STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD CONLIN, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1752

)

DEPARTMENT OF OFFENDER )

REHABILITATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was referred to this division for hearing by the State Career Service Commission. The Petitioner, Richard Conlin, was suspended as a Correctional Officer for 15 days by the Respondent, Department of Offender Rehabilitation, for the alleged violation of Chapter 108-13(10), Florida Administrative Code, which states:

"No employee shall report for duty or exercise supervision or control over inmates while under the influence of . . . an intoxicant."

APPEARANCES

For Petitioner: John J. Gibson, Jr.

International Union Representative For Respondent: Ray Gearey, Esquire

1. The Petitioner had been suspended for violation of the above rule and an administrative hearing was convened on December 1, 1976, at 9:30 am. at the West Palm Beach Public Library, West Palm Beach, Florida. The evidence indicated that the Petitioner, a Correctional Officer, with the Department of Offender Rehabilitation and several other Correctional Officers from that department were on temporary assignment at the South Florida State Hospital on March 12, 1976. Petitioner and the other witnesses who appeared in this case were assigned to the midnight to eight a.m. shift.

   
   

2. Lt. Crocker testified that he noticed the Respondent had the smell of alcohol on his breath when he came on duty. Lt. Crocker did not ask the Respondent whether he had been drinking but reported to Lt. Ready, a Correctional Officer III, that he believed the Petitioner had had something to drink before coming on duty. Lt. Crocker testified that Petitioner Con1in's speech was slurred somewhat but otherwise he appeared to be acting normally. Also, Lt. Crocker had the authority to relieve the Petitioner of duty that evening, but had no relief officers who might have taken his place had he done so.

3. Lt. Ready who is normally assigned to the Avon Park Correctional Institute testified that Lt. Crocker was assigned to Post No. 5 at the South Florida State Hospital. Lt. Ready testified that Lt. Crocker reported to him that he had smelled alcohol on the Petitioner's breath. Later Lt. Ready spoke to Conlin at his post and introduced himself to him. Since Lt. Ready and Petitioner Conlin are normally assigned to different state institutions they had never met before. Lt. Ready testified that he believed the Petitioner had beef drinking before he came on duty, but did not feel that he had drunk enough to impair his judgment and that he could perform his duties. He stated his speech was slightly slurred and felt that the Petitioner had been somewhat under the influence of alcohol but did not state to what degree. Lt. Ready could have relieved the Petitioner of duty but did not do so.

   
   

4. The Respondent testified that the first time he received notice of his suspension was on March 26, 1976, fourteen days after the date in question, which advised him he was receiving a 15 day suspension. He stated he had three drinks, scotch and water, before dinner on the evening in question. He stated his last drink was at 6:00 p.m. and that he was not under the influence of alcohol at any time while on duty.

   
   

5. The final witness was Cornelius D. Johnson, a Correctional Officer who was on duty the same night as the Petitioner. Mr. Johnson spoke to Conlin the evening they were on duty and told him Lt. Crocker thought he had been drinking. Officer Johnson did not believe the Petitioner had been under the influence of alcohol and smelled no strong odor on his breath. During the shift he stated Officer Conlin performed his duties as required.

   
   

6. The above evidence indicates and the Petitioner readily admits he had had several drinks before coming on duty on the night in question However, no affirmative evidence was presented to show to what degree the Petitioner's facilities were impaired, if at all. Had Lt. Crocker or Lt. Ready believed that the Petitioner was truly under the influence of alcohol, then it was their responsibility to relieve him of duty for that night. At no time was the Petitioner asked by his supervisor if he had been drinking or requested to submit to a sobriety test. Failing to have done so it can not now be stated that the Petitioner should be suspended for 15 days purely on the ambiguous testimony that they smelled alcohol upon his breath and that his speech was somewhat slurred. It is therefore RECOMMENDED that the Career Service Commission find the Petitioner to be not guilty of violating Rule 108-13(10), Florida Administrative Code, and restore to him any salary that was withheld under his suspension.

DONE and ENTERED this 7th day of January, 1977, in Tallahassee, Florida.

KENNETH G. OERTEL, Director

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Raymond Gearey, Esquire Department of Offender

Rehabilitation

1311 Winewood Boulevard

Tallahassee, Florida 32301

John J. Gibson, Jr.

International Union

Representative

1001 S. Andrews Avenue Ft. Lauderdale, Florida

Mrs. Dorothy B. Roberts Appeals Coordinator Department of Administration Carlton Building Tallahassee, Florida 32304

Docket for Case No: 76-001752

Orders for Case No: 76-001752