STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3761

)

RANDALL G. PASS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on December 10, 1986, in Gainesville, Florida. The transcript was received on January 9, 1987, and the parties requested ten (10) days thereafter to submit proposed findings of fact and conclusions of law. By letter received on January 21, 1987, counsel for the Petitioner waived this right. To date, nothing has been received from Respondent.

APPEARANCES

For Petitioner: Frank A. Graham, Jr., Esquire

Room 512, Mayo Building Tallahassee, Florida 32399-0800

For Respondent: Roger L. D. Williams, Esquire

Three Rivers Legal Services, Inc.

309 Northeast First Street Gainesville, Florida 32601

By certified letter dated August 25, 1986, the Department of Agriculture and Consumer Services notified Randall G. Pass that he was terminated from his position as an agricultural specialist with the Division of Standards for failure of Randall Pass to report to work for three consecutive work days. Mr. Pass requested a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes, to contest his termination from employment.

FINDINGS OF FACT

1. In August of 1986, the Respondent, Randall G. Pass, was employed by the Department of Agriculture and Consumer Services in the Bureau of Weights and Measures as an agricultural specialist. His last day at work on this job was August 15, 1986.

   
   

2. The Respondent did not report for work on the next regular work day, which was August 18, or on August 19 or on August 20, 1986, nor did he request any type of leave for August 18, 19 and 20, 1986.

3. Neither the Respondent's supervisor nor the personnel department received any notification from the Respondent that he would not be at work on August 18, 19 and 20, 1986.

   
   

4. On August 19, 1986, the Respondent's physician made a telephone call to the Chief of the Bureau of Weights and Measures, where the Respondent was employed, informing him that the Respondent had a drug problem, and inquiring what the State could do to assist the Respondent. There is no evidence that the Respondent was seen or treated by this physician on August 18, 19 or 20, 1986.

   
   

5. In Exhibit 4, the Respondent's physician explains the Respondent's substance abuse problem. However, from this affidavit, it is found as a fact that the Respondent was not in inpatient care on August 18, 19 or 20, 1986, and that the physician had not told the Respondent not to work on August 18, 19 or 20, 1986.

   
   

6. On August 25, 1986, the Department advised the Respondent by certified letter, return receipt requested, that his absence from work on August 18, 19 and 20, 1986, without authorized leave was deemed to be an abandonment of his position, and that his employment was terminated.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case, pursuant to Section 120.57(1), Florida Statutes.

   
   

8. At the hearing, counsel for the Respondent offered in evidence an affidavit from the Respondent's physician, but this affidavit had not yet been received by counsel and it was not available to be marked as an exhibit. Ruling on the admission of this affidavit in evidence was deferred pending its receipt and a review of its content. On December 10, 1986, it was received by the Clerk of this Division, and it has been marked Exhibit 4. The objections of counsel for the Department expressed in a letter dated December 19, received on December 22, 1986, are overruled, and Exhibit 4 is admitted into evidence.

   
   

9. Rule 22A-7.O10(2), Florida Administrative Code, provides that any employee who is absent without authorized leave for three consecutive workdays shall be deemed to have abandoned the position, and to have resigned from the Career Service. This rule further provides that such an employee does not have the right to appeal to the Career Service Commission, but has the right to appeal under the Administrative Procedure Act, Chapter 120, Florida Statutes.

   
   

10. The Respondent, Randall Pass, abandoned his position as an agricultural specialist with the Bureau of Weights and Measures of the Department of Agriculture and Consumer Services by failing to appear for work on August 18, 19 and 20, 1986, without authorized leave. His presentation of evidence to show that he has a substance abuse problem is not sufficient to exonerate him from an unauthorized absence from his job, and he presented no evidence to show that either he or anyone on his behalf notified the Department that he would not be at work on the days in question. Neither was there presented any evidence that he was being treated by a physician on these days, or that he had requested leave. Thus, the Department's termination of the Respondent from his employment pursuant to Rule 22A-7.010(2), Florida Administrative Code, was justified.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Department of Administration enter a Final Order terminating the employment of the Respondent, Randall G. Pass, from his position as an agricultural specialist with the Bureau of Weights and Measures in the Department of Agriculture and Consumer Services, for abandonment, pursuant to Rule 22-7.010(2), Florida Administrative Code.

THIS RECOMMENDED ORDER entered on this February, 1987, in Tallahassee,

Florida.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1987.

COPIES FURNISHED:

Frank A. Graham, Jr., Esquire Room 512, Mayo Building Tallahassee, Florida 32399-0800

Roger L. D. Williams, Esquire Three Rivers Legal Services, Inc.

309 N.E. First Street Gainesville, Florida 32601

Robert Chastain, General Counsel Department of Agriculture and Consumer Services

Room 513, Mayo Building Tallahassee, Florida 32301

Gilda Lambert, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Augustus D. Aikens, General Counsel Department of Administration

530 Carlton Building Tallahassee, Florida 32301

Docket for Case No: 86-003761

Orders for Case No: 86-003761