STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID SERRANO, )

)

Petitioner, )

)

vs. ) Case No. 04-2996

) DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice, a final hearing was held in this case by video teleconference with connecting sites in West Palm Beach and Tallahassee, Florida on November 9, 2004, before Errol H. Powell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Mary Linville Atkins, Esquire

Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100 STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner reimbursed Respondent beyond the amount of Petitioner's salary overpayment and is, therefore, due a refund.

PRELIMINARY STATEMENT

David Serrano received notification from the Department of Juvenile Justice (Department) that he had received an overpayment of salary for time worked, covering a specified period of time, when his salary status for that time-period should have been leave without pay. Mr. Serrano submitted a written response that monies had been deducted from his salary to reimburse the Department for the overpayment and that more than enough to reimburse the Department had been removed and therefore, monies should be refunded to him. No reply to

Mr. Serrano's claim was made by the Department. On August 23, 2004, this matter was referred to the Division of Administrative Hearings.

The hearing in this matter was scheduled to begin at

1:00 p.m. The hearing was delayed, and the undersigned did not begin the hearing until approximately 2:20 p.m. Mr. Serrano did not appear, and no appearance was made on his behalf. Counsel for the Department and a witness for the Department appeared at the hearing.

The issues in this matter were originally whether

Mr. Serrano had received a salary overpayment and, if so, in what amount and whether Mr. Serrano had reimbursed the Department for the salary overpayment. As indicated earlier, in his written response to the Department's notification of

overpayment, Mr. Serrano asserted that he had repaid the overpayment through payroll deduction and that too much had been deducted. At hearing, the Department represented and agreed that Mr. Serrano had repaid the overpayment. Moreover, the Department represented and agreed that the sole issue for the hearing, as asserted by Mr. Serrano, was whether Mr. Serrano was due a refund because too much had been deducted from his salary to repay the overpayment.

A transcript of the hearing was not ordered. The findings of fact which follow are derived from the undisputed assertions of both Mr. Serrano and the Department contained in the record of this matter.

FINDINGS OF FACT

1. The Department made a claim that Mr. Serrano had received a salary overpayment and had not repaid the overpayment.

2. Mr. Serrano claimed that he had repaid the overpayment.

   
   

   Furthermore, he claimed that he had paid too much on the overpayment and was due a refund of monies.

3. No dispute now exists that Mr. Serrano had repaid the overpayment to the Department.

4. However, the Department denies that Mr. Serrano had repaid too much and was due a refund.

5. Mr. Serrano is the Petitioner in this matter. He failed to appear at the final hearing.

   CONCLUSIONS OF LAW

   
   

6. 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 (2003).

7. The general rule is that "the burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal." Florida Department of

Transportation v. J. W. C. Company, Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981). No statutory provision is applicable mandating the burden of proof in this matter. Here, Mr. Serrano is asserting the affirmative and, therefore, he has the burden of proof. Mr. Serrano failed to meet his burden by his nonappearance.

RECOMMENDATION

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

RECOMMENDED that the Department of Juvenile Justice enter a final order dismissing the claim for a refund by David Serrano.

DONE AND ENTERED this 18th day of November 2004, in Tallahassee, Leon County, Florida.

S

ERROL H. POWELL

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 18th day of November, 2004.

COPIES FURNISHED:

David Serrano

107-D Weybridge Circle

Royal Palm Beach, Florida 33411

Mary Linville Atkins, Esquire Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-1300

Anthony Schembri, Secretary Department of Juvenile Justice Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-1300

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: 04-002996

Orders for Case No: 04-002996