Findings Of Fact The Respondent, Robert Hurner, currently holds Florida teaching certificate 447579, covering the area of Mental Retardation, from the Florida Department of Education (DOE). At all times material, the Respondent was licensed by DOE and employed as an ESE teacher at Paxson Junior High School, in the Duval County School District. On October 31, 1988, the Respondent was cleared to be issued a teaching certificate by Professional Practices Services after he acknowledged a 1984 conviction for driving under the influence of alcohol. On January 7, 1990, the Respondent was arrested and charged with driving while under the influence of alcohol. On March 19, 1990, the Respondent pled nolo contendere to the charge of driving while under the influence of alcohol and was adjudicated guilty by the court. On March 19, 1990, the court sentenced the Respondent to three months' probation and ordered him to pay $926.50 in court costs and fines. In addition, the Respondent's driver's license was revoked for five years, and he was referred to the North Florida Safety Council. On June 15, 1993, the Respondent applied for a renewal of his teaching certificate. On his application, the Respondent acknowledged his 1990 conviction for driving while under the influence of alcohol. Respondent has been a respected teacher with good evaluations from the Duval County School Board for seventeen years, despite his alcohol-related convictions. Neither of the arrests nor the underlying behaviors associated therewith occurred during school hours or in relation to any school sponsored events. No bodily harm or property damage was shown to be incident thereto. Respondent made no effort to hide his convictions from Petitioner agency and unrefuted testimony shows that his job performance and teaching reputation have not been affected thereby. The second event in 1990 occurred when Respondent was at a very low emotional ebb in his personal life. His mother was terminally ill. The North Florida Safety Council, in conjunction with the court and the Department of Highway Safety and Motor Vehicles, referred the Respondent to the Chemical Dependency Counselling Clinic. He successfully completed the requirements of all referring agencies. Although not required to do so, Respondent voluntarily increased his rehabilitation program with the Clinic to a full twelve weeks: five weeks awareness education and seven weeks of group and individual therapy. He did not use his personal problems as an excuse to fail, but was enthusiastic and made up any sessions he missed due to reasonable excused absences. On August 17, 1993, Respondent was discharged with such a good prognosis that no treatment recommendations were made by any of his three counsellors. Currently, he is diagnosed as "an alcoholic in recovery working on a lifestyle change." One of his former counsellors with the Chemical Dependency Counselling Clinic, Ms. Tibbett, testified on Respondent's behalf. She was trained by the U.S. Navy in the identification, treatment, prevention, and rehabilitation of drug and alcohol addiction. She has worked 16 years in the field and was certified by the Department of Highway Safety and Motor Vehicles in 1985 and as a Certified Addiction Associate Professional (CAAP) by the Department of Professional Regulation in 1989. She currently is completing the successor agency's requirements for the higher ranking Certified Addiction Professional (CAP) certification. She now teaches other addictionologists and drug/alcohol treatment personnel in both the public and private sectors in addition to her own clinical work. She volunteers to the Duval County School Board on occasion. As evidence of Respondent's dedication to his recovery as well as of his recovery itself, Ms. Tibbett pointed to Respondent's record of never failing a random alcohol test while he was in the Chemical Dependency Counselling Clinic program, even on a holiday Saturday morning at 6:00 a.m. and even after his mother died after a long illness in May, 1993. Ms. Tibbett believes Respondent's sobriety record on those occasions is good reason to believe he will never relapse into alcoholism. She opined that he is no risk to the public in general nor specifically to any school children in his care. She further testified that she gladly would have her own seventeen year old son taught by him. Although she explained that no alcoholic is ever "cured," in her opinion Respondent is rehabilitated. Her well-reasoned professional opinion is accepted. Upon the unrefuted testimony of Respondent; of Mark S. Kager, a colleague and professional teacher for fifteen years; of Albert George Day, Respondent's housemate; of William Dale Tackett, a colleague and another professional teacher for seventeen years; and of Angela Hornbeck, Respondent's steady girlfriend for four years; it is found that Respondent voluntarily has imbibed no alcoholic beverages since April 2, 1990.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the agency enter a final order finding Respondent guilty of violating Section 231.28(1)(e) F.S.; not guilty of violating Section 231.28(1)(c) F.S.; and ordering him to fulfill a one year probationary period including random drug and alcohol testing as prescribed by the Educational Practices Commission. RECOMMENDED this 29th day of November, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1994.
The Issue Whether or not on or about July 13, 1975, Arthur Hayes, Jr., licensed under the beverage laws, and or his agent, servant or employee did sell or permit to be sold, served or consumed alcoholic beverages, to wit: a quart bottle of Schlitz beer, any time otherwise not provided for by county or municipal ordinance, contrary to Florida Statutes 561.29 Whether or not on or about July 20, 1975, Arthur Hayes, Jr. licensed under the beverage laws and or his agent, servant or employee did sell or permit to be sold, served or consumed, alcoholic beverages, to wit: a quart bottle of Schlitz beer at a time otherwise not provided for by county or municipal ordinance, contrary to Florida Statutes 561.29.
Findings Of Fact In the presentation of its case, the petitioner called beverage agent Eugene Fogel to the stand. On or about July 13, 1975, agent Fogel was working for the Sanford, Florida, Police Department and in addition was acting in an undercover capacity for the Division of Beverage. At around 2:00 p.m. July 13, 1975, then police officer Fogel met with agent Herb Baker of the Division of Beverage in Sanford, Florida, for purposes of investigating alleged illegal alcoholic beverage sales which were being made on Sunday. The witness, Fogel, went to the address of Dinah's West Side Grocery, entered the store and purchased a quart bottle of Schlitz beer from the respondent, Arthur Hayes, Jr., This particular item of evidence became petitioner's exhibit 1 and is currently in the custody vault of the Division of Beverage District Office in Orlando, Florida. Testimony by agent Herb Baker indicated that the meeting as spoken of by agent Fogel had transpired, and he had seen agent Fogel enter the subject premises on July 13, 1975, and come out with a paper bag which contained petitioner's exhibit number 1. This exhibit was turned over to agent Baker. Officer Fogel testified that on Sunday, July 20, 1975, the same sequence of events occurred that had occurred on Sunday, July 13, 1975. He met agent Baker and then went to Dinah's West Side Grocery around 3:30 p.m. and purchased a quart bottle of Schlitz beer, which is petitioner's exhibit number 2. The petitioner's exhibit number 2 is now located in the custody of the District Office, Division of Beverage, Orlando, Florida. Again, agent Baker stated that he observed officer Fogel go into the premises on July 20, 1975, return with a bag and that the bag contained a quart bottle of Schlitz beer. The testimony was given by officer Fogel that July 13, 1975 and July 20, 1975, were Sundays. Other Petitioner's exhibits admitted into evidence were exhibit number 3 which is a notice to show cause with accompanying administrative complaint, exhibit 4 which is a notice of hearing, and exhibit 5 which is a copy of an ordinance in Seminole County, Florida. This ordinance was in effect on July 13, 1975 and July 20, 1975, and prohibited the sale of alcoholic beverages on any Sunday. The respondent took the stand in his own behalf and indicated that he knew Eugene Fogel in July of 1975, and knew that Eugene Fogel was a policemen with the Sanford Police Department. He stated that he therefore would not have sold beer to Officer Fogel on Sunday, because he knew such a sale would be illegal. The witness also stated that the only employees in his store were he and his wife and consequently the only explanation he could think of for the two quarts of beer, was that the policemen had stolen the beer from his freezer. He said this would have been easy since there was no lock on the beer freezer and it was close to the door. After assessing the testimony of the witnesses, together with the examination of the evidence it is determined that the violations as alleged in counts 1 and 2 in the administrative complaint have been proven. This determination is arrived at because it would not appear that there is any motive on the part of the two police officers to promote absolute falsehoods. On the other hand considering the interest of the respondent and the quality of his comments, he has not effectively explained or defended against the charges.
Recommendation For committing the offense as alleged in Count 1 of the Administrative Complaint, it is recommended that the respondent, Arthur Hayes Jr., have his license suspended for a period of 30 days. For committing the offense as alleged in Count 2 of the Administrative Complaint, it is recommended that the respondent, Arthur Hayes, Jr., pay a civil penalty in the amount of $150.00. DONE and ENTERED this 5th day of February, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Department of Business Regulation The Johns Building Tallahassee, Florida 32304 Arthur Hayes, Jr. 1717 West 18th Street Sanford, Florida ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF BEVERAGE IN RE: DINAH'S WEST SIDE GROCERY 1717 West 18th Street CASE NO. 75-2011 Sanford, Florida DABT CASE NO. 5-75-94-A License No. 69-139 /
The Issue There are two issues presented in this proceeding. One, whether Respondent and/or its employees or agents possessed, sold or served on its licensed premises alcoholic beverages labeled as and represented to be a specific alcoholic beverage(s), but the containers did not contain the alcoholic beverage(s) as stated on the labels of the bottles (misrepresentation), in violation of Section 562.061, Florida Statutes (2004).1 Two, whether Respondent reused or refilled with distilled spirituous liquors for the purpose of sale bottle(s) or other containers which once contained spirituous liquors, misrepresented or permitted to be misrepresented the brand of distilled spirits being sold or offered for sale in or from any bottle or containers for the purpose of sale in violation of Section 565.11, Florida Statutes.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying, depositions filed, documentary materials received into evidence, stipulations by the parties, and evidentiary rulings made pursuant to Section 120.57, Florida Statutes, the following relevant, substantial, and material facts are determined: Petitioner, Department of Business and Professional Regulations, by and through the Division of Alcoholic Beverages and Tobacco (DABT), is the state agency responsible for supervision of the conduct, management, and operation of the manufacturing, packaging, distribution, and sale within the state of all alcoholic beverages and the enforcement of the provisions of the Beverage Law, the Tobacco Law, and rules and regulations of DABT in connection therewith. It is the express legislative intent that the state retains primary regulatory authority over the activities of licensees under the Beverage Law within the power of the state and DABT. At all times material hereto, Respondent, Robert Joseph Molitor, d/b/a Oar House Bar and Liquors (Oar House), was the licensee holder of license number 62-00683, Series 4-COP, issued by DABT, and owner of the licensed premises located at 4807 22nd Avenue, South, St. Petersburg, Florida 33711-2927. This facility consists of a bar with an open doorway into the adjoining liquor store. The Series 4-COP license allows Respondent to make sales of beer, wine, and liquors at the liquor store adjoining the bar for off-premises consumption and allows sales of beer, wine, and liquor for on-premises consumption at the bar. John Molitor, son of Respondent, Robert Joseph Molitor, at all time pertinent was the operational manager of the Series 4-COP licensed business premises. Oar House and the owner of the licensed premises are subject to the regulatory jurisdiction of DABT because of having been issued license number 62-00683, Series 4-COP, by DABT. DABT received an unsolicited telephonic compliant from Robert Boyle, a former Oar House bartender and customer. Mr. Boyle complained that Oar House was "refilling" brand-named bottles of liquor with cheaper brands of liquor. Mr. Boyle also mentioned that a green funnel, believed to have been used to refill the liquor bottles, could be found in the storeroom behind the bar at the licensed premises. Unsolicited telephonic complaints from customers are but one source alerting DABT to those bars where there are suspicions and questions regarding liquors sold and served to its customers. Having received a complaint that Oar House was refilling liquor bottles, DABT initiated an investigation and on July 24, 2003, DABT special agents, Jim Dykes and DiPietro (no first name in the record), entered the premises of Oar House. During the July 24th visit, the agents identified themselves to John Molitor and requested he "stick around" for any questions they might have upon completion of their investigation. John Molitor ignored the agents' request and departed the premises before the agents concluded their investigation. The agents found a green funnel on the storeroom shelf behind the bar as reported by Mr. Boyle. The agents photographed the green funnel. Agents Dykes and DiPietro observed and identified a bottle of expensive liquor with a worn, stained label in a speed rack behind the bar. The expensive liquor identified with the worn label was (by brand name) Johnnie Walker Black Label Scotch Whiskey (Johnnie Walker Whiskey). The speed rack was located in the middle of the bar for easy and equal access from either end of the bar. The brand labels on liquor bottles stored in speed racks are visible from the customer side of the bar. DABT Agents Dykes and DiPietro performed the Williams Reagent Field Test on the seized bottle of Johnnie Walker Whiskey. The Williams Reagent Field Test consists of comparing the "color" of a suspect brand bottle of liquor to an original unopened bottle of the same brand product taken from the adjoining package store. The "subject" bottle showed a visual difference of color from the original same brand product. Because the Williams Reagent Field Test is not as reliable as the chemical analysis testing processes, all suspect bottles of alcohol tested using the Williams Reagent Field Test are submitted for additional chemical analysis testing. The agents seized the suspect bottle of Johnnie Walker Whiskey and issued to Respondent Evidence Receipt No. 53528. For this suspected violation (refilling), DABT issued a Notice of Warning to Respondent dated July 24, 2003. Six days later, July 30, 2003, DABT agents again visited the Oar House bar and again found Respondent in possession of three liquor bottles suspected of containing liquor different from the specific brand labeled. The three suspect bottles of liquor were Chivas Regal Scotch Whiskey (Chivas Regal Whiskey), J & B Blended Whiskey (J & B Whiskey), and Canadian Club Blended Whiskey (Canadian Whiskey). The Williams Reagent Field Test performed on the three seized bottles on July 30, 2003, showed a difference of color of the suspect bottles compared to the original unopened products of the same brand. The agents seized, corked, and photographed the suspect bottles of liquors and issued Respondent Evidence Receipts for the seized liquor. The four bottles of liquor found on Respondent's licensed premises that were field-tested, seized, and photographed were: (1) Johnnie Walker Whiskey, (2) Chivas Regal Whiskey, (3) J & B Whiskey, and (4) Canadian Club Whiskey. Each of the above four bottles was taped, sealed, and marked for identification, by initials of the agent, in preparation for shipping, testing, and chemical analysis by the Department of Treasury, Bureau of Alcohol, Tobacco and Firearms (BATF), National Laboratory, in Ammendale, Maryland. On or about November 3, 2003, BATF senior alcohol analysis chemist, James Jagonathan, Ph.D., caused to be performed, four alcohol chemical analysis tests on each of the four suspect bottles of liquor (Findings of Fact 10) sent under seal by DABT. The four chemical alcohol analysis tests performed by Dr. Jagonathan are standard tests approved by the Association of Official Analytical Chemists (AOAC). These tests establish the objective criteria for determination of whether an open bottle of alcohol contains the requisite "qualitative" and "quantative" brand alcohol and the amount of alcohol therein as stated on the label, minus allowable lost. The four tests performed were: (1) the solids test, which measures the quantity of nonalcoholic materials in the suspect bottle compared to the permissible quantity of nonalcoholic materials in the original manufactured brand bottle; (2) the lovibond test, which measures the difference in the color of the alcohol in the suspect bottle compared to the color of the alcohol in the original manufactured brand bottle and is performed by use of a color UV Spectrometer; (3) The alcohol-density meter test, which measures the "volume" of alcohol in the suspect bottle compared to the "permissible volume" of alcohol in the original manufactured brand bottle; and (4) the fusel oils test, which measures the quantity of "fusel oils" in the suspect bottle compared to the "permissible quantity of fusel oils" in the original manufactured brand bottle. The fusel oils test is a "comparative measurement" test, and the comparison is made by use of the Gas Chromatography meter. In each of the above test, objective predetermined deviation "allowances" for losses due to manufacturing and processing are permissible (i.e. Findings of Fact 14, 17, 18, and 19). There is no legal requirement that DABT identify the specific type/brand of alcohol ("refilled" or added to the original); identify the specific type or name of the solids ("added" to the original); or provide explanation for alcoholic "evaporation" resulting from exposure or open pourers found in a suspect bottle(s). Dr. Jagonathan informed DABT that two of the suspect bottles (Sample No. 120030859, J & B Whiskey, 50 ml, 40 percent by volume and Sample No. 120030862, Johnnie Walker Whiskey, 750 ml, 40 percent by volume) were "refilled" with an alcoholic product other than as listed on the respective labels. The alcohol content of the "suspect" bottle of J & B Whiskey was 39.10 percent. The alcohol content of the original manufactured J & B Whiskey product was 39.95 percent. This 0.85 percent variation of alcohol content from the original manufactured product conclusively demonstrated "refilling" with an alcoholic product other than as listed on the respective label. The alcohol content of the "suspect" bottle of Johnnie Walker Whiskey was 39.15 percent. The alcohol content of the original manufactured bottle of Johnnie Walker Whiskey product was 39.90 percent. This 0.75 percent variation of alcohol content from the original manufactured product conclusively demonstrated "refilling" with an alcoholic product other than as listed on the respective label. Dr. Jagonathan informed DABT that the suspect bottle (Sample No. 3120030861, Chivas Regal Whiskey, 50 ml, 40 percent by volume) contained liquid other than the original product (i.e. "probably refilled"). Dr. Jagonathan advised DABT that the suspect bottle (Sample No. 120030860, Canadian Club Whiskey, 50 ml, 40 percent by volume) was consistent with an original manufactured authentic product. Dr. Jagonathan gave uncontroverted testimony that producers/distillers are required to have in sealed, unopened bottles the alcohol content (i.e. 40 percent) stated on the label, per volume. DABT acknowledges that the escape of a minuscule amount of alcohol evaporation during the distilling and bottling processes permits producers/distillers a 0.15 percent deviation from the 40 percent required alcohol standard (i.e. 40.15 percent high and 39.85 percent low are permissible). Possession of bottles of an alcoholic beverage with alcohol content above and/or below the permissible 0.15 percent deviations from the required 40 percent alcohol content per volume is illegal. Regarding the lovibond (color) test, Dr. Jagonathan gave uncontroverted testimony that a 0.10 percent (+ or -) deviation from the normal color, as measured by color UV Spectrometer, is allowed for loss during manufacturing, distilling and bottling processes. As an example, with the J & B Whiskey, the "suspect" bottle had a 7.7 percent lovibond color test result, and the "original" product a 3.0 percent lovibond color test result (7.7 percent - 3.0 percent = 4.7 percent). The Johnnie Walker Whiskey "suspect" bottle had a 2.8 percent lovibond color test result and the original a 10.9 percent lovibond color result( 10.9 percent - 2.8 percent = 7.2 percent). By testimony of an expert alcohol chemist of the National Alcohol and Tobacco Tax and Trade Bureau (ATTB) Laboratory in Ammendale, Maryland, based upon the accepted methods of standard tests approved by the AOAC, the established objective criteria for determining whether an open bottle of alcohol contains the requisite qualitative and quantative brand alcohol and amount of alcohol therein, minus allowable loss as stated on the label, are determined by the four tests stated above. DABT proved by clear and convincing evidence that the J & B Whiskey (Sample No. 120030859) and Johnnie Walker Whiskey (Sample No. 120030862) were "refilled" with liquids other than the original liquid from the manufactures. The testing results conclusively established that the alcoholic chemical contents of the above samples tested were not the same as the content of what an original product label would have been for each respective sample. DABT, by uncontroverted clear and convincing evidence, proved that Chivas Regal Whiskey (Sample No. 120030861) "probably" contained a refilled liquid other than the original liquid sent from the manufactures. The test results conclusively established that the chemical content of the sample tested was not the same as the content of what an original product would have been for this sample. DABT, by uncontroverted clear and convincing evidence proved that the Canadian Club Whiskey's (Sample No. 120030860) liquid contents were consistent with and within allowable deviation with the authentic product sent from the manufacturer. The test result conclusively established that the chemical content of the sample tested was the same as the content of an original product. DABT proved clearly and convincingly that Respondent possessed the three bottles herein above labeled as "authentic" whiskey. Those three suspect (i.e. "refilled") bottles seized from Respondent's bar did not have the same chemical content as Respondent's original whiskey of the same brand brought from Respondent's adjoining liquor store. Respondent argues that the standard tests approved by AOAC do not: (1) take into consideration or make allowance that "explain" alcohol evaporation loss due to room (heat) temperature and (2) make an allowance for alcoholic loss due to length of time bottles were left with open pourers in the speed rack. Also, the established objective criteria (plus or minus 0.15 percent) for determination of whether an open bottle of alcohol contained the requisite qualitative and quantative brand alcohol and amount of alcohol therein, minus allowable loss as stated on the label are "arbitrary," are each contrary to existing case law establishing legal precedent and, thus, should be disregarded for want of legal foundation. These arguments, contrary to law, are rejected. The opinion testimony of Respondent's witness, Irwin L. Adler, Ph.D., engineer and professional wine taster, who was not qualified as an expert in chemical alcohol analysis, was neither relevant nor material to the "refilling" issues in this proceeding. DABT agents seized four bottles from the licensed premises that were sent to the ATTB's laboratory for testing. The results show that three of the four bottles were materially altered in some fashion that is inconsistent with the Florida Beverage Law. Respondent was clearly negligent and did not exercise a "reasonable standard of diligence" by allowing materially altered refilled bottles of scotch to be present (sold) on his licensed premises.2 DABT proved by clear and convincing evidence that Respondent, Robert Joseph Molitor, d/b/a Oar House Bar and Liquors, holder of license number 62-00683, Series 4-COP, and owner of the licensed premises located at 4807 22nd Avenue, South, St. Petersburg, Florida 33711-2927, violated Section 565.11, Florida Statutes, by and through Section 561.29, Florida Statutes, as alleged in the Amended Administrative Complaint, and is, therefore, subject to appropriate penalty.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order: Finding that Respondent, Robert Joseph Molitor, licensee holder of license number 62-00683, Series 4-COP, d/b/a Oar House Bar and Liquors, located at 4807 22nd Avenue, South, St. Petersburg, Florida 33711-2927, as a first-time offender, violated Sections 562.061 and 565.11, Florida Statutes, as charged in the Amended Administrative Complaint; Imposing an administrative penalty against Robert Joseph Molitor, licensee holder of license numbered 62-00683, Series 4-COP, and suspending his license numbered 62-00683, Series 4-COP, for a period of 20 consecutive days; and Imposing a civil penalty against Robert Joseph Molitor, licensee holder of license numbered 62-00683, Series 4-COP, of an administrative fine in the amount of $1,000.00, payable to the Department. DONE AND ENTERED this 23rd day of November, 2005, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 2005.
The Issue The issue for consideration in this matter is whether Respondent’s alcoholic beverage license, Series 3-PS, No. 39- 01099, for the premises located at 13508 Florida Avenue, Tampa, should be disciplined because of the matters alleged in the Administrative Action filed herein.
Findings Of Fact At all times pertinent to the allegations herein, Petitioner, Division of Alcoholic Beverages and Tobacco, was the state agency in Florida responsible for the licensing of outlets for the retail sales of alcoholic beverages, and for the enforcement of the liquor laws of this state. By stipulation of fact, the parties agreed than on or before August 7, 1996, Benjamin Nenno, a male under the age of 18 at the time, became involved in an investigation of Respondent’s retail sales facility in issue by the Division. On the evening of August 7, 1996, Nenno was briefed and searched by agents of the Division and allowed to carry with him only a certain amount of cash and a driver’s license which clearly showed him to be under 21. He was instructed by the agents to indicate he was only 17 if he were to be asked by a store employee and to produce the driver’s license if it were to be requested. Specifically, he was instructed not to make any misrepresentation of fact in order to get the clerk to make a sale to him. Thereafter, Nenno entered the Respondent’s store number 620, located at 13508 Florida Avenue in Tampa and asked to purchase a bottle of Captain Morgan’s Special Rum, an alcoholic beverage which would be unlawful for him to purchase. When he did so, the Respondent’s clerk, identified as Freddy Posey, asked to see Nenno’s identification and Nenno produced the driver’s license which reflected he was under 21. Posey looked at it but made the sale anyway. The sale was witnessed by Special Agent Randall West who confirmed the facts stated above. When Nenno left the premises he met with Special Agents West and Miller who confiscated the beverage. West then entered the store and issued a notice of Violation as well as a vendor check list to Posey which was to be filled out by him and returned to the Division. The investigation continued on August 13, 1996 when Nenno, again under the control of the Division personnel, was again searched and instructed and sent back into the Respondent’s premises by Agents Hamilton and Fisher to again attempt to purchase a bottle of Captain Morgan’s Special Rum. This time Nenno dealt with James Davison, an employee of the Respondent, who asked Nenno to produce a driver’s license. When Nenno did as he was asked, Davison looked at it but nonetheless made the sale even though the license clearly showed Nenno was under 21. This sale was witnessed by Agent Fisher. In this case, however, after having made the sale, Davison came outside the store after Nenno, but after looking around the parking lot, re-entered the store. The Division agents again issued a Notice of Violation and a checklist which was subsequently returned to the Division filled out. On August 20, 1996, the investigation continued with the Division agents this time using Nicole Finch, a female under age 21, who was instructed and briefed as Nenno had been. She, too, was left with only some cash and her driver’s license which reflected her to be under 21. This time, Finch entered the Respondent’s store Number 621 in the company of Agent West and purchased a 200 ml bottle of Bacardi Rum, an unlawful alcoholic beverage for her to buy, from Steven Wilder, the clerk on duty. Before making the sale, Wilder asked to see Finch’s driver’s license, which she showed to him, but after seeing it, he still made the sale. When she left the store, Ms. Finch met Special Agents West and Fischer who subsequently issued a Notice of violation to the Respondent. When questioned by West, Wilder indicated he had received no training nor was he aware of any training program in place regarding sales to underage persons. Special Agent West, who has been an investigator with the Division for more than 18 years, and who has participated in many beverage investigations such as this, entered the Respondent’s store on August 7, 1996 after Nenno had left. He arrested the clerk, Mr. Posey and issued the Notice of Violation. In the course of the transaction, he questioned Posey about how he was trained regarding the sales of alcohol to minors with specific emphasis on whether Respondent has an ongoing training program and whether there were signs or other notices proscribing the sale of alcohol to minors. In response to these questions, Posey indicated he had received verbal training but no formal classroom or video training and had been given no forms to read and sign regarding this. When West looked for signs relating to the practice of checking patrons’ identification or indicating a policy of “no sales to those under 21”, he could find no signs posted or buttons worn by employees to notify prospective patrons of the company’s practice, though the Florida Beverage law does not require buttons to be worn. West made the same observations when he entered the store after the August 20, 1996 purchase by Finch. On this second occasion, in response to West’s questions about the training given by Respondent, Wilder, the clerk involved in that sale, indicated no training programs were in place. At that time, Mr. West could see no changes that had been made in the premises since he was last there on August 7, 1996. Further, West could not find any indication that the Respondent had posted a qualifying birth date for the purchase of alcoholic beverages. In response, Respondent offered into evidence a copy of a sign which, it claims, is posted on the cash register in each store, which refers to the requirement for a person to be 21 years old, (born before the purchase date in 1975) to purchase alcohol. Mr. West, who went behind the cash register to obtain information from the liquor license, did not see a copy of this sign posted in Respondent’s store on either August 7 or August 20, 1996. The Notice of Violations issued by the Division agents were to put the licensee on notice that a violation had occurred so that the employee cannot keep the information from the license holder. Agent Fisher observed the sale to Nenno which took place on August 13, 1996. When he went into the store after the purchase took place, Fisher asked the sales clerk if he had asked to see Nenno’s identification and he had. Fisher also asked the clerk about training offered by Respondent regarding the checking of identification. This employee, who has worked for the company for approximately 16 years, indicated he had seen at least one video which concerned checking identification and admitted he had been required to sign a certificate that he was aware of the rules. Agent Fisher also looked for signs in the store regarding the Respondent’s policy regarding sales to minors but did not see any. When he participated in the operation there on August 20, 1996, he asked the clerk on duty at that time if he had been trained regarding buyers’ identification and was told that since he had been hired by the company in January 1996 he had worked in the warehouse exclusively and had subsequently worked in the store only two days. He had been given no training at all in customer identification before he started working in the store. When Fisher looked behind the counter for some sort of warning sign, he could find none, nor could he find any in the back near the beer cooler. Mr. Davison worked for the Respondent for approximately 16 years prior to his discharge because of the instant sale to a minor. He had worked as manager of store number 620 for about two years before his firing, and his job was to maintain stock and insure the store was properly manned at all times it was open. He employed two other individuals at the liquor outlet to cover the entire week. Only one person was on duty at a time. On the day he made the sale which caused him to be fired, he was the only person on duty. Periodically, he would receive a document from the company containing the company’s policies which he was to read and sign, but nothing more than that, and even they did not come very often. He claims, and it is found, that he was never told he was to train his employees regarding sales of alcohol to minors. He claims that he was never shown a training video even though he signed the document saying he did. He did that because on the one occasion he asked a manager about it, he was told to sign it and not worry about it. Even though each store had a VCR, the entire training process to which Davison was exposed consisted of the reading and signing of this document which was given to him by Mr. Odorosio, the store manager. None of the training reflected on his personnel records as having been given him was, in fact, not given. Davison claims that when he was hired 16 years ago he was not given any training about sales of alcohol to minors and has never been given any since. However, he admits that each store is furnished a chart reflecting the various endorsements to driver’s licenses which are used. He also noted that his store had one sign relating to lawful alcohol sales, given to him by a beverage salesman, which, about two months before the incident, he put on the front of the counter where the customers could see it. He claims that on the evening the agents came to the store, they did not ask to see it. If they had done so, he would have shown it to them. Davison recognized one of the signs placed in evidence as one he has seen in other of Respondent’s stores. He has never seen the other one. As Davison recalls it, Respondent’s policy is to terminate anyone caught selling alcohol to minors. After the incident of August 7, 1996, Mr. Odorosio advised him to be on the lookout because he felt the Division agents would be back. Davison admits having made the sale to the teenager in question. However, he claims, the individual had just had a birthday which Davison mistakenly believed was the 21st. In fact it was the individual’s 17th birthday. He also claims that in the two years he worked at store 620, he always asked potential underage patrons for identification unless he knew the person. He claims he has always refused to sell alcohol and would not knowingly sell alcohol to minors. In fact, on the night he sold to Nenno, August 13, 1996, when he realized he had sold to a minor, he went outside, he claims, to find Nenno and give him back his money. The four-year difference in age belies Davison’s claim of mistake and that claim is rejected. Mr. Wilder, the assistant manager on the grocery store night shift since January 30, 1996, had worked in the liquor store, temporarily, for only a day and a half at the time of the incident. He was filling in until a new clerk could be brought in from another store. When he received his orientation training in January 1996, he was shown a video and exposed to a group class on paperwork, the handbook of rules and regulations, and the sale of alcohol, after which a test was administered. That was the only time he was shown any video or was involved in any personnel meeting relating to alcohol sales. When he went to work at the liquor store, he was given training only on the operation of the cash register. The liquor store registers do not have the capability to punch in the buyer’s date of birth. However, the day he started in the liquor store, Mr. Odorosio told him to always check a purchaser’s identification and never to sell to anyone under the age of 21. This was the day before he sold the rum to Ms. Finch, and he claims this sale was caused by human error. That very day, he claims, he had make “cheat sheets” which showed the lawful dates for the purchase of tobacco and alcohol, and claims he merely read from the wrong sheet. Officials of the Division have made themselves available to work with retailers of alcoholic beverages to bring them up to the sales standards set for a reasonable industry standard as outlined in the Florida Statutes. The information contained on the alcohol compliance instructional guidelines utilized by Respondent on which clerks and cashiers acknowledge their understanding that violation of those policies may result in termination of their employment is not sufficient orientation from an educator’s standpoint. In the opinion of Agent Miller, the minimum acceptable standards call for training of personnel in alcohol control three times a year, as once a year is not enough. Mr. Miller indicates he has discussed the Respondent’s situation with Mr. Heuermann, the Respondent’s vice-president in charge of personnel training, at Heuermann’s behest on approximately four occasions, and explained his concerns over the violations and what Respondent could do to improve its program. The first discussion took place in June 1996, shortly after an arrest of another Respondent employee and two months before the instant arrests. At that time they discussed what could be done to alert personnel and modify registers to require checking of ID. It was reported at that time that some employees were overriding this; however, the company is in the process of converting all their cash registers to those which require the customer’s birth date be inserted. They were put in grocery stores first and not in the liquor stores because the liquor stores use a different system. As funds for conversion become available the registers in the liquor stores will also be converted. Company trainers also discusse training standards for employees and Respondent’s need to insure that the lowest level of employees, who deal with the public, are properly trained. Though Mr. Miller made several suggestions as to what Respondent could do to improve its educational program, neither he nor any other Division agent was asked to participate in the training. According to Mr. Heuermann, Respondent has over 100 grocery stores and 34 liquor stores and employs approximately 10,000 people, only 1,500 to 2,000 of whom are involved in the sale of alcohol. No one under the age of 18 is hired to work in a liquor store. Company trainers check to insure the age of employees as does the main office. By the same token, the company would not hire anyone as a liquor store manager who had been convicted within the prior five years of a violation of the liquor law, of prostitution, drugs or a felony. The company’s application for employment has a space for listing such an offense and the company completes a background check on its applicants. Respondent contends it has a formal training program for alcohol law compliance. The orientation program for all new employees includes a video tape, a work sheet, and instructional guidelines, all dealing with alcohol compliance, to be signed by all new hires. At training, the trainer goes through the employee handbook, which treats alcohol compliance, sexual harassment, AIDS, ADA, etc., and this training is required of all new employees, both managerial and non-managerial, but it is sketchy at best. Until 1995, such training as existed was centralized but then was made the responsibility of the individual store manager. Sometime thereafter, the training was placed under the human resources directorate and it is again centralized whenever possible, as in the metropolitan areas where employees from several stores easily can be brought together for training. The company also has a formal substance abuse policy under which the use of illegal drugs or alcohol at work is prohibited because of its impact on safety and other workers. When Mr. Heuermann was advised by the store manager of the incident involving Mr. Posey he immediately instructed the manager to fire Posey and sent the information concerning the incident to all his managers for use in training in the individual stores. He also instructed the district managers to reinforce alcohol training in the stores because he wanted to insure this training met all requirements. He called Mr. Miller at the Division to see what could be done and implemented everything Miller suggested. When Heuermann learned of the Davison case he again reviewed the facts and determined to fire Davison as well. He met with the senior vice-president of operations for Respondent who directed that no one but management personnel be put in that store and reemphasized the need for training. Heuermann also went to the store and advised the district manager that his job was in jeopardy if another violation occurred. When the third violation thereafter occurred, Mr. Heuermann called Agent Miller, Mr. Odorisio, Mr. Metcalfe and the corporations CEO. At that time, Miller made some suggestions which included a paycheck reminder which Heuermann implemented with a copy being stapled to every one of the 10,000 paychecks issued that month. Mr. Heuermann noted that after the incident involving Mr. Posey, Agent Miller advised him that Division agents would be back. Heuermann passed that information on to the district and store managers and instructed them to advise their employees to be careful. Jacqueline N. Iglesias, Respondent’s district training coordinator since October 1996’ was previously the orientation director. Employee training for the Respondent’s Hillsborough district, as noted previously herein, is done in group sessions involving between 12 and 25 people, on Mondays, Thursdays and Saturdays for three-hour sessions conducted twice a day on those days. The instruction covers safety, alcohol compliance and employee appearance and standards. With regard to the instruction concerning alcohol compliance, a form containing relevant information is used along with a video presentation and a multiple choice examination on the provisions of the alcohol compliance law which is administered while the video is playing. The video shown covers hours of sale, sales to minors, sales to those already intoxicated and how to handle unruly patrons. The course material advises the employee to call management in a questionable situation. It also covers acceptable and altered identification, what to look for and what to do in a case of suspected alteration. Specifically, employees are advised to refuse a sale to anyone whose identification is suspect, and employees are warned of the consequences, including job loss, if strict compliance with the law and the company’s policies are not followed. This training program has been in effect since August, 1996. Before that time, the training was done by the individual managers who, according to Iglesias, covered the same information. Though this program appears thorough at first blush, in reality it is considerably less than comprehensive and appears to have been minimally effective. An example of this can be seen in the history of Mr. Posey. Mr. Posey went through the company’s training program training when he was first hired. Company records reflect that he missed seven of the questions on the checklist test but, nonetheless, was still hired since performance on the test is not used to disqualify prospective employees. He supposedly was thereafter given supplemental on the job training under an experienced cashier at his employment location. Kevin Sosa has been employed as a full time liquor store clerk at Store 619-620 for more than two years. He identified a decal which, for some time, including in August 1996, was stuck to the check-out counter just in front of the register. Sosa also claimed that there is, in addition, a decal on the beer cooler located in the back of the store, in the back hallway and on the wall near the register which refer in some way to the legal age for purchasing alcohol. With regard to these signs, Special Agent Hamilton, who participated in the operation involving Mr. Davison on August 13, 1996, did not observe any signs in the store as were described by Mr. Sosa even he claims he looked for them. However, he admitted he did not go behind the counter to where the cashier stood to see if any signs were posted there, nor did he specifically look near the beer cooler. Mr. Sosa also has seen the alcohol compliance guidelines which he has been required to sign at least two or three times during the term of his employment and which he has seen more frequently when training others. He has also been exposed several times to the training guidelines which accompany the alcohol video. The last time he saw it was during the summer of 1996 after the incidents in question, but on each occasion nothing more was done than to show the video. After Mr. Posey was caught and after another incident at another company store, but before the incident involving Mr. Davison took place, he and Davison often discussed how easy it was to become complaisant and not check identification properly. Both recognized they had to be careful. They were frustrated and somewhat angry with the Division over these arrests because they felt anyone could make a mistake and fail to check identification. The efforts at control and procedures described as being in place at Respondent’s stores were reiterated in the testimony of Mr. Stickles, second assistant manager at Respondent’s store in issue, who indicated that numerous and repeated efforts are made to train employees in the proper compliance with the alcohol laws and to get out appropriate and necessary information. Included within these measures used are the use of the company’s DBX system by which individual managers can electronically communicate with headquarters and other managers to identify problems and suggested solutions; memoranda on pertinent topics sent through the mail; consistent verbal reminders from management to clerks; provision of extra stickers for registers and elsewhere in the stores; reminders on employee paychecks and, after the first incident, a mandatory repeat viewing of the alcohol control video by all employees. Aside from the above, however, Mr. Stickles could point to little in the way of formal training. Mr. Odorisio, the store manager at the facility in question related his practice of insuring that all new employees are sent to the centralized orientation program conducted by the company. He attends periodic manager meeting at least three times a year after which he briefs his clerks on any relevant material he picked up. After the incident involving Mr. Posey he again briefed the remaining clerks, including Davison and Sosa, repeatedly advising them that the Division agents would be back and to be sure to card all suspicious customers Mr. Montoto, Respondent’s district manager over the store in question, indicated his efforts to insure proper alcohol compliance included, in addition to those previously noted, a requirement that all employees have attended the pre-hiring orientation program; conduct of store manager meetings at least two or three times a year; and specific posting of managers in the stores who were trained in how to handle alcohol compliance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Alcoholic Beverages and Tobacco enter a final order imposing an administrative fine of $3,000 against Respondent’s alcoholic beverage license number 39-01099, series 3-PS. DONE and ENTERED this 4th day of March, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1997. COPIES FURNISHED: Miguel Oxamendi, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Craig E. Behrenfeld. Esquire Barnett, Bolt, Kirk & long 601 Bayshore Boulevard, Suite 700 Tampa, Florida 33606 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Richard Boyd Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007
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.
Findings Of Fact Federal narcotics agents of the Drug Enforcement Administration made arrangements with the respondent to purchase five pounds of cocaine from him. The respondent promised to deliver one pound of cocaine at his residence located at 10850 SW 24th Street, Miami, Florida, on May 3, 1977. On that date, special agents Mazilli and Carew placed respondent under arrest after he turned over to them at his residence a quantity of a white powdery substance. A "field test" of the substance was made by placing some of the material into a small vial of acid which caused it to turn purple, thus indicating that it was cocaine. Carew searched the person of the respondent incident to the arrest and found a single shot, .22 caliber revolver, a .22 caliber derringer pistol, a knife and $3,380 in cash. While the agents were at respondent's residence, a phone call was received from a person identifying himself as "Carlos," who advised that he could deliver the other four pounds of cocaine. An agent requested that he do so and, sometime after midnight, two individuals arrived in front of the residence and were thereafter arrested. Approximately two pounds of a white powdery substance contained in a plastic bag was found in the trunk of the automobile. A search of the premises resulted in the seizure of other firearms, a large quantity of marijuana, other plastic bags containing a white powdered substance, and a large number of capsules and variously colored pills. The sum of $5,000 cash U.S. currency was found in a brief case. All of these items were seized by the narcotics agents and the suspected drugs were turned over to a forensic chemist for analysis and identification. The laboratory report revealed that the 510.5 grams of material turned over to the agents by respondent consisted of 42 percent pure cocaine hydrochloride and the 1,079.8 grams seized from the automobile was 100 percent pure cocaine hydrochloride. The items seized during the search of the house proved to be cocaine hydrochloride, marijuana, and various other drugs. (Testimony of Carew, Petitioner's Composite Exhibit 1) Respondent was hired as a teacher with the Dade Country public school system in August, 1970, and, in May, 1977, was employed as a teacher at the W. R. Thomas Junior High School under continuing contract. The Assistant Superintendent of Schools, Personnel Division, is of the opinion that if the charges against the respondent are established, such conduct would be grossly immoral and sufficiently notorious to bring the individual and the education profession into public disrespect. (Testimony of Moore) Respondent was suspended without pay from his position as a teacher by the Dade County superintendent of schools on August 8, 1977, pursuant to Section 230.33(7)(h), Florida Statutes. Respondent thereafter requested a hearing on his suspension and his request was referred to the Division of Administrative Hearings by the Dade County Public School Board on August 24, 1977. Specific charges were filed by the Board against the respondent on October 10, 1977. On July 29, 1977, the Professional Practices Council, Department Of Education, State of Florida, filed a petition for the revocation of respondent's teaching certificate, pursuant to direction of the State Commissioner of Education. Respondent thereafter requested that the matter be heard before a Hearing Officer of the Division of Administrative Hearings. The two cases were consolidated for hearing purposes by order of the Hearing Officer on October 31, 1977.
Recommendation That the teaching certificate of respondent Jere L. Hough be permanently revoked under the authority of Section 231.28, Florida Statutes, for gross immorality. DONE and ENTERED this 12th day of January, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32301 COPIES FURNISHED: Robert Vossler, Esquire 110 North Magnolia Tallahassee, Florida 32303 Elizabeth J. de Fresne, Esquire Suite 208 1809 Brickell Avenue Miami, Florida 33129
The Issue Whether Respondent Terri Medus (Respondent) engaged in an act of immorality, conduct that violates Orange County public school policy, conduct that violates the Code of Ethics, conduct that violates the Principles of Professional Conduct of the Education Profession, or conduct that compromised her effectiveness as an educator.
Findings Of Fact Stipulated Facts During all times relevant hereto, Petitioner employed Respondent as a classroom teacher. Respondent has held a Professional Service Contract with Petitioner since May 1986. Respondent's Professional Service Contract states that Respondent will not be terminated "except for just cause," as provided by Florida Statutes. Respondent pled no contest to a driving under the influence (DUI) charge stemming from an arrest on March 26, 2014, and was adjudicated guilty, in accordance with section 316.656, Florida Statutes. Petitioner did not discipline Respondent for the DUI arrest or subsequent adjudication. Reasonable Suspicion Respondent admits that prior to December 1, 2014, she was aware of Petitioner’s drug-free workplace policy (Policy) and that she could be disciplined for reporting to work under the influence of alcohol. December 1, 2014, fell on a Monday. On Saturday, November 29, 2014, Respondent flew from Detroit to Orlando after visiting her son during the Thanksgiving holiday. Respondent began consuming alcoholic beverages on the plane ride to Orlando. The following day, November 30, 2014, Respondent, by her own admission, consumed between five to ten rum and Coke beverages, which resulted in Respondent becoming intoxicated. While at work on the morning of December 1, 2014, Respondent attended a 9:00 a.m. meeting. Ms. McCray, Respondent’s immediate supervisor, was also present at the meeting and sat next to Respondent. The meeting lasted approximately 10 minutes. Immediately following the meeting, Ms. McCray wanted to debrief with Respondent and another employee regarding what was discussed during the meeting. During the debriefing, Ms. McCray detected the smell of alcohol on Respondent’s breath, observed that Respondent’s hands were shaking and that her speech was slurred when she responded to questions asked, that Respondent’s body language was “a little wavering,” and that Respondent’s eyes were “glossy.” Additionally, when Ms. McCray asked questions of Respondent during the debriefing, Respondent's answers did not quite match the questions being asked by Ms. McCray. Ms. McCray repeatedly asked Respondent if something was wrong. At first, Respondent said she was fine. However, Respondent then said to Ms. McCray that she took Benadryl the night before the meeting because she could not sleep. Ms. McCray memorialized her observations of Respondent in a spiral notebook that she personally maintains. Upon concluding that Respondent was likely suffering from the effects of excessive alcohol consumption, Ms. McCray was assisted in assessing Respondent’s condition by Rafael Sanchez, who works for Petitioner as a senior manager in Petitioner’s employee relations department. Mr. Sanchez is also a trained reasonable suspicion manager. Based on his observations, Mr. Sanchez completed a reasonable suspicion checklist and noted thereon that Respondent had slurred speech, an odor of alcohol on her breath or person, an unsteady gait or lack of balance, glassy eyes, and a runny nose or sores around her nostrils. With respect to Respondent's gait, Mr. Sanchez observed Respondent walk into the side of an open door. With respect to her speech, Mr. Sanchez observed that Respondent was speaking very slowly and had difficulty articulating her words. Finally, Mr. Sanchez testified that Respondent demonstrated marked irritability when she was told she would have to be driven to a facility for reasonable suspicion alcohol testing. Petitioner was justified in requesting that Respondent submit to reasonable suspicion testing. Breathalyzer Testing After concluding that there was reasonable suspicion for testing Respondent for alcohol-related impairment, Ms. McCray drove Respondent to ARCPoint Labs, the facility used by Petitioner for reasonable suspicion drug and alcohol testing. Karen Carmona works for ARCPoint Labs as a specimen collector and has been certified as such by the U.S. Department of Transportation since 2013. Ms. Carmona was trained to operate the machine utilized to test Respondent, the RBT IV by Intoximeters.1/ Respondent’s first breathalyzer test, which was time- stamped at 11:46 on December 1, 2014, showed that Respondent’s breath alcohol content (BAC) was 0.198 G/210L. Respondent’s second test, which was time-stamped at 12:04 (18 minutes later) on December 1, 2014, showed Respondent’s BAC level at 0.188 G/210L. The operator’s manual for the RBT IV provides that “[i]f an accuracy check has not occurred within the past 31 days, an accuracy check should be run prior to running a subject test to ensure the instrument has maintained proper calibration.” An accuracy check of the RBT IV device used to test Respondent was performed on November 22, 2014, which is within the prescribed window established by the manufacturer. For the RBT IV device used to test Respondent, the accuracy check must read plus/minus .005 of the expected target value of .038. The accuracy check performed on November 22, 2014, showed a reading of .043, which is within the acceptable range established by the manufacturer. The validity of the accuracy check was confirmed by a print-out from the RBT IV device which reads “CAL CHECK OK.” If the RBT IV had produced a value outside of the parameters of the accuracy check, then the machine would have generated a printout indicating “OUT OF CAL” and it would have been necessary to perform an actual calibration of the testing device. Unlike the general accuracy check, which must fall within plus/minus .005 of the expected value of .038, an accuracy check following a calibration “should be no greater than plus/minus “.003 of the expected value if the calibration is to be considered successful.” Because the RBT IV was operating within the acceptable parameters of the accuracy check, it was not necessary to perform a calibration of the machine. Respondent’s argument that the machine was out of the acceptable accuracy range is not supported by the evidence. The RBT IV used to test Respondent on December 1, 2014, was operating within the limits established by the manufacturer. Additionally, a December 22, 2014, accuracy check of the RBT IV used to test Respondent read .042, which was also within acceptable operational limits. Ice Breakers Candy Respondent also challenges the accuracy of the breathalyzer results on the grounds that the readings cannot be trusted because prior to the administration of the test she consumed Ice Breakers candy. On cross-examination by Petitioner, Respondent’s expert, Mr. Thomas Workman, testified as follows: Q: Your opinion is that her –- that Ms. Medus eating Ice Breakers would so throw off the test that it would elevate her breath alcohol content up to .198 and .188? A: I believe it would –- it would have an effect, I don’t know the degree of the effect, but it would – it would not produce a reliable result. Q: What would be –- what would be your estimate of the degree of effect of how much it would be off? A: It could account for the entire reading or it could account for a portion of the reading, I –- I can’t say. Tr., p. 376. Mr. Workman’s also testified that one Ice Breaker “could” cause a .198 G/2101 BAC reading depending on the “amount of compound that’s in the mouth compared to the amount of alcohol that would be coming from the breath.” Tr., p. 377 Dr. Smith, Petitioner’s expert, disagrees with Mr. Workman’s opinion and testified as follows: Even if either one of those products contained any ethanol or methanol, which are the alcohol that the device is certified to measure, the 15 minute wait between the initial and this confirmation test, when she did not have anything in her mouth at all, any residual alcohol that may have been a product of the food or the gum would have completely dissipated. So it would not be — that's why we have that 15-minute wait to ensure that any residual mouth alcohol, not alcohol that is in the bloodstream, would not be measured on the confirmation test. Tr., p. 283. Mr. Workman’s opinion is rejected because by his own admission, he is unable to say with the requisite degree of reliable scientific probability that any Ice Breaker candy consumed by Respondent sufficiently compromised Respondent’s breathalyzer tests to the point of rendering the same unreliable. Respondent’s Rate of Alcohol Absorption Mr. Workman also testified that Respondent’s rate of absorption of alcohol makes it unlikely that her BAC readings were accurate. Mr. Workman’s testimony is based on numerous assumptions, none of which have adequate proof to invalidate the results of the breath alcohol test. First, Mr. Workman assumed that Respondent did not have any alcohol past midnight on November 30, 2014. Mr. Workman admitted that if the information regarding when Respondent stopped consuming alcohol was erroneous, then his assumption would be incorrect. Moreover, given the amount of alcohol admittedly consumed during the weekend by Respondent, her testimony that she stopped drinking at midnight is unreliable. As previously noted Respondent starting drinking at around noon on Saturday and continued drinking throughout the entire day on the following Sunday. Such a period of sustained drinking makes it unlikely that Respondent was cognizant of the time when she stopped drinking before retiring to bed. Second, Mr. Workman testified that his theory regarding Respondent’s metabolic rate of alcohol absorption would depend on her weight and build. However, Mr. Workman testified that he has never seen Respondent and has no idea of her actual build and weight, other than what he had been generally told by Respondent’s counsel. Additionally, Mr. Workman testified that he does not know the rate at which Respondent actually metabolizes alcohol. Dr. Smith testified there would have to be evidence of a person’s actual metabolic rate in order to perform the extrapolation suggested by Mr. Workman. There is no evidence in the record which indicates how Respondent metabolizes alcohol. As such, Mr. Workman's extrapolation is rejected as unreliable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Orange County School Board enter a final order that: Terminates Respondent’s Professional Service Contract for just cause, due to Respondent committing misconduct in office by violating Petitioner’s drug-free workplace policy; Dismisses the allegation(s) that Respondent committed an act of drunkenness; Dismisses the allegation(s) that Respondent committed misconduct in office by violating the Code of Ethics of the Education Profession in Florida; Dismisses the allegation(s) that Respondent committed misconduct in office by violating the Principles of Professional Conduct for the Education Profession in Florida; and Dismisses the allegation(s) that Respondent committed an act of immorality. DONE AND ENTERED this 7th day of January, 2016, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 7th day of January, 2016.
Findings Of Fact Respondent Paul N. Fjell is a 45-year-old graduate of Eastern Illinois University. In 1970, he was employed as a teacher by Petitioner, the School Board of Dade County, Florida. He subsequently was placed on continuing contract and continued in his capacity as a teacher for Petitioner until December 5, 1990, when he was suspended from his employment and this termination proceeding was commenced. Respondent has a long history of alcohol abuse. Since 1984, Petitioner has encouraged Respondent to avail himself of the services offered by Petitioner's Employee Assistance Program (hereinafter "EAP"). Respondent has been referred on a number of occasions to the EAP by his supervisors since his alcohol problem appeared to be a fitness-related problem. On April 25, 1986, Respondent was admitted to the Addiction Treatment Program at Mount Sinai Medical Center, where he remained hospitalized for 28 days. His admitting diagnosis was poly-drug dependency and alcoholism. Respondent had been referred to that program by Petitioner's EAP. During the 1988-1989 school year Respondent again came to the attention of the Office of Professional Standards when he was removed from his position at Horace Mann Middle School because of absences and a resulting referral to EAP. Respondent was next assigned to two Cope Centers (North and South). He was assigned to work one-half day at each Center as a Work Experience Coordinator. Respondent's duties were to teach a class of young, pregnant students, locate part-time jobs for them, and monitor them at their places of employment. A Work Experience Coordinator occupies a highly visible position since the Coordinator must visit businesses and other organizations in the community in order to locate jobs for students. After approximately two months, Respondent was removed from his position at both Centers because of his non- performance and because of complaints from students, staff, faculty, and a School Board member that Respondent had the odor of alcohol on his breath at work. Respondent was next assigned to the Office of Vocational, Adult, Community, and Career Education (hereinafter "OVACCE"). The offices of OVACCE are located in the School Board Administration Building; consequently, Respondent had little contact with students or the public. While he was assigned there, Respondent was repeatedly absent, did not produce any work that could be used, and his supervisor detected an alcohol odor about Respondent. As a result, prior to the end of the 1989-1990 school year, Respondent was removed from OVACCE and relocated to the Dorsey Skill Center for a few months to complete the school year. In August, 1990, Respondent was arrested and charged with driving under the influence, leaving the scene of an accident, and violation of driving restrictions. On August 15, 1990, a conference-for-the-record was held in Petitioner's Office of Professional Standards (hereinafter "OPS"). At that time, Respondent's arrest record and employment history were reviewed, and he was given specific directives as to the procedures he must thereafter follow regarding absences. Respondent was then placed on alternate assignment pending court disposition of his DUI arrest. Respondent was temporarily placed in the Physical Education Department at the School Board Administration Building at the end of August, 1990. His duties were essentially clerical in nature: stuffing envelopes, collating documents, distributing mail, and re-arranging the mail boxes. Within five weeks, his supervisor requested that OPS remove Respondent from that work assignment. His supervisor complained that Respondent reported late for work, left early, took long breaks, and was frequently absent. He also complained that other workers in the area were becoming demoralized because Respondent did not carry his share of the work. On one occasion Respondent's supervisor thought he smelled alcohol on Respondent's breath. Several times during this period Respondent was observed taking his shoes and socks off and elevating his feet to relieve swollen joints. Even after being instructed to not remove his shoes and socks and elevate his feet while at work, Respondent did so again and was observed by the Deputy Superintendent. Respondent was next placed in Petitioner's Security Investigative Unit (hereinafter "SIU"), where he performed clerical chores. On November 2, 1990, Respondent reported to his work location in an impaired state. This was discovered when other employees at the work site noted that Respondent was talking to himself, his clothing was disheveled, his speech was slurred, he had bloodshot eyes which he was trying to conceal by wearing dark glasses, he kept repeating himself, the content of his speech was nonsensical, and he had a strong odor of alcohol on his breath. Later that morning, a blood specimen was drawn from Respondent, which upon analysis showed an ethanol content of at least 50 milligrams per deciliter. During October, 1990, it had been determined that further psychological evaluation of Respondent was medically indicated, and he was directed by OPS to submit to further evaluation. An appointment was scheduled for him by OPS. Respondent, however, rescheduled that appointment several times and never did submit for further evaluation. Respondent disregarded directives given to him by OPS on August 15, 1990, regarding absence and leave procedures. Between November 5 and 14, 1990, Respondent was absent from work and failed to contact OPS regarding his absences in accordance with the directives previously given to him. Respondent understood that he was to contact OPS. The reason that Respondent did not contact OPS when he failed to report to work between November 5 and 14 was as a result of his drinking and not as a result of any lack of understanding of the directives which he had been given. Petitioner's EAP has had 140 contacts directly with Respondent or with his medical providers in an attempt to assist Respondent in dealing with his fitness-related alcoholism. Respondent is generally non-compliant with the recommendations made to him by professionals for dealing with his alcohol problem. Recommendations for long-term residential treatment have been ignored. Although Respondent has voluntarily admitted himself for treatment in hospital mental health units, his stays there are short and do not appear to be assisting him in dealing with his long-term alcohol problem. Although Respondent is currently attending daily AA meetings, his attendance may be related as much to his pending traffic charges and this termination proceeding as to any commitment on his part to finally resolve his alcohol problem. When Respondent was a patient at Mount Sinai, once he was detoxified, he exhibited no personality disorder or psychiatric condition. His problem was alcoholism and poly-drug dependency; his behavior was secondary to that problem. Based upon protocols established by the American Society of Addiction Medicine, a physician cannot, with certainty, diagnose a mental condition while the patient is still under the influence of alcohol or other mind-altering drugs. Although Respondent has been receiving treatment from a psychiatrist on an irregular basis over the last few years, that physician's opinion that Respondent suffers from a manic depressive disorder requiring the administration of anti-depressant medication is rejected. That physician has not had the benefit of seeing Respondent on a regular basis. It is uncertain whether that physician has had the benefit of treating Respondent in a detoxified state since approximately 1985. Although it is believed that Respondent has been in a detoxified state during certain time periods since 1985, there is no assurance that the recovery program Respondent has created for himself is working. Respondent received acceptable annual evaluations for the 1988-1989 and 1989-1990 school years and was recommended for reemployment at the conclusion of each of those school years. Each year's annual evaluation was based upon one classroom observation only. Although fitness-related issues such as active alcoholism appear to be included within Category VII, Professional Responsibilities, on Petitioner's annual evaluation form, principals completing annual evaluations of teachers are prohibited from considering fitness-related issues. By union contract, only the Office of Professional Standards can deal with issues relating to a teacher's fitness for duty. Over the years, Respondent's drinking problem has become known to more and more students, staff, medical professionals, and members of the community. His failure to ultimately resolve his alcohol problem has achieved some degree of notoriety.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Respondent's suspension as of December 5, 1990, was proper and dismissing Respondent from his employment as a teacher for the School Board of Dade County, Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of May, 1991. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-10 13-15, and 17 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 11, 12, and 16 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed findings of fact numbered 1-3, 5-7, and 9 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4, 8, and 11 have been rejected as not being supported by the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 10 and 12-14 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. transmitting transcript, together with Petitioner's exhibits numbered 1-14 and Respondent's exhibits numbered 1-4. COPIES FURNISHED: Octavio J. Visiedo, Superintendent Dade County School Board 1450 Northeast 2nd Avenue Miami, Florida 33132 William Du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 Southwest Third Avenue Suite One Miami, Florida 33129 James C. Bovell, Esquire 75 Valencia Avenue Coral Gables, Florida 33134 Honorable Betty Castor, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
