STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEMECIO H. ENRIQUEZ, )

)

Petitioner, )

)

vs. ) CASE NO. 76-174

) CSC Case No. 75-41 CAREER SERVICE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice in Room 101, Collins Building, Tallahassee, Florida, on February 19, 1976, commencing at 9:30 a.m. before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration.

APPEARANCES:

For Petitioner: Demecio H. Enriquez, represented himself 1701 Keith Street

Tallahassee, Florida

For Respondent: Jean K. Parker, Esquire

Associate University Attorney Florida State University Tallahassee, Florida 32306

ISSUE

Whether the suspension of Petitioner by Respondent F.S.U. was in compliance with Chapter 110, Florida Statutes, and Chapter 22A-10, Florida Administrative Code.

FINDINGS OF FACT

1. Petitioner, a career service employee of Florida State University, Tallahassee, Florida, was informed on February 21, 1975 that he was being suspended because of charges of entering without breaking with intent to commit a misdemeanor and because of conduct unbecoming a public employee. Three days later he was sent a letter containing the same information; that letter was sent by certified mail with return receipt requested.

   
   

2. On February 27, 1975, Mr. Enriquez appealed his suspension. Mr. Clarence Stephens Hooker, Jr., Chief Investigator for the Florida State University Police Department, received a phone call on February 20, 1975 from Corporal Hornicker of the Florida State University Police Department informing Mr. Hooker that a white female had reported that she had been approached by a Puerto Rican or a Cuban male in the School of Business and it was Corporal Hornicker's understanding that the man was working as a janitor and had offered

   to open a professor's office for the purpose of the student to copy an examination. A meeting was due to be held between the student and the janitor in the School of Business building at about 8:00 p.m. in Room 241. Officer John Stephens was stationed in a room directly across from Room 241 with a portable radio so that he could hear conversations in Room 241. Room 241 was entered by Mr. Hooker and Mr. Stephens in which the student and the Petitioner were standing. The Petitioner was standing behind a desk and the student was standing to the left of the door as the officers entered. The Petitioner was arrested and was subsequently transported to the Leon County Jail. He was charged with the felony of entering without breaking with intent to commit a misdemeanor, to-wit: Petty larceny, the theft of the examination. Subsequently and pursuant to these events a judgment was entered with a charge of entering without breaking wherein the Petitioner was convicted of simple trespassing and sentence was to pay and forfeit to the State of Florida for the use and benefit of Leon County the sum of $100 or in lieu thereof be imprisoned by confinement in the Leon County Jail for one month. The fine was to be paid in one week under the judgment. The judgment was filed July 14, 1975, Minutes No. 96 by John A. Rudd, Circuit Judge, Case No. 75-179. Petitioner testified that he completed his sentence by serving time in the Leon County Jail.

   
   

3. A statement was taken from the student involved, Marilyn Phillips, a white female. Said statement was taken by Captain Hooker and transcribed at his direction and was offered into evidence as the transcribed, signed and notarized statement of Miss Marilyn Phillips. Miss Phillips was not present in person and was not available as a witness for the Respondent. Miss Phillips, in her notarized statement, stated that she was studying for an exam in the School of Business on the evening of February 20, 1975. She stated the Petitioner, who was a university janitor, approached her sometime between 6:00 and 6:30 p.m. and said he would let her into her professor's room to see and copy the examination she was going to have the next day. She stated she said, "No." He then told her about another student that he had let in and that student had given him

   $50.00 to copy an examination. She stated that Mr. Enriquez then became personal with the student and offered her $20.00. She told him to get lost and he did. She then stated that she saw a professor she knew and discussed the incident with him. She stated the professor called the University Police and arranged a meeting between Mr. Enriquez and herself. She stated that the two met about 8:00 p.m. and Mr. Enriquez unlocked the door to the professor's office and began assisting her in looking for her examination. She stated that shortly thereafter the police arrived and arrested him for entering without breaking with intent to commit a misdemeanor. She further stated that Mr. Enriquez touched her body, tried to kiss her and asked her to go into a dark room and offered her money.

   
   

4. The Petitioner testified that he was not guilty, that he had not offered a set of examination papers to anyone and that Miss Phillips, in fact, followed him into the room. He testified that he would not recognize an examination paper. The Petitioner is not fluent in the use of the English language and perhaps does not understand the English language well. He was employed as a janitor on the second story of the School of Business and he was employed to clean the offices including Room 241 in which he was arrested at the time of the incident and which the student was occupying at the same time. The university had issued him a key to the building and to the offices and his job was to clean the offices. No examination papers were found in his hands or in the hands of the student at the time of the arrest of the Petitioner.

5. The Hearing Officer further finds:

   
   

   1. That although Petitioner may have been offering to sell examination papers to the student, Marilyn Phillips, and may have made improper advances toward her, no examination papers were found in his hands or in the hands of the student. The testimony of Office Clarence Stephens Hooker, Jr. was that Petitioner was offering the student different pieces of paper and ". .

      .what I had seen when I opened the door was, in fact, Mr. Enriquez in the drawer still attempting to locate the examination he was suppose to copy." This may have been an assumption on the part of the officer as to the actions of the Petitioner. There was no testimony of Officer Stephens that he actually heard an offer to sell examination papers or conversation involving personal advances of Petitioner toward the student from his station of surveillance in Room 241.

      
      

   2. The statement of the student that Petitioner attempted to sell her examination papers and seduce her is not sufficient inasmuch as she failed to appear in person to testify; there were no examination papers found in her possession nor in the possession of Petitioner; no substantiating testimony regarding Petitioner's misconduct was presented by anyone; and the Respondent agency had issued Petitioner keys to the floor and room in which he was found; Petitioner was employed as a janitor whose duties were to clean offices after hours.

      
      

   3. Petitioner, in person, denied that he attempted to sell examination papers to the student; he denied that he made improper advances; he stated that the student followed him into the room; he stated that he had keys to the floor and offices and that he, in fact, had a cart and clearing equipment with him and was attempting to dust the room as was his custom and that when he was apprehended he was in the place of his employment attempting to perform his job.

      
      

   4. As an outgrowth of the arrest of Petitioner, said Petitioner pled guilty to simple trespassing and served ten days in the Leon County Jail.

      
      

      CONCLUSIONS OF LAW

      
      

6. The Respondent, Florida State University, properly proceeded in compliance with Chapter 110, F.S., and Chapter 22A-10, Florida Administrative Code. The Petitioner, Enriquez, properly proceeded by this appeal to the Career Service Commission.

   
   

7. The Career Service Commission has appointed this Division and this Hearing Officer to hold this public hearing. The Career Service Commission and this Hearing Officer have jurisdiction over the subject matter.

   
   

8. The Respondent failed to prove that the Petitioner was actually in the process of selling an examination paper to the student or that Petitioner made improper advances to the student. Both of such accusations is conduct unbecoming a public employee. The agency has sole discretion to determine whether to dismiss or suspend an employee subject only to just cause. See Section 22A-7.10G2 and Section 22A-7.10F2 of Chapter 22A-7, Florida Administrative Code.

   
   

9. It appears that there is not competent, substantial evidence to sustain the agency action of suspension and the facts as presented at this hearing do not establish just cause.

RECOMMENDATION

Reverse the order of suspension.

DONE and ORDERED this 30 day of April, 1976.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30 day of April, 1976.

COPIES FURNISHED:

Jean K. Parker, Esquire Associate University Attorney Florida State University Tallahassee, Florida 32306 Attorney for Respondent

Demecio H. Enriquez 1701 Keith Street Tallahassee, Florida

J. R. Robinson, Director University Personnel Relations Florida State University Tallahassee, Florida 32306

Mrs. Dorothy Roberts Appeals Coordinator Division of Personnel

530 Carlton Building Tallahassee, Florida 32304

Docket for Case No: 76-000174

Orders for Case No: 76-000174