STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEONARD W. SWEETING, )

)

Petitioner, )

)

vs. ) CASE NO. 85-1834

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES )

(South Florida State Hospital), )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on July 2, 1985, at Hollywood, Florida.

APPEARANCES

For Petitioner: Leonard W. Sweeting, pro se

19574 Northwest 32nd Court Carol City, Florida 33056

For Respondent: Marc Gold, Esquire

Department of Health and Rehabilitative Services

South Florida State Hospital 1000 Southwest 84th Avenue Hollywood, Florida 33025

PRELIMINARY STATEMENT

The issue raised by these proceedings is whether the circumstances surrounding Petitioner's absence from his employment with Respondent, for a period of three consecutive working days, constitutes abandonment of his position, and resignation from the Career Service pursuant to Rule 22A- 7.10(2), F.A.C.

At final hearing Petitioner testified on his own behalf, and called Barbara Nichels, as a witness. Petitioner offered Exhibit 1, and it was received into evidence. Respondent called Marjorie L. Rotton and Alice H. Tisdell, as witnesses.

Respondent offered Exhibits 1-4, and they were received into evidence.

The parties were granted leave through July 12, 1985 to file proposed findings of fact and conclusions of law. No proposed findings have been filed on behalf of either party.

FINDINGS OF FACT

1. Petitioner, Leonard W. Sweeting (Sweating), was employed full time by Respondent, Department of Health and Rehabilitative Services (Department), as a licensed practical nurse (LPN), at South Florida State Hospital.

   
   

2. The evidence establishes that Sweeting was absent without authorized leave on three consecutive workdays, to wit: April 8-10, 1985. At no time did Sweeting notify the Department of his intention not to appear for work on those dates.

   
   

3. By certified letter dated April 11, 1985, return receipt requested, Sweeting was advised that his absence from work since April 5, 1985 was unauthorized and that, pursuant to Rule 22A-7.10(2), F.A.C., he was deemed to have abandoned his position and resigned from the Career Service. The letter further advised Sweeting of his right to petition the Department of Administration for a review of the facts, and whether they constitute abandonment.

   
   

4. By letter dated April 13, 1985, and filed April 23, 1985, Sweeting timely petitioned the Department of Administration for review. On June 5, 1985, the Department of Administration accepted Sweeting's petition and requested the assignment of a Hearing Officer from the Division of Administrative Hearings to conduct the final hearing. Sweeting asserts that events predating his absence from work are pertinent to the issue of abandonment.

   
   

5. The evidence establishes that on April 1, 1985 Sweeting's supervisor, Ms. Rotton, requested a copy of his current nursing license. Sweeting professed his inability to produce it, since he had not yet received it in the mail. Sweeting failed to produce his current license through April 4, 1985, or, alternatively, any evidence that he had applied for

   it. Finally, on April 4, 1985, Ms. Rotton advised Sweeting to produce proof of his application for licensure on April 5, 1985, or he would be unable to perform LPN duties at the hospital.

   Sweeting called in "sick" April 5, 1985, and did not report for work. April 6-7, 1985 were Sweeting's normal days off.

   
   

6. By letter dated April 5, 1985 the personnel director advised Sweeting:

   
   

   Please be advised that your LPN license expired on March 31, 1985. You must submit proof of renewal by April 10, 1985 to Ms.

   Marge Rotton, Nurse Supervisor III. Failure to do so will result in your inability to continue to perform LPN duties at South Florida State Hospital and be subject to appropriate disciplinary action.

   
   

   From now until April 10, you will not be allowed to perform duties which require licensing.

   
   

   Should you have any questions, please contact Alice Tiscell, 983-4321, extension 2051.

   
   

   Sweeting did not contact Ms. Tisdell, or any other person at South Florida State Hospital.

   
   

7. Sweeting initially assertec that the events of April 1- 4, 1985 were pertinent because he was told by Ms. Rotton that without his license he could not work. If Ms. Rotton had so advised Sweeting, his absence would have been authorized. However, Sweeting concedes he was advised that he would not be permitted to perform LPN duties, and that alternative duties would be assigned. Accordingly, the events of April 1-4, 1985 are not pertinent, and afford no justification for Sweeting's absence April 8-10, 1985.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

9. Rule 22A-7.10(2), F.A.C., provides in pertinent part:

   1. Abandonment of Position

      
      

      1. An employee who is absent without authorized leave of absence for 3 consecutive workdays shall be deemed to have abandoned the position and to have resigned from the Career Service.

3. The evidence establishes that, despite his knowledge of the Department's rule, Sweeting, without notice or authorized leave, was absent for 3 consecutive workdays from his employment. Sweeting failed to establish any basis which would have excused, or authorized, his absence from work during the period in question.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Administration enter a Final Order that:

1. Petitioner, Leonard W. Sweeting, abandoned his position and resigned from the Career Service.

   
   

2. Dismisses the petition of Leonard W. Sweeting with prejudice.

DONE AND ENTERED this 19th day of July, 1985, at Tallahassee, Florida.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 19th day of July, 1985.

COPIES FURNISHED:

Leonard W. Sweeting 19574 N.W. 32nd Court

Carol City, Florida 33056

Marc Gold, Esq.

South Florida State Hospital 1000 S.W. 84th Avenue Hollywood, Florida 33025-1499

Richard L. Kopel, Esq. Deputy General Counsel Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Gilda Lambert, Secretary - Department of Administration Carlton Building

Tallahassee, Florida 32301

David H. Pingree, Secretary Department of Health and Rehabilitative Services 1321 Winewood Boulevard

Tallahassee, Florida 32301

STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION

LEONARD W SWEETING

Petitioner,

DOA Case No. AB-85-9

1. DOAH Case No 85-1834

   
   

   DEPARTMENT OF HEALTH AND. REHABILITATIVE SERVICES

   (South Florida State Hospital),

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   The Hearing Officer having entered his Recommended Order in this matter and in excess of twenty-one days having expired without either party filing exceptions thereto, it is hereby ORDERED:

   
   

   1. The Findings of Fact contained in the Recommended Order (Exhibit "A" hereto) are adopted as the Findings of Fact of this agency.

      
      

   2. The Conclusions of Law contained in the Recommended Order (Exhibit "A" hereto) are adopted as the Conclusions of Law of this agency.

      
      

   3. Petitioner, Leonard W. Sweeting, abandoned his position and resigned from the Career Service of the State of Florida. The petition of Leonard W. Sweeting is hereby dismissed with prejudice. .

   4. This constitutes final agency action. If any party wishes to seek judicial review of this final agency action, a Notice of Appeal in conformity with Florida Rules of Appellate Procedure must be filed with the appropriate District Court of Appeal within thirty (30) calendar days of the date of this order, failing which further judicial review will be barred.

So Ordered in Tallahassee, Florida this 8th day of August, 1985.

GILDA H. LAMBERT

Secretary of Administration Department of Administration

435 Carlton Building Tallahassee, Florida 32301 (904) 488-4116

Certificate of Clerk Filed in the official records of

the Department of Administration this 8th day of August, 1985.

Clerk

Copies furnished to:

Leonard W. Sweeting 19574 N.W. 32nd Court.

Carol City, Florida 33056

Marc Gold, Esq.

South Florida State Hospital 1000 S.W. 84th Avenue Hollywood, Florida 33025-1499

David H. Pingree, Secretary Department of Health and Rehabilitative Services 1321 Winewood Boulevard

Tallahassee, Florida 23301

William J. Kendrick Hearing Officer

Division of Administrative Hearings 2009 Apalachee Pky., Oakland Bldg. Tallahassee, Florida 32301

Richard L. Kopel Deputy General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Docket for Case No: 85-001834

Orders for Case No: 85-001834