STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VINCENT FERNANDEZ, )

)

Petitioner, )

)

vs. ) Case No. 99-1601

)

CITY OF LAKE WORTH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case in accordance with Section 120.57(1), Florida Statutes, on

August 16, 1999, by video teleconference at sites in West Palm Beach and Tallahassee, Florida, before Stuart M. Lerner, a duly- designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Isidor M. Garcia, Esquire

Garcia, Elkins, Carbonell & Boehringer, P.A.

712 North Olive Avenue

West Palm Beach, Florida 33401

For Respondent: H. Dane Mottlau, Esquire

Vernis & Bowling of Palm Beach

517 Northlake Boulevard

North Palm Beach, Florida 33408 STATEMENT OF THE ISSUE

Whether Respondent violated Section 112.011(1)(a), Florida Statutes, by terminating Petitioner's employment?

PRELIMINARY STATEMENT

By letter dated March 29, 1999, from counsel of record for Respondent, which reads as follows, Respondent referred the instant matter to the Division of Administrative Hearings (Division):

This firm represents the City of Lake Worth as it concerns the above referenced matter. Mr. Fernandez had filed suit in Circuit Court of Palm Beach County in May of 1998 claiming damages as the result of a violation of [Section] 112.011(1)(a), Florida Statutes.

The City took a position that if Mr. Fernandez in fact had a claim, he would first have to exhaust his administrative remedies under Chapter 120, Florida Statutes, more particularly [Section] 120.569. As you are aware, certain statutory causes of action require an administrative finding before a suit can be filed. The Circuit Judge agreed and dismissed his suit based on lack of subject matter jurisdiction.

On March 16, 1999, Mr. Fernandez's attorney sen[t] a letter to the City demanding such an administrative hearing. It was not received in that office until late on the 18th, and forwarded to me for handling on the 24th.

Under the provisions of [Section] 120.569(2)(a), I am sending this to you for consideration.

The City takes the position that Mr. Fernandez does not have a [Section] 112.011(1)(a) claim by virtue of the fact that he was employed by the City of Lake Worth at the time he was fired as the result of having been arrested for possession of cocaine. Section 112.011(1)(a) concerns hiring practices, and does not apply to a situation concerning an already employed worker. This would apply to his Circuit Court case as well, however, the Judge did not reach[] that point since the Court must assume he had a valid [Section] 112.011 claim when the motion to dismiss was heard.

The City awaits your decision as the process to be followed by them in responding to the request for an administrative hearing.

As noted above, an administrative hearing on Petitioner's claim under Section 112.011(1)(a), Florida Statutes, was held before the undersigned on August 16, 1999. At the hearing, two witnesses (Petitioner and David Murphy, Respondent's Personnel and Risk Manager) testified. In addition to the testimony of Petitioner and Mr. Murphy, a total of 13 exhibits (Petitioner's Exhibits 1-7, and Respondent's Exhibits 1-6) were offered and received into evidence.

At the conclusion of the evidentiary portion of the hearing, the undersigned established a deadline for the filing of proposed recommended orders. On September 22, 1999, 13 days after the filing of the hearing transcript, Petitioner filed an unopposed motion requesting an extension of this deadline. By Order issued September 24, 1999, the motion was granted, and the deadline for filing proposed recommended orders was extended to September 27, 1999. Respondent and Petitioner filed their post-hearing submittals on September 24, 1999, and September 27, 1999, respectively. These post-hearing submittals have been carefully considered by the undersigned.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:

1. Petitioner was employed by Respondent from March 15, 1989, to June 5, 1997, the effective date of his termination. 1/

2. At the time of his termination, Petitioner occupied the position of Combined Control Board Relief Operator-Power Resources. In this position, at least twice a week, Petitioner monitored and operated the control board in the City of Lake Worth Power Plant (which provides power to the City of Lake Worth through steam generators). As Petitioner acknowledged during his testimony at hearing, this was a "critical job," and it was "very important" that he "be totally sober" and mentally alert while performing his job duties.

3. On or about September 26, 1996, while he was still employed by Respondent, Petitioner was arrested by a City of Lake Worth police officer for possession of cocaine. The cocaine the police officer found in Petitioner's possession was in Petitioner's boot.

4. Petitioner was on his way to work at the time of his arrest.

5. Law enforcement authorities asked Petitioner to disclose the names of those who had sold him the cocaine, but Petitioner refused to do so.

6. Lloyd Gibbs, Respondent's Power Resources Superintendent and Petitioner's supervisor, was made aware of Petitioner's arrest. On October 3, 1996, Mr. Gibbs delivered to Petitioner

   the following "Notification of Random Testing [for] Alcohol and Controlled Substances":

   Due to the events, which include[] your arrest September 26, 1996 and your statements given to me and the Lake Worth Police Department, and in accordance with Resolution 28-91 (City of Lake Worth Personnel Policy) Section 18, Alcohol and Substance Abuse, C3, Cit[y's] right to test for alcohol and controlled substance, 2/ you are hereby notified you will submit to blood and/or urine analysis in accordance with this policy (on a random bas[i]s until further notice from this office).

   
   

   The City of Lake Worth is a drug free work place. We [e]xpect our employees to perform their duties free from the effects of alcohol and substance abuse.

   
   

7. In or around December of 1996, Petitioner submitted to a random drug test. The test revealed the presence of cocaine in his system.

8. On February 5, 1997, Petitioner received the following letter from Respondent's personnel and risk manager, David Murphy:

   As a result of your positive drug screen and your previous agreement . . . with the City of Lake Worth, dated October 3, 1996, regarding use of illegal drugs, you are to be referred to the city's EAP for evaluation and possible treatment protocol as prescribed by the City Policy.

   
   

   In order for your employment to remain intact, (Combined Control Board Relief Operator-Power Resources) you will adhere to the below conditions. If you deviate in any way or test positive again, you will be immediately terminated.

   1. MANAGEMENT/UNION REFERRAL TO EAP

      
      

      1. Immediate enrollment with the EAP. To be verified by CFS;

         
         

      2. Authorize Release of Information & treatment plan information to this office;

         
         

      3. Strict adherence to treatment plan in full;

         
         

      4. You['re] placed on leave;

         
         

      5. Since you have no available time on the books, you are placed on Administrative Leave Without Pay, until you are cleared by the EAP, to return to work;

         
         

      6. Failure to comply with the EAP treatment plan will result in dismissal as being AMA (against medical advice).

      
      

      I have reviewed the possibility of any additional information surfacing that may be pertinent to this issue. Your Union representatives are aware of the above findings as being representative of the facts that we have gathered to date, based upon first hand knowledge.

      
      

      Your signature below, is your acknowledgment of receipt of this letter and agreement with the City to comply with the above conditions. Please return it to me within 5 days of receipt. Thank you. We wish you the best in your prescribed plan.

      
      

9. After receiving Mr. Murphy's February 5, 1997, letter, Petitioner enrolled in a non-residential drug rehabilitation program offered by the Center for Family Services of Palm Beach County, Inc. (CFS). (He continued to work during the period of his rehabilitation.)

10. Section 18C of the City of Lake Worth's Personnel Policy, which is contained in Resolution No. 28-91, provides as

    follows regarding the subjects of "[r]ehabilitation" and "[d]iscipline [p]ending [r]ehabilitation":

    6. Rehabilitation.

    
    

    1. In the event that the results of the blood/alcohol test or second urine verification test are positive, the employee will, within ten (10) days thereafter, enter and remain in an alcohol/substance abuse program approved by the City until the administrator is able to state that the employee has been successfully rehabilitated. While in the program the employee will be allowed to return to work if the program administrator approves; if not, the employee may be placed on leave until the program administrator approves return to work, not to exceed six (6) months.

       
       

    2. If the employee is not rehabilitated, he or she may be disciplined. If the employee is rehabilitated, as determined by the program administrator, the employee shall be allowed to return to work without being disciplined. The employee may use accrued leave while in the rehabilitation program, or take leave without pay.

       
       

    3. If the employee fails to enter or complete the program, or fails to or cannot be rehabilitated, the employee shall be subject to appropriate discipline. . . .

    
    

    8. Discipline Pending Rehabilitation. No employee shall be disciplined for alcohol/substance abuse if the employee enrolls and completes a rehabilitation program. This Section does not prevent the City from disciplining the employee for the consequences of the employee's alcohol/substance abuse (e.g. absenteeism) but rehabilitation shall be a factor in determining the severity of the discipline.

11. By letter dated April 8, 1997, CFS informed Mr. Murphy that Petitioner had "successfully completed 3/ his treatment"

    program (which entailed meeting with a counselor on six separate occasions over a two-month period).

12. By letter dated May 29, 1997, from Respondent's Utilities Director, Harvey Wildschuetz, which reads as follows, Petitioner was notified of the termination of his employment, effective June 5, 1997:

    This letter is to officially inform you that effective June 5, 1997, your employment as a Combined Control Room [Relief] Operator is being terminated.

    
    

    As you are aware, the City sets high standards for conduct, and it is regrettable that we must take this action. This disciplinary action is based on your violation of Resolution 28-91, Section[] 24.B, Types of Offenses, Group III Offenses, paragraphs 9 and 16.

    
    

    Any questions you have in regard[] to your separation from employment will be discussed at a Pre-Termination conference to be held at the Utilities Department Administrative Conference Room located at 1900 2nd Avenue North on June 5, 1997, at 9:00 a.m.

    
    

13. At all times material to the instant case, Section 24 of Resolution No. 28-91 has provided, in pertinent part, as follows:

    DISCIPLINARY ACTIONS

    
    

    1. GENERAL

       
       

       1. It is the intent of the City that effective supervision and employee relations will avoid most matters which necessitate disciplinary action for violation of the rules, and disciplinary action for violation of the rules is NOT intended to restrict the rights of anyone but to insure the rights of

          all and secure cooperation and orderliness throughout the personnel system.

          
          

       2. The City recognizes the fact that each instance differs in many respects from somewhat similar situations. The City retains the right to treat each occurrence on an individual basis and without creating a precedent for other cases which may arise in the future.

          
          

       3. The following rules and regulations are not to be construed as a limitation upon the retained rights of the City. The rules and regulations provide recommended standard penalties to apply for specific offenses. This means that a more severe penalty may be issued than that which appears in the standard procedure if it is felt necessary.

          
          

       4. Offenses requiring disciplinary action are divided into three types to reflect degrees of severity of offenses. In each group for each rule, consideration will be given to the severity of the offense, the cost involved, the time interval between violations, the length and quality of service records, and the ability of the employee concerned. In each case where the penalty is modified from the recommended standard penalties, the reasons for such modifications will be noted in writing.

          
          

       5. In addition to the general types of offenses listed below, infractions of written department rules and regulations will subject the employee to disciplinary action.

          
          

       6. In all cases, the department head shall notify the employee of the action taken and a copy of such notice will be sent to the Personnel Director or designee for placement in the employee's personnel folder.

       
       

    2. TYPES OF OFFENSES

    
    

    The three (3) groups of offenses and a guide for standard penalties recommended are as follows: . . . .

    GROUP III OFFENSE

    
    

    FIRST OFFENSE- Discharge . . . .

    
    

    9. Immoral, unlawful or improper conduct or indecency, either on or off the job, which would tend to affect the employee's relationship to his/her job, fellow workers, reputation or goodwill in the

    community. . . .

    
    

    16. Conviction or guilt of a felony, or a misdemeanor of the first degree which would tend to affect the employee's relationship to his/her job, either on or off job. . . .

    
    

14. Pursuant to Section 26 of Resolution No. 28-91, which at all times material to the instant case has provided as follows, all permanent City of Lake Worth employees are entitled to a pre-termination hearing prior to the effective date of their termination:

    In accordance with law, all permanent employees must be given a pre-termination hearing. The hearing must be given prior to the effective termination date to provide the employee with an opportunity to discuss the specific allegations prom[p]ting the proposed termination with the department head involved. Upon full and fair consideration of all facts and information presented at the hearing, the City Manager or designee shall notify the employee in writing with respect to his or her decision regarding termination.

15. Such a pre-termination hearing was held for Petitioner's benefit.

16. Following this pre-termination hearing, Mr. Wildschuetz sent Petitioner the following letter, dated June 5, 1997:

    After consideration of all information presented at the Pre-Termination Hearing, your employment with the City of Lake Worth

    is hereby terminated effective June 5, 1997. You acknowledged that you were in possession of illegal drugs and have violated the City's personnel policies.

    
    

    Please return all materials, books, uniforms, operating keys and gate cards currently in your possession to the Assistant Power Resources Superintendent, Shannon Bates, by 5:00 p.m., Friday, June 6, 1997.

    
    

17. Subsequent to the termination of his employment, Petitioner was formally charged by the State Attorney's Office with possession of cocaine.

18. Pursuant to a plea agreement, Petitioner entered a pretrial diversion program (the Prosecutor's Alternative Drug Diversion program, or PADD), which he successfully completed. As a result, he was not adjudicated guilty of the crime with which he had been charged.

    CONCLUSIONS OF LAW

    
    

19. In the instant case, Petitioner contends that, in terminating his employment, Respondent acted in violation of Section 112.011(1)(a), Florida Statutes.

20. At all times material to the instant case, Section 112.011, Florida Statutes, has provided as follows:

    Felons; removal of disqualifications for employment, exceptions

    
    

    (1)(a) Except as provided in s. 775.16, 4/ a person shall not be disqualified from employment by the state, any of its agencies or political subdivisions, or any municipality solely because of a prior conviction for a crime. However, a person may be denied employment by the state, any of its agencies or political subdivisions, or

    any municipality by reason of the prior conviction for a crime if the crime was a felony or first degree misdemeanor and directly related to the position of employment sought.

    
    

    (b) Except as provided in s. 775.16, a person whose civil rights have been restored shall not be disqualified to practice, pursue, or engage in any occupation, trade, vocation, profession, or business for which a license, permit, or certificate is required to be issued by the state, any of its agencies or political subdivisions, or any municipality solely because of a prior conviction for a crime. However, a person whose civil rights have been restored may be denied a license, permit, or certification to pursue, practice, or engage in an occupation, trade, vocation, profession, or business by reason of the prior conviction for a crime if the crime was a felony or first degree misdemeanor and directly related to the specific occupation, trade, vocation, profession, or business for which the license, permit, or certificate is sought.

    (2)(a) This section shall not be applicable to any law enforcement or correctional agency.

    
    

    (b) This section shall not be applicable to the employment practices of any fire department relating to the hiring of firefighters. An applicant for employment with any fire department with a prior felony conviction shall be excluded from employment for a period of 4 years after expiration of sentence or final release by the Parole Commission unless the applicant, prior to the expiration of the 4-year period, has received a full pardon or has had his or her civil rights restored.

    
    

    (3) Any complaint concerning the violation of this section shall be adjudicated in accordance with the procedures set forth in chapter 120 for administrative and judicial review.

21. "[I]n accordance with the procedures set forth in [C]hapter 120 for administrative . . . review" (more specifically, Section 120.569(2)(a), Florida Statutes), Petitioner filed his "complaint concerning [Respondent's alleged] violation" of Section 112.011(1)(a), Florida Statutes, with Respondent (which, for purposes of the adjudication of such complaint, is an "agency," within the meaning of Chapter 120, Florida Statutes). See Section 120.52(1)(c), Florida Statutes ("As used in this act: 'Agency' means: Each other unit of government in the state, including counties and municipalities, to the extent they are expressly made subject to this act by general or special law or existing judicial decisions."). Respondent, in turn, chose to refer the matter to the Division of Administrative Hearings for the assignment of an Administrative Law Judge. It did so notwithstanding its position (which it expressed in its referral letter to the Division and which it has maintained throughout this proceeding) that Petitioner "does not have a [valid Section] 112.011(1)(a) claim" because "he was employed by the City of Lake Worth at the time he was fired" and "Section 112.011(1)(a) concerns hiring practices, and does not apply to a situation concerning an already employed worker" (a view with which Petitioner disagrees).

22. To determine the reach of Section 112.011, Florida Statutes, it is necessary to consider the language used by the Legislature in the statute. See St. Petersburg Bank & Trust Co.

    v. Hamm, 414 So. 2d 1071, 1073 (Fla. 1982)("While legislative intent controls construction of statutes in Florida, that intent is determined primarily from the language of the statute. The plain meaning of the statutory language is the first consideration."); Burk v. State, 705 So. 2d 1003, 1004 (Fla. 4th DCA 1998)("The best evidence of legislative intent is the plain language of the statute itself."). In attempting to ascertain the meaning the language in Section 112.011, Florida Statutes, the various provisions of the statute must be read together. See State v. Riley, 638 So. 2d 507, 508 (Fla. 1994)("In contrast, both Kamins and Riley involved the interpretation of two subsections of the same statute. We agree with the Fifth District Court's determination that subsections (1) and (2) must be read in pari materia . . . ."); Forsythe v. Longboat Key Soil Erosion Control District, 604 So. 2d 452, 455 (Fla. 1992)("It is axiomatic that all parts of a statute must be read together in order to achieve a consistent whole."); Okeechobeee Health Care v. Collins, 726 So. 2d 775, 776 (Fla. 1st DCA 1998)("[S]ubsections of the same statute must be construed in pari materia.").

23. Such a reading of Section 112.011, Florida Statutes, reveals that it does not prohibit a public employer from terminating the employment of an employee for having engaged in post-hire criminal conduct in violation of the employer's work rules, as Petitioner did in the instant case. 5/ It is apparent

    from an examination of the entire statute (including the reference, in the first sentence of subsection (1)(a), to Section 775.16, Florida Statutes, which provides for the "disqualifi[cation] from applying for employment" of those subject to its provisions, and the reference, in the second sentence of subsection (1)(a), to "the position of employment sought") that, when the Legislature used the term "prior conviction" in subsection (1)(a), it meant a pre-hire conviction, and that Section 112.011(1)(a), Florida Statutes, was not intended to protect employees who, after they are hired, violate

    reasonable standards of conduct (prescribed by their employer) by committing criminal acts. See School Board of Dade County v.

    Golfin, 1997 WL 1052792 n.10 (Fla. DOAH 1997)(Recommended Order)("Section 112.011(1)(a), Florida Statutes, deals with convictions predating the commencement of the employment relationship, whereas the instant case involves criminal conduct and convictions occurring after Respondent had become a School Board employee and while he was subject to standards regulating School Board employee conduct.").

24. Like the Respondent in Golfin, Petitioner was not terminated because of any pre-hire conviction. He was terminated because he engaged in post-hire criminal conduct, in violation of the standards set forth in Resolution 28-91. 6/

25. As a "public employer" (within the meaning of Chapter 447, Part II, Florida Statutes), Respondent has the right to

    "take disciplinary action [against its employees] for proper cause." "Proper cause" to discipline a employee exists where that employee, during the period of his or her employment, contrary to the requirements set forth in Resolution 28-91, commits a crime or engages in any other "[i]mmoral, unlawful or improper conduct or indecency, either on or off the job, which would tend to affect the employee's relationship to his/her job, fellow workers, reputation or goodwill in the community." See, e.g., Seminole County Board of County Commissioners v. Long, 422 So. 2d 938, 940 (Fla. 5th DCA 1982) and the cases cited therein ("A number of cases affirm the rule that government employees may be discharged for 'conduct unbecoming an employee.'"). In terminating Respondent's employment, Petitioner was simply exercising its right, under Section 447.209, Florida Statutes, to "take disciplinary action [against its employees] for proper cause." By taking such action, it did not in any way violate the provisions of Section 112.011(1)(a), Florida Statutes.

26. Accordingly, Petitioner's complaint that Respondent committed such a violation should be dismissed.

RECOMMENDATION

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

RECOMMENDED that a final order be entered by the "agency" in this case (the City of Lake Worth) dismissing Respondent's complaint that the termination of his employment by the City

constituted a violation of Section 112.011(1)(a), Florida Statutes.

DONE AND ENTERED this 8th day of October, 1999, in Tallahassee, Leon County, Florida.

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1999.

ENDNOTES

1/ Petitioner is presently self-employed.

2/ At all times material to the instant case, Section 18C3 of Resolution No. 28-91 has provided as follows:

1. All City employees are subject to blood testing and/or urinalysis in the manner provided in subsection 5 to detect the presence of alcohol and/or controlled substances if the employee has acted in violation of subsection 1.

   
   

2. In order for an employee to be subject to blood testing and/or urinalysis the employee's department head must:

   
   

   1. give the employee written notice in sufficient detail of the facts which led to the employee being subject to blood testing and/or urinalysis; and

      
      

   2. have reasonable suspicion, based on specific objective facts, that the employee

has abused alcohol and/or a controlled substance as proscribed in subsection 1. Reasonable suspicion of alcohol/substance abuse must be certified by the department head and, whenever possible, a corroborating witness.

3/ All drug tests administered to Petitioner during the course of his treatment were negative.

4/ Section 775.16, Florida Statutes, provides as follows:

In addition to any other penalty provided by law, a person who has been convicted of sale of or trafficking in, or conspiracy to sell or traffic in, a controlled substance under chapter 893, if such offense is a felony, or who has been convicted of an offense under the laws of any state or country which, if committed in this state, would constitute the felony of selling or trafficking in, or conspiracy to sell or traffic in, a controlled substance under chapter 893, is:

1. Disqualified from applying for employment by any agency of the state, unless:

   
   

   1. The person has completed all sentences of imprisonment or supervisory sanctions imposed by the court, by the Parole Commission, or by law; or

      
      

   2. The person has complied with the conditions of subparagraphs 1. and 2. which shall be monitored by the Department of Corrections while the person is under any supervisory sanctions. The person under supervision may:

      
      

      1. Seek evaluation and enrollment in, and once enrolled maintain enrollment in until completion, a drug treatment and rehabilitation program which is approved by the Department of Health and Rehabilitative Services [now the as the Department of Children and Family Services], unless it is deemed by the program that the person does not have a substance abuse problem. The treatment and rehabilitation program may be specified by:

         1. The court, in the case of court-ordered supervisory sanctions;

            
            

         2. The Parole Commission, in the case of parole, control release, or conditional release; or

            
            

         3. The Department of Corrections, in the case of imprisonment or any other supervision required by law.

            
            

      2. Submit to periodic urine drug testing pursuant to procedures prescribed by the Department of Corrections. If the person is indigent, the costs shall be paid by the Department of Corrections.

      
      

2. Disqualified from applying for a license, permit, or certificate required by any agency of the state to practice, pursue, or engage in any occupation, trade, vocation, profession, or business, unless:

   
   

   1. The person has completed all sentences of imprisonment or supervisory sanctions imposed by the court, by the Parole Commission, or by law;

      
      

   2. The person has complied with the conditions of subparagraphs 1. and 2. which shall be monitored by the Department of Corrections while the person is under any supervisory sanction. If the person fails to comply with provisions of these subparagraphs by either failing to maintain treatment or by testing positive for drug use, the department shall notify the licensing, permitting, or certifying agency, which may refuse to reissue or reinstate such license, permit, or certification. The licensee, permittee, or certificateholder under supervision may:

      
      

      1. Seek evaluation and enrollment in, and once enrolled maintain enrollment in until completion, a drug treatment and rehabilitation program which is approved or regulated by the Department of Health and Rehabilitative Services, unless it is deemed by the program that the person does not have

         a substance abuse problem. The treatment and rehabilitation program may be specified by:

         
         

         1. The court, in the case of court-ordered supervisory sanctions;

            
            

         2. The Parole Commission, in the case of parole, control release, or conditional release; or

            
            

         3. The Department of Corrections, in the case of imprisonment or any other supervision required by law.

         
         

      2. Submit to periodic urine drug testing pursuant to procedures prescribed by the Department of Corrections. If the person is indigent, the costs shall be paid by the Department of Corrections; or

      
      

   3. The person has successfully completed an appropriate program under the Correctional Education Program.

The provisions of this section do not apply to any of the taxes, fees, or permits regulated, controlled, or administered by the Department of Revenue in accordance with the provisions of s. 213.05.

5/ During his testimony at hearing, Petitioner conceded that, on September 23, 1996, the date of his arrest, he had engaged in "immoral, unlawful, or improper conduct, or indecency, either on or off the job, which would tend to affect [his] relationship to his fellow workers, his job, or the community," in violation of Section 24B9 of Resolution No. 28-91.

6/ Respondent was never convicted of this post-hire crime (he admits) he committed.

COPIES FURNISHED:

Isidor M. Garcia, Esquire

Garcia, Elkins, Carbonell & Boehringer, P.A. 712 North Olive Avenue

West Palm Beach, Florida 33401

H. Dane Mottlau, Esquire Vernis & Bowling of Palm Beach

517 Northlake Boulevard

North Palm Beach, Florida 33408

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: 99-001601

Orders for Case No: 99-001601