STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARGARET T. HALL, )

)

Petitioner, )

)

vs. ) Case No. 97-2117

)

EVERETT S. RICE, SHERIFF OF )

PINELLAS COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

Final hearing in this case was scheduled for September 26, 1997. On September 2, 1997, the Respondent (the Sheriff) filed a Motion for Summary Final [sic] Order. On September 11, 1997, the Sheriff filed a Motion to Continue Final Hearing. On

September 18, 1997, the Sheriff filed a Motion to Compel Discovery (based on the Petitioner's failure to appear at her deposition) and a Notice of Supplemental Authority (an Unemployment Compensation Appeals Referee's decision denying compensation).

The Petitioner did not respond to any of these filings. On September 23, 1997, two orders were entered: an Order

Canceling Final Hearing was entered pending rulings on the Motion for Summary Final [sic] Order and Motion to Compel Discovery; and an Order to Show Cause was entered giving the Petitioner 15 days in which to show cause in writing (i.e., file a written explanation) why her appeal should not be dismissed and it be

recommended that her termination be upheld, without the necessity of any further proceedings.

The Petitioner did not respond to the Order to Show Cause. As stated in the Order to Show Cause, this case involves the

Petitioner's civil service appeal from her termination as a detention deputy on April 16, 1997. The termination was based on charges that the Petitioner violated:

1. Section 6(4), of the Pinellas County Sheriff's Office Civil Service Act, Chapter 89-404, Laws of Florida (1989), as amended by Chapter 90-395, Laws of Florida (1990), for conduct unbecoming a public servant and violation of the provisions of law or the rules, regulations, and operating procedures of the Office of the Sheriff;

   
   

2. Rule and Regulation of the Pinellas County Sheriff's Office, C1, V, A (Level Five Violation), 017, relating to intoxication while on duty or in uniform, for driving a motor vehicle on a public street and reporting for duty on April 8, 1997, while under the influence of an alcoholic beverage (also a violation of the Petitioner's contractual agreement signed on October 21, 1996);

   
   

3. Rule and Regulation of the Pinellas County Sheriff's Office, C1, V, A (Level Five Violation), 023, relating to insubordination, for refusing to submit to a lawful order to undergo an intoxilyzer examination and instead trying to sabotage the examination.

The Petitioner denied the charges and asked to be reinstated.

The Respondent's Motion for Summary Final [sic] Order explained and set out the terms of a Confidential Contract entered into by the Petitioner on October 21, 1996. The Confidential Contract came about after the Petitioner received a three-day suspension for public intoxication while off duty on

September 12, 1996, and a ten-day suspension for intoxication while on duty on October 8, 1996. (As to the latter, she was an hour late for, and later found to be impaired by alcoholic beverages at, a scheduled Inspections Bureau interview.) It provided that the Petitioner was to "completely refrain from the use and consumption of . . . alcoholic beverages" and was not to "use alcoholic beverages either on or off duty." It also set out the consequences of a violation: "Should I use alcoholic beverages either on or off duty . . . I understand and agree that my employment with the Pinellas County Sheriff's office will be immediately terminated." The Respondent's Motion for Summary Final [sic] Order also clearly established, based on the Petitioner's own admissions, that the Petitioner violated the Confidential Contract by using alcoholic beverages repeatedly between October 21, 1996, and April 8, 1997.

The Respondent's Motion for Summary Final [sic] Order is further supported by the Unemployment Compensation Appeals Referee's decision which is attached to the Notice of Supplemental Authority filed by the Sheriff. The decision found that the Respondent was not entitled to compensation because she was terminated for misconduct connected with work: "The claimant blatantly violated an agreement which she entered into [with] the employer concerning the consumption of alcoholic beverages."

It is well-settled that collateral estoppel, also known as issue preclusion and estoppel by judgment, applies to

administrative proceedings. See Thomson v. Dept. of Environmental Reg., 511 So. 2d 989, 991 (Fla. 1987); and Brown v.

Dept. of Prof. Reg., 602 So. 2d 1337, 1341 (Fla. 1st DCA 1992). Collateral estoppel provides essentially that once a issue has been tried by two parties and resolved in prior litigation, the issue is conclusively determined as between them (or at least as against the losing litigant) so as to preclude the retrial of the issue by the parties in a subsequent proceeding, so long as the parties had the motivation and opportunity in the prior proceeding to fully try the issue. Compare Zeidwig v. Ward, 548 So. 2d 209 (Fla. 1989), with Trucking Employees of North Jersey Welfare Fund, Inc., v. Romano, 450 So. 2d 843 (Fla. 1984). In this case, there is no indication that the issue of the Petitioner's misconduct connected with work was not fully litigated in the unemployment compensation claims case. See Mobil Oil Corp. v. Shevin, 354 So. 2d 372 (Fla. 1977); Chesebrough v. State, 255 So. 2d 675 (Fla. 1971); Argernon v. St. Andrews Cove I Condos, 507 So. 2d 709 (Fla. 2d DCA 1987); and Krug v. Meros, 468 So. 2d 299 (Fla. 2d DCA 1985).

The Sheriff's Motion to Compel Discovery set out that the Petitioner failed to appear for her scheduled deposition on September 5, 1997. Rule 1.380(d), Florida Rules of Civil Procedure, provides in pertinent part that, since the Petitioner failed to appear for her deposition, any of the following sanctions could be imposed: designated facts may be taken to be

established by the Sheriff for the purposes of this case; the Petitioner could be prohibited from opposing her termination or from introducing designated matters in evidence; or the Petitioner's request for reinstatement could be stricken, her appeal could be dismissed, or judgment could be rendered against the Petitioner by default.

The Sheriff included in his Motion to Compel Discovery a request for an award of attorney fees and cost for its filing. Rule 1.380(d), Florida Rules of Civil Procedure, also provides in pertinent part: "Instead of any order or in addition to it, the court shall require the party failing to act to pay the reasonable expenses caused by the failure, which may include attorney fees, unless the court finds that the failure was justified or that other circumstances make an award of expenses unjust."

Based upon the foregoing, including the Petitioner's failure to respond to the Order to Show Cause entered on September 23, 1997, it is

RECOMMENDED that the Sheriff's Civil Service Board enter a final order dismissing the Petitioner's appeal and upholding her termination.

Jurisdiction is reserved for purposes of the Sheriff's request for an award of attorney fees and costs. If the Sheriff wishes to pursue this request, he shall report within 15 days:

(a) whether the parties have agreed as to the amount of expenses

and attorney fees to be assessed against the Petitioner under Rule 1.380(d), Florida Rules of Civil Procedure; (b) whether they have agreed to submit the issue of the amount of expenses and attorneys fees on affidavits; or (c) whether either party is asking for a hearing and further findings on those issues.

Otherwise, no award of attorneys fees or expenses will be made. RECOMMENDED this 16th day of October, 1997, in Tallahassee,

Leon County, Florida.

J. LAWRENCE JOHNSTON Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax FILING (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1997.

COPIES FURNISHED:

Margaret T. Hall

853 54th Avenue South

St. Petersburg, Florida 33705

Leonard J. Dietzen, III, Esquire Powers, Quaschnick, Tischler & Evans Post Office Box 12186

Tallahassee, Florida 32317

Jean H. Kwall, Esquire

Pinellas County Sheriff's Office Post Office Drawer 2500

Largo, Florida 34649-2500

William Repper, Chairperson Pinellas County Sheriff's

Civil Service Board Post Office Box 539 Clearwater, Florida 34617

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 of Dismissal. Any exceptions to this Recommended Order of Dismissal should be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-002117

Orders for Case No: 97-002117