STATE OF FLORIDA DEPARTMENT OF ) BUSINESS REGULATION DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )
Petitioner, ) CASE NO. 77-1655
vs. ) Career Service Docket
Respondent. )
Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, at Room 104, 101 Collins Building, Tallahassee, Florida, at 10:30 a.m., November 7, 1977. This hearing was continued on December 12, 1977, at the office of the Division of Alcoholic Beverages and Tobacco, 1934 Beachway Road, Jacksonville, Florida.
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32201
For Respondent: Joseph M. Glickstein, Jr., Esquire
Whether or not the Petitioner, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, is entitled to relocate its employee, Perry Kirkland, from an assignment in Jacksonville, Florida, to an assignment in West Palm Beach, Florida.
Perry Kirkland, the Respondent, is employed as a beverage sergeant with the Petitioner, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. He has been employed with that division for sixteen years. Within that employment period, he has worked for one year in Orlando, two years in Miami, a period of time in Daytona Beach and then was assigned to Jacksonville, Florida, where he has remained as an employee with the exception of a period of time of 28 days beginning on September 19, 1977, when he was working for the same division in West Palm Beach, Florida. His service in the present type of classification began in 1968 when he was made an
enforcement supervisor. His category was later changed to beverage sergeant in 1975. He is a permanent status employee.
The underlying nature of the dispute between the Petitioner and Respondent concerns the Petitioner's effort to have the Respondent moved from Jacksonville, Florida, to West Palm Beach, Florida, on a permanent basis, as a condition of the Respondent's employment. The propriety or impropriety of such a requirement may be best understood by discussing the background facts which led to his proposed relocation.
In the late fall or early winter of 1976, the Director of the Division of Alcoholic Beverages and Tobacco, Charles A. Nuzum, in conjunction with his subordinates, determined that it was necessary to transfer certain personnel from the Marianna office to the Panama City office. The purpose of such transfer was to promote more comprehensive enforcement in the Panama City area which was thought to be necessary, and had as its correlative purpose the removal of employees from the Marianna office, where the workload was not as substantial as that in Panama City. In essence, it has been decided that a full-fledged office would he opened in Panama City, in contrast to a sort of impromptu office that was in existence at the time. To make this change in personnel, it was necessary for the Director of the Division of Alcoholic Beverages and Tobacco to get the approval of the Department of Administration, Division of Budget.
Mr. Nuzum and his chief of law enforcement met with representatives of the Department of Administration, Division of Budget, to include Elton Revell, a senior budget analyst. The purpose of this meeting was to present the request for changes in the Marianna and Panama City Offices. Revell advised the Division of Alcoholic Beverages and Tobacco that the Division of Budget could not go along with the "piecemeal" resolution of the problem of a disparity in the efforts of fulfilling the mission of the Division of Alcoholic Beverages and Tobacco. It was Revell's position that it would be necessary to consider the entire state in evaluating such realignment, before any approval could be granted. As an example of his position, Revell specifically mentioned that he thought that Live Oak and Jacksonville were offices that were overstaffed.
At the insistence of the Division of Budget, and in keeping with his own analysis of the needs of the Division of Alcoholic Beverages and Tobacco, Mr. Nuzum undertook the task of analyzing the assignment status of the manpower of the division statewide, in an effort to achieve the mandate of his division's function more uniformly. The director had the benefit of certain weekly and monthly reports filed by the field agents in the categories of the division's overall mission. He also had the benefit of an overview of the conditions in the district offices, having made personal visits to the offices around the state. However, it was determined that a more specific study was necessary to get a true picture of the conditions in the district and sub-district offices for purposes of presenting the proposed realignment of personnel to the Department of Administration, Division of Budget. The principal task of doing the study was assigned to John Berry, an auditor with the Division of Alcoholic Beverages and Tobacco.
Berry performed a workload study for a period in 1976, which was designed to determine the time that the agents within the district offices were spending in the primary agency functions, which are licensing and enforcement. The result of this study may he found in Petitioner's Exhibit No. 1, admitted into evidence. Berry in compiling his study, examined the various functions being performed in the Jacksonville District Office and the West Palm Peach
District Office, which are Districts III and X respectively. It was determined, per his workload study, that although Jacksonville and West Palm Beach had a comparable number of licenses in their district, the number of manhours being spent in the performance of the licensing and enforcement functions of the division were significantly disproportionate. This is borne out by an examination of the Petitioner's Exhibit No. 1, which shows 2,067 licenses in Jacksonville and 2,015 licenses in West Palm Beach, for the various counties in the districts. Although this number is relatively close, manhours in the licensing function in Jacksonville was some 9,907 hours and the licensing manhours in West Palm Beach were 6,683. Likewise, the enforcement manhours in Jacksonville were 10,250, an even greater gap existed for enforcement in West Palm Beach in comparison to Jacksonville, in that the total manhours spent for that function in West Palm Beach was 3,355. These statistics were derived from an examination of the weekly and monthly reports from the personnel within the Jacksonville and Palm Beach offices. The statistics were also borne out by the testimony of the lieutenant in charge of the West Palm Beach office, who indicated that due to a shortage of manpower, the enforcement function in the West Palm Beach area was woefully inadequate.
This discussion of the Jacksonville and West Palm Beach district offices leads to further consideration of the efforts made by the Division of Alcoholic Beverages and Tobacco to have their personnel realigned. After Director Nuzum had received the workload study, he had a further discussion of the authenticity of that study, with members of the staff, to include the district supervisors. His communication with the district supervisors had been by sending them a copy of the workload study to solicit their remarks. This study was forwarded to the district supervisors some time in March, 1977. After this discussion, the study was accepted.
On June 7, 1977, the director forwarded the reorganization proposal to Mr. J. Jackson Walter, the Executive Director of the Department of Business Regulation, of which the Division of Alcoholic Beverages and Tobacco is a part. This reorganization proposal was forwarded in conjunction with a request made by Mr. Walter. Again, the contents of this proposal are found as Petitioner's Exhibit No. 1, which includes the workload study and a specific indication of how many persons would be reassigned to the various offices. It also includes a copy of the then present manning chart and a copy of the proposed manning chart after the changes. At that point in time, the exact persons who would be moved had not been determined. Moreover, the criteria for moving individuals from one location to another was still under discussion. Finally, it was determined that the basis for movement would be on the grounds of seniority, should there be two possible candidates for relocation and a decision become necessary for selecting one of those two persons.
Sergeant Kirkland was in that category, because within the Jacksonville district there were two beverage sergeants and the other beverage sergeant was a more senior member of the division. Therefore, Kirkland was chosen to be relocated from Jacksonville to West Palm Beach. The purpose of this relocation was primarily to promote a more consistent enforcement pattern in terms of hours spent in that function statewide and between Jacksonville and West Palm Beach.
A related reason was to allow some assistance to the lieutenant in charge of the West Palm Beach office, in terms of supervision of the field beverage officers of basic rank.
A letter was forwarded to the district supervisors and district auditors from Mr. Nuzum, indicating that the realignment of personnel assignments would be on the basis of seniority. Petitioner's Exhibit No. 2
submitted into evidence is a copy of that notification. After determining that seniority would be the criterion for the relocation of personnel involved, the Division Director submitted his proposals through the Department of Business Regulation for transmittal to the Department of Administration for their approval. The Department of Administration approved the reorganization and J. Revell of the Department of Administration informed Floyd L. Dorn of the Department of Business Regulation's personnel office, that this approval had been granted. This approval came about in August, 1977. After receiving the notification of approval, Director Nuzum then began to advise the personnel who were affected by the reorganization in terms of any relocation.
As stated before, Sergeant Kirkland was a person involved in the relocation question. Assistant Chief of Enforcement, Ken Ball, on the basis of the seniority standard, determined that Sergeant Kirkland should be transferred from Jacksonville to West Palm Beach. This was approved by Director Nuzum and this particular change was indicated on the reorganization position chart, which was Petitioner's Exhibit No. 3 submitted into evidence. His position number is 00092.
The Respondent had filled the 00092 position while working in Jacksonville. His primary function was as supervisor of the enforcement section of the district, with the exception of the period of time in which he was acting in the dual capacity of enforcement supervisor and acting district supervisor. His duties during that latter period are described in Petitioner's Exhibit No. 4 admitted into evidence. This duty description was made by Sergeant Kirkland. When the present district supervisor, Captain Oganowski, took over the permanent job of district supervisor in Jacksonville, Sergeant Kirkland went back to filling the duties of enforcement supervisor. This function entailed the supervision of the enforcement division, as opposed to enforcement and licensing or licensing. Sergeant Kirkland continued to hold this position except for a short period of time in 1975 when he changed positions with the licensing supervisor. This is reflected in Respondent's Exhibit No. 5 admitted into evidence. Respondent's Exhibit No. 6 shows the reassignment of Kirkland back to the job 00092, (enforcement supervisor) in Jacksonville. During his tenure with the division, Sergeant Kirkland has maintained a high standard of performance in his various assignments.
The current description of duties and responsibilities which the Respondent is expected to assume in the West Palm Beach office may be found as a part of Petitioner's Exhibit No. 4 admitted into evidence. This function includes the supervision of both enforcement and licensing personnel.
When it was determined that Sergeant Kirkland would be sent to West Palm Beach, the Director of the Division of Alcoholic Beverages and Tobacco telephonically communicated the notice of this transfer. It was followed by a letter indicating the transfer, a copy of which is Respondent's Exhibit No. 1 admitted into evidence. The date of the written notification is August 25, 1977. The official report of personnel action setting the effective date of the relocation was dated September 15, 1977, and made the effective date September 19, 1977. A copy of this report of personnel action is Respondent's Exhibit No.
3 admitted into evidence. The type of action indicated on this form is original appointment, with the additional statement entered as "Continued." In fact, the relocation of Sergeant Kirkland is a reassignment within the meaning of Rule
22A-7.08, F.A.C. It is a reassignment because the appointment involved a move from one position in one class to a different position in the same class. The position move, is a move from the 00092 position in Jacksonville, which involves the supervision of enforcement personnel in Jacksonville, to the 00092 position
in West Palm Beach, which involves the supervision of both enforcement and licensing personnel. Under the terms of Rule 22A-7.08, F.A.C., Kirkland may not appeal that reassignment. However, since it involves a geographic transfer of more than fifty miles the Respondent is entitled to appeal this decision to the Career Service Commission, in keeping with the authority of Rule 22A-7.09, F.A.C.
The Respondent has challenged this relocation by his Career Service Appeal. That appeal has two principal contentions. The first contention concerns the assertion that the transfer does not fall within any of the types of enumerated appointments found in Rule 22A-7, F.A.C. As already shown, this position has been rejected, because the appointment has been determined to be a reassignment appointment.
The second contention of the appeal is that any transfer from Jacksonville to West Palm Beach would cause irreparable financial harm and hardship on the Respondent and his wife. In connection with this assertion, Sergeant Kirkland produced evidence that the housing in the West Palm Beach area is more expensive than that in Jacksonville, and that, not withstanding the amount of equity which he might realize from the sale of his Jacksonville property, he still would incur approximately $15,000 additional cost for housing. This housing would not be comparable to his Jacksonville housing, due to the difference in the available amount of property and size of the home itself being smaller in West Palm Beach. The house that he is purchasing in Jacksonville is a four-bedroom, two-bath, two-carport home. The house being contemplated for purchase in West Palm Beach is a three-bedroom, two-bath home. Furthermore, the cost of the mortgage in Jacksonville is $165 and this cost would be exceeded in West Palm Beach even if the equity realized in the sale of Jacksonville home were put toward the down payment. It was also established that the restaurant cost in the West Palm Beach area is greater than that cost in Jacksonville.
Sergeant Kirkland's wife testified that she is a hospital operating room nurse who has established a certain amount of seniority in her present employment. She is also only one year away from being able to retire with retirement benefits. If she is required to move, she would lose those benefits and also have to start at the bottom of the seniority list in any new employment in a hospital operating room in West Palm Beach.
Finally, the Respondent demonstrated that to move from the Jacksonville community to West Palm Beach would cause him to lose church membership and other community activities in which he is involved.
In spite of the degree of hardship which has been demonstrated by the Respondent in his presentation, a review of all the facts and circumstances would justify the Petitioner's action in its reassignment transfer of the Respondent. The action was not a punishment, it was a circumstance where the needs of the Petitioner in this instance, are more compelling than the hardship which will be caused Sergeant Kirkland and his family.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction in this cause.
In the course of the hearing, certain evidence was proffered concerning the possible hardship involved if Sergeant Kirkland and his wife were
required to move from Jacksonville to West Palm Beach. The testimony pertaining to the hardship is hereby admitted and considered in accordance with the provisions of Rule 22A-7.09, F.A.C.
Upon a consideration of all the facts and circumstances of this cause, it is determined that the move of Sergeant Kirkland from Jacksonville to West Palm Beach in the position no. 00092 is a reassignment appointment within the meaning of Rule 22A-7.08, F.A.C. It is also concluded that this is a transfer within the meaning of Rule 22A-7.09, F.A.C. Upon a review of the entire matter, the Petitioner is justified in causing the reassignment appointment transfer of the Respondent from Jacksonville to West Palm Beach.
It is recommended that the proposed reassignment appointment transfer of the Respondent from Jacksonville to West Palm Beach in the position 00092 he approved and that the appeal by the Respondent challenging this action by the Petitioner be denied.
DONE and ENTERED this 30 day of December, 1977, in Tallahassee, Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Joseph M. Glickstein, Jr., Esquire 1205 Universal Marion Building Post Office Box 1086
Francis Bailey, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32201
