Judges: K. N. AYERS
Agency: Department of Management Services
Latest Update: Feb. 01, 1978
Summary: Recommend upholding the suspension for second offense involving firearms.
77-1971.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HIGHWAY SAFETY AND ) MOTOR VEHICLES, FLORIDA HIGHWAY ) PATROL, )
)
Petitioner, )
)
vs. ) CASE NO. 77-1971
) C.S.S NO. 77-254
M. VAYDA, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on December 13, 1977, in Ft. Lauderdale, Florida.
APPEARANCES
For Petitioner: E. J. Whitney, Esquire
Department of Highway Safety and Motor Vehicles
Room 466, Neil Kirkman Building Tallahassee, Florida 32301
Fro Respondent: K. M. Vayda
Post Office Box 2158
Ft. Lauderdale, Florida 33313
This is an appeal by a career service employee from a suspension from duty without pay for eight hours. The suspension resulted from an alleged violation of General Orders 20 and 43 1.A(4) of the Florida Highway Patrol relating to unauthorized use of firearms. One witness was called by Petitioner, Respondent testified in his own behalf and 5 exhibits were admitted into evidence.
FINDINGS OF FACT
At or about 5:30 a.m., July 25, 1977, Trooper Vayda, while on radar patrol on the I-95 just north of the Dade County line, observed a car proceeding south at a speed of 85 m.p.h. and gave chase with his identification lights flashing.
When the suspect was overtaken by Trooper Vayda suspect swerved towards Vayda causing the latter to move two wheels off the paved surface to avoid collision. The suspect subsequently left the I-95 at the 135th Street exit and while on the ramp with no other vehicles in view Vayda fired one shot which struck suspect's vehicle on the left side just above the bumper. Suspect ran through the stop light at 135th Street and rejoined the I-95 pursued by Vayda.
Suspect again exited the I-95 at 125th Street and after turning east on 125th Street Vayda fired a second shot hitting suspect's right tail light. Suspect lost control of his vehicle and struck another car. Vayda stopped his vehicle, got out and told the suspect to get out of his car. Suspect then restarted his car and started eastward with Vayda in pursuit.
In the interim Vayda had, via radio, alerted the Highway Patrol office of the chase and requested assistance.
With the assistance of other law enforcement officers the suspect was subsequently apprehended on Biscayne Boulevard in Miami, Florida and found to be driving a stolen car.
During the chase Vayda had no information to lead him to believe suspect was other than a speeder.
As a result of firing the shots Vayda was suspended from duty for a period of eight hours by the Director of the Florida Highway Patrol.
Exhibit 5, the disciplinary record of Vayda, shows that Vayda was suspended for eight hours without pay on September 7, 1977 for speeding on the Florida Turnpike on July 22, 1977.
Vayda was aware of the contents of General Orders 17, 20 and 43 of the Florida Highway Patrol.
CONCLUSIONS OF LAW
This case was referred to this office for hearing by the Career Service Commission. The Hearing Officer has jurisdiction over the parties and the alleged offense.
General Order 17-3 in discussing actions to be taken by troopers in pursuing violators provides in pertinent part:
"D. In the pursuit of violators, troopers are not expected to take undue chances and shall not consider the situation a 'personal challenge' to apprehend the violator. When the violator begins to seriously endanger the lives of innocent persons upon the highway by passing on curves or in the face of oncoming traffic, the trooper shall drop the effort to maintain a close pursuit unless they are absolutely sure that the fleeing violator is a fleeing felon or a dangerous person wanted in connection with a felony or unless they are not able to call ahead and utilize assistance from other troopers."
General Order 20 provides guidance regarding the use of firearms and section 2 C provides in pertinent part:
"If the person fleeing has committed some act which may or may not be a felony (alleged
hit-and-run, alleged theft of an auto, et cetera) a member shall not fire at such person
as the risk of possible liability for use of excessive force far outweighs the necessity of preventing the escape of such person."
General Order 43 provides recommended disciplinary action for various offenses which may be committed. Subparagraph 1A(4) provides that, for willful violation of written rules, regulations and policies, for the first offense a written reprimand; and for a second or subsequent offense the punishment may vary from three days suspension to dismissal. Subparagraph 1A(5) of General Order 43 provides these suggestions for disciplinary actions are to be used as guidelines within the division and extenuating circumstances may dictate an increase or decrease in the recommended punishment.
The evidence is clear that Trooper Vayda fired shots at a suspect whose only known offense was speeding and that such action violates the rules, regulations and policies of the Florida Highway Patrol.
Inasmuch as this is his second offense committed by Vayda the recommended punishment for the violation would be that for a second offender. Inasmuch as the punishment awarded is authorized for the offense committed by Vayda neither the Hearing Officer not the Career Service Commission has the power to modify the punishment. Dept. of Administration v. Hunter, 323 So.2d 24 (1st DCA Fla. 1975). It is therefore
RECOMMENDED that the appeal be dismissed.
DONE and ENTERED this 23rd day of December, 1977, in Tallahassee, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
COPIES FURNISHED:
E. J. Whitney, Esquire Department of Highway
Safety and Motor Vehicles Room 466, Neil Kirkman Building Tallahassee, Florida 32301
K. M. Vayda
Post Office Box 2158
Ft. Lauderdale, Florida 33313
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HIGHWAY SAFETY AND ) MOTOR VEHICLES, FLORIDA HIGHWAY ) PATROL, )
)
Petitioner, )
)
vs. ) CASE NO. 77-1971
) C.S.S. NO. 77-254
M. VAYDA, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on December 13, 1977, in Ft. Lauderdale, Florida.
APPEARANCES
For Petitioner: E. J. Whitney, Esquire
Department of Highway Safety and Motor Vehicles
Room 466, Neil Kirkman Building Tallahassee, Florida 32301
For Respondent: K. M. Vayda
Post Office Box 2158
Ft. Lauderdale, Florida 33313
This is an appeal by a career service employee from a suspension from duty without pay for eight hours. The suspension resulted from an alleged violation of General Orders 20 and 43 1.A(4) of the Florida Highway Patrol relating to unauthorized use of firearms. One witness was called by Petitioner, Respondent testified in his own behalf and 5 exhibits were admitted into evidence.
FINDINGS OF FACT
At or about 5:30 a.m., July 25, 1977, Trooper Vayda, while on radar patrol on the I-95 just north of the Dade County line, observed a car proceeding south at a speed of 85 m.p.h. and gave chase with his identification lights flashing.
When the suspect was overtaken by Trooper Vayda suspect swerved towards Vayda causing the latter to move two wheels off the paved surface to avoid collision. The suspect subsequently left the I-95 at the 135th Street exit and while on the ramp with no other vehicles in view Vayda fired one shot which struck suspect's vehicle on the left side just above the bumper. Suspect ran through the stop light at 135th Street and rejoined the I-95 pursued by Vayda.
Suspect again exited the I-95 at 125th Street and after turning east on 125th Street Vayda fired a second shot hitting suspect's right tail light. Suspect lost control of his vehicle and struck another car. Vayda stopped his vehicle, got out and told the suspect to get out of his car. Suspect then restarted his car and started eastward with Vayda in pursuit.
In the interim Vayda had, via radio, alerted the Highway Patrol office of the chase and requested assistance.
With the assistance of other law enforcement officers the suspect was subsequently apprehended on Biscayne Boulevard in Miami, Florida and found to be driving a stolen car.
During the chase Vayda had no information to lead him to believe suspect was other than a speeder.
As a result of firing the shots Vayda was suspended from duty for a period of eight hours by the Director of the Florida Highway Patrol.
Exhibit 5, the disciplinary record of Vayda, shows that Vayda was suspended for eight hours without pay on September 7, 1977 for speeding on the Florida Turnpike on July 22, 1977.
Vayda was aware of the contents of General Orders 17, 20 and 43 of the Florida Highway Patrol.
CONCLUSIONS OF LAW
This case was referred to this office for hearing by the Career Service Commission. The Hearing Officer has jurisdiction over the parties and the alleged offense.
General Order 17-3 in discussing actions to be taken by troopers in pursuing violators provides in pertinent part:
"D. In the pursuit of violators, troopers are not expected to take undue chances and shall not consider the situation a 'personal challenge' to apprehend the violator. When the violator begins to seriously endanger the lives of innocent persons upon the highway by passing on curves or in the face of oncoming traffic, the trooper shall drop the effort to maintain a close pursuit unless they are
absolutely sure that the fleeing violator is a fleeing felon or a dangerous person wanted in connection with a felony or unless they are not able to call ahead and utilize assistance from other troopers."
General Order 20 provides guidance regarding the use of firearms and section 2 C provides in pertinent part:
"If the person fleeing has committed some act which may or may not be a felony (alleged
hit-and-run, alleged-theft of an auto, etcetera) a member shall not fire at such person as the risk of possible liability
for use of excessive force far outweighs the necessity of preventing the escape of such person."
General Order 43 provides recommended disciplinary action for various offenses which may be committed. Subparagraph 1A(4) provides that, for willful violation of written rules, regulations and policies, for the first offense a
written reprimand; and for a second or subsequent offense the punishment may vary from three days suspension to dismissal. Subparagraph 1A(5) of General Order 43 provides these suggestions for disciplinary actions are to be used as guidelines within the division and extenuating circumstances may dictate an increase or decrease in the recommended punishment.
The evidence is clear that Trooper Vayda fired shots at a suspect whose only known offense was speeding and that such action violates the rules, regulations and policies of the Florida Highway Patrol.
Inasmuch as this is his second offense committed by Vayda the recommended punishment for the violation would be that for a second offender. Inasmuch as the punishment awarded is authorized for the offense committed by Vayda neither the Hearing Officer not the Career Service Commission has the power to modify the punishment. Dept. of Administration v. Hunter, 323 So.2d 24 (1st DCA Fla. 1975). It is therefore
RECOMMENDED that the appeal be dismissed.
DONE and ENTERED this 23rd day of December, 1977, in Tallahassee, Florida.
K. N. AYERS 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 23rd day of December, 1977.
COPIES FURNISHED:
E. J. Whitney, Esquire Department of Highway Safety and Motor Vehicles
Room 466, Neil Kirkman Building Tallahassee, Florida 32301
K. M. Vayda
Post Office Box 2158
Ft. Lauderdale, Florida 33313
Docket for Case No: 77-001971
Orders for Case No: 77-001971
