Findings Of Fact Under the provisions of Chapter 494, Florida Statutes, the Department is charged with the responsibility and duty of administering and enforcing the provisions of said chapter, which includes the duty of granting or denying an application for a mortgage broker license, as set forth in Section 494.037, Florida Statutes. Applicant is a resident of the State of Florida and has a present address at 2400 North Ocean Boulevard, Fort Lauderdale, Florida 33305. On November 26, 1985, Applicant submitted a partially completed Application for Registration as a Mortgage Broker (hereinafter Application), under the provisions of Chapter 494, Florida Statutes. From the Application, Applicant was born March 19, 1935. He is a citizen of the United States and is a resident of the State of Florida. The files of the Department indicate that Applicant is not now and never has been granted a license as a mortgage broker by the Department. On February 28, 1986, the Department entered a Final Order Denying the Application for Registration as a Mortgage Broker and Notice of Rights against Applicant (hereinafter Denial Order). Applicant timely requested a hearing and William J. Kendrick, Hearing Officer, was assigned to preside over these proceedings. An administrative hearing was held on August 18, 1986, and on October 22, 1986, said Hearing Officer entered a Recommended Order recommending that Applicant's Application be approved. The Department has reviewed the Hearing Officer's Findings of Fact and adopts and incorporates them by reference with two minor exceptions which are discussed in the Conclusions of Law section herein.
The Issue The issue is whether Petitioners, Judith C. Cleary and Charles B. Houck (Petitioners or Ms. Cleary and Mr. Houck), are entitled to an award of attorney's fees against Respondent, Department of Financial Services (Respondent or the Department), pursuant to section 57.111, Florida Statutes (2009).1/
Findings Of Fact The underlying proceedings were initiated by Respondent on February 22, 2010, by the issuance of substantively identical Administrative Complaints against Petitioners. Petitioners timely requested administrative hearings to contest the charges against them, and the cases were forwarded to the Division of Administrative Hearings where they were consolidated for hearing. Count 1 of each Administrative Complaint charged Petitioners with willfully misrepresenting and or omitting material information in order to induce Mr. and Mrs. Nagle to cash in another annuity they held in order to purchase an annuity sold by Petitioners. Included in the alleged misrepresentations or material omissions were: misrepresenting that there would be no surrender charges to withdraw the entire amount of the new annuity after one year, when in fact there would be a 15 percent surrender charge; falsely representing that the annuity would earn the Nagles ten to 20 percent returns; and (3) misrepresenting the suitability of the Nagles to purchase the annuity by misrepresenting the Nagles' net worth and by misrepresenting the Nagles' investment objective as long-term, in a form Petitioners submitted to the insurance company issuing the annuity. Count 2 of each Administrative Complaint charged Petitioners with similar conduct in order to induce the Nagles' son, Robert, to purchase an annuity. Included in the alleged misrepresentations or material omissions were: misrepresenting that there would be no surrender charges to withdraw the entire amount of the new annuity after one year, when, in fact, there would be a 15 percent surrender charge; and falsely representing that the annuity would earn Robert Nagle ten to 20 percent annual returns. Petitioners do not dispute that if the allegations charged in the Administrative Complaint had been proven by clear and convincing evidence, then Respondent would have established the statutory violations alleged as the predicate for taking disciplinary action against Petitioners' insurance agent licenses. Petitioners also acknowledge that Respondent initiated the disciplinary actions against them on the basis of two complaint letters received by Mrs. Phyllis Nagle, the attestation of Mrs. Nagle to the material allegations in an affidavit, and a corroborating complaint letter by Mrs. Nagle's son, Robert Nagle. After a full evidentiary hearing, a Recommended Order issued in the underlying disciplinary actions determined that the more credible evidence failed to establish the allegations in the Administrative Complaints. In particular, the undersigned weighed the credibility of testimony by Robert Nagle and by Petitioners at the final hearing, as well as deposition testimony by both Mr. and Mrs. Nagle. The question posed in this case, however, is not whether credibility judgments caused the Department to ultimately not prevail in its charges against Petitioners. Instead, the question here is whether Respondent had a reasonable basis, in law and in fact, at the time it initiated the underlying disciplinary actions. In this regard, Petitioners contend that the Department's investigation file contained documents from the insurance company issuing the annuities that contradict the allegations in the Administrative Complaints. Petitioners point to three documents in particular. The first document was a customer survey response submitted by Mrs. Nagle to the insurance company after she purchased the annuity from Petitioners. Her completion of the survey form indicated that she knew that "[s]urrender charges are imposed on premature full withdrawal"; that she considered the "annuity to be a long-term investment"; that she did "not intend to use these funds to meet current expenses"; and that Petitioners reviewed her "financial status . . . and other pertinent information to determine whether this annuity purchase" was suitable to her. The other document claimed to contradict the allegations in the Administrative Complaints was the Nagles' annual statement showing a yield of 5.66 percent, which was different than the 2.6 percent yield claimed by Mrs. Nagle in her complaint letters or affidavit. Finally, Petitioners point to statements of understanding signed by the Nagles, showing the surrender charges that would be imposed for early withdrawals. None of these documents conclusively refute the charges in the Administrative Complaint. For example, with respect to surrender charges, the Nagles' complaints assert that Petitioners represented that there would be no surrender charges for a withdrawal after one year. Mrs. Nagle's survey form only acknowledged that there would be surrender charges for "premature" withdrawal. It certainly would have been possible to reconcile these two concepts in that Mrs. Nagle may have been thinking that "premature" withdrawal, as used in the survey form, was a withdrawal in less than one year. The response in the survey form to the "surrender charge" question does not conclusively contradict Mrs. Nagle's complaint and affidavit, nor does it conclusively contradict the allegations in the Administrative Complaint. Similarly, the responses in the survey form about suitability do not conclusively contradict the allegations in the Administrative Complaint. The annual statement likewise does not conclusively contradict the allegations in the Administrative Complaint, even though the yield shown is somewhat different from the yield Mrs. Nagle referred to in her complaint. Whether the yield was actually 2.6 percent or 5.66 percent, the material allegations in the Administrative Complaint were that Petitioners misrepresented that the yield would be 10 to 20 percent per year. These allegations and the complaints on which they were based, were not so plainly lacking in credibility that no reasonable agency would have proceeded with charges. Finally, the signed statements of understanding showing that surrender charges would be imposed for early withdrawals do not contradict the Nagles' complaints or the allegations in the Administrative Complaint. Although the undersigned ultimately found against the credibility of the Nagles' complaints, those complaints were that Petitioners made oral representations assuring the Nagles that there would be no surrender charges after one year, even though the policy forms themselves said otherwise. The ultimate lack of credibility of the complaining witnesses' testimony was not so clear that no reasonable agency would have prosecuted the claims. In short, Respondent had a reasonable basis in law and in fact, following a reasonable investigation, to make the allegations and to charge the statutory violations it did in the Administrative Complaints. The documentation gathered in the investigation did not conclusively contradict the factual allegations, and the credibility of the complainants was not so obviously lacking that no reasonable agency would have made the allegations in the Administrative Complaints. And it is beyond dispute that if those factual allegations had been proven, the charged statutory violations would have been established. Thus, it cannot be said that Respondent's action in initiating the disciplinary proceedings against Petitioners was unreasonable governmental action.
Findings Of Fact On April 29, 1999, the Department filed an Administrative Complaint against Petitioner for allegedly violating several statutes regulating his conduct as an insurance agent in the State of Florida. Pursuant to his request for an evidentiary hearing regarding those allegations, that matter was referred to the Division of Administrative Hearings on June 10, 1999, and assigned DOAH Case No. 99-2593. On July 12, 1999, Petitioner filed with the Division of Administrative Hearings the subject Petition to Determine Invalidity of Administrative Rules, and on July 15 he filed his Amended Petition to Determine Invalidity of Administrative Rules. Petitioner challenges Rules 4-211.031(21)(e), 4- 211.031(24) through (27), 4-231.150, and 4-231.160, Florida Administrative Code. The Administrative Complaint charges Petitioner, inter alia, with violating Section 626.611(14), Florida Statutes. That Section provides for the mandatory revocation of licensure and appointment privileges based upon the commission of a crime involving moral turpitude. The statute does not define the term "moral turpitude" or direct the Department to do so. The Department has done so, however, in Rule 4-211.031(21)(e). Petitioner alleges that the Rule is an invalid exercise of delegated legislative authority in that it enlarges and modifies the statute, it exceeds the Department's rulemaking authority, it is vague and fails to establish adequate standards for the Department's decisions, and it vests unbridled discretion in the Department. In conjunction therewith, Rules 4-211.031(24) through (27), Florida Administrative Code, divide crimes into Classes "A" through "D" and contain lists of specific crimes. Those which the Department considers crimes involving moral turpitude based upon the definition contained in Rule 4-211.031(21)(e) are marked with an asterisk. Petitioner alleges these Rules are invalid exercises of delegated legislative authority because the Rule upon which they are based is invalid, because they are arbitrary and capricious as demonstrated by their internal inconsistencies and irreconcilable conflict with court decisions in the State of Florida, and because they enlarge and modify the statute they presumably implement. Petitioner asserts he is substantially affected by Rules 4-211.031(21)(e) and 4-211.031(24) through (27) in that the Administrative Complaint filed against him in DOAH Case No. 99-2593 charges him with entering a plea to aggravated battery, a crime designated by those Rules as involving moral turpitude. Rule 4-211.031(25) includes aggravated battery in its list of crimes involving moral turpitude. Petitioner also contends that two Rules covering the penalty phase of the Department's disciplinary process are invalid. Rule 4-231.150, Florida Administrative Code, provides for mandatory suspension in the event a licensee is found guilty in an administrative proceeding of violating Sections 626.611(14) and/or 626.621(8), Florida Statutes, two statutes Petitioner is alleged to have violated. Rule 4-231.160, Florida Administrative Code, sets forth specific aggravating and mitigating factors to be considered by the Department in assessing the penalty for violating statutes governing the conduct of insurance agents. As to Rule 4-231.150, Florida Administrative Code, Petitioner alleges that it is invalid because it requires mandatory suspension as the penalty for violating Section 626.621(8), Florida Statutes, but the statute provides that suspension is discretionary. Petitioner argues, therefore, that the Rule modifies or limits the statute and is an invalid exercise of delegated legislative authority. As to Rule 4-231.160, Florida Administrative Code, Subsection (1) sets forth 12 factors to be considered in assessing a penalty where Rule 4-231.150 is not involved, and Subsection (2) sets forth 8 factors to be considered in assessing a penalty where Rule 4-231.150 is involved. Both Subsections do, however, provide that any other relevant factors may be considered. Petitioner argues that Rule 4-231.160 is invalid because Subsection (2), which applies when criminal conduct is involved, does not contain the factors in Subsection (1), which contains far-broader factors, and is, therefore, much more limited and unfair. Petitioner further argues that the penalty schemes contained in Rules 4-231.150 and 4-231.160, calling for a mandatory suspension and offering an arbitrary and limited number of aggravating and mitigating circumstances are neither implied nor described by the pertinent statutes. The Rules, therefore, according to Petitioner, are invalid in that they substantially modify or limit the statutes at issue and are also arbitrary and capricious in their application of how disciplinary decisions should be made and what factors are to be considered. Petitioner further argues that Rule 4-231.160 is impermissibly vague, fails to establish adequate standards for agency decisions, and vests unbridled discretion in the Department by allowing for "other relevant factors" to be considered. The Department's Motion for Summary Final Order argues that Petitioner lacks standing to challenge the Rules and that the Rules are not invalid exercises of delegated legislative authority.
Findings Of Fact 7. The factual allegations contained in the Stop- Work Order and Order of Penalty Assessment issued on April 9, 2010, the Amended Order of Penalty Assessment issued on April 26, 2010, and the Order Cancelling Hearing, Closing File and Relinquishing Jurisdiction issued on January 6, 2011, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, the Petition for Review, and the Order Cancelling Hearing, Closing File and Relinquishing Jurisdiction served in Division of Workers’ Compensation Case No. 10-152-1A, and being otherwise fully advised Order in the premises, hereby finds that: 1. On April 9, 2010, the Department issued a Stop-Work Order and Order of Penalty Assessment to MIKE CANADY, in case no. 10-152-1A. 2. On April 9, 2010, the Stop-Work Order and Order of Penalty Assessment was personally served on MIKE CANADY. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On April 26, 2010, the Department issued an Amended Order of Penalty Assessment to MIKE CANADY. The Amended Order of Penalty Assessment assessed a total penalty of $137,562.68 against MIKE CANADY. 4. On May 27, 2010, the Amended Order of Penalty Assessment was served via Process Server on MIKE CANADY. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On June 17, 2010, MIKE CANADY filed a request for Administrative Review (“Petition”), requesting review of the Stop-Work Order and Order of Penalty Assessment, and the Amended Order of Penalty Assessment. The petition for administrative review was forwarded to the Division of Administrative Hearings on July 16, 2010, and the matter was assigned DOAH Case No. 10-5819. A copy of the Petition is attached hereto as “Exhibit C” and incorporated herein by reference. 6. On January 6, 2011, the Administrative Law Judge issued an Order Cancelling Hearing, Closing File and Relinquishing Jurisdiction ruling that, “Accordingly, the facts stated in Petitioner’s First Request for Admissions are deemed to be true and the documents which are attached to the discovery requests are deemed to be genuine. That being the case, a dispute of material fact no longer exists.” A copy of the Order Cancelling Hearing, Closing File and Relinquishing Jurisdiction is attached hereto as “Exhibit D” and incorporated herein by reference.
Findings Of Fact 9. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on March 18, 2009, and the Amended Order of Penalty Assessment issued on April 7, 2009, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of her national origin in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Petitioner's national origin is Spanish. At all times material hereto, Petitioner was employed by Respondent as a Customer Service Representative (CSR) at its West Palm Beach-Okeechobee branch (Branch Office) and was the only CSR at the Branch Office whose national origin was Spanish. A CSR is commonly known as a teller. At all times material hereto, Petitioner was a single parent. At all times material hereto, Respondent was an employer as defined by the Florida Civil Rights Act of 1992, as amended. In December 1994, Fran Bessent became the branch manager at the Branch Office. At that time and before she became branch manager, the Branch Office was extremely busy on Saturdays, and on a per-hour basis, Saturday was the busiest time of the week. Five to seven CSRs were employed at the Branch Office. In January 1995, Ms. Bessent met with the entire staff of the Branch Office. The meeting was mandatory. At the meeting, she informed the CSRs that, among other things, they would be required to work each and every Saturday and that, in return for working on Saturdays, the CSRs would be given a day off during the week. Petitioner was present during this meeting. At the mandatory meeting, Ms. Bessent also informed the CSRs that, if any one of them had a problem with working on Saturdays, he or she could seek a vacant position at and transfer to another branch office that was not as busy. She further informed the CSRs that, if any of them wanted a transfer, they had the responsibility of applying for the position and requesting the transfer. As branch manager, Ms. Bessent was responsible for preparing the work schedule for all employees. She prepared the work schedule between the tenth and the 15th of each month. Before making the change in the work schedule, reflecting CSRs working all Saturdays, she waited 30 to 45 days before implementing the change. Petitioner had a problem with coming to work each Saturday. She had a child and had problems getting a babysitter each and every Saturday. At all times material hereto, Petitioner had two supervisors, Namrata Gupta and Richard Danca,2 who were assistant branch managers at the Branch Office. The undersigned finds Petitioner's testimony credible that, after the mandatory meeting, she informed a supervisor as to her problem with reporting to work on Saturdays. Petitioner did not inform Ms. Gupta as to the problem with reporting to work on Saturdays. However, an inference is made that she informed Mr. Danca. Even though Petitioner had a problem with coming to work on Saturdays, the responsibility was still upon Petitioner to apply for a position at a branch not as busy and to seek a transfer. At no time did Petitioner apply for a position at another branch or seek a transfer. One CSR, Wendy Morgan, expressed difficulty with working on Saturdays and actively sought a position at another branch office. She was eventually transferred. Prior to her transfer, Ms. Morgan had no unexcused absences. Ms. Bessent made the work schedule available one month in advance. This advance notice provided employees an opportunity to make appropriate arrangements to accommodate the work schedule. Any employee who was not able to work on a particular Saturday in a month was required to notify Ms. Bessent in writing no later than the tenth day of the prior month. Shortly after the new Saturday schedule was implemented, Petitioner failed to report to work on three Saturdays, for which she was scheduled to work, in less than one month. Those Saturdays were March 31, 1995 and April 15 and 29, 1995. She was unable to obtain the services of a babysitter on those Saturdays. Petitioner did not notify Ms. Bessent in advance of her inability to work on those Saturdays. If an employee, including a CSR, at the Branch Office was going to be absent from work, the employee was required to contact his/her supervisor. Petitioner maintains that she contacted her supervisor or “somebody” on the day of the absences in March and April 1995 and informed the person that she was not reporting to work. Even though Petitioner called the Branch Office on the day of her absences, she was unsure as to whether she spoke with one of her supervisors, which was the required procedure. The undersigned finds Petitioner’s testimony credible, and the testimony of Ms. Gupta credible that Petitioner did not contact her regarding the absences. An inference is made that Petitioner spoke with "somebody" who was not one of her supervisors. Petitioner's absence on the aforementioned Saturdays placed a hardship on the Branch Office. The assistant branch managers and the remaining CSRs were forced to cover Petitioner’s position and their own positions and to accommodate the customers. Branch managers had the authority to discipline employees for excessive absences. In making such a determination, the branch managers looked for a pattern of absences, focusing on how the absences impacted a branch office and customer service. The decision was made that Petitioner’s absences were excessive and to verbally counsel Petitioner regarding her absences. On May 11, 1995, the assistant branch managers verbally counseled Petitioner about her excessive absences. The branch managers questioned Petitioner at the counseling session as to whether she had an explanation for her absences. Petitioner failed to provide an explanation. After only two days following the verbal counseling, Petitioner again failed to report to work on Saturday, May 13, 1995. Petitioner called the Branch Office on the same day and indicated that she was not reporting to work. The undersigned again finds Petitioner's testimony credible that, when she called, she spoke with her supervisor or somebody. However, Petitioner did not speak to Ms. Gupta. The absence on May 13, 1995, was Petitioner's fourth absence. The decision was made by Petitioner's supervisors to give her a written warning and place her on a 90-day probation. On May 26, 1995, in a document entitled "Formal Performance Documentation" (FPD), Petitioner's supervisors gave her the written warning and placed her on the probation. In the FPD, the supervisors stated, among other things, that "Improvement is expected immediately" and that "any further incidents involving absences may result in further disciplinary action up to and including termination". Petitioner's supervisors discussed the FPD with her. Petitioner was informed that she could make any comments that she desired to make. The FPD contained a section for Petitioner to make comments, but she did not make any comments on it. Petitioner also refused to sign the FPD. After having been counseled, given a written warning, and placed on probation, Petitioner again failed to report to work. Petitioner was absent on June 16 and 17, 1995. Petitioner admits that she was absent on June 17th but does not recall being absent on June 16th. The undersigned again finds Petitioner's testimony credible that she called the Branch Office on the day of the absence acknowledged by her, and spoke with her supervisor or "somebody." Petitioner did not speak to Ms. Gupta, and an inference is made that Petitioner spoke with "somebody" who was not one of her supervisors. Petitioner violated the terms of her probation. Even if Petitioner was absent only on June 17th, she violated her probation. After the June absences, Petitioner's supervisors discussed the absences with Ms. Bessent. They decided that Petitioner exhibited a pattern of absences in March through June 1995, which constituted excessive absences. They further decided that Petitioner should be terminated. On June 21, 1995, Petitioner's supervisors terminated her employment with Respondent for excessive absences. The termination was memorialized in a document entitled "Termination of Employment and Exit Interview" (TEEI). In addition to the TEEI, Petitioner was verbally informed of the reason for her termination. The TEEI contained a section for Petitioner to make comments, but she did not write any comments. Further, Petitioner refused to sign the TEEI.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the discrimination complaint of Chiara T. Spradlin against Washington Mutual Bank, f/k/a Great Western. DONE AND ENTERED this 22nd day of March, 2001, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 2001.
Findings Of Fact James W. Collins was suspended without pay for thirty (30) days effective February 9, 1976, having been charged with conduct unbecoming a public employee and willful violation of rules, regulations, directives or policy statements governing behavior of employees of the Department of Offender Rehabilitation and Sumter Correctional Institution. Specifically, he was charged with being intoxicated on institutional grounds and creating a disturbance by profane and abusive language directed toward other employees, loud and repeated knocking on the doors of other employees' rooms in the Bachelor Officer's Quarters during the night of February 5, 1976, and the early morning hours of February 6, 1976. Petitioner denied that he was intoxicated and requested an administrative hearing. Petitioner James W. Collins lived in the Bachelor Officer's Quarters of Sumter Correctional Institution of the State of Florida in the month of February, 1976. Beer was available and allowed after working hours and employees were allowed to consume beer and other refreshments after working hours. The Petitioner consumed approximately three (3) beers after five o'clock on February 5, 1976. He went to his room after 8:00 P.M. and later knocked on the doors of various persons who were also employed by the Department of Offender Rehabilitation and who lived in the Bachelor Officer's Quarters. He then went to the Administration Building. He appeared in an unstable condition and returned again to the BOQ Building and knocked on the door of a fellow employee asking for change. Later, in the early morning hours of February 6 about 2:30 A.M., Collins again left his room and was making noise either emptying trash or rummaging through the trash cans in the parking lot where he again met the officer in charge. Petitioner had consumed beer on the night in question after hours which was allowed by the institution. The fact that he knocked on the doors of various other persons, entered the lounge area in the Administration Building and later was in the parking lot emptying trash or rummaging through the cans is not conclusive that the Petitioner was in fact intoxicated even though alcohol or beer odor could be detected on his person. The Petitioner is a diabetic and his actions were consistent on the night in question with one who is suffering from this disease or one who is intoxicated. His contention that he was seeking change from his friends to use in a drink or candy machine or to acquire sugar to relieve him from his diabetic condition is consistent with the actions of a person seeking relief from the effect of the disease. There is no proof that the Petitioner James Collins was in fact intoxicated. The fact that Petitioner suffered diabetes and accepted employment in a sensitive area like the Sumter Correctional Institution should require him to protect his employment and his physical condition and refrain from the use of alcohol. He should keep within his quarters a sufficient amount of treatment such as sweets for his condition and keep sufficient change on hand in order not to burden others with his deficiencies. The failure to protect himself against his actions which resulted in the disturbing of a number of employees during the night in question shows the Petitioner to be remiss in his obligation toward his job, himself and others. A certified letter with return receipt requested was addressed and sent to the Petitioner Collins at his abode in the Sumter Correctional Institution's BOQ, Room 312, Bushnell, Florida 33513. The letter of suspension was sent pursuant to Rule 22A-1.05, Florida Administrative Code. Petitioner had been orally informed of his suspension and the time of his suspension and the length of it at the meeting with his superintendent. The fact that the certified letter was sent to a mailbox in Bushnell which merely put into writing information the Petitioner already had did not deprive him of any of his rights. It was the mailbox at which Petitioner received his mail and the fact that the institution has his Tallahassee address did not require it to send his letter of suspension, about the facts of which he was fully informed, to the Tallahassee address.
Recommendation Withdraw the penalty of suspension without pay and substitute a written reprimand. DONE and ORDERED this 11th day of April1 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Raymond W. Gearey, Esquire Room 300, Building 5 1311 Winewood Boulevard Tallahassee, Florida 32301 Jerry Traynham, Esquire 1215 Thomasville Road Tallahassee, Florida 32303 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE CAREER SERVICE COMMISSION OF THE STATE OF FLORIDA IN THE APPEAL OF JAMES COLLINS DOAH NO. 76-2050 DOCKET NO. 76-56 AGAINST SUSPENSION BY THE DEPARTMENT OF OFFENDER REHABILITATION / OPINION AND ORDER Chairman Catherine W. Chapin and Members Clare C. Leiby and Edwin G. Fraser participating. This cause came on to be heard by the Career Service Commission on May 11, 1977, in Tallahassee, Florida. The Commission has considered the Recommended Order by Hearing Officer Delphene C. Strickland and the record of this appeal. The Commission hereby accepts, adopts and incorporates by reference the Findings of Fact as set forth in the Recommended Order, dated April 11, 1977. The Commission must reject, however, the Conclusion of Law and Recommended Penalty and submits the following conclusions. While the Hearing Officer did not conclusively find that Collins was intoxicated, the facts presented do support the Agency's charge of conduct unbecoming a public employee. The Hearing Officer concluded that the Petitioner was guilty of this general charge, based on the evidence brought out at the hearing, and recommended altering the suspension to a written reprimand. Inasmuch as the designated Hearing Officer is vested only with such authority as the Commission possesses, the Hearing Officer's recommendation to alter the penalty is impermissible. The Agency's disciplinary action of a 30-day suspension being within its authority was supported by the evidence and as set forth in the Hearing Officer's Findings of Fact. Wherefore, it is ORDERED that the action of the Agency be, and the same is, hereby sustained. It is further ORDERED that the Motion for Reconsideration having been considered, the same is hereby denied. DONE AND ORDERED this 10th day of June, A.D., 1977. CATHERINE W. CHAPIN, Chairman Career Service Commission CERTIFICATE OF SERVICE I hereby certify that copy of the foregoing Order was furnished by certified U.S. mail, return receipt requested, to Mr. Jerry G. Traynham, Attorney at Law, 1215 Thomasville Road, Tallahassee, Florida 32303, and Mr. Raymond Gearey, General Counsel, Department of Offender Rehabilitation, 1311 Winewood Boulevard, Tallahassee, Florida 32301, and by regular U.S. mail to Mrs. Delphene C. Strickland, Hearing Officer, Room 530, Carlton Building, Tallahassee, Florida 32304, this 23rd day of June, A.D., 1977. CAREER SERVICE COMMISSION BY: Susan Turnbull
