STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALFRED GREENBERG, )

)

Petitioner, )

)

vs. ) CASE NO. 77-298

)

DIVISION OF PARI-MUTUEL )

WAGERING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James W. Bradwell, held a public hearing in this cause on May 12, 1977, in Miami, Florida. This case was referred to this Division by the Career Service Commission to hear the Petitioner's appeal of his layoff by the Department of Business Regulation, Division of Pari-Mutual Wagering (herein sometimes called the Respondent).

APPEARANCES

For Respondent: William Hatch, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304

For Respondent: James W. Pritchard, Esquire

1038 Alfred I. DuPont Building

169 East Flagler Street Miami, Florida 33131

Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, and the entire record herein, I make the following:

FINDINGS OF FACT

1. The Petitioner, Alfred Greenberg, has held the position of a veterinary aide since approximately November, 1967. During October 1974, he was converted from OPS status to a regular career service employee subject to the normal six month probationary period. By letter dated June 24, 1976, from J. Patrick McCann, Division Director, Petitioner was advised that based on "action by the 1976 legislature, we most regretfully inform you that it will be necessary to abolish your position effective the close of business, June 30, 1976. In lieu of two weeks notice, you will receive two weeks termination pay." (See Respondent's Composite Exhibit Number 1). Within a few days, the Petitioner was converted back to an OPS position receiving the same hourly pay and was advised that he would be offered any vacancy which occurred within the department to which he qualified within the following 12 month period.

   Petitioner, through his attorney, timely appealed the Respondent's actions essentially contesting his conversion from the career service status to the OPS status and thereby losing social security benefits, retirement benefits and the accrual of vacation and sick leave. He further complained about the manner in which he was served his layoff notice. Specifically, he complained that his letter was hand delivered whereas personnel rules and regulations require that layoff notices etc. be sent by certified mail. In this regard, evidence reveals that by letter dated August 3, 1976, by certified mail, return receipt requested, Petitioner was advised that he was then being provided notice in accordance with the requirement in the department's personnel rules and regulations.

   
   

2. Pursuant to emergency rules governing the layoff of career service employees, 22AER76-1, the Petitioner was advised that his position was abolished pursuant to action taken by the 1976 legislature. Evidence adduced during the course of the hearing reveals that the Petitioner's layoff was effected via the procedures as outlined in the above referred emergency rule and he was immediately converted to an OPS position, a position he now holds, at the same rate of pay. Evidence clearly reveals that Petitioner's layoff was effected pursuant to and authorized by the foregoing emergency rule. In view thereof, and in the absence of any evidence which would provide basis for a contrary finding, the action of the Department in effecting the Petitioner's layoff was proper and I shall accordingly recommend that such action be sustained. It is therefore recommended that the action of the Division of Pari-Mutuel Wagering, in effecting the layoff of the Petitioner, Alfred Greenberg, pursuant to emergency rule 22AER76-1, as published in the Florida Administrative Weekly on June 11, 1976, and adopted by the Administration Commission that same date, be sustained.

RECOMMENDED this 28th day of June, 1977, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

William Hatch, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304

James W. Pritchard, Esquire 1038 Alfred I. DuPont Building

169 East Flagler Street Miami, Florida 33131

Mrs. Dorothy B. Roberts Room 443, Carlton Building Tallahassee, Florida 32304

Docket for Case No: 77-000298

Orders for Case No: 77-000298