STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERRY SHORES, )

)

Appellant, )

)

vs. ) CASE NO. 77-659

) DEPARTMENT OF HIGHWAY SAFETY & ) MOTOR VEHICLES, FLORIDA HIGHWAY ) PATROL and CAREER SERVICE )

COMMISSIONS, )

)

Appellee. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held in the above styled cause at 3:00

1. in Room 104, Collins Building, Tallahassee, Florida, on May 18, 1977, before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration.

   
   

   APPEARANCES

   
   

   For Appellant: Jerry Shore in proper person

   Route 2, Box 526-C Apopka, Florida 32703

   
   

   For Appellee: Enoch J. Whitney, Esquire

   Department of Highway Safety and Motor Vehicles

   Neil Kirkman Building Tallahassee, Florida 32304

   
   

   ISSUES

   
   

   1. Whether Appellant on February 6 and 7, 1977, violated Department of Highway Safety & Motor Vehicles Personnel Rules and Regulations 2.1C and Florida Highway Patrol General Order 19, paragraph 11, as specifically alleged in the disciplinary letter of March 14, 1977.

      
      

   2. Whether the Appellee's suspension of Appellant should be sustained.

FINDINGS OF FACT

1. Appellant Jerry Shores is employed by the Appellee Department of Highway Safety and Motor Vehicles, Florida Highway Patrol, in Troop B, Orange County, Florida, with the rank of Trooper. He was so employed on December 26, 1976, and on February 6 and 7, 1977.

   
   

2. A letter dated March 14, 1977, sent by Certified Mail with Return Receipt Requested was mailed to Appellant Shores notifying him that he was being

suspended for sixteen (16) hours without pay based on the violation which is the subject of this hearing. The letter was signed by J.E. Beach, Colonel, Director, Florida Highway Patrol and was approved by Ralph Davis, Executive Director of the Department of Highway Safety and Motor Vehicles. The Appellant Shores appealed this suspension.

3 Documentary evidence and testimony of the witnesses for the Appellee established that on February 6, 1977, during his regular patrol duty hours, Trooper Shores stopped at a "Seven-Eleven" store at 8:30 a.m. without checking in and out of his station by radio then proceeded to his home at 8:40 a.m. where he stopped and went inside without checking out, then left his home at 9:00 a.m. without checking back in by radio, and at 9:30 a.m. stopped at a plant nursery without checking out by radio. At 9:50 a.m. Trooper Shores, while at the nursery, received a call to investigate and assist a disabled vehicle. Trooper Shores did not leave the nursery to attend to the disabled vehicle and while still at the nursery the Patrol Station called him at 10:15 a.m. advising him to work an accident. Trooper Shores then radioed that the reason that he did not get to the disabled vehicle was that he was busy with another disabled vehicle.

1. On Tuesday, February 8, 1977, the Patrol Station called Trooper Shores on the radio during his regular patrol duty hours at 3:50 p.m. The station did not make radio contact although several attempts were made until 4:20 p.m. when Trooper Shores advised he was out of the patrol car.

   
   

2. On December 26, 1976, Trooper Shores received a written reprimand from Sergeant J. C. Rique because he was out of his patrol car at the Hilton Inn on West State Road 50 without either checking out by radio or by telephone. Trooper Shores had depended upon another person to check him out.

   
   

   CONCLUSIONS OF LAW

   
   

3. General Order 19-11, page 19-4, Florida Highway Patrol Manual, requires members to check in service by radio when in their patrol cars and check out of service when they will be out of reach by radio.

   
   

4. Appellant Shores received a written reprimand because he was out of his patrol car at the Hilton Inn on West State Road 50 without either checking out by radio or by telephone on December 26, 1976. The written reprimand was not appealed.

8 Personnel Rules and Regulations of the Department of Highway Safety & Motor Vehicles No. 21C provides guidelines to insure that all supervisors are being reasonably consistent in taking disciplinary actions against employees involved in similar incidents. The above guidelines were properly followed inasmuch as the Appellant Shores suffered a written reprimand for an incident in December of 1976 and subsequent thereto in February of 1977 again failed to abide by the General Order 1971 by failing to properly check in and out of service. The disciplinary action taken against Appellant of suspension without pay for a period of sixteen (16) hours is proper under the evidence and testimony received and the foregoing rule. cf. Fla. A & M University v. Lewis, 327 So.2d 862.

RECOMMENDATION

Sustain the penalty of sixteen (16) hours without pay.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of June, 1977.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Enoch J. Whitney, Esq.

Department of Highway Safety & Motor Vehicles

Neil Kirkman Building Tallahassee, Florida 32304

Jerry Shores

Route 2, Box 526-C Apopka, Florida 32702

Docket for Case No: 77-000659

Orders for Case No: 77-000659