The Issue The issue in this case is whether Petitioner's application for licensure as a building inspector should be granted or denied.
Findings Of Fact Petitioner submitted an application for licensure as a building inspector on August 6, 2003. The application was reviewed by Respondent and subsequently denied on the basis that it contained “materials which questions [sic] the good moral character of Petitioner,” and that Petitioner’s application "failed to provide complete supporting documentation relating to all previous disciplinary actions which could also impact a determination concerning [Petitioner's] moral character." No notification that Petitioner’s application lacked supporting documentation was sent by the Department to Petitioner. Petitioner’s application lists prior convictions for traffic-related offenses, such as careless driving, driving with a suspended license, and DUI. Petitioner has never been convicted of a crime involving dishonesty, false statement, fraud, or theft. Petitioner has never been convicted of a felony. Petitioner was under the influence of alcohol at the time that all of the traffic-related offenses were committed. Petitioner is now a recovering alcoholic who has been actively involved with Alcoholics Anonymous (“AA”) for over three years on a voluntary basis. His sobriety date is May 25, 2001. The sobriety date is important because it marks the date when an alcoholic makes and implements a commitment to a new way of life. AA operates on the principle generally accepted by the medical community that alcoholism is a disease, and not a moral issue. AA operates on the principle that although there is no cure for alcoholism, there is a daily reprieve. AA is a 12-step program providing guidelines to living. AA works only if the alcoholic follows the twelve steps to the best of his or her ability. A person who is not willing to change his or her life cannot be helped by AA. AA is an ongoing lifetime process of personal improvement, the pinnacle of which is service to others. Petitioner is a totally different person now as compared to the way he used to be. Petitioner admits that his alcohol-related impairment was the primary cause of the episodes of misconduct prior to his commitments to a life of sobriety and to the principles of the AA program. Petitioner’s last criminal conviction was in 1998. Since becoming sober, Petitioner purchased his own home and recently married. Petitioner is an officer in his AA home group, with responsibilities that include overseeing the group’s activities, setting up meetings, chairing meetings, providing coffee, and paying rent for the meeting site with monies that the group has entrusted to him. Petitioner regularly chairs his home group meetings, and has spoken on alcohol-related issues to several other community groups, including the Salvation Army and the Comprehensive Alcohol Rehabilitation Program. Petitioner has become a person of integrity who cares about others, reaching out to new AA attendees as a mentor. Petitioner has been regularly employed since he stopped drinking. Joe Iagrossi has known Petitioner for a little more than two years. Petitioner is employed by Iagrossi’s company, Construction Inspections of the Palm Beaches. Iagrossi considers Petitioner to be a reliable, honest, and truthful employee, trusts Petitioner’s judgment, and has confidence in his work. Iagrossi believes that Petitioner has the ability to distinguish right from wrong, as well as the character to observe the difference. There have never been any conduct issues with Petitioner, and he possesses a good reputation within the company. Iagrossi is of the opinion that Petitioner can practice building inspection with reasonable skill and safety to the general public. Richard Sussan is Petitioner’s AA sponsor and has known Petitioner for two years. Sussan considers Petitioner a person of integrity, who cares about others, is reliable and honest, and is very committed to AA. Petitioner is a member of, and is actively involved with the activities of, Christ Fellowship Church. Petitioner is a regular volunteer in the church’s Special Needs Ministry. The Special Needs Ministry is a program which allows families of children with special needs to attend regular church services by providing volunteers to watch the special needs children during that time. For the past two years Petitioner has volunteered every other Sunday to watch a special needs child so that the child's parents can attend church services. Petitioner is highly regarded by church officials and church members who know him, and in that group he enjoys a reputation of being very reliable, honest, and a person of integrity and good morals. Petitioner worked for the architectural firm of Ames Bennett & Associates, P.A. for fifteen years. Petitioner’s duties included field inspections for residential and commercial projects, for code and contract compliance, from geotechnical and foundation through trim work, ADA, and fire safety oversight. Petitioner also managed the office, paid bills, interviewed job applicants, and showed new employees inspection techniques. Petitioner passed the Southern Building Code Congress International certification examination for Building Inspector on November 20, 2001. Petitioner passed the International Code Council certification examination for Building Inspector on September 18, 2003. Chapter 11 of the Florida Building Code governs enforcement of the Florida Americans with Disabilities and Accessibility Implementation Act. The Act defines “disability” as “physical or mental impairment that substantially limits one or more major life activities, and includes alcoholism."
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered granting Petitioner's application for licensure as a building inspector. DONE AND ENTERED this 9th day of August, 2004, in Tallahassee, Leon County, Florida. S MICHAEL M. 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 9th day of August, 2004.
The Issue The issue in this case is whether the Petitioner's application for an alcoholic beverage license should be granted or whether the application should be denied for the reasons set forth in the Division's letter to Petitioner dated July 25, 1984. The subject letter included the following: The above-captioned license application has been disapproved on this date for the following reason(s): Applicant not believed to be of good moral character. Also, applicant has been convicted in the last past fifteen (15) years of a felony, the subject matter of which relates to the specific license being sought. Applicant has falsely sworn to a material statement. At the hearing the Respondent offered nine exhibits into evidence. Eight of the exhibits were received in evidence without objection. The ninth exhibit was rejected. The Respondent did not call any witnesses of its own, but did cross examine the witnesses called by the Petitioner. The Petitioner did not offer any exhibits, but did present the testimony of the following witnesses: Robin Lewis, William Bryson, Alvin Robbins, Robert Pepper, Frank Rubio, and Donald Lewis. Subsequent to the hearing the parties both filed late posthearing submissions to the Hearing Officer. 1/ The Petitioner filed a Memorandum of Law, a Suggested Order, and Proposed Findings of Fact. The Respondent filed a Proposed Recommended Order. Their tardiness notwithstanding, the Hearing Officer has given careful consideration to the post-hearing submissions of the parties in the formulation of this Recommended Order. 2/ To the extent that findings of fact proposed by the parties have not been included in the findings of fact which follow, the proposed findings not included have been rejected for one or more of the following reasons: they are irrelevant or immaterial to the disposition of the case, they are cumulative or repetitious, they are not supported by competent substantial evidence, and/or they are contrary to the greater weight of the evidence.
Findings Of Fact Based on the exhibits admitted into evidence and on the testimony of the witnesses who were called at the hearing, I make the following findings of fact: The application which is the subject of this case was filed by OWL Enterprises, Inc., a corporation. Donald W. Lewis is the President, Secretary, and Treasurer of DWL Enterprises, Inc., and owns 1OO of the stock of the corporation. Thus, it is the moral character, criminal record, and conduct of Donald W. Lewis which is at issue in this case. Beginning with his high school years, on through his college years, and at least up until the time of his imprisonment in August of 1979, Donald W. Lewis was a person of poor moral character. During that period of time he drank a lot of alcoholic beverages and also became involved with various illegal drugs. The following is a summary of his criminal record prior to his 1979 imprisonment: April 1968. Arrested for petty larceny, plead guilty, fined $100.00. June 5, 1969. Arrested for petty larceny. June 28, 1974. Arrested for DWI. June 28, 1974. Arrested for pos- session of 20.5 grams of marijuana, prosecution deferred. December 5, 1975. Arrested for aggravated assault and battery, charges dropped. June 18, 1976. Information issued charging conspiracy to deliver or possess cocaine. June 18, 1976. Information issued charging delivery of cocaine. January 28, 1977. Convicted for conspiracy to deliver or possess cocaine. January 28, 1977. Convicted for delivery of cocaine. July 30, 1977. Arrested for DWI. October 28, 1977. Arrested for delivery of cocaine. October 28, 4977. Arrested for possession of cocaine. October 28, 1977. Arrested for felony possession of marijuana. October 28, 1977. Arrested for possession of qualudes. July 30, 1979. Convicted of conspiracy to deliver or possess with intent to deliver cocaine. Sentenced to two years imprisonment July 30, 1979. Probation revoked and sentenced to two years for prior conviction. August 31, 1979, to September 2, 1981. Served prison term. Since his release from prison Donald W. Lewis has not been arrested for or convicted of any offense other than one traffic citation for speeding. When Donald W. Lewis filed the subject application in May of 1984, he was required, among other things, to answer the following questions printed on the application form: Have you ever been: Arrested or charged for a violation of a felony law or misdemeanor law of this State, or any other state or of the United States? * * * 6. Have any arrests or charges that may have been made, ever resulted in a conviction against you? * * * If the answer to any of these questions is YES, list aliases and give full disclosure of charges, dates, arresting agencies & places of arrest. (attach extra sheets if necessary). In response to the questions quoted immediately above Donald W. Lewis provided some information about his arrests and convictions and `attached some documents which provided further information about his arrests and convictions, but he did not make a full disclosure. In particular, he did not disclose the following: June 28, 1974. Arrested for DWI. December 5, 1974. Arrested for aggra- vated assault and battery. July 3O, 1977. Arrested for DWI. October 28, 1977. Arrested for felony possession of marijuana. October 28, 1977. Arrested for possession of qualudes. On his 1984 application, Donald W. Lewis also failed to disclose two arrests which he had disclosed on an earlier application filed in 1975. The two arrests disclosed in 1975, but not in 1984 are: April 1968. Arrested for petty larceny, plead guilty, fined $100.00. June 28, 1974. Arrested for possession of 20.5 grams of marijuana, prosecution deferred. Donald W. Lewis has offered several excuses for his failure to make a full disclosure of his arrest and conviction history when he prepared his 1984 application, but none of the excuses are persuasive. Donald W. Lewis falsely swore to material statements in his 1984 application because his answers to questions concerning his arrest and conviction history were woefully incomplete. When Donald W. Lewis was released from prison in September of 1981 he went to live with his father. He had no regular employment from September of 1981 until November of 1983, although during that period he helped his father build an addition on his father's house. About six months ago Donald W. Lewis married into a socially prominent family and he and his wife have been living at her parent's home. Since November of 1983, Donald W. Lewis and his wife have worked hard to start their new business for which they are seeking an alcoholic beverage license. Donald W. Lewis has impressed his business landlords as being a hard worker and a dependable person. His business landlords and several of his old friends believe that Donald W. Lewis has turned over a new leaf and is now a dependable person of good moral character . 4/
Recommendation For the reasons explained above, the Petitioner's application is subject to denial for each of the reasons set forth in the Respondent's letter of July 25, 1984. Accordingly, I recommend that a Final Order be entered which would deny the Petitioner's application. DONE and ORDERED this 5th day of December, 1984, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9673 Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1984.
Findings Of Fact Petitioner introduced no evidence to support his application or to refute Respondent's evidence. Respondent presented the testimony of its Orlando district supervisor who initially processed the application. He recommended denial based on the arrests and convictions indicated in the "rap sheet" of Maxie Washington, Jr. (Respondent's Exhibit Two) and on his participation in some of Petitioner's arrests for alleged beverage law violations.
Recommendation From the foregoing, it is RECOMMENDED that the application of Maxie Washington, Jr. for the transfer of Alcoholic Beverage License No. 59-54 be DENIED. DONE and ENTERED this 31st day of December, 1980, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1980. COPIES FURNISHED: Mark Lubet, Esquire 200 East Robinson Street Suite 1520 Orlando, Florida 32801 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, James Battle (Battle), has been employed by the County as a correctional officer since June 1988, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Battle. 3/ Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Battle had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Battle and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cannabis. Following receipt of the Commission's letter of denial, Battle filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Battle denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency record, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre-employment interview of Battle on December 18, 1987, at which time he admitted that he had used marijuana. Regarding such use, the proof demonstrates that during the years 1982 and 1983, while a junior and senior in high school, Battle used marijuana approximately 15 times. He has not used marijuana since his graduation from high school in 1983, and has never used any other form of controlled substance. Notwithstanding the County's conclusion, based on its investigation and analysis of Battle's background, that Battle possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his isolated use of marijuana during high school. The Commission's action is unwarranted. Here, Battle, born May 18, 1965, used marijuana approximately 15 times, the last time being over 6 years ago when he was 18 years of age and a senior in high school. He has not used marijuana since, and has never used any other form of controlled substance. Such isolated and dated usage can hardly be termed proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character. 4/ To date, Battle has been employed by the County as a corrections officer, a position of trust and confidence, for approximately one year. His evaluations have been satisfactory, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Prior to his employment as a corrections officer, and following his graduation from high school, Battle has been continuously employed. Additionally, he has served in the National Guard for almost five years, and attained the rank of E3. Overall, Battle has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, James Battle, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of June, 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1989.
The Issue Whether or not Petitioner may be granted an alcoholic beverage license. BACKGROUND AND PROCEDURE Petitioner and Respondent agreed to the admission of their Prehearing Stipulation as Hearing Officer Exhibit A. Petitioner presented the oral testimony of Bob Young, James E. Willis, Mark Orr, Gary Ellwood, Bruce Hunter, and Andy Hoy and had admitted three exhibits. Petitioner also made an oral proffer that six additional witnesses would, if called, testify to the good moral character of James E. Willis. Respondent presented only the oral testimony of Barry Schoenfe1d. No transcript was provided, but the parties timely submitted their respective proposed findings of fact and conclusions of law. All proposed findings of fact have been ruled upon in the appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes.
Findings Of Fact Petitioner is Rialto Food Service, Inc. d/b/a Hoy's Rialto Restaurant, whose president is James E. Willis. Respondent is the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. On August 14, 1986, Petitioner filed an application for an alcoholic beverages license in connection with the purchase of Hoy's Rialto Restaurant. On September 29, 1980, James E. Willis was convicted of two counts of delivery of a controlled substance (methaqualone). On January 10, 1986, James E. Willis received a certificate of restoration of civil rights. James E. Willis currently enjoys a good reputation within the Ft. Pierce, Florida business community. Particularly persuasive of Willis' present good moral character is the entirely favorable factual and opinion evidence offered on his behalf by the prosecutor who presented the original case resulting in Willis' 1980 conviction. Several witnesses with opportunity to observe and good reason to know, also testified that Willis has taken an active and apparently effective stand against drug possession and/or drug use in Hoy's Rialto Restaurant. Subsequent to Petitioner's application for licensure, Sgt. Bob Young of the Division of Alcoholic Beverages and Tobacco investigated James E. Willis. Willis had made full disclosure on his application and thereafter concealed none of the facts found in findings of fact paragraphs 4-6, supra. After completing his investigation and despite Mr. Willis' conviction, Sgt. Young recommended approval of the Petitioner's application for licensure. Nonetheless, on February 6, 1987, Respondent denied Petitioner's license application on the grounds that Petitioner's corporate officer, James E. Willis, had been convicted of a felony within the past 15 years for a crime which directly related to the Alcoholic Beverages Law. Barry Schoenfeld, Chief of Licensing for the Division of Alcoholic Beverages and Tobacco, testified that it is Respondent's unwritten, uncodified "policy" to deny licensure when an applicant has a corporate officer with a felony conviction within 15 years from the date of application, which conviction involves one of the five crimes enumerated in Section 561.15, Florida Statutes. This agency "policy" has been in effect at least 5 years immediately prior to the formal hearing. Likewise, it is Respondent's position that a narcotics conviction, as in the instant case, is "directly related" to the license sought by Petitioner. Sgt. Young did not advise Mr. Willis of said policy, nor did he indicate that Petitioner's application would not be approved. Had this policy been in writing or otherwise available or made known to Petitioner prior to submitting its application, Petitioner would not have purchased Hoy's Rialto Restaurant. There are no other unwritten policies concerning automatic rejections for applications by persons convicted of any crime other than drug related crimes. There is no written agency policy or unwritten agency policy as to what crimes directly relate to Chapter 561, Florida Statutes, the Alcoholic Beverages Law. No other facts exist that would disqualify Petitioner's application for licensure.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law it is, RECOMMENDED that the Department of Business Regulation, Division of Alcoholic Beverages, enter a Final Order denying Petitioner's application for an alcoholic beverages license. DONE and RECOMMENDED this 17th day of December, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1677 The following constitute specific rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (FOF): Petitioner's PFOF: Covered in FOF 1 and 3. Covered in FOF 2. 3, 4, 5. Covered in FOF 7. Covered in FOF 8. Rejected as subordinate and unnecessary. Covered in FOF 10. Covered in FOF 9. To the extent it is not accepted, it is rejected as not supported by the evidence as a whole. Accepted but subordinate and unnecessary. See FOF 9-11. Covered in FOF 10. Covered in FOF 12. 13-14. Covered in FOF 6 except for those matters which are subordinate and unnecessary to a disposition of the issues in this cause. 15-16. Covered in FOF 11. Respondent' s PFOF: 1. Covered in FOF 1. 2. Covered in FOF 2. 3. Covered in FOF 3. 4. Covered in FOF 4. 5. Covered in FOF 5. 6. Covered in FOF 8. 7. Covered in FOF 6. 8. Covered in FOF 9. COPIES FURNISHED: Daniel Bosanko, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph J. DeRoss, Jr., Esquire 133 South Second Street Fort Pierce, Florida 34950 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue At issue in this proceeding is whether petitioner possesses the requisite good moral character for certification as a correctional officer.
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, Kenneth Hart (Hart), has been employed by the County as a correctional officer since June 30, 1986, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Hart. 3/ Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Hart had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of Section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Hart and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cocaine and cannabis. Following receipt of the Commission's letter of denial, Hart filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Hart denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in Rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre- employment interview of Hart on May 22, 1986, at which time he admitted that he had used marijuana and cocaine. Regarding such use, the proof demonstrates that Hart used marijuana on approximately three occasions and cocaine on approximately three occasions, that such use was sporadic and infrequent, and that such use occurred more than two years prior to the interview. Notwithstanding the County's conclusion, based on its investigation and analysis of Hart's background, that Hart possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his infrequent and sporadic use of marijuana over 5 years ago. The Commission's action is not warranted by the proof. Here, Hart, born February 15, 1962, used marijuana and cocaine approximately three times over 5 years ago when he was 21-22 years of age. Such isolated and dated usage can hardly be termed proximate or frequent within the meaning of Rule 11B-27.0011(2), or persuasive evidence of bad moral character. 4/ Currently, Hart has been employed by the County as a corrections officer, a position of trust and confidence, for approximately three years. His annual evaluations have been above satisfactory, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Overall, Hart has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Kenneth Hart, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of June 1989. WILLIAM J. KENDRICK 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 26th day of June, 1989.
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, Leon Lewis (Lewis), has been employed by the County as a correctional officer since September 1985 without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Lewis. 3/ Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Lewis had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of Section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 7, 1988, the Commission notified Lewis and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You actually and intentionally struck Edward Thornton against the will of the said Edward Thornton. You have unlawfully and knowingly possessed and introduced into your body cannabis. Following receipt of the Commission's letter of denial, Lewis filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Lewis denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in Rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to an assessment of Lewis' moral character, the proof demonstrates that the County undertook a pre-employment interview of Lewis on April 20, 1984, at which time he admitted to having "tried marijuana one time, four years ago." At the time of use, Lewis was 17 years of age and a high school student; he has not otherwise experimented with controlled substances. The proof also demonstrates that in October 1982, Lewis struck one Edward Thornton on the head with an umbrella. The circumstances surrounding such blow being struck demonstrate that, following a high school football game, Thornton was harassing Lewis' girlfriend when she, crying, sought Lewis out. At that time, Thornton and a number of his friends confronted Lewis and his girlfriend. Reasonably fearing an attack, Lewis grabbed an umbrella and exclaimed "Before you hit me, I'm going to have to get one of you," and struck Thornton on the head. Other than a cut to the head, there is no proof that Thornton suffered any significant injury. While Lewis was arrested as a consequence of the incident, the matter was subsequently dismissed and the record expunged. Notwithstanding the County's conclusion, based on its investigation and analysis of Lewis' background, that Lewis possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on the two isolated incidents, heretofore discussed, in Lewis' life. The Commission's action is unwarranted. Here, Lewis, born February 25, 1963, used marijuana one time, nine years ago, when he was 17 years of age. Such isolated and dated usage can hardly be termed proximate or frequent within the meaning of Rule 11B- 27.0011(2), or persuasive evidence of bad moral character. Likewise, the isolated incident of striking Thornton over the head with an umbrella when Lewis was 19 years of age was hardly proximate to his employment, or this consideration of his application for certification, and does not, under the circumstances presented, evidence bad moral character. 4/ To date, Lewis has been employed by the County as a correctional officer, a position of trust and confidence, for over three and one-half years. There is no suggestion that he has committed any act or offense that would reflect adversely on his moral character during the term of such employment. Overall, Lewis has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Leon Lewis, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of June 1989. WILLIAM J. KENDRICK 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, 1989.
The Issue Whether Respondent correctional officer’s license should be disciplined.
Findings Of Fact Respondent, John W. Bradley, is a certified correctional officer in the State of Florida, holding Law Enforcement Certificate License No. 165671. He has not previously had his license disciplined. Around midnight on February 8, 2000, Officer Danny R. Alsobrooks, DUI Officer, Panama City Police Department, was called to the 4800 block of West Highway 98 by Corporal Victor Melvin of the Panama City Police Department for suspicious drunk driving by the Respondent. Officer Alsobrooks was informed by Corporal Victor Melvin that Respondent had been driving erratically and had an odor of alcohol on his breath. Upon arrival to the scene, Officer Alsobrooks noticed that Respondent was seated and in control of a black Toyota pickup. Officer Alsobrooks began performing field evaluations to assess the sobriety of Respondent. He too noticed an odor of alcohol on Respondent’s breath. Officer Alsobrooks had Respondent perform the one legged stand evaluation. He explained to Respondent what to do. He asked the Respondent to count one thousand one, one thousand two, one thousand three. The Respondent, however, counted one one thousand, two one thousand, three one thousand. Additionally, Respondent hopped during the evaluation and used his arms to maintain his balance. Petitioner’s behavior indicated that he was impaired. Officer Alsobrooks then demonstrated to Respondent the stance for the walk-and-turn evaluation. Respondent was unsteady and unable to maintain balance while he performed the walk and turn; he used his arms for balance, stepped off the line, failed to touch heel to toe numerous times, made an improper turn, and failed to touch heel to toe in his return steps. Again his behavior indicated that he was impaired. Officer Alsobrooks concluded that Respondent was too impaired to operate a motor vehicle and placed him under arrest. Respondent was transported to the Bay County Jail. Upon arrival at the jail, Officer Alsobrooks had the Respondent complete the Implied Consent Warning form, waited for a 20-minute period of time and then escorted Respondent to the Intoxilyzer room to perform a breath test. The first Intoxilyzer test failed due to the presence of mouth alcohol. Therefore, the Intoxilyzer machine did not return a result. Officer Alsobrooks waited another 20 minutes before performing more Intoxilyzer tests. The tests were performed at three-minute intervals and indicated a blood alcohol level of .135, .167, and .159. Respondent offered no credible evidence to dispute these results. These results combined with Respondent's performance on the field tests demonstrated Respondent was unlawfully operating a motor vehicle while he was impaired in violation of Section 316.1932, Florida Statutes. Upon the receipt of the results, Officer Alsobrooks issued a Florida DUI Uniform Traffic Citation No. 444309-X against Respondent, completed and signed a Breath Test Result Affidavit, an Alcohol Influence Report, and a narrative regarding Respondent’s arrest. The criminal charges against Respondent resulted in a Plea Bargain Agreement in Absentia and an Order on Plea in Absentia by the Court. Respondent pled to reckless driving. The penalties included completing DUI school. The evidence did not demonstrate that Respondent has had any other arrests or convictions of any crime. Nor did the evidence show that Respondent had more than one DUI or was habitually driving and drinking. No other evidence regarding Respondent’s moral character was offered by the Petitioner. Without such evidence, one DUI is insufficient to demonstrate that a person is of bad moral character or even raise a presumption that a person is of bad moral character. Therefore, the Administrative Complaint should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Respondent be found not guilty of failure to maintain good moral character, as required by Section 943.13(7), Florida Statutes, and that the Administrative Complaint be dismissed. DONE AND ENTERED this 28th day of July, 2003, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 28th day of July, 2003. COPIES FURNISHED: John W. Bradley 3555 Peony Lane Greenwood, Florida 32443 Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
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.
