of this policy. The procedures shall include provisions for drug testing applicants for employment and employees. Employee testing may be part of a routinely scheduled fitness-for-duty medical examination or based upon reasonable suspicion that an employee is violating the terms of this policy. . . . Respondent signed a document on October 12, 1998, acknowledging his receipt of policy No. 415. Respondent admits he had a responsibility to make sure that he was not under the influence of alcohol at work. On July 20, 2000, the school's secretary was making photo identification badges for school staff members. The secretary radioed Respondent and requested that he come to the office to have his picture taken. During this conversation, the secretary noticed that Respondent's speech was slurred. Because Respondent's voice did not sound right, the secretary asked the school's resource teacher to be present when Respondent arrived. In order to take the picture, the secretary had to place the camera fairly close to Respondent's face. The secretary smelled alcohol on Respondent's breath. She also observed that Respondent was sweating profusely and that his complexion was very pale. Upon Respondent's arrival at the office, the resource teacher smelled a strong odor of alcohol in the room. The resource teacher noticed Respondent's slurred speech. She also observed that Respondent appeared ill because he was pale and sweating profusely. The school secretary called the assistant principal to tell him that she had observed Respondent in an intoxicated state. The assistant principal, in turn, telephoned Respondent's immediate supervisor regarding Respondent's observable intoxication. The assistant principal made this call around 1:00 p.m. Subsequently, the assistant principal observed two bottles of vodka and several bottles of mouthwash in Respondent's vehicle. The vehicle was parked in the school's parking lot. Respondent's immediate supervisor first called Petitioner's professional standards investigator who agreed to meet the supervisor at Pathways Elementary School. The supervisor and the investigator wanted to observe Respondent's behavior firsthand. Arriving at the school, the supervisor noted that Respondent's speech was slurred. Upon her subsequent arrival, the investigator noted Respondent's disheveled clothing, his confused conversation, and the smell of alcohol about his person. Based on her training and experience and her observations of Respondent, the investigator concluded that Respondent was under the influence of alcohol. Respondent freely agreed to submit to a sobriety test. The supervisor transported Respondent to Deland, Florida, for a breath alcohol test. They arrived at the testing center about 3:00 p.m. After taking two breath alcohol tests, Respondent signed a document setting forth the numerical results. As a result of Respondent's intoxication on the job, and in light of Petitioner's drug-free workplace policy, Petitioner gave Respondent another work assignment pending completion of an investigation. After the investigation was complete, Petitioner voted to terminate Respondent's employment. Petitioner's decision was consistent with its policy of terminating employees upon their first violation of the prohibition against using alcoholic beverages on school property. Respondent presented testimony that he is now enrolled in an intensive alcohol-treatment program. He admits that he "has a problem with alcohol." Respondent's testimony that he was not intoxicated from using alcohol while at work on July 20, 2000, is not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding just cause for terminating Respondent's employment. DONE AND ENTERED this 9th day of April, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 9th day of April, 2001.
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Clara Carr, was an inmate at the Florida Correctional Institution. The Respondent Commission is responsible for establishing Presumptive Parole Release Dates (PPRD's) for all inmates in the custody of the State of Florida who meet the requirements of Section 947.173, Florida Statutes. Petitioner met all of the requirements of that section and was entitled to a PPRD initial interview on November 25, 1985. In the establishment of a PPRD, the inmate is first interviewed in the field by an examiner who evaluates and scores the inmates on a form which is then sent to the full Commission which also scores the individual based on salient factors which may be aggravated or mitigated because of other permissible factors. If the Commission decides to assess an aggravating factor, the amount of time is discretionary within certain time limits. Initially, the Commission looks at the offense and its severity in setting a salient factor score and uses that as a beginning. Then the jail time prior to the admission to the Department of Corrections facility, if any, is removed and the pre and post sentencing reports, the interview, and other reports of public hearings and the like are evaluated as aggravating or mitigating factors. The aggravating factors are generally set out in the rule in question here but the list in question in the rule is not all inclusive. The Commission may consider anything which can be founded on a valid or reasonable connection to the action taken. Petitioner was interviewed by Commission staffers on November 25, 1985, for the purpose of setting her PPRD. By action of the Commission at a meeting held on January 8, 1986, the PPRD was established to be December 28, 1988. This date was arrived at by initially utilizing the maximum matrix of 32 months set for her offense and the conditions thereof aggravated by a history of alcohol abuse listed in the pre-sentence investigation; the psychological interview; and the admissions summary, for which the Commission added an additional 36 months. When that time was applied to the commencement of sentence, April 28, 1983, the PPRD was established as stated above. On January 30, 1986, through counsel, Petitioner requested a review of her PPRD alleging that the rule under which the Commission had aggravated her PPRD (Rule 23-21.10(4)(a)2b) is invalid. Petitioner claimed that alcoholism is a treatable illness and it is improper and illegal to aggravate on such grounds. Petitioner cited Article 1 Section 2 of the Florida Constitution; Section 396.022(1), Florida Statutes; 42 USC 4541(a)(8), and other authorities. A commission meeting was held on February 26, 1986, to consider Petitioner's request for review of her PPRD. The Commission did not change it holding that the rule in question was appropriate and provided for the aggravation of a PPRD for history of alcohol abuse. Consequently, the PPRD remained at December 28, 1988. In the pre-sentence investigation conducted by officials of Marion County, Florida, in August, 1983, which was presented to the Judge at the time Petitioner was sentenced and which was considered by the Commission at the time the PPRD was established, Petitioner is alleged to have indicated that she had been drinking very heavily for several hours the night of the incident and does not remember any of the circumstances surrounding it. She described herself as a "weekend drinker" of beer and liquor and denies the use of any drugs, but it is significant to note that her nickname in the community is "Boozie." Though Petitioner denied having a prior arrest record, the records of the Marion County Sheriff's Office and the Ocala Police Department indicate a series of arrests going back to January, 1975, five of six of which relate to aggravated battery or assault and battery, in some cases with a deadly weapon. During the admissions examination conducted at the time Petitioner entered FCI, she indicated that she did not drink, but also that she is a weekend alcoholic. The evaluator was of the opinion that her alcoholic involvement was more than just weekends involvement and in addition, she was diagnosed by the institutional psychiatrist as having an adjustment disorder. She was described as being very aggressive and one who would probably display aggressive behavior if placed under too much stress. The Commission is required, under the provisions of Sections 947.16 and 947.172, Florida Statutes, to provide the Petitioner with a PPRD and to compute that date according to objective parole guidelines outlined in Section 947.165, Florida Statutes. In determining the PPRD, the Commission may use aggravating or mitigating circumstances but these circumstances must not be duplicative of the severity of the offense behavior or the salient factor score arrived at pursuant to Sections 947.1651 and 947.1722, Florida Statutes. The Commission was delegated rulemaking power by Section 947.07, Florida Statutes. Consistent with the authority, the Commission developed parole guidelines outlined in Rule 23-21.10, Florida Administrative Code. The aggravation factor which is the subject of the instant challenge is contained in Rule 23-21.10(4)(a)2b, Florida Administrative Code. This Petitioner is a 28-year old female serving her first felony conviction from Marion County, Florida, for aggravated battery with a dangerous weapon having been sentenced to a term of 10 years (less 81 days jail time), on July 18, 1983. She was received at FCI on July 22, 1983, and presently has a maximum release date of April 25, 1993. Under the provisions of the rule cited above, the Commission may aggravate a Parole Release Date if the inmate has demonstrated a history of alcohol or drug abuse. The Petitioner's PPRD was aggravated for that reason because the history of her alcohol abuse relates to negative behavior on her part. This history of alcohol abuse alone would not be sufficient to cause the Commission to aggravate a PPRD. Here, however, there was a showing of increased risk on the part of Petitioner as a potential parolee. The Commission felt that she was a risk due to the interrelation of her history of bad behavior and alcohol consumption. Even though the rule in question does not specifically refer to aberrant behavior as related to the alcohol abuse as grounds for aggravation, it is nonetheless implied therein and a logical and reasonable extension and interpretation of the rule. The Commission does not specifically consider that the alcohol abuse may stem from a medical condition. It deals with results or behaviors regardless of the cause of the behavior. It is not the function of the Commission to deal with the cause of the problem, but to evaluate each inmate for parole on the basis of that inmate's specific situation. There is no formula for evaluation but instead, it is the best collective judgment of the risk factors in the individual case as arrived at by the members of the Commission. The matrix time ranges are limits of foundation times and the other factors are add-ons or subtractables. If this were not so; if there were to be no independence of thought and judgment by members of the Commission; there would be no need for people to make up the Commission and to make the decision. This function could be performed by a machine on the basis of factors fed into it. Petitioner contests the validity of the rule on the basis that it does not consider the fact that alcoholism is a sickness rather than a mental condition. At the time the rule complained of was drafted, the Commission hired Florida Research Center, Inc. as consultants to help come up with appropriate matrices and salient factors which included alcohol and drug abuse. In addition to this, a survey was conducted in 1978 of 10 individuals including the Commissioners as to how certain factors should be rated. Five of the ten parties questioned rated drug and alcohol abuse as number one. Two others rated those conditions as second in importance. Further, the Commission was provided with the professional literature considered by authorities at the time the preponderance of which supported these evaluations. It is clear that the legislative intent behind Chapter 947, Florida Statutes, was to have rules in effect for the Commission to use in establishing PPRD which call for the use of objective parole criteria within certain limits. Under the statute, the rule need not specify a number of months or a range of months for aggravation due to alcohol abuse. The Commission has not suggested to Petitioner that she seek treatment for her alcohol abuse nor has it offered to reduce her sentence if she should do so. It would be inappropriate for the Commission to do this as a part of a determination but it would not be inappropriate for the interview staff to suggest it as a matter of course. It is not the role of the Commission to suggest the course of an inmate's confinement or rehabilitation. That subject is within the purview of the Department of Corrections. The Commission's function is to assess the propriety of returning the inmate to society and the issue to be decided by the Commission at its hearing is whether the inmate constitutes a threat to the community or not. In fulfilling this function, the Commission uses the Department of Corrections to prepare mental and medical examinations of the inmate and to produce reports. If the evidence indicates there is a mental health problem, the Commission considers it. In early 1984, the Commission published two policy letters dealing with the Commission operations; Numbers 4.17 and 4.20, both of which relate to medical or mental health status reports regarding inmates. The first, dealing with the request for these reports indicates that if the Commission requires an up- to-date report in these areas it may request it and in those cases where a hearing examiner for the Commission feels that the Commission would need it, it is the responsibility of the examiner to request it so that it is available for the Commission to consider at the time the inmate's PPRD is considered. Number 20 deals primarily with the language to be used by the Commission in citing a mental health status report as a source of new information used to alter the PPRD. Neither of these policy letters are necessarily pertinent unless it is considered that alcohol abuse, the language used in the rule in question here, is equated to alcohol dependency and alcohol dependency is considered either a mental health or medical condition. It cannot be found here that alcohol abuse, which may be a single incident of improper consumption of alcohol, is tantamount to or equates to alcoholism or alcohol dependency which may be a mental or physical condition. The term, "aggravation", is defined in Rule 23-21.02(1) as: . . . to exceed the matrix times ranges upper month limit. Alcohol abuse is not defined in the rule or anywhere else for specific use by the Commission. It is basically left up to each Commissioner to apply his interpretation of the term to the facts before him or her and most Commissioners have a common understanding of what the term means. The Commission considers there is a medical difference between alcohol abuse and alcohol dependence for setting PPRDs. The determination of whether to use a history of alcohol abuse may be based on whether the abuse played a part in the current offense or not. If so, the Commission generally will utilize the incident in its deliberations. If not, then it may not, but the issue of whether to use it as either aggravation or mitigation is discretionary with the Commission. Once it is determined to use alcohol abuse as aggravation in establishing a PPRD, then the amount of aggravation and time to be added is also based on the individual judgment of each Commissioner based on his or her evaluation of the degree of risk involved to the general public by the inmate. In arriving at this additional time, the Commission has a range within which it may assess a period of months, but there is no formula. In substance, the Commission is making an assessment of the risk - not a medical diagnosis and the issue is whether, because of that demonstrated alcohol abuse, the inmate constitutes a greater risk to the public if paroled. If so, then additional months are added on. If not, they are not. In that connection, expert evidence tends to indicate that abusers of either alcohol or drugs have a lesser chance of success than those who do not abuse. Alcohol addiction does generally lead to poor behavior and it is often a condition of parole that the inmate not drink to excess. Consequently, if a demonstrated alcohol abuser does drink to excess, the likelihood of his behavior becoming inappropriate again is high, but in addition, he will most likely be in violation of the conditions of his probation. It is again a question of risk assessment by professional judgment on an individual basis. Some experts define alcohol abuse as "a voluntary excess or inappropriate use of alcohol", whereas alcoholism is "involuntary." An abuser is not necessarily an alcoholic and trained medical expertise differentiates between alcoholism and alcohol abuse. Because of the fact that alcohol abuse is voluntary, some experts believe there is no reason to extend a prison term on the basis of alcohol abuse if the extension does not result in treatment for the behavior. Petitioner introduces the Commission's action with regard to inmate Nicky Berkart, wherein the Commission declined to utilize that inmate's alcohol abuse to aggravate his PPRD as evidence of the inconsistency of treatment of this factor. Mr. Burkart's situation is not comparable, however, to the issue here. None of the documentation considered by the Commission here was prepared by a doctor or medical professional with the exception of the psychologist's interview, but there is no indication that it need be. If the Commission had decided that additional medical or professional evaluation was necessary and pertinent, it could have requested it. What must be recognized is that an inmate has no right to parole. The sentence imposed by the court generates an expiration of sentence date (EOS) at which time the inmate will be released unless he or she has committed additional offenses. Parole, which is a release prior to expiration of sentence, is a privilege and if no parole is granted, the inmate will still get out at the EOS less gain time. Consequently, since nothing extends the sentence, denial of parole does not increase the penalty. The Commission may and does make abstinence from alcohol, or the use of antabuse, a condition of parole. Neither, however, is a guarantee that the individual will refrain from using alcohol. The evidence presented by Respondent indicates that it is not at all unusual for a parolee to commit offenses while under the influence of alcohol. Forty to fifty percent of all revocations of parole result from some sort of substance abuse. Many of those parolees have a history of alcohol abuse. Therefore, a history of alcohol abuse would appear to be a negative indicant of parole success. The aggravating factor in this situation is not that the inmate has the medical problem of alcoholism, but that the history of alcohol abuse shows that the inmate is not a good parole risk. It is generally a safe statement that people in prison who abuse alcohol are not a risk to society. Those who are released form prison with a demonstrated propensity to abuse alcohol are. In making this evaluation, the Commission is not, as was indicated previously, bound by any strict formula. Whatever qualification is applied, however, it must be applied on an individual basis and not across the board. Each Commissioner tailors his recommendation on what he knows about the individual before him. Based on the information provided, plus whatever information is requested as appropriate, an individual conclusion is drawn by each member of the Commission. These then are evaluated and a Commission vote is taken which results in the establishment of the PPRD.
The Issue The issue in the case is whether certain forms related to inspection and operation of breath test instruments, and which are incorporated by reference into various rules adopted by the Florida Department of Law Enforcement (Respondent), must be published in their entirety in the Florida Administrative Weekly during the rule adoption process.
Findings Of Fact Each of the Petitioners has been arrested and charged with driving under the influence (DUI) in violation of Section 316.193, Florida Statutes (2005). The DUI cases are currently pending. The Respondent is the state agency charged with adoption of rules related to operation of the alcohol testing program, including certification and operation of breath test instruments. Apparently during the arrest process, the Petitioners were administered breath tests using instruments identified as Intoxilyzer breath machines. The machines were allegedly maintained, and the tests administered, pursuant to requirements set forth on various forms incorporated by reference into rules adopted by the Respondent under the provisions of Subsection 316.1932(1)(a)2., Florida Statutes (2005). Florida Administrative Code Chapter 11D-8 sets forth rules applicable to the "Implied Consent Program," including rules related to breath testing administered to persons suspected of DUI. Florida Administrative Code Rule 11D-8.017 includes a list of forms referenced within Chapter 11D-8, which are "hereby incorporated by reference." Florida Administrative Code Rule 11D-8.017 states that all of the incorporated forms could "be obtained by contacting the Florida Department of Law Enforcement, Alcohol Testing Program, P. O. Box 1489, Tallahassee, Florida 32302." Insofar as is relevant to this proceeding, the incorporated forms are as follows: FDLE/ATP Form 14 – Breath Test Result Affidavit – Revised March 2002. FDLE/ATP Form 16 – Agency Inspection Procedures – Revised March 2004. FDLE/ATP Form 24 – Agency Inspection Report – Revised March 2001 FDLE/ATP Form 34 – Instrument Evaluation Procedures – Revised March 2004. FDLE/ATP Form 35 – Department Inspection Procedures – Revised March 2004. FDLE/ATP Form 14 is titled "Breath Test Result Affidavit" and sets forth a series of 16 steps to be followed by a breath test operator in administering a breath test. FDLE/ATP Form 16 is titled "Agency Inspection Procedures" and sets forth a series of 12 steps to be followed in cleaning and testing a breath machine. FDLE/ATP Form 24 is titled "Agency Inspection Report" and is a form to be used by a permitted inspector to report machine inspection results to the Department of Highway Safety and Motor Vehicles. FDLE/ATP Form 34 is titled "Instrument Evaluation Procedures" and sets forth the factors to be considered in evaluating breath testing equipment for approval for use in Florida. FDLE/ATP Form 35 is titled "Department Inspection Procedures" and sets forth a series of 11 steps to be followed in cleaning and testing a breath machine. The Respondent has not published the full text of the cited forms in the Florida Administrative Weekly at any time during the adoption, or subsequent amendment and re-adoption, of Florida Administrative Code Chapter 11D-8. In the Petitioners' DUI cases, the State of Florida is seeking to present evidence of compliance with the rules and forms adopted by the Respondent related to maintenance of the machines and administration of the tests. The Petitioners assert that the rules and forms were improperly adopted and, therefore, are invalid. The Petitioners are substantially affected by the rules and forms at issue in this proceeding. There is no evidence that the Respondent was informed by the Department of State or the Administrative Procedures Committee during the rule adoption process that the process utilized in adopting the referenced rule was improper. There is no evidence that the rules have not been readopted as necessary to accommodate revisions to the forms.
The Issue The issue in this case is whether a form created by the Florida Department of Law Enforcement's Alcohol Testing Program constitutes a "rule" as defined at section 120.52(16), Florida Statutes (2012).1/
Findings Of Fact Petitioner Robert Berry is a licensed and active driver in the State of Florida who is subject to the "implied consent" provisions of section 316.1932, Florida Statutes. Petitioner Jill Humphrey is a defendant in a criminal prosecution pending in Brevard County, Florida. Ms. Humphrey was arrested and charged by the State of Florida with driving with an unlawful breath alcohol level, after having submitted to an alcohol breath test pursuant to section 316.1932. In addition to the charge of driving with an unlawful blood alcohol level, Ms. Humphrey is also being prosecuted under the theory that her breath alcohol test results were sufficient to create a presumption under section 316.1934 that she was driving under the influence of alcohol to the extent that her normal faculties were impaired. The State of Florida has asserted that all applicable statutes and administrative rules were met related to the breath alcohol test administered to Ms. Humphrey and that the results of the test are admissible at trial. Pursuant to section 316.1932(1)(a)2. and Florida Administrative Code Chapter 11D-8, the Alcohol Testing Program (ATP), a unit within the Respondent, is responsible for the operation, inspection and registration of the "Intoxilyzer 8000" breath testing instruments used for conducting breath alcohol tests on drivers suspected of "driving under the influence" (DUI) in Florida. Each instrument is subjected to an annual inspection performed by the ATP at its laboratory in Tallahassee, Florida. Local law enforcement agencies ship the instruments to Tallahassee for the annual inspection. Rule 11D-8.004 provides as follows: Department Inspection and Registration of Breath Test Instruments. The Department shall register and inspect a breath test instrument prior to such instrument being initially placed into evidentiary use by an agency. The inspection validates the instrument's approval for evidentiary use, and the registration denotes an instrument approved pursuant to these rules and shall reflect the registration date, the owner of the instrument, the instrument serial number, the manufacturer, and the model designation. Registered breath test instruments shall be inspected by the Department at least once each calendar year, and must be accessible to the Department for inspection. Any evidentiary breath test instrument returned from an authorized repair facility shall be inspected by the Department prior to being placed in evidentiary use. The inspection validates the instrument's approval for evidentiary use. Department inspections shall be conducted in accordance with Department Inspection Procedures FDLE/ATP Form 35 - Rev. August 2005 for the Intoxilyzer 5000 Series, or Department Inspection Procedures - Intoxilyzer 8000 FDLE/ATP Form 36 - Rev. August 2005 for the Intoxilyzer 8000; and the results reported on FDLE/ATP Form 26 - Department Inspection Report--Rev. March 2004 for the Intoxilyzer 5000 Series, or FDLE/ATP Form 41 - Department Inspection Report - Intoxilyzer 8000 - Rev. August 2005 for the Intoxilyzer 8000. Department Inspectors shall be employed by the Department to register evidentiary breath test instruments, to conduct inspections and maintenance of breath test instruments and related equipment and facilities, to conduct and monitor training classes, and to otherwise ensure compliance with Chapter 11D-8, F.A.C. (emphasis added). The inspection procedures applicable to the Intoxilyzer 8000 are set forth in FDLE/ATP Form 36, the "Department Inspection Procedures" form, and have been incorporated into the Florida Administrative Code by reference at rule 11D-8.017. The ATP inspectors have used a variety of methods to document their observations of the instruments submitted for inspection, including individual notes generated by the inspectors. In April 2012, the ATP created a form, called the "Instrument Processing Sheet," to organize and track the passage of each instrument through the inspection process. The parties have stipulated that the Petitioners are substantially affected by the Instrument Processing Sheet form. Although the Respondent does not require that the ATP inspectors use the Instrument Processing Sheet, inspectors uniformly use the form to document the receipt of the instruments from local law enforcement agencies and their condition upon receipt. The form prompts inspectors to visually review the physical condition of each instrument, including such items as the case, keyboard, handle, feet, "tight screws," and "dry gas holder." Additionally, the form is used to guide inspectors through a review of the mechanical function of the instrument by a series of "quality checks" performed prior to the actual inspections. The checks are used to ascertain whether specified components within the instrument are in good working order and to document any related adjustments made to an instrument prior to the inspection. An instrument that requires repair outside the expertise of the ATP is shipped to an authorized repair facility. Upon the return of an instrument to the ATP from a repair facility, the ATP performs a full inspection of the instrument before it is returned to a local agency. In November 2012, the form was revised to document shipment of an instrument to a repair facility. The challenged form has not been adopted by rule. The Petitioners assert that the form constitutes a "rule" that must be subjected to statutory rulemaking requirements. At the time of the hearing, the Respondent was preparing a digital version of the form that would permit the processing of each instrument to be tracked electronically. One of the quality checks set forth on the form verifies the mechanical operation of the instrument's "flow sensor." A flow sensor monitors the passage of lung air through an instrument during a breath alcohol test and triggers an audible "tone" when the breath being generated by a test subject is sufficient to provide a scientifically reliable breath sample. According to the form, an inspector should observe the instrument's ability to differentiate between airflow levels by conducting a series of specific air pressure tests. If the test results indicate that the sensor responds inaccurately, the sensor is calibrated to correct the response. The form prompts the inspector to record the initial test results, as well as post-calibration test results if calibration is required. The flow sensor may also be replaced to correct a defect. After quality control checks have been completed, the ATP inspection is conducted according to the procedure set forth in FDLE/ATP Form 36. The results of the ATP inspection are reported on FDLE/ATP Form 41, the "Department Inspection Report - Intoxilyzer 8000" form, which is incorporated into the Florida Administrative Code by reference at rule 11D-8.017. The Respondent is not required by statute or rule to record the specific results of a flow sensor test administered prior to the annual inspection. The Respondent is required by FDLE/ATP Form 36 only to ascertain and report whether the instrument is able to distinguish adequate minimum sample volume from inadequate minimum sample volume.
Findings Of Fact Petitioners are defendants in criminal cases presently pending in Lee County, Florida, having each been charged with the offense of driving while under the influence of an alcoholic beverage. Subsequent to their arrests, they took a breathalyzer test on a CMI Intoxilyzer, Model 4011AS, and have been informed that the prosecution intends to introduce evidence derived from these tests at their trials. Respondent has adopted Rules 10D-42.22, 42.23, and 42.24, Florida Administrative Code, under the authority of Sections 316.1932(1)(b)1, 316.1934(3), 327.352(1)(d) and 327.354(3), Florida Statutes (1984 Supp.) Rules 10D-42.22 and 42.23 provide as follows: 10D-42.22 Chemical Breath Testing Methods - Approval. Chemical breath testing methods for determining blood alcohol content shall be approved by the Department, based on scientific principles which will establish performance requirements and methods for evidential breath testing. Evidential breath testing involves methods which measure the alcohol content of deep lung samples of breath with sufficient accuracy for evidential purposes. . . and for which instructors have been trained as stipulated in 10D-42.27. 10D-42.23 Registration - Chemical Test Instruments or Devices. All chemical breath test instruments or devices used for breath testing under provisions of Chapter 316 and 327, Florida Statutes, shall be previously checked, approved for proper calibration and performance, and registered by authorized personnel of the department, by trade name, model number, serial number and location, on forms provided by the Department. All such chemical test instruments or devices registered hereunder shall be checked at least once each calendar year (January 1 through December 31) for accuracy and reproducibility. Rule 10D-42.24 specifies the operational and preventive maintenance procedures for approved chemical breath testing instruments enumerated therein including the CMI Intoxilyzer, Model 4011AS. Before approving a chemical breath testing instrument and including it in Rule 10D-42.24, Respondent conducts a series of tests on a sample instrument provided by the manufacturer. These tests include vapor and acetone tests as well as blood breath correlations. The purpose of these tests is to determine if the instrument gives a reliable measurement of blood alcohol levels based on deep lung samples of breath. All manufacture_s and all states use a ratio of 2100 to 1 in calibrating these instruments. That is, the level of alcohol in the lungs as measured by the instrument is multiplied by 2100 to derive the blood alcohol content level. If the instrument proves reliable in determining a known blood alcohol level within acceptable tolerance levels it is added to the approved list. After an instrument is added to the approved list, each individual device must also be tested by Respondent before it can be used in this state for evidentiary purposes. The purpose of these tests is to exactly calibrate each device since there is usually a slight variation between devices from the 2100 to 1 general ratio. Required monthly preventive maintenance and annual inspection of each device insures that the specific calibration for the device is maintained, or corrected if necessary. Operators of these devices must complete a forty hour training program and also an annual six hour requalification course. Respondent's rules do not set forth or require the use of this 2100 to 1 ratio in the calibration process. However, since this is the calibration ratio used by manufacturers, Respondent does test that ratio and make adjustments in individual instrument calibrations, when necessary. The accuracy of blood alcohol level measurements obtained by using these instruments can be affected by factors such as a person's body weight and composition, individual absorption and elimination rates, the time the measurement is made in relation to the time when the person was driving, and the time elapsed since alcohol was consumed. However, by using estimates such as the "elimination rate" of a person and extrapolating back to the time of driving from the time the test is administered, blood alcohol levels which existed while driving can be estimated.
The Issue Whether Respondent's alcoholic beverage license should be revoked or otherwise disciplined on grounds that (1) on several occasions, cocaine was possessed, sold, or delivered on the licensed premises by Respondent's employees in violation of state law, and (2) by virtue of such Possession, sale, or delivery of cocaine by its employees, Respondent maintained a public nuisance on the licensed premises.
Findings Of Fact Respondent, Provende, Inc., a general partner in a limited partnership known as Alexandre, Ltd., is responsible for and operates a nightclub under the name of Club Alexandre (the "Club") at 1601 Biscayne Boulevard, Miami, Florida. In connection with its operation of Club Alexandre, Respondent holds beverage license No. 23-3953, Series No. 4-COP-SRX, which permits the sale and consumption of intoxicating beverages on the premises. (Stipulation of Parties, Testimony of Cachaldore.) Club Alexandre, located within the Omni International complex, is a large, multi-faceted club. Its premises consists of two levels totaling approximately 30,000 square feet. The first level includes a restaurant, bar area, three separate dance floors, bathroom facilities, and a stage for entertainment. Buffet lunches are served as early as 11:30 a.m., followed by a cocktail hour in late afternoon, dinner, and live entertainment which continues until 3:00 a.m. The second level is used primarily for private parties, weddings, and business meetings; it is enclosed in glass, and includes banquet rooms, bathroom facilities, storage rooms, and the Club's business offices. Ordinarily, the Club employs from 45 to 50 persons as busboys, bartenders, barmaids, waiters, maitre d's, cooks, dishwashers, office staff, promoters, and buyers. Most of the employees have been hired by Alex Cachaldora--general manager of the Club, stockholder, and president of Respondent. He either hires or approves the hiring of all Club employees and is the individual responsible for managing the Club on a daily basis. (Testimony of Cachaldora.) Club Alexandre is a semi-private club. Upon application, acceptance, and payment of a fee, persons may become members; public customers may also use the Club after screening at the entrance and payment of a cover charge. (Testimony of Cachaldora.) I. As to Count I On November 23, 1980, at approximately 12:10 a.m., D.C. Diaz--an off- duty officer of the Miami Police Department--paid a cover charge and entered the Club Alexandre. He sat at the bar counter, ordered a drink from a young barmaid dressed in a black uniform, and asked her if she could give him some "white magic", a street term referring to cocaine. She asked how much he wanted, he said "one gram"; she then informed him that the price would be $65. (Testimony of Diaz.) Diaz then gave the barmaid a $100 bill; she went to the cash register and returned with $35 in change which he gave to Diaz. She told him, "It will take between five and ten minutes." (Tr. 22-I-22.) Five to ten minutes later, a waiter--dressed in a black tuxedo-type shirt--approached from the restaurant area and gave the barmaid a folded napkin which she, in turn, gave to Diaz. He opened the napkin and found a small tinfoil packet inside containing a white powder which he suspected to be cocaine. (Testimony of Diaz.) Subsequent laboratory tests by the Metropolitan Dade County Public Safety Department confirmed that the white powder obtained by Diaz from the barmaid on November 23, 1980, was cocaine. II. As to Count 2 On January 23, 1981, at approximately 10:30 p.m., Beverage Officers Carmen Gonzalez and Joe Mato, together with Art Serig of the Miami Police Department, entered the Club Alexandre for the purpose of conducting an undercover narcotics investigation. They proceeded to the second floor area, sat at a table, and ordered drinks. (Testimony of Mato.) At approximately 12:25 am. (January 24, 1981), Officer Mato proceeded to the downstairs bar where a barmaid identified as Enid Epstein was tending bar. After ordering a drink, he asked her if she knew where he could obtain some "white magic"; she answered, "Yes, if he is still here it would be $65."(Tr. 22-I-53.) He agreed to the price and handed her $70. She took the money and proceeded to the kitchen area located in the rear of the premises. A few minutes later, he observed her running across the upstairs lounge area to the bar. After a brief delay, she proceeded toward the downstairs bathroom area. She then returned to Officer Mate, handed him a $5 bill folded into a small package, and explained, "This is the change that I owed you." (Tr. 22-I- 54.) He opened the folded $5 bill and found a small tinfoil packet containing a white powder which he suspected to be cocaine. (Testimony of Mato.) Subsequent Dade Public Safety Department laboratory tests confirmed that the white powder obtained by Officer Mato from Enid Epstein was cocaine. (P-2.) III. As to Count 3 On January 24, 1981, at approximately 9:20 p.m., undercover Beverage Officers Lou Clark end Lou Terminello entered the Club Alexandre for the purpose of continuing the Division's narcotic investigation. They seated themselves at the downstairs bar area end ordered drinks from a male bartender who introduced himself as "Bill", later identified as William Mendel. Officer Clark told "Bill" that they had picked up a couple of girls and asked if there was anything to help with the party. A conversation ensued about there being a lot of "snow" in Kansas--Clark using the term's ordinary meaning--and "Bill" answering, "That is not the kind of snow I was referring to." (Tr. 22-I-132.) In response to Clark's question about obtaining something that might help with their party, "Bill" indicated his contact wasn't there at that time, but that "they should be in later." (Tr. 22-I-133.) Officers Clark and Terminello then left the premises. (Testimony of Clark, Terminello.) About an hour later, the two beverage officers returned to the premises, and seated themselves at the downstairs bar. They ordered a drink from "Bill" and asked if his contact had arrived. He went over and talked to a young red-haired female barmaid--later identified as Enid Epstein-and returned to the officers; he then wrote "75" on a white bar napkin and placed it on the counter in front of them. Terminello said, "That is fine, we'll take two" (Tr. 22-I-136) and laid $80 on the table. Clark laid dawn a $100 bill. "Bill" took the $100, and $56 from Terminello's $80, leaving $24 in change. 4/ "Bill" then rang up a $6 sale an the register and placed the rest of the money in the right vest pocket of Enid Epstein. She then left the bar and proceeded into the kitchen area. A few minutes later she returned--via the staircase leading from the second floor--folded an unidentified object into a napkin, and handed it to Bill. He, in turn, handed the napkin to Terminello. After finding two small tinfoil packets in the napkin, the officers departed the premises. (Testimony of Terminello, Clark.) The two small packets contained a white powder. Subsequent Public Safety Department laboratory tests identified the white powder contained in one of the packets as cocaine. 5/ IV. As to Count 4 After his initial drug transaction with barmaid Enid Epstein during the early morning hours of January 24, 1981, (Paragraph 7 through 9, Count 2, above) Officer Mato returned to the Club Alexandre with Beverage Officer Emil Marrero. They arrived shortly before midnight on January 24, 1981, and seated themselves on opposite ends of the downstairs bar. After ordering drinks, Officer Mato called over barmaid Enid Epstein--who was tending bar--placed $70 on the bar and told her he would like to purchase some "white magic", another street name referring to cocaine. She took the money and proceeded to the kitchen area, then returned and handed Mato a folded $5 bill containing a small tinfoil packet. A few minutes later, the beverage officers departed the premises. (Testimony of Mato, Merrero.) The small tinfoil packet contained white powder which subsequent Public Safety Department laboratory tests identified as cocaine. (P-2.) V As to Count 5 At 11:00 p.m., on January 27, 1981, Beverage Officers Marrero and Delmonte entered the Club Alexandre and seated themselves at the downstairs bar. They ordered drinks from barmaid Enid Epstein. Shortly after midnight Merrero folded $70 in a small packet and placed it on the bar; he then asked Epstein if he could buy some "white magic", meaning cocaine. Taking the money, she went to the kitchen area and returned, placing a folded $5 bill in front of Marrero. Inside the folded bill was a small tinfoil packet. The officers then left the premises. (Testimony of Marrero, Delmonte.) Subsequent Public Safety Department laboratory analysis identified the contents of the tinfoil packet as cocaine. (P-3.) VI. As to Count 6 On January 28, 1981, at 12:45 a.m., Officers Clark and Terminello returned to the Club Alexandre in furtherance of their narcotics investigation. Seated at the lower level bar, they ordered drinks from Enid Epstein, the barmaid. Shortly thereafter, Terminello called her over end asked her if there was any chance of their getting some more "toot", another slang ward for cocaine. She replied that she would have to check to "see if any of my people are here." (Tr. 22-I-104.) She then left the bar, walked to the rear kitchen area and returned several minutes later saying, "Yeah, no problem. There is somebody here." Id. Each officer then placed $75 on the bar; she retrieved the money, left for the kitchen area and returned with a folded napkin which contained two small tinfoil packets. (Testimony of Clark, Terminello.) Subsequent Public Safety Department laboratory analysis identified the contents of one of the packets as cocaine. 6/ (P-5.) VII. As to Count 7 On January 29, 1981, at approximately 11:40 p.m. beverage officers, assisted by officers of the Miami Police Department, executed a search warrant on the premises of the Club Alexandre. During the search, Beverage Officer Joseph Maggio found a brown leather purse on a shelf in a locked storage room on the second floor. The outside pocket of the purse contained ten small tinfoil packets containing a white powder suspected to be cocaine. A further search of the purse revealed small baggies and six additional tinfoil packets--all containing suspected cocaine. (Testimony of Maggio, McEwan.) The purse also contained a checkbook and a Florida driver's license issued in the name of Luis A. Vargas. Vargas, the head chef for Club Alexandre, was subsequently located downstairs. After being advised of his rights, Vargas identified the purse as his own. Of the numerous packets of white powder found within the purse, only one was subjected to Public Safety Department laboratory analysis; the contents of that packet were identified as cocaine. (P-7.) VIII. Licensee's Duty to Exercise Reasonable Care end Diligence Before a beverage license can be suspended or revoked for a violation of law on the licensee's premises, the licensee must be found culpably responsible for the violation through his own negligence, intentional wrongdoing, or lack of diligence. 7/ In the instant case, no intentional wrongdoing by Respondent has been alleged or proved. Rather, the Division contends that the violations of state narcotics laws described above resulted from Respondent's failure to exercise reasonable skill and diligence in managing and supervising its operations. Respondent does not dispute that on seven occasions, as alleged, violations of state narcotics laws occurred on the premises; however, it denys negligence or lack of diligence. It affirmatively contends that it took every reasonable precaution to guard against the illegal sale or use of narcotics on the licensed premises. (Testimony of Cachaldora, Petitioner's Proposed Recommended Order, Respondent's Suggested Findings of Fact.) Respondent's contention is unavailing; the evidence establishes that Respondent failed to take reasonable precautions to guard against violations of narcotics laws on its premises--that Respondent failed to exercise reasonable care end diligence in managing its operations and supervising its employees. The following facts justify this conclusion: The alleged violations of narcotics laws occurred on the premises in a recurring, persistent, and practiced manner. They occurred at least seven times--over a 2 1/2- month period--and involved at least three separate employees of the Respondent. Despite the licensee's knowledge or suspicion, through its operators and managers, that violations of state narcotics laws occasionally occurred on it premises, the licensee never expressly enunciated--either to its employees or patrons--a policy forbidding the possession, sale, or use of narcotics. Employees were not admonished against involving themselves in such violations; neither were penalties for such violations announced in advance. Neither was information concerning possible narcotics law violations or convictions elicited from prospective employees. Given the nature and size of the Club, the number of its employees end patrons, and management's knowledge, or suspicion, that narcotics violations had occurred on the premises--the licensee took inadequate steps to (1) monitor activities on the premises, and (2) detect narcotics violations and prevent their occurrence. It employed off-duty Omni security guards only during times when business activity was greatest. At all other times, it relied on its employees for surveillance and security. The place where narcotics violations were most likely to occur--the bathroom facilities on two floors--were monitored by a single valet with minimal security training and who could neither speak nor understand English. The security efforts by the licensee were directed more to controlling disturbing or offensive behavior by patrons than pretending violations of law from occurring on the premises, or taking forceful action when such violations were detected. The quality of the licensee's surveillance program is illustrated by an experiment conducted by Beverage Officer Delmonte. On January 14, 1981--while at the Club with Beverage Officer Marrero--he observed several persons in the men's bathroom with running eyes and noses. During that same visit, Officer Marrero observed several waiters and a patron in the bathroom "sniffing something through their nostrils." (Tr. 22-I-78.) The Respondent's valet was also present in the bathroom at the time. On Officer Delmonte's next visit to the Club--January 27, 1981--he decided to conduct an experiment because of the suspicious activities observed on January 14, 1981. He went to the bathroom with a dollar bill rolled into a small tube; he placed it to his nostril and pretended to inhale something. The valet came in, observed this behavior, and acted surprised. Delmonte then acted embarrassed, smiled, and placed the dollar back in his pocket. After the valet handed him a kleenex, Delmonte exited the bathroom with the valet following him. At the foyer, the valet spoke with an older lady wearing a dark dress; the lady then engaged in a casual conversation with Delmonte and Enid Epstein--who was tending bar. Nothing further occurred in response to Officer Delmonte's experiment. (Testimony of Delmonte, Mendel, McEwen, Maggie, Mato, Clerk, Terminello, Marrero, Guerre, Robertson, Cachaldora, Puig; R-3, R-7.) Respondent's suggested findings of fact are adopted to the extent they establish: (1) Between November 23, 1980, and January 28, 1981, law enforcement officers made numerous undercover visits to the Club when they did not, or were unable to purchase illicit narcotics on the premises; (2) During undercover visits during the period in question--except for the January 14, 1881, incident in the men's bathroom end the incidents alleged in Counts 1 through 7--the officers did not observe anyone using or selling illicit narcotics or marijuana. Moreover, two off-duty police officers who sometimes socially visited the Club-- and were encouraged to do so by Respondent--did not observe any narcotics violations taking place; (3) Each sale of cocaine, as alleged, was preceded by a law enforcement officer's solicitation to purchase; and (4) Unless observed in the act, it is difficult to ascertain--with certainty--whether a person uses, sells, or is inclined to use or sell narcotics. (Testimony of Stillman, Diaz, Sokolowski, Delmonte, Mandel, McEwen, Maggie, Mato, Clark, Terminello, Marrero, Guerra, Robertson.) IX. Appropriate Disciplinary Penalty No aggravating evidence was offered by the Division to justify permanent license revocation; no intentional wrongdoing by Respondent, or its manager, has been shown. Respondent has no record of prior infractions of the Beverage Law. There is no evidence which indicates that Respondent's operator, Alex Cachaldora, was aware that several of his employees were involved with illicit narcotics. In light of the facts of this case, permanent revocation of Respondent's beverage license is unwarranted; rather, a 90-day suspension is appropriate, less any days during which Respondent's beverage license has been effectively suspended by emergency order of the Division. (Testimony of Cachaldora.) Both parties have submitted proposed findings of fact for consideration in this proceeding. To the extent such findings have not been adopted or incorporated in this Recommended Order, they are rejected as irrelevant or unnecessary to resolution of the issues presented or unsupported by the evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, It is RECOMMENDED: That the Division enter a final order suspending Respondent's beverage license No. 23-3953, Series No. 4-COP-SRX, for 90 days; provided, however, to the extent Respondent's license may have been effectively suspended by prior emergency order of the Division, the period of such emergency suspension should be subtracted from the 90-day period. DONE AND RECOMMENDED this 10th day of June, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1981.
The Issue The Petitioner, Melvin E. Smith, has submitted a request to the Respondent, State of Florida, Division of Alcoholic Beverages and Tobacco, to issue him a new Series 2-APS beverage license and this request has been denied. The issue to be resolved by this Order is the question of the Petitioner's entitlement to the subject license.
Findings Of Fact The Petitioner, Melvin E. Smith, who trades as Melvin's Exxon in a location at 5057 U.S. 1, North, Jacksonville, Duval County, Florida, has applied for a new Series 2-APS beverage license. On July 5, 1979, the Director of the State of Florida, Division of Alcoholic Beverages and Tobacco, replied to the request for license by denying that license application, with the stated grounds for denial being the alleged indication of lack of good moral character on the part of the Petitioner; specifically, a felony conviction within the last fifteen (15) years and beverage law conviction within the past five (5) years, which made the applicant unqualified per Section 561.15, Florida Statutes. The testimony in the course of the hearing revealed that in 1966 the Petitioner was convicted of breaking and entering, an offense against the laws of United States and a felony. Furthermore, on May 29, 1975, in the County Court of Duval County, Florida, Criminal Division, the Petitioner was adjudged guilty of the offense of refusing to allow a search of the premises in violation of Section 562.41, Florida Statutes, and received a fine of $50.00 together with $2.00 court cost. See Respondent's exhibit No. 1 admitted into evidence, which is a copy of the Judgment and Sentence in that matter. Section 562.41, Florida Statutes, is a part of the Beverage Law, Enforcement Section.
Recommendation It is recommended that the Petitioner, Melvin E. Smith's request for a new Series 2-APS beverage license be DENIED. DONE AND ENTERED this 18th day of December, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Daniel C. Brown, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Melvin E. Smith 5057 U.S. 1 North Jacksonville, Florida ================================================================= AGENCY FINAL ORDER =================================================================
