STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAY GRIMES, )

)

Petitioner, )

)

vs. ) CASE NO. 77-2057

) DEPARTMENT OF HIGHWAY SAFETY ) AND MOTOR VEHICLES, FLORIDA ) HIGHWAY PATROL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Michael R. N. McDonnell, Hearing Officer for the Division of Administrative Hearings, at 10:00 a.m., on July 17, 1978, in Room 216, Moot Courtroom, University of Miami Law School, Old Law Building, Coral Gables, Florida.

The Petitioner was represented by Max Ingle, 1461 Northwest 17th Avenue, Miami, Florida, and Respondent, Department of Highway Safety and Motor Vehicles, Florida Highway Patrol, was represented by Enoch J. Whitney, Room 446, Neil Kirkman Building, Tallahassee, Florida.

Petitioner (hereafter Grimes) has been charged by Respondent (hereafter FHP) with seven violations of general order and personnel rules and regulations pertaining to the duties of highway patrolmen and has suspended Grimes for eighty hours without pay. Each of the charges relates to a specific incidence of the handling of impounded contraband property.

FINDINGS OF FACT

1. Grimes has been employed by FHP for 22 years and was promoted to lieutenant in 1977.

   
   

2. In April, 1977, FHP Trooper E. J. Weatherly took 4 CB radios and a moped into custody after stopping several juveniles by the side of the road under suspicious circumstances. Weatherly spoke with Detective Brad Anderson of the Dade County Public Safety Department, about the property and it was decided that the suspected contraband remain with FHP in Weatherly's possession.

   
   

3. Later, Weatherly and Grimes conversed about the CB radios. When Grimes asked if a report had been made, Weatherly explained what had been done regarding the radios. Grimes then borrowed of the CBs with the intention of checking its size to see if it would fit in his patrol car, but not for the purpose of operating it. The radio was returned on June 1, 1977, after having been kept in the trunk of Grimes' FHP vehicle.

4. Grimes did not sign a receipt for the CB radio he obtained from Weatherly. There was no evidence to indicate that Grimes intended to convert the CB to his own use.

   
   

   CONCLUSIONS OF LAW

   
   

5. Of the seven charges only three are sustained by the evidence. The record clearly shows that Grimes failed to receipt for the CB radio when he received it from Weatherly. This is in violation of General Order 19.0, which provides that when property leaves a member's possession, a receipt should be obtained from party or parties receiving the same. The evidence shows that Grimes failed to require Trooper Weatherly to comply with this portion of the general orders. Accordingly, it is concluded that charges 2, 3, and 7 are supported by the evidence.

   
   

6. Charge 1 falls because Personnel Rules and Regulations 2.1C was neither introduced into evidence nor offered as a subject of official notice. Charges 4 and 6 fall because there is no evidence on which to make a finding that Grimes intended to convert the property to his own use. Charge 6 fails because the evidence reflects that Weatherly did properly report the property and because there is no requirement in evidence that the property be "turned in."

   
   

7. There is no evidence to indicate that Grimes has a record of any prior disciplinary action. It is concluded that since there was no evidence to establish that Grimes converted the property in question to his own use and because there is no evidence of prior disciplinary action that a suspension for eighty hours without pay is unnecessarily harsh and unresponsive to Grimes' violation of impounding procedure. It is therefore

RECOMMENDED that Grimes be suspended for sixteen hours without pay. DONE and ENTERED this 31 day of August, 1978, in Tallahassee, Florida.

MICHAEL R. N. McDONNELL

Hearing Officer

Division of Administrative Hearings

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

Filed with the Clerk of the Division of Administrative Hearings this 31 day of August, 1978.

COPIES FURNISHED:

Max Ingle, Esquire

1461 Northwest 17th Avenue Miami, Florida 33125

Enoch J. Whitney

Room 446 Neil Kirkman Building Tallahassee, Florida 32301

Mrs. Dorothy B. Roberts Appeals Coordinator Career Service Commission

530 Carlton Building Tallahassee, Florida 32304

Conley M. Kennison

State Personnel Director Carlton Building Tallahassee, Florida 32304

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AGENCY FINAL ORDER

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BEFORE THE CAREER SERVICE COMMISSION OF THE STATE OF FLORIDA

IN THE APPEAL OF RAY GRIMES

against SUSPENSION DOAH Case No. 77-2057

by the DEPARTMENT OF HIGHWAY SAFETY and MOTOR VEHICLES, FLORIDA HIGHWAY PATROL

/

ORDER

APPROVING RECOMMENDED ORDER

This cause came on to be considered upon Recommended Order entered herein by Michael R. N. McDonnell, Hearing 0fficer, on August 31, 1978. This Commission, having considered said Recommended Order, finds that the Findings of Fact and Conclusions of Law should be adopted by this Commission. Accordingly it is

ORDERED that said order entered herein on August 31, 1978, signed by Michael R. N. McDonnell, Hearing 0fficer, be, and the same is, hereby adopted and incorporated herein by reference. It is further,

ORDERED that the action of the Agency, be, and the same is, hereby amended and the suspension of the Appellant is reduced to sixteen hours without pay. It is further,

ORDERED that upon mutual agreement of counsel for the parties counsel for the Appellant, Max Ingle, shall be paid the sum of $581.00, by the Agency, representing a reasonable fee for services rendered and cost expended herein.

DONE AND ORDERED this 2nd day of November, A.D., 1978.

CATHERINE W. CHAPIN, Chairman

Career Service Commission

CERTIFICATE OF SERVICE

I hereby certify that copy of the foregoing Order was forwarded by U.S. mail this 2nd day of November, A.D., 1978, to Max Ingel, Attorney at Law, 1461 Northwest 17th Avenue, Miami, Florida 33125; Ray Grimes, c/o Max Ingle, 1461 Northwest 17th Avenue, Miami, Florida 33125; Enoch J. Whitney, Attorney at Law, Department of Highway Safety and Motor Vehicles, Room 446, Neil Kirkman Building, Tallahassee, Florida 32301; Michael R. N. McDonnell, Hearing Officer, Division of Administrative Hearings, 530 Carlton Building, Tallahassee, Florida 32304.

CAREER SERVICE COMMISSION

BY: Carolyn J. Bellis

Docket for Case No: 77-002057

Orders for Case No: 77-002057