The Issue The issue to be resolved in this proceeding concerns whether disciplinary action should be taken against the Respondent's medical license based on an alleged violation of section 458.331(1)(s), Florida Statutes, concerning his ability to practice medicine with reasonable skill and safety by reason of illness, substance abuse, or mental or physical condition.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating the practice of medicine as delineated in Chapter 458, Florida Statutes. The Board of Medicine is organized within the Agency and charged with determining and issuing final orders in disciplinary cases involving physicians within its jurisdiction. At all times pertinent to this proceeding, Dr. Murtha has been licensed to practice medicine in the State of Florida, holding license no. 0037467. As a licensed physician in the State of Florida, Dr. Murtha is subject to the licensure and medical practice regulatory jurisdiction of the Board of Medicine of the Agency of Health Care Administration. Dr. Murtha, at the time of the Agency's investigation, was approximately 42 years of age. He received his medical degree in 1978 from the University of Florida and completed his residency at the University of Tennessee. In 1981, he became board certified in internal medicine. He has been on the staff of St. Joseph's Hospital in Tampa, Florida for the ten years prior to the initiation of this action. In August 1995, the Agency filed a complaint against Dr. Murtha alleging that two episodes affected Dr. Murtha's ability to practice medicine with reasonable skill and safety to patients by reason of use of alcohol. The first episode related to a charge of driving under the influence. On May 2, 1994, Dr. Murtha was involved in a minor traffic accident and charged with driving under the influence (DUI). On August 24, 1994, Dr. Murtha pled no contest to the charge, and he received 12 months probation, six months revocation of his driver's license, a $250.00 fine, required attendance of DUI school, and court costs. 7/ The officer who investigated the May 2, 1994 accident and who also charged Dr. Murtha was not available for the hearing and did not testify. The second episode alleged by the Agency relates to the allegation that Dr. Murtha practiced medicine while intoxicated. Specifically, the Agency alleged that Dr. Murtha saw patients while intoxicated. Relating to the second factual allegation, Nurse Georgia Jacinta Paille testified that on January 30, 1995, she encountered Dr. Murtha visiting a patient at St. Joseph's Hospital. Ms. Paille is the day charge nurse at St. Joseph's Hospital in Tampa, and she appeared as the first witness for the Agency. Nurse Paille testified that on January 30, 1995, she encountered Dr. Murtha and that he had a strong odor of alcohol on his breath. She further testified that Dr. Murtha was acting angry and inappropriate and that he raised repetitive questions relating to care given to one of his patients. While Nurse Paille noticed the odor of alcohol, she did not notice if Dr. Murtha's speech or gait was affected by the alcohol. Furthermore, Nurse Paille could not testify that Dr. Murtha acted like someone who had been drinking. Nurse Paille reported her observations of Dr. Murtha to her manager, Margie Butler, who in turn made a report to Dr. Gilbert J. Pitisci, the Hospital Administrator. Gilbert J. Pitisci is a medical physician and the Senior Vice President for Medical Affairs at St. Joseph's Hospital in Tampa, Florida. In addition to various administrative duties, Dr. Pitisci is authorized to summarily suspend a physician's privileges at a hospital. On January 30, 1995, the same day that Nurse Paille observed Dr. Murtha, Dr. Pitisci encountered Dr. Murtha. Dr. Pitisci also noticed the odor of alcohol on Dr. Murtha's breath, and he noticed that Dr. Murtha had a slight slurring of his speech and that there was a slight tremor in his hands. Dr. Murtha declined Dr. Pitisci's invitation to discuss his condition in private. Rather, Dr. Murtha insisted that the discussion be held publicly at the nurses' station. Based on Dr. Murtha's physical appearance and based on the odor of alcohol on his breath, Dr. Pitisci summarily suspended Dr. Murtha as a potentially impaired physician and directed him to leave the hospital. Subsequently, Dr. Pitisci notified the state that it had a physician with a potential impairment with alcohol abuse. Other than detecting the odor of alcohol on Dr. Murtha's breath, Dr. Pitisci had no information as to the amount of alcohol consumed by Dr. Murtha. On or about March 24, 1995, the Agency received notification of Dr. Murtha's suspension from St. Joseph's Hospital. In response, the Agency opened an investigation that led to the filing of an order compelling physical and mental examination. Subsequently, Dr. Murtha received an order from the Agency compelling him to submit to both a physical and mental examination. The Agency chose the physician and directed Dr. Murtha when to appear for his appointment. On June 6, 1995, Dr. Murtha complied with the Agency order compelling his mental examination, and he was evaluated by Daniel J. Sprehe, M.D. Daniel J. Sprehe, M.D. is a psychiatrist licensed in the State of Florida. He has been qualified by various Florida courts as an expert in clinical and forensic psychiatry and was accepted as an expert in the area of psychiatry on behalf of the Agency. Dr. Sprehe's examination and testing of Dr. Murtha lasted approximately three hours. Dr. Sprehe obtained and prepared a detailed social and medical history of Dr. Murtha, administrated the Minnesota Multiphasic Personality Inventory Psychological Test (MMPI) and MMPI II, administered the Michigan Alcoholism Screening Test (MAST), and administered a Beck Depression Inventory. He also questioned Dr. Murtha and performed a mental status examination. The purpose of the evaluation was to determine Dr. Murtha's medical condition and to make any recommendations for treatment concerning his fitness to practice medicine. Dr. Sprehe completed a written evaluation, including a written opinion based on the evaluation. In addition to the aforementioned tests, Dr. Murtha was given a blood test that revealed no alcohol or drugs in his system. Dr. Sprehe's report indicated that Dr. Murtha scored rather low, a score of 7 (out of a possible 30), on the MAST test. He stated that the MAST is a self-reporting test and that a score of five or more places the subject in the range to be considered an alcoholic. Later, Dr. Sprehe indicated that based on the facts presented in other reports relating to Dr. Murtha, he would have modified Dr. Murtha's score to 9. Still later at the hearing, Dr. Sprehe again revised his scoring of Dr. Murtha's MAST test and concluded that he scored a 20. Dr. Sprehe surmised that Dr. Murtha did not answer the test questions candidly and that his score should have been higher. Dr. Sprehe also found that Dr. Murtha minimalized his abuse of alcohol. Based on the MAST test, Dr. Sprehe found that Dr. Murtha fell into the alcoholic range. For reasons fully stated in paragraphs 26, 27, and 41, the undersigned declines to adopt, as a finding of fact, any diagnosis of Dr. Murtha based on the MAST test. Dr. Sprehe explained the differences between the definitions of abuse and dependence. Subsequently, Dr. Sprehe opined, within a reasonable degree of medical certainty, that the Respondent was an alcohol abuser. Based on his opinion, Dr. Sprehe recommended that Dr. Murtha consider a diversionary program such as the Physicians Recovery Network. Dr. Sprehe also opined that Dr. Murtha suffered from narcissistic personality disorder, which can complicate the diagnosis of alcoholism. A person with narcissistic personality disorder tends to deny defects in themselves. Dr. Sprehe's diagnosis of narcissistic personality disorder was made after a one-hour examination of Dr. Murtha. Dr. Sprehe could not state with certainty that Dr. Murtha could not practice with reasonable skill and safety. Dr. Sprehe did opine, however, that "there is at least a question in my mind as to [Dr. Murtha's] ability to practice medicine with reasonable skill and safety." Dr. Sprehe opined that the results of the MAST test and the mental examination, coupled with Dr. Murtha's history, placed Dr. Murtha in the high risk category. No where in the written report to the Agency did Dr. Sprehe advise the Agency that Dr. Murtha was not able to practice medicine with skill and safety. Dr. Sprehe also opined, based on a hypothetical question, that Dr. Murtha "is not in a position to practice medicine safely to patients." The hypothetical question, however, was based on the testimony of Dr. Murtha's ex- wife which has been found to lack consistency. (See paragraphs 28-30). Therefore, for the reasons stated in paragraphs 28-30, the undersigned declines to adopt, as a finding of fact, Dr. Sprehe's opinion which was based on a factually deficient hypothetical question. On August 9, 1995, sixty-five days after Dr. Sprehe's examination and report, the Agency issued an Emergency Suspension Order against Dr. Murtha's license to practice medicine. Dr. Murtha called Mark Stuart Goldman, Ph.D. as his sole witness. Dr. Goldman is a clinical psychologist and distinguished Professor of Psychology at the University of South Florida. Dr. Goldman specializes in the area alcohol research and is currently the director of the Alcohol and Substance Abuse Institute at the University of South Florida. Dr. Goldman was accepted as an expert witness in the field of alcohol and alcoholism, and he testified on behalf of Dr. Murtha. Dr. Goldman testified to the issue of alcoholism and discussed in detail the Michigan Alcoholism Screening Test (MAST). As discussed earlier, Dr. Sprehe relied on the MAST to help make his diagnosis that Dr. Murtha is dependent on alcohol. Dr. Goldman testified that the MAST can be skewed and that the very accusation of alcohol abuse can result in the subject having points scored against him. Dr. Goldman stated that tests such as MAST are crude devices used for screening alcohol problems but are not designed for the purpose of making diagnosis. To make this point, Dr. Goldman cited the Handbook of Alcoholism Treatment Approaches, by Hester and Miller, for the purpose that screening tests such as MAST should not be used for the purpose of making a diagnosis and that to do so represents a violation of professional and ethical standards. The undersigned is persuaded by Dr. Goldman's position that tests such as MAST should be used as screening not diagnostic tools. As such, any opinions based on results from the MAST test are rejected as not supported by credible evidence. Dr. Goldman examined Dr. Murtha on two separate occasions. Dr. Goldman obtained and reviewed Dr. Sprehe's report, and he reviewed the results of the MMPI and the MAST. Based on his review of the materials generated by Dr. Sprehe and on his own examination of Dr. Murtha, Dr. Goldman could not offer an opinion as to whether Dr. Murtha is safe to practice medicine. In addition, Dr. Goldman felt the record was incomplete to offer an opinion as to whether the Respondent was dependent on alcohol. In summary, Dr. Goldman found that a conclusive diagnosis would take considerably more time and would involve additional examination techniques. The undersigned adopts Dr. Goldman's position that inadequate information was available to render an opinion regarding Dr. Murtha's ability to safely practice medicine. In addition to the expert testimony received at the hearing, the Agency also offered the testimony of Dr. Murtha's ex-wife, Donna Gail Murtha. Mrs. Murtha is a registered nurse employed at James A. Haley Veterans Administration Hospital, and she was married to Dr. Murtha for 23 years until their divorce in December of 1994. Mrs. Murtha was offered for the purpose of establishing that Dr. Murtha was an abuser of alcohol and that he regularly consumed alcohol while engaging in the practice of medicine. Mrs. Murtha offered conflicting testimony relating to the quantity of alcohol Dr. Murtha consumed during their marriage. At the hearing she stated that he consumed "at least a pint [of liquor] a day. During the discovery deposition, however, she stated that "she couldn't state an amount [of alcohol consumed]." She also denied ever stating that he [Dr. Murtha] drank a fifth a day. Mrs. Murtha offered additional conflicting testimony as it related to Dr. Murtha's use of alcohol while on call at the hospital. At the hearing she testified that Dr. Murtha consumed alcohol while on call. During the discovery deposition, however, she testified that she knew of no specific incident when Dr. Murtha used alcohol on call. She also stated that she could not recall any instance when Dr. Murtha went to the office after having consumed alcohol. Mrs. Murtha's testimony is rejected because it is inconsistent and it lacks reliability 8/ At no time during or prior to the Agency's investigation had any complaints been received against Dr. Murtha.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED: That a final ordered be entered dismissing with prejudice the complaint filed against the Respondent in DOAH Case No. 96-0567. DONE and ENTERED this 20th day of June, 1996, in Tallahassee, Florida. WILLIAM A. BUZZETT, 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 20th day of June, 1996.
The Issue The issues are whether Respondent committed the acts alleged in the Administrative Complaint, and, if so, what penalty, if any, should Petitioner impose on Respondent's teaching certificate.
Findings Of Fact Respondent is authorized to teach English, the mentally handicapped, and psychology in Florida pursuant to Florida Educator's Certificate No. 435635. The certificate is valid through June 30, 2008. Respondent was an outstanding teacher for the Manatee County School District (the District) for approximately 21 years. The District employed Respondent as a language arts teacher at Manatee High School (Manatee) in 2000. On November 4, 2000, Respondent drove a white Dodge van approximately 30 miles an hour on the wrong side of U.S. Highway 41 (Highway 41) toward a deputy sheriff who was directing traffic during an annual festival. The deputy was off duty, but was in uniform and wore an orange vest. Highway 41 contains six lanes where the deputy was directing traffic. Three northbound and three southbound lanes are divided by a landscaped median with a turning ramp. Oncoming vehicles pulled off the road to avoid the van. The left front tire of the van was flat. The deputy attempted to stop Respondent by waiving his arms, jumping up and down, and yelling and screaming for Respondent to stop. Respondent drove past the deputy, and the deputy pushed off the front window of the vehicle. The deputy's vehicle was approximately 15 feet away with blue lights and strobe lights already operating. The deputy drove his vehicle after Respondent with the siren on. Respondent stopped the van approximately 1.4 miles from the location where she drove past the deputy. Respondent pulled into a parking lot of a chain restaurant. The deputy arrested Respondent for aggravated assault on a police officer and fleeing to elude a police officer. Respondent subsequently pled guilty to both charges. The court withheld adjudication and sentenced Respondent to six months of community control, 25 hours of community service, imposed fines and costs, and placed Respondent on probation for one year. Respondent satisfactorily completed her sentence, paid her fines, and completed her probation. On November 10, 2000, Respondent was under the influence of alcohol at Manatee as students were arriving for school. Administrators at Manatee gave Respondent a Breathalyzer test. The test disclosed a positive reading of .23. The legal limit is .07. The District suspended Respondent without pay on November 10, 2000. Respondent resigned from her teaching position with the District on November 16, 2000. The acts committed by Respondent on November 4 and 10, 2000, constitute neither gross immorality nor moral turpitude within the meaning of Section 1012.795(1)(c), Florida Statutes (2003). The acts were not base, depraved, dishonest, or unprincipled. They were related to alcohol addiction and a long-term illness of Respondent's mother. Respondent did not violate Section 1012.795(1)(e), Florida Statutes (2003). Respondent was not convicted of a criminal charge. The court withheld adjudication. Petitioner acknowledges in its PRO that Petitioner could find no authority to support a conclusion that the withholding of adjudication is a conviction for the purpose of this alleged violation. Respondent did not violate Section 1012.795(1)(f), Florida Statutes (2003). The evidence is less than clear and convincing that the acts committed by Respondent seriously reduced her effectiveness as a teacher. The traffic incident occurred away from school. The second incident occurred before school began and did not harm students or their parents. Respondent was an outstanding teacher prior to her resignation. She resigned her position before her condition had any effect in the classroom. Respondent violated Section 1012.795(1)(i), Florida Statutes (2003), by committing acts prohibited by Principles of Professional Conduct for the Education Profession. Respondent violated Section 1012.795(2), Florida Statutes (2003), by pleading guilty to the criminal charges against her. Three aggravating factors support a significant penalty against Respondent's teaching certificate. First, the offenses on November 4 and 10, 2000, were severe within the meaning of Florida Administrative Code Rule 6B-11.007(3)(a). (References to rules are to rules promulgated in the Florida Administrative Code on February 27, 1994.) Second, both offenses created a danger to the public within the meaning of Florida Administrative Code Rule 6B-11.007(3)(b). Third, the offense on November 10, 2000, was a repetition of an alcohol- related problem. The District had previously transferred Respondent from another school to Manatee in an effort to help Respondent with problems associated with alcohol addiction. Numerous mitigating factors listed in Florida Administrative Code Rule 6B-11.007(3) justify a penalty less severe than the three-year revocation and probation that Petitioner proposes. The last offense occurred more than three years ago. Respondent practiced as an educator for over 21 years before the last incident, made significant contributions to students and the educational system in which she worked, and has no other disciplinary history. Fla. Admin. Code R. 6B-11.007(3)(d)-(f). Respondent caused no actual damage to any person or property. A penalty in this case has little, if any, deterrent effect and will have a significant adverse impact on Respondent's livelihood. Respondent voluntarily resigned her position and successfully rehabilitated herself from alcohol addiction. Respondent candidly admitted actual knowledge of her offenses and their severity. Respondent pled guilty to the charges against her and voluntarily resigned her teaching position. No pecuniary gain inured to Respondent, and Respondent did not harm any student or child. Respondent is rehabilitated from her previous alcohol addiction. Fla. Admin. Code R. 6B-11.007(3)(g)-(k), (m), and (q)-(s). The evidence does not support a period of probation. Respondent's alcohol addiction was related to external circumstances involving Respondent's mother who was ill and in need of constant attention in 2000. Those external circumstances no longer exist. Respondent is rehabilitated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Subsections 1012.795(1)(c), (e), and (f), Florida Statutes (2003); guilty of violating Subsections 1012.795(1)(i) and (2), Florida Statutes; suspending Respondent's teaching certificate for one year beginning on November 10, 2000; and thereafter activating the certificate forthwith. DONE AND ENTERED this 7th day of July, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 2004. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Nina Ashenafi, Esquire FEA/United 118 North Monroe Street Tallahassee, Florida 32301 Bruce P. Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731-0131 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
The Issue Whether the School Board should permit Respondent to take sick leave for the period commencing December 18, 2013, through the time it takes for evaluation by a Substance Abuse Professional and any necessary rehabilitation or until Respondent’s sick leave is exhausted, whichever occurs first.
Findings Of Fact Ms. Terry Green Ms. Green has been employed by ECSD for at least five years. (See Hr’g Tr. 102, where the testimony indicates she was hired in 2008). At the time of the final hearing, Ms. Green was on leave without pay from her position as a school bus driver, her employment status with ECSD since December 18, 2013. As the driver of an ECSD school bus entrusted with the safety of the children she transports on school days, Ms. Green is required to meet certain criteria by the Department of Transportation. For example, she must have an annual medical examination. Ms. Green must also inform ECSD and the State of Florida of any pharmaceutical substances medically prescribed for her that she takes on a daily basis. Among the pharmaceutical substances on a list in her patient profile with A&E Pharmacy in Pensacola is “Hydrocod/Apap Tab10-325MG.” Ms. Green referred to the substance at hearing by its proprietary name: “Lortab.” Ms. Green does not take Lortab on a daily basis. She listed it as one of the pharmaceutical substances that are prescribed for her when she was hired by ECSD because she takes Lortab occasionally. Lortab Lortab is the proprietary name for a tablet prescribed for pain management. Its active ingredients are “acetaminophen” (commonly known as Tylenol) and “hydrocodone.” Ms. Green offered an exhibit (Ex. R-2, attached to the Transcript of the final hearing), which shows relationships between hydrocodone and codeine and morphine. It cannot be determined on the state of this record whether Lortab metabolizes in the human body into codeine and morphine, but the exhibit offered by Ms. Green raises that possibility. Ms. Green’s Illness Ms. Green was ill for a period of about three weeks that commenced around November 18, 2013, and stretched into the early part of the week of December 9, 2013. Her recovery from the illness lasted until at least the end of January 2014. For much of the time after November 25, 2013, during her illness and recovery, Ms. Green was bed-ridden. The severity of her illness was unusual. As Angela Green, her daughter, testified, “my mom has never been like that.” Hr’g Tr. 83. Running a fever as high as 103 degrees, Ms. Green showed up for work and drove her school bus from Monday, November 18 through Friday, November 22, 2013. Her illness continued through the weekend of Saturday, November 23, 2013. On Sunday, November 24, 2013, Ms. Green’s mother tried to convince her to go to an emergency room (“ER”). She had seen Ms. Green in the morning and observed, “she was a pretty sick gal.” Hr’g Tr. 75. The record is silent as to whether Ms. Green went to the ER, but it seems likely that she did not. November 25, 2013 Sometime during the early morning hours of Monday, November 25, 2013, a school day, prior to reporting for work, Ms. Green took a Lortab. Ms. Green went to work despite her illness and despite having taken the Lortab. Her determination to report to work and perform her duties is a characteristic ingrained in her from early childhood. As her mother testified, she required Ms. Green to attend school as a child unless she was “pretty much . . . on [her] death bed.” See Hr’g Tr. 77. While Ms. Green was driving the school bus that morning, a school bus assistant (another ECSD employee assigned to the bus) became concerned about Ms. Green’s condition. The concern was reported to the ECSD’s Office of the Director of Transportation. A replacement driver was sent to the bus, and Ms. Green returned to the office. A form to be used to help determine reasonable suspicion for drug/alcohol testing, entitled “Reasonable Suspicion Drug/Alcohol Testing Checklist for Supervisors” was filled out by observers to determine whether Ms. Green should be subjected to drug or alcohol testing. See Pet’r’s Ex. H. The form shows Ms. Green was observed at 9:05 a.m. in the office. Her speech was slurred, and the checklist indicates that she was mumbling. She stumbled, appeared dazed, and had unkempt hair or clothing. Four boxes were checked on the form under the section called “Today’s Job Performance”: “Mistakes due to poor judgment,” “Low productivity/Taking longer to complete tasks,” “Complaints from others about behavior/attitude/driving,” and “Late to work.” Under “Interpersonal Behavior,” two boxes were checked: “Overly sensitive to real/imagined criticism,” and “Major change in personality.” Typed onto the form with regard to the source reporting any drug/alcohol use was: “Bus assistant reported initially then corroborated in the office with two route managers who see her frequently.” The observations led to the conclusion, “The combination of factors indicates she is under the influence.” The “Test Requested” section of the form had a box checked for “Drug and Alcohol.” The form was signed by two observing supervisor/officials and dated November 25, 2013. The route managers, who observed Ms. Green, reported to the Director of Transportation that there was a reasonable suspicion that Ms. Green was under the influence of drugs or alcohol.2/ The Reasonable Suspicion Drug/Alcohol Test Ms. Green submitted to the drug/alcohol test the same day. The test results are reported on a “Federal Drug Testing Custody and Control Form.” See Pet’r’s Ex. F, at 6. Dated November 25, 2013, it shows ECSD as the “employer,” Dr. Natalie Hartenbaum of FirstLab as the medical review officer (“MRO”), and Ms. Green as the donor. Ms. Green signed a certification on the form that she submitted an unadulterated urine specimen to the laboratory’s collector and that the information affixed on the specimen bottle was correct. The report shows the specimen was verified as positive for two opiates: codeine and morphine. The Timeline The third page in Petitioner’s Exhibit F is a “TIMELINE” under “DONOR NAME: TERRY GREEN” (the “Timeline”). Compiled by FirstLab with regard to the specimen Ms. Green submitted for analysis, the Timeline commences on November 25, 2013, and concludes with entries the following December 5, 2013. The Timeline shows that the specimen collected on November 25, 2013, was received at the laboratory on November 26, 2013, for drug/alcohol analysis. According to the Timeline, the laboratory transmitted the result to FirstLab on December 3, 2013: “MORE THEN [sic] ONE SUBSTANCE FOUND.” Pet’r’s Ex. F, at 6. The Timeline shows involvement of the MRO, beginning on December 4, 2013. According to the Timeline, the MRO, after being sent the documents for review, called the Donor (Ms. Green). After an interview, the Timeline entry shows: “MRO GAVE DONOR 24 HOURS TO FAX RX.” The entry for December 4, 2013, concludes: “MRO DETERMINATION MADE POSITIVE FOR CODEINE AND MORPHINE. ANOTHER SUBSTANCE PENDING.” Pet’r’s Ex. F, at 3, TIMELINE (emphasis supplied). The Timeline shows two entries for December 5, 2013. The first December 5 entry states: “MRO ASSISTANT REPORTED TO PATSY FLOWERS POSITIVE FOR CODEINE, MORPHINE AND PENDING FOR ANOTHER SUBSTANCE. MRO REC’D AND VERIFIED RX PROFILE FOR THE OTHER SUBSTANCE.” Id. (emphasis supplied). The second December 5 entry and final Timeline entry states: “MRO ASSISTANT REPORTED TO PATSY FLOWERS VOICE MAIL, NO CHANGE IN RESULT. OTHER SUBSTANCE NEGATIVE.” Id. (emphasis supplied). It may be inferred from the timing of the report of the positive for codeine and morphine (prior to a determination on the “other substance”), the reference to the receipt and verification of the RX profile “for the other substance,” and the conclusion in a separate entry that the “other substance” was negative, that the MRO examined the RX profile only for the other substance. It may also be inferred, therefore, that the MRO did not investigate whether the codeine and morphine positives in the specimen could have been due to the ingestion and metabolizing of Lortab or, as it is referred to on the RX profile, “HYDROCOD/APAP TAB.” See Ex. R-1, attached to the Transcript of the final hearing. The Return to Work Agreement The next day, December 6, 2013, Ms. Green interrupted a stay at a hospital for the illness she had had since mid-November in order to meet outside the hospital with an ECSD Administrator and her Union Representative. The meeting led to the execution of a Return to Work Agreement signed by Ms. Green, the ECSD Administrator, and Ms. Green’s Union Representative. The title of the agreement contains the following: “FIRST TIME POSITIVE DRUG/ALCOHOL SCREEN.” See Pet’r’s Ex. A. The body of the agreement contains the following: I, Terry Green, in exchange for my continued employment with the School District of Escambia County, Florida, and consistent with the provisions of Article XI.3 - Discipline Involving Drug or Alcohol Abuse or Dependency, Section B, hereby acknowledge that I have received a “First Time” positive drug/alcohol test result . . . . I am required to undergo a Substance Abuse Professional (SAP) evaluation and participate in the SAP recommended drug/alcohol abuse program at my expense with a goal of returning to full employment upon my successful completion of the prescribed rehabilitation regimen. Id. It is apparent that prior to November 25, 2013, Ms. Green had not had a record of any drug or alcohol offenses while in the employ of ESCD. The Return to Work Agreement acknowledges Ms. Green’s understanding that she “had the benefit of competent legal counsel and/or Association representation [as shown by the signature on the agreement of a Union/Legal Representative] . . . .” Pet’r’s Ex. A. It also acknowledges Ms. Green’s entry into the agreement “voluntarily and without duress or coercion of any kind and with full understanding of [her] rights and any waiver thereof.” Id. Nonetheless, at hearing Ms. Green claimed that she signed the Return to Work Agreement in reliance on her Union Representative’s advice without fully understanding the agreement’s implications. It was not until she met with an attorney provided to her by the Union who told her that she “had signed away [her] rights,” Hr’g Tr. 91, that she fully realized its significance. Signing it was an act she would not have committed, she asserted at hearing, even if it meant losing her job, had she thought it affected her right to challenge the positive drug/alcohol test. ECSD Action On December 5, 2013, ECSD notified Ms. Green that she had been placed on leave with pay. Section IX.6(b)(6) of the Master Contract between the School District of Escambia County, Florida and the Union of Escambia Education Staff Professionals, FEA, NEA, AFT (the “Master Contract”)3/ states as follows: Upon receipt of a positive test result in a first offense drug or alcohol screening, the employee may be administratively reassigned to her/his home pending appropriate due process procedures. The employee shall be recommended for suspension without pay until she/he completes a District and Union approved Substance Abuse Professional (SAP) evaluation and the drug/alcohol dependence or abuse rehabilitation program at the employees’ expense as recommended by the SAP. (The employee may utilize the District Health Care Program to the extent specified for the rehabilitation program in the DHCP.) Pet’r’s Ex. D, at 8 (page 35 of the Master Contract). Consistent with the section of the Master Contract quoted above, the superintendent of the ECSD recommended that Ms. Green be placed on suspension without pay until completion of an evaluation by the SAP and any rehabilitation program recommended by the SAP. On December 17, 2013, the School Board approved the superintendent’s recommendation, and Ms. Green was suspended without pay beginning December 18, 2013. Ms. Green’s subsequent request to use sick leave beginning December 18, 2013, was denied by ECSD. Ms. Green’s Petition On January 14, 2014, Ms. Green, through counsel provided by the Union, submitted a Petition for Hearing to the ECSD. The petition requests that Ms. Green be allowed to use sick leave after December 18, 2013, the date the School Board placed her on leave without pay. The Petition asserts that there are no disputed issues of material fact. Facts cited in the petition include Ms. Green’s employment as a school bus driver with ECSD, her initial placement on leave with pay while a “reasonable suspicion” drug test was conducted, her entry into the Return to Work Agreement, and the School Board’s subsequent placement of Ms. Green on leave without pay effective December 18, 2013. The Petition does not definitively admit that Ms. Green is a substance abuser. Rather, it asserts that she “is unable to perform her duties as a bus driver while she is evaluated and receiving rehabilitation for substance abuse, which is a sickness.” Petition for Hearing, at 2, ¶ 9. The Petition, therefore, depends on the evaluation of the SAP and a determination that Ms. Green is in need of rehabilitation for substance abuse. If Ms. Green were evaluated by the SAP and determined not to be in need of rehabilitation for substance abuse, there would be no basis for the petition or the relief it seeks. Ms. Green’s Need for Rehabilitation for Substance Abuse At the hearing, Ms. Green’s mother, Henrietta Moye, was asked the following question by Ms. Green: “Have you ever witnessed me being, in the last two years or almost two years being here, under the influence of any type of drug to impair or any type of alcoholic beverage to impair me?” Ms. Moye answered, “No.” Hr’g Tr. 76. Ms. Moye, moreover, is not aware of any time in her life that Ms. Green has abused any type of medication or consumed alcohol to the point of intoxication. At the hearing, employees of ECSD did not contend that Ms. Green needs rehabilitation for substance abuse. Nor has ECSD expressed its position based on Ms. Green’s relationship to substance abuse. Rather, it bases its position solely on procedures dictated by a single, first-time, drug report positive for opiates and the Return to Work Agreement. The record is silent as to the outcome of an evaluation by the SAP or whether such an evaluation has ever been conducted. Sick Leave Whether Ms. Green is in need of rehabilitation for substance abuse or is a person free of substance abuse, no evidence was produced at hearing that substance abuse is a sickness that would entitle her to sick leave. Likewise, no statute, rule, regulation, or any applicable law was produced by Ms. Green that would entitle her to sick leave for substance abuse while she was placed on leave without pay pending an evaluation by the SAP.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Escambia County School Board continue to deny Ms. Green’s request to use sick leave during her suspension without pay that the School Board imposed effective December 18, 2013, and enter a final order that denies the relief sought in Ms. Green’s petition. DONE AND ENTERED this 2nd day of May, 2014, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 2014.
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 Whether Respondent's alcoholic beverage license should be revoked or otherwise disciplined on grounds that (1) on several occasions, cocaine was possessed, sold, or delivered on the licensed premises by Respondent's employees in violation of state law, and (2) by virtue of such Possession, sale, or delivery of cocaine by its employees, Respondent maintained a public nuisance on the licensed premises.
Findings Of Fact Respondent, Provende, Inc., a general partner in a limited partnership known as Alexandre, Ltd., is responsible for and operates a nightclub under the name of Club Alexandre (the "Club") at 1601 Biscayne Boulevard, Miami, Florida. In connection with its operation of Club Alexandre, Respondent holds beverage license No. 23-3953, Series No. 4-COP-SRX, which permits the sale and consumption of intoxicating beverages on the premises. (Stipulation of Parties, Testimony of Cachaldore.) Club Alexandre, located within the Omni International complex, is a large, multi-faceted club. Its premises consists of two levels totaling approximately 30,000 square feet. The first level includes a restaurant, bar area, three separate dance floors, bathroom facilities, and a stage for entertainment. Buffet lunches are served as early as 11:30 a.m., followed by a cocktail hour in late afternoon, dinner, and live entertainment which continues until 3:00 a.m. The second level is used primarily for private parties, weddings, and business meetings; it is enclosed in glass, and includes banquet rooms, bathroom facilities, storage rooms, and the Club's business offices. Ordinarily, the Club employs from 45 to 50 persons as busboys, bartenders, barmaids, waiters, maitre d's, cooks, dishwashers, office staff, promoters, and buyers. Most of the employees have been hired by Alex Cachaldora--general manager of the Club, stockholder, and president of Respondent. He either hires or approves the hiring of all Club employees and is the individual responsible for managing the Club on a daily basis. (Testimony of Cachaldora.) Club Alexandre is a semi-private club. Upon application, acceptance, and payment of a fee, persons may become members; public customers may also use the Club after screening at the entrance and payment of a cover charge. (Testimony of Cachaldora.) I. As to Count I On November 23, 1980, at approximately 12:10 a.m., D.C. Diaz--an off- duty officer of the Miami Police Department--paid a cover charge and entered the Club Alexandre. He sat at the bar counter, ordered a drink from a young barmaid dressed in a black uniform, and asked her if she could give him some "white magic", a street term referring to cocaine. She asked how much he wanted, he said "one gram"; she then informed him that the price would be $65. (Testimony of Diaz.) Diaz then gave the barmaid a $100 bill; she went to the cash register and returned with $35 in change which he gave to Diaz. She told him, "It will take between five and ten minutes." (Tr. 22-I-22.) Five to ten minutes later, a waiter--dressed in a black tuxedo-type shirt--approached from the restaurant area and gave the barmaid a folded napkin which she, in turn, gave to Diaz. He opened the napkin and found a small tinfoil packet inside containing a white powder which he suspected to be cocaine. (Testimony of Diaz.) Subsequent laboratory tests by the Metropolitan Dade County Public Safety Department confirmed that the white powder obtained by Diaz from the barmaid on November 23, 1980, was cocaine. II. As to Count 2 On January 23, 1981, at approximately 10:30 p.m., Beverage Officers Carmen Gonzalez and Joe Mato, together with Art Serig of the Miami Police Department, entered the Club Alexandre for the purpose of conducting an undercover narcotics investigation. They proceeded to the second floor area, sat at a table, and ordered drinks. (Testimony of Mato.) At approximately 12:25 am. (January 24, 1981), Officer Mato proceeded to the downstairs bar where a barmaid identified as Enid Epstein was tending bar. After ordering a drink, he asked her if she knew where he could obtain some "white magic"; she answered, "Yes, if he is still here it would be $65."(Tr. 22-I-53.) He agreed to the price and handed her $70. She took the money and proceeded to the kitchen area located in the rear of the premises. A few minutes later, he observed her running across the upstairs lounge area to the bar. After a brief delay, she proceeded toward the downstairs bathroom area. She then returned to Officer Mate, handed him a $5 bill folded into a small package, and explained, "This is the change that I owed you." (Tr. 22-I- 54.) He opened the folded $5 bill and found a small tinfoil packet containing a white powder which he suspected to be cocaine. (Testimony of Mato.) Subsequent Dade Public Safety Department laboratory tests confirmed that the white powder obtained by Officer Mato from Enid Epstein was cocaine. (P-2.) III. As to Count 3 On January 24, 1981, at approximately 9:20 p.m., undercover Beverage Officers Lou Clark end Lou Terminello entered the Club Alexandre for the purpose of continuing the Division's narcotic investigation. They seated themselves at the downstairs bar area end ordered drinks from a male bartender who introduced himself as "Bill", later identified as William Mendel. Officer Clark told "Bill" that they had picked up a couple of girls and asked if there was anything to help with the party. A conversation ensued about there being a lot of "snow" in Kansas--Clark using the term's ordinary meaning--and "Bill" answering, "That is not the kind of snow I was referring to." (Tr. 22-I-132.) In response to Clark's question about obtaining something that might help with their party, "Bill" indicated his contact wasn't there at that time, but that "they should be in later." (Tr. 22-I-133.) Officers Clark and Terminello then left the premises. (Testimony of Clark, Terminello.) About an hour later, the two beverage officers returned to the premises, and seated themselves at the downstairs bar. They ordered a drink from "Bill" and asked if his contact had arrived. He went over and talked to a young red-haired female barmaid--later identified as Enid Epstein-and returned to the officers; he then wrote "75" on a white bar napkin and placed it on the counter in front of them. Terminello said, "That is fine, we'll take two" (Tr. 22-I-136) and laid $80 on the table. Clark laid dawn a $100 bill. "Bill" took the $100, and $56 from Terminello's $80, leaving $24 in change. 4/ "Bill" then rang up a $6 sale an the register and placed the rest of the money in the right vest pocket of Enid Epstein. She then left the bar and proceeded into the kitchen area. A few minutes later she returned--via the staircase leading from the second floor--folded an unidentified object into a napkin, and handed it to Bill. He, in turn, handed the napkin to Terminello. After finding two small tinfoil packets in the napkin, the officers departed the premises. (Testimony of Terminello, Clark.) The two small packets contained a white powder. Subsequent Public Safety Department laboratory tests identified the white powder contained in one of the packets as cocaine. 5/ IV. As to Count 4 After his initial drug transaction with barmaid Enid Epstein during the early morning hours of January 24, 1981, (Paragraph 7 through 9, Count 2, above) Officer Mato returned to the Club Alexandre with Beverage Officer Emil Marrero. They arrived shortly before midnight on January 24, 1981, and seated themselves on opposite ends of the downstairs bar. After ordering drinks, Officer Mato called over barmaid Enid Epstein--who was tending bar--placed $70 on the bar and told her he would like to purchase some "white magic", another street name referring to cocaine. She took the money and proceeded to the kitchen area, then returned and handed Mato a folded $5 bill containing a small tinfoil packet. A few minutes later, the beverage officers departed the premises. (Testimony of Mato, Merrero.) The small tinfoil packet contained white powder which subsequent Public Safety Department laboratory tests identified as cocaine. (P-2.) V As to Count 5 At 11:00 p.m., on January 27, 1981, Beverage Officers Marrero and Delmonte entered the Club Alexandre and seated themselves at the downstairs bar. They ordered drinks from barmaid Enid Epstein. Shortly after midnight Merrero folded $70 in a small packet and placed it on the bar; he then asked Epstein if he could buy some "white magic", meaning cocaine. Taking the money, she went to the kitchen area and returned, placing a folded $5 bill in front of Marrero. Inside the folded bill was a small tinfoil packet. The officers then left the premises. (Testimony of Marrero, Delmonte.) Subsequent Public Safety Department laboratory analysis identified the contents of the tinfoil packet as cocaine. (P-3.) VI. As to Count 6 On January 28, 1981, at 12:45 a.m., Officers Clark and Terminello returned to the Club Alexandre in furtherance of their narcotics investigation. Seated at the lower level bar, they ordered drinks from Enid Epstein, the barmaid. Shortly thereafter, Terminello called her over end asked her if there was any chance of their getting some more "toot", another slang ward for cocaine. She replied that she would have to check to "see if any of my people are here." (Tr. 22-I-104.) She then left the bar, walked to the rear kitchen area and returned several minutes later saying, "Yeah, no problem. There is somebody here." Id. Each officer then placed $75 on the bar; she retrieved the money, left for the kitchen area and returned with a folded napkin which contained two small tinfoil packets. (Testimony of Clark, Terminello.) Subsequent Public Safety Department laboratory analysis identified the contents of one of the packets as cocaine. 6/ (P-5.) VII. As to Count 7 On January 29, 1981, at approximately 11:40 p.m. beverage officers, assisted by officers of the Miami Police Department, executed a search warrant on the premises of the Club Alexandre. During the search, Beverage Officer Joseph Maggio found a brown leather purse on a shelf in a locked storage room on the second floor. The outside pocket of the purse contained ten small tinfoil packets containing a white powder suspected to be cocaine. A further search of the purse revealed small baggies and six additional tinfoil packets--all containing suspected cocaine. (Testimony of Maggio, McEwan.) The purse also contained a checkbook and a Florida driver's license issued in the name of Luis A. Vargas. Vargas, the head chef for Club Alexandre, was subsequently located downstairs. After being advised of his rights, Vargas identified the purse as his own. Of the numerous packets of white powder found within the purse, only one was subjected to Public Safety Department laboratory analysis; the contents of that packet were identified as cocaine. (P-7.) VIII. Licensee's Duty to Exercise Reasonable Care end Diligence Before a beverage license can be suspended or revoked for a violation of law on the licensee's premises, the licensee must be found culpably responsible for the violation through his own negligence, intentional wrongdoing, or lack of diligence. 7/ In the instant case, no intentional wrongdoing by Respondent has been alleged or proved. Rather, the Division contends that the violations of state narcotics laws described above resulted from Respondent's failure to exercise reasonable skill and diligence in managing and supervising its operations. Respondent does not dispute that on seven occasions, as alleged, violations of state narcotics laws occurred on the premises; however, it denys negligence or lack of diligence. It affirmatively contends that it took every reasonable precaution to guard against the illegal sale or use of narcotics on the licensed premises. (Testimony of Cachaldora, Petitioner's Proposed Recommended Order, Respondent's Suggested Findings of Fact.) Respondent's contention is unavailing; the evidence establishes that Respondent failed to take reasonable precautions to guard against violations of narcotics laws on its premises--that Respondent failed to exercise reasonable care end diligence in managing its operations and supervising its employees. The following facts justify this conclusion: The alleged violations of narcotics laws occurred on the premises in a recurring, persistent, and practiced manner. They occurred at least seven times--over a 2 1/2- month period--and involved at least three separate employees of the Respondent. Despite the licensee's knowledge or suspicion, through its operators and managers, that violations of state narcotics laws occasionally occurred on it premises, the licensee never expressly enunciated--either to its employees or patrons--a policy forbidding the possession, sale, or use of narcotics. Employees were not admonished against involving themselves in such violations; neither were penalties for such violations announced in advance. Neither was information concerning possible narcotics law violations or convictions elicited from prospective employees. Given the nature and size of the Club, the number of its employees end patrons, and management's knowledge, or suspicion, that narcotics violations had occurred on the premises--the licensee took inadequate steps to (1) monitor activities on the premises, and (2) detect narcotics violations and prevent their occurrence. It employed off-duty Omni security guards only during times when business activity was greatest. At all other times, it relied on its employees for surveillance and security. The place where narcotics violations were most likely to occur--the bathroom facilities on two floors--were monitored by a single valet with minimal security training and who could neither speak nor understand English. The security efforts by the licensee were directed more to controlling disturbing or offensive behavior by patrons than pretending violations of law from occurring on the premises, or taking forceful action when such violations were detected. The quality of the licensee's surveillance program is illustrated by an experiment conducted by Beverage Officer Delmonte. On January 14, 1981--while at the Club with Beverage Officer Marrero--he observed several persons in the men's bathroom with running eyes and noses. During that same visit, Officer Marrero observed several waiters and a patron in the bathroom "sniffing something through their nostrils." (Tr. 22-I-78.) The Respondent's valet was also present in the bathroom at the time. On Officer Delmonte's next visit to the Club--January 27, 1981--he decided to conduct an experiment because of the suspicious activities observed on January 14, 1981. He went to the bathroom with a dollar bill rolled into a small tube; he placed it to his nostril and pretended to inhale something. The valet came in, observed this behavior, and acted surprised. Delmonte then acted embarrassed, smiled, and placed the dollar back in his pocket. After the valet handed him a kleenex, Delmonte exited the bathroom with the valet following him. At the foyer, the valet spoke with an older lady wearing a dark dress; the lady then engaged in a casual conversation with Delmonte and Enid Epstein--who was tending bar. Nothing further occurred in response to Officer Delmonte's experiment. (Testimony of Delmonte, Mendel, McEwen, Maggie, Mato, Clerk, Terminello, Marrero, Guerre, Robertson, Cachaldora, Puig; R-3, R-7.) Respondent's suggested findings of fact are adopted to the extent they establish: (1) Between November 23, 1980, and January 28, 1981, law enforcement officers made numerous undercover visits to the Club when they did not, or were unable to purchase illicit narcotics on the premises; (2) During undercover visits during the period in question--except for the January 14, 1881, incident in the men's bathroom end the incidents alleged in Counts 1 through 7--the officers did not observe anyone using or selling illicit narcotics or marijuana. Moreover, two off-duty police officers who sometimes socially visited the Club-- and were encouraged to do so by Respondent--did not observe any narcotics violations taking place; (3) Each sale of cocaine, as alleged, was preceded by a law enforcement officer's solicitation to purchase; and (4) Unless observed in the act, it is difficult to ascertain--with certainty--whether a person uses, sells, or is inclined to use or sell narcotics. (Testimony of Stillman, Diaz, Sokolowski, Delmonte, Mandel, McEwen, Maggie, Mato, Clark, Terminello, Marrero, Guerra, Robertson.) IX. Appropriate Disciplinary Penalty No aggravating evidence was offered by the Division to justify permanent license revocation; no intentional wrongdoing by Respondent, or its manager, has been shown. Respondent has no record of prior infractions of the Beverage Law. There is no evidence which indicates that Respondent's operator, Alex Cachaldora, was aware that several of his employees were involved with illicit narcotics. In light of the facts of this case, permanent revocation of Respondent's beverage license is unwarranted; rather, a 90-day suspension is appropriate, less any days during which Respondent's beverage license has been effectively suspended by emergency order of the Division. (Testimony of Cachaldora.) Both parties have submitted proposed findings of fact for consideration in this proceeding. To the extent such findings have not been adopted or incorporated in this Recommended Order, they are rejected as irrelevant or unnecessary to resolution of the issues presented or unsupported by the evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, It is RECOMMENDED: That the Division enter a final order suspending Respondent's beverage license No. 23-3953, Series No. 4-COP-SRX, for 90 days; provided, however, to the extent Respondent's license may have been effectively suspended by prior emergency order of the Division, the period of such emergency suspension should be subtracted from the 90-day period. DONE AND RECOMMENDED this 10th day of June, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1981.
The Issue The issue in this case is whether the Respondent, Lauderdale Copa, Inc., d/b/a The Copa (Respondent or The Copa) should pay an alcoholic beverage surcharge in the amount of $18,960.48 as alleged by the Administrative Complaint dated March 27, 2006. The Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Petitioner or Department) claims that the surcharge is owed and due pursuant to Sections 561.502(2) and 561.29, Florida Statutes (2005).
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating the alcoholic beverage industry within Florida. § 561.501 Fla. Stat. (2005). At all times material to the allegations of this case, the Respondent was a licensed entity authorized to sell alcoholic beverages pursuant to its license number 16-00516, Series 4-COP. The Copa was authorized to sell liquor, wine, and beer at its licensed premises for on-site consumption. Alcoholic beverage sales are subject to a surcharge. § 561.501 Fla. Stat. (2005). In addition to other sales taxes that may be imposed on the sale of the product, an alcoholic beverages licensee (such as the Respondent) must also collect and remit to the Department a surcharge on the sale of the alcoholic beverage. The amount of the surcharge remittance is computed pursuant to the guidelines set forth in the laws and regulations. To confirm accurate reporting and remittance of the surcharge, the Department conducts after-the-fact audits of licensees. In this case, the Department audited The Copa’s alcoholic beverage sales for period from November 1, 2002, through October 31, 2005 (the audit period). There are two methods to review or audit the sales of alcoholic beverages. The inventory method directs the Department to take the beginning inventory plus purchases for the period and subtract the ending inventory (and a spillage allowance) to calculate the sales for the period. The calculated sales volume is then used to derive the surcharge obligation. The second method is based on the actual sales incurred during the audit period. The sales method requires that the licensee keep records to verify the volume of actual sales. The surcharge is due based on the on-premise consumer’s purchase of the alcoholic beverage at the licensed site. Both of the methods described require that the licensee keep and maintain records. The inventory method is verifiable since licensees purchase their stock from vendors also regulated by the Department. On or about October 24, 2005, Hurricane Wilma struck Florida and crossed to the Atlantic Ocean from the west coast. The storm caused extensive damage to the Respondent's property. The Respondent claims that its beverage records were lost in the storm. The audit in this case used the inventory method to compute the surcharge. By using the distributors’ sales reports the Department calculated a surcharge owed in the amount of $11,257.52. To that amount the Petitioner seeks interest and penalties. The Respondent does not acknowledge that any surcharge is owed. The Respondent maintains that its inventory, records, and package sales information (alcoholic beverages not consumed on the premises) were lost in the storm. The Department gave the Petitioner over five months to obtain records from other sources to refute the audit findings. As of the date of the formal hearing in this case, the Respondent did not have any records to refute the audit findings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a Final Order sustaining the surcharge liability in the amount of $18,960.48. DONE AND ENTERED this 6th day of December, 2006, in Tallahassee, Leon County, Florida. S J. D. Parrish 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 6th day of December, 2006. COPIES FURNISHED: Gregg Bernard Lauderdale Copa, Inc., d/b/a The Copa Post Office Box 22961 Fort Lauderdale, Florida 33335 Michael J. Wheeler, Esquire Department of Business and Professional Regulation Northwood Centre, Suite 6 1940 North Monroe Street Tallahassee, Florida 32399-2202 Steven M. Hougland, Ph.D., Director Division of Alcoholic Beverages And Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
