STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CYNTHIA HYLTON, )

)

Petitioner, )

)

vs. ) Case No. 97-1353

)

DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

The above-styled matter was heard before the Division of Administrative Hearings by Administrative Law Judge, Daniel M. Kilbride, on August 21, 1997, in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Roger D. Helms, Esquire

Troutman, Williams, Irvin, Green & Helms

311 West Fairbanks Avenue Winter Park, Florida 32789

For Respondent: Augustus D. Aikens, Jr., Esquire

Department of Management Services Division of Retirement

Cedars Executive Center

2639 North Monroe street, Building C Tallahassee, Florida 32399

STATEMENT OF THE ISSUES

Whether Petitioner is entitled to "in-the-line-of-duty" death benefits as the surviving spouse of a member of the Florida Retirement System, pursuant to the provisions of Section 121.091(7)(d)1., Florida Statutes.

PRELIMINARY STATEMENT

By letter dated February 5, 1997, Respondent, Division of Retirement, denied Petitioner Cynthia Hylton's application for in-line-of-duty death benefits. Petitioner filed a Petition for Formal Hearing, dated February 19, 1997. This matter was referred to the Division on March 15, 1997, and a formal hearing was scheduled. Prior to the hearing date, this matter was continued at the request of the Petitioner and reset for

August 21, 1997.

At the hearing, the Petitioner presented the testimony of four witnesses and testified in her own behalf. One exhibit was admitted in evidence. Respondent presented one witness, and five exhibits were admitted in evidence. Two exhibits were admitted as joint exhibits.

A transcript of the proceedings was filed with the Clerk of the Division on September 12, 1997. Petitioner filed her Proposed Findings of Fact and Legal Argument on September 19, 1997. Respondent filed its Proposed Recommended Order on September 22, 1997. Both parties' proposals have been given careful consideration and adopted when supported by a preponderance of the evidence.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. The Petitioner, Cynthia Hylton, is the surviving spouse of Christopher Hylton, a certified law enforcement officer employed as a deputy sheriff with the Orange County, Florida, Sheriff's Department from April 3, 1989, until his death on July 22, 1996.

2. Deputy Hylton was a member of the Florida Retirement System since April 3, 1989.

3. At the time of his death, Deputy Hylton was a 39-year- old male in excellent health, who did not smoke, did not need glasses, and had good reflexes and vision.

4. Deputy Hylton was a full-time deputy sheriff assigned to Zone 42 of Sector 4 in the unincorporated area of Orange County, Florida. Routinely, his law enforcement duties were performed within the geographical limits of that zone.

5. Deputy Hylton generally was on duty 10 hours per day, four days per week. He was assigned to the Zone 42 day shift under the supervision of Sergeant D. Martin. The day shift's regular duty hours extended from 5:30 a.m. to 3:30 p.m.

6. Under the authority of the Florida Sheriff's Mutual Aid Agreement, routine law enforcement assistance by a sheriff or his deputies is permitted across jurisdictional lines with the prior approval of the sheriff having normal jurisdiction in the county being assisted. Two types of law enforcement assistance can be provided under the Mutual Aid Agreement: (1) Operational

   Assistance during disturbances and disasters and (2) Voluntary Cooperation in enforcement of violations of Florida Statutes. Back-up services during patrol activities are included under voluntary cooperation and cover law enforcement activities of Orange County deputies in Volusia County.

7. An off-duty deputy traveling in another county in Florida who observes a felony or misdemeanor in progress is required to take law enforcement action. In the case of an on- coming vehicle weaving across the center lane of a two-lane roadway, a deputy is required to take evasive action, first by pulling off the roadway, then turning around, and following and observing the vehicle. In addition, the deputy should then contact the local law enforcement agency and notify them of the situation and continue following the vehicle until the local agency can safely stop and arrest the suspect. The officer would then give a statement to the arresting officer and make himself available as a witness.

8. Deputy Hylton, as a law enforcement officer with the Orange County Sheriff's Department, when witnessing life threatening or criminal activity, such as a drunk driver weaving across the center line of a roadway, was required by his employer to immediately take law enforcement action to apprehend the violator. Even when he was not on duty, he was expected to work those irregular hours required to respond to the emergency situation. This sworn duty applies outside of Orange County,

   Florida.

   
   

9. When exercising that duty, as required by the Orange County Sheriff's Policies and Procedures, Deputy Hylton would be entitled to compensation.

10. Deputy Hylton was a resident of the City of Deltona, Florida. Deltona is located in Volusia County near the Seminole/Volusia border. In order to get to work, Deputy Hylton had to drive his own personal vehicle and travel from his home through Seminole County to the Orange County Sheriff's Operation Center and then go on patrol.

11. In the early morning hours of July 22, 1996, Deputy Hylton left his home in Volusia County wearing his uniform, gun, badge, and his identification. He also carried with him a radio capable of communicating directly with Volusia County, the law enforcement agency having primary jurisdiction at the location where he died.

12. At approximately 3:55 a.m., on July 22, 1996, Deputy Hylton was traveling westbound in a residential area on Debarry Avenue, a two-lane paved road near the City of Deltona, in Volusia County, Florida. He observed an oncoming vehicle swerving into the westbound lane. Deputy Hylton immediately took evasive action by applying his brakes and steering his vehicle onto the shoulder of Debarry Avenue. The oncoming vehicle crossed the center line and came across the westbound lane and collided with the deputy's vehicle before he could take any

    further action. The driver of the other vehicle did not slow down or take any other evasive action prior to the impact. As a result of the collision, a fire erupted and Deputy Hylton died at the scene.

13. At the time of his death, Deputy Hylton appeared to have initiated the process of taking law enforcement action as required by his employer.

14. However, the evidence is not sufficient to prove that Deputy Hylton was killed in-the-line-of-duty as a deputy sheriff while actually performing law enforcement duties during irregular hours as required by his employer.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

16. Section 121.091(d)1., Florida Statutes, covers retirement benefits for members killed in the line of duty and provides, in pertinent part as follows:

    Notwithstanding any other provision in this chapter to the contrary, the surviving spouse of any member killed in the line of duty may receive a monthly pension equal to one-half of the monthly salary being received by the member at the time of death for the rest of the surviving spouse's lifetime. Benefits provided by this paragraph shall supersede any other distribution that may have been provided by the member's designation of beneficiary.

17. Additionally, Section 121.021(14), Florida Statutes,

    defines death in line of duty as:

    
    

    "Death in line of duty" means death arising out of and in the actual performance of duty required by a member's employment during his or her regularly scheduled working hours or irregular working hours as required by the employer. The administrator may require such proof as he or she deems necessary as to the time, date, and cause of death, including evidence from any available witnesses. Workers' compensation records under the provisions of chapter 440 may also be used.

18. Section 30.15, Florida Statutes, set forth the powers, duties, and obligations of sheriffs and deputies in the State of Florida as follows:

    30.15, Powers, duties, and obligations.—

    (1) Sheriffs, in their respective counties, in person or by deputy, shall:

    1. Be conservators of the peace of their counties.

    2. Suppress tumults, riots, and unlawful assemblies in their counties with force and strong hand when necessary.

    3. Apprehend, without warrant, any person disturbing the peace, and carry that person before the proper judicial officer, that further proceedings may be hand against him or her according to law.

    
    

19. The general rule in Florida, as in most other states, holds that injuries sustained by employees when going to or returning from their regular place of work are not deemed to arise out of and in the course of their employment. This commonly referred to as the "going and coming" rule. See Sweat v. Allen, 145 Fla. 733, 200 So. 348 (Fla. 1941). The Florida Supreme Court, however, established an exception to the "going and coming" rule in Sweat v. Allen, Supra. In that case, claimant was a deputy sheriff, performing the functions of a jailer with specific hours of employment but subject to call at

    all other hours. The Court held that Allen was entitled to compensation when he was struck and injured by a truck while walking from his home to catch a bus to go to work. In City of Miami Beach v. Valeriani, 137 So. 2d (Fla. 1962), the Florida Supreme court distinguished the Sweat v. Allen decision in ruling that the law enforcement exception would not apply to police officers acting outside of the area of their lawful jurisdiction.

20. In Walker v. State Division of Retirement, 360 So. 2d 1291, 1292 (Fla. 1st DCA 1978), the court clearly established the fact that the policeman's exception to the "going and coming" rule did not apply under the Florida Retirement System. The court held:

    
    

    We do not conceive that the phrase "in the actual performance of duty" can reasonably be read to embrace the policeman's exception to going and coming rule, established by decisions under the workmen's compensation law. E.g., Warg v. City of Miami Springs, 249 So. 2d 3 (Fla. 1971).

    
    

    Although Deputy Walker was killed in an automobile accident after he left his duty shift, the facts of that case are otherwise identical to the instant case. Deputy Walker, like Deputy Hylton, was in uniform, armed, subject to call at all hours, and charged to initiate law enforcement activities on appropriate occasions while off duty. See Walker v. Life Ins. Co. Of North America, 359 So. 2d 471 (Fla. 1st DCA 1978). Even though Walker was killed in Leon County where he had the authority to issue a citation, that was not sufficient enough to render his death in-

    line-of-duty.

    
    

21. The deceased, Christopher W. Hylton, was killed in Volusia County, his county of residence, an hour-and-a-half before he was scheduled to report for duty at his regularly scheduled working hours at the Orange County Sheriff's Office. Petitioner has attempted to show that Deputy Hylton was killed while in the actual performance of duty during irregular working hours, as required by the Orange County Sheriff's Office. The testimony provided by Petitioner to establish irregular working hours was intended to show the deceased, as a sworn law enforcement officer, was required to enforce the laws 24 hours per day and, therefore, could be thrust into duty at anytime and in any place in Florida. However, this is not an accurate statement of the law. Deputy Hylton had no arrest powers in Volusia County at the time of the collision. The evidence is not persuasive that Deputy Hylton was in the actual performance of any law enforcement duty at the time of the collision. Merely hitting his brakes and taking evasive action, by pulling on to the shoulder of the road, is insufficient to establish that Deputy Hylton had actually taken law enforcement action.

22. Therefore, his spouse is not entitled to death in-line- of-duty benefits because Deputy Hylton was not in the actual performance of his duties as an Orange County Deputy Sheriff at the time, place, and circumstances of the collision.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that a final order be entered denying Petitioner's request for in-line-of-duty retirement benefits of Christopher W. Hylton.

DONE AND ENTERED this 26th day of September, 1997, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1997.

COPIES FURNISHED:

Roger D. Helms, Esquire

Troutman, Williams, Irvin, Green & Helms

311 West Fairbanks Avenue Winter Park, Florida 32789

Augustus D. Aikens, Jr., Esquire Department of Management Services Division of Retirement

Cedars Executive Center

2639 North Monroe street, Building C Tallahassee, Florida 32399

A. J. McMullian, III, Director Division of Retirement

Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1550

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-001353

Orders for Case No: 97-001353