The Issue Whether a non-rule policy adopted by the Agency for Health Care Administration that retroactively applies a statute that became effective in May of 2001 constitutes an unpromulgated rule.
Findings Of Fact The Respondent, Agency for Health Care Administration, is the state agency charged with the responsibility of regulating skilled nursing facilities within the State of Florida pursuant to Chapter 400, Florida Statutes. The Petitioner, HHCI Limited Partnership, operates or controls three licensed skilled nursing facilities identified in this record: Harborside Healthcare-Pinebrook, Harborside Healthcare-Sarasota, and Harborside Healthcare- Naples. All of these facilities are subject to the provisions of Chapter 400, Florida Statutes. During the 2001 session the Florida Legislature amended Section 400.121(3), Florida Statutes. Such amendment became effective on May 15, 2001. The amendment provides, in pertinent part: The agency shall revoke or deny a nursing home license if the licensee or controlling interest operates a facility in this state that: Has had two moratoria imposed by final order for substandard quality of care as defined by Title 42, C.F.R., part 483, within any 30-month period; Is conditionally licensed for 180 or more continuous days; Is cited for two class I deficiencies arising from unrelated circumstances during the same survey or investigation; or Is cited for two class I deficiencies arising from separate surveys or investigations within a 30-month period. Since May 15, 2001, the Respondent has not promulgated or enacted any formal rule or written policy statement regarding its interpretation of or the implementation of Section 400.121(3)(d), Florida Statutes (2001). To support its position in this cause, the Respondent relies on the plain and unambiguous language of the statute and maintains it is mandated to comply with the law. Moreover, it maintains the statute does not direct rule-making. On October 2, 2001, the Respondent filed Administrative Complaints against the Petitioner. Each of the facilities identified above was served. As to each complaint the Respondent alleged that Section 400.121(3)(d), Florida Statutes (2001), authorized the proposed action (the revocation of the license to operate). More important, as to each complaint, the Respondent acknowledges that the actions complained of, i.e. the acts constituting the underlying offenses, occurred prior to May 15, 2001. None of the cited facilities has been served with a notice of a class I deficiency that would have occurred subsequent to May 15, 2001. The three license revocation cases were forwarded to the Division of Administrative Hearings for formal proceedings and were assigned DOAH Case Nos. 01-4124, 01-4125, and 01-4126. The allegations in DOAH Case No. 01-4124 against Harborside Healthcare-Pinebrook aver that the facility was cited for class I deficiencies in July and September of 2000. Notwithstanding the foregoing, in February of 2001, the Respondent issued a standard license to that facility. In DOAH Case Nos. 01-4125 and 01-4126, the facilities face administrative action because they are controlled by HHCI Limited Partnership. In framing the allegations against Harborside Healthcare-Sarasota and Harborside Healthcare-Naples, the Respondent relies on the class I deficiencies cited against Harborside Healthcare- Pinebrook set forth above. Following the entry of the Administrative Complaints, the Respondent notified residents of the facilities that actions were pending to revoke the licenses of the facilities. Such notice further advised the residents that the facilities would be closed in approximately 60 days. The Petitioner's attempt to obtain injunctive relief against the Respondent failed.
The Issue Whether or not, between the periods of January 1976 and August 1977, the licensees or their agents, servants or employees allowed the license premises to be kept, set up, maintained or operated for the purpose of prostitution, in violation of Section 509.032(1), Florida Statutes, and Section 796.07, Florida Statutes. Whether or not, between the periods of January 1976 and August 1977, Ulysses Brown, the licensee and/or operator of the licensed premises had been convicted of letting the premises for prostitution and keeping a disorderly place, thereby violating Section 509.261(4)(a), Florida Statutes.
Findings Of Fact At all times material to the notice to show cause, Alma Mae Young and Ulysses Brown were the holder of license No. 23-7079H held with the Petitioner, State of Florida, Department of Business Regulation, Division of Hotels and Restaurants. This license was held to do business as Young's Rooming House, located at 7000 N.W. 21st Avenue, Miami, Florida. The facts in this case show that on October 23, 1976, Officer Otis Chambers, of the Dade County Public Safety Department, Dade County, Florida, went to the licensed premises known as Young's Rooming House located at 7000 N.W. 21st Avenue, Miami, Florida. At that time, Officer Chambers was operating in the capacity of an undercover plainclothes officer investigating vice matters. He was in the company of a prostitute and when he approached the desk in the licensed premises, he spoke with the licensee, Ulysses Brown. In the conversation with Mr. Brown, he identified the woman in his company as being a prostitute, as shown by the remarks to Brown, and Brown acknowledged this information and rented a room to the officer. Subsequent to the events that transpired in the conversation between Officer Chambers and the licensee Brown, Brown was arrested and charged with violations of Section 796.06, Florida Statutes, which pertains to renting space for prostitution and with a violation of Section 796.07(2)(c), Florida Statutes, which is an allegation of receiving, offering or agreeing to receive, any person into any place, structure, building or conveyance with the purpose of prostitution or permitting any person to remain in those locales for such purpose. The licensee was found guilty of both offenses and placed on a period of probation for six months. Evidence of this finding by the Court may be seen as Exhibit No. 4 admitted into evidence. It was also shown in the course of the hearing that a number of complaints have been made by neighbors who live in the area of the licensed premises, to the effect that the licensed premises was a place in which prostitution was occurring; The comment was also made by these individuals that men and women were seen in the licensed premises who were not wearing clothes. The opinions were testified to by Officer John Wilson of the Dade County Public Safety Department who had spoken with a number of the residents of the area where the licensed premises is located. Although Ulysses Brown has claimed that he is no longer involved with the licensed premises, a recent inspection by Agent John H. McKinnon of the Division of Hotels and Restaurants reveals that Ulysses Brown is still working in the licensed premises. According to Brown, and in keeping with what the agent actually observed about the licensee's intention, Brown is to work and take care of the licensed premises and Young is to be the owner. Based upon the facts as reported, the Petitioner has brought two charges in the notice to show cause. The first charge alleges that between the periods of January 1976 and August 1977, the licensees, their agents, servants or employees, allowed the premises to be kept, set up, maintained or operated for the purpose of prostitution, in violation of Section 509.032(1), Florida Statutes, and Section 796.07, Florida Statutes. Section 509.032, Florida Statutes, states the duties of the Petitioner in the following language: 509.32 Duties.- (1) GENERAL.- The division shall carry out and execute all of the provisions of this chapter and all other laws now in force or which may hereafter be enacted relating to the inspection or regulation of public lodging and public food service establishments for the purpose of safe- guarding the public health, safety, and welfare. The division shall be responsible for ascertaining that no establishment licensed by it shall engage in any misleading advertising or unethical practices as defined by this chapter and all other laws now in force or which may hereafter be enacted. The division shall keep accurate account of all expenses arising out of the performance of its duties shall file monthly itemized statements of such ex- penses with the Department of Banking and Finance together with an account of all fees collected under the provisions of this chapter. A reading of this paragraph of this section leads to the conclusion that its purposes are to create the authority in the Petitioner to implement regulations to enforce the provisions of the overall Chapter 409, Florida Statutes. It is not read to be a substantive law which would empower the Petitioner to take action based upon the language of that section per se. Therefore, an violation of Section 796.07, Florida Statutes, would not promote the right to take action against the licensees under Section 509.032, Florida Statutes. The second count in the notice to show cause pertains to an allegation that between the periods of January 1976 and August 1977, the licensees and/or the operator, and in this instance that person is Ulysses Brown, has been convicted for letting the premises for prostitution and keeping a disorderly place which is in violation of Section 509.261(4)(a), Florida Statutes. That provision of the statutes reads as follows: 509.261 Revocation or suspension of licenses; fines; procedure.- (4)(a) Any person interested in the operation of any such establishment, whether owner or operator, has been convicted, within the last past 5 years in this state or any other state or the United States of soliciting for prostitution, pandering, letting premises for prostitution, keeping a disorderly place, illegally dealing in narcotics, or any other crime involving moral turpitude. The term "convicted" shall include an adjudication of guilt on a plea of guilty or nolo contendere or the forfeiture of a bond when charged with a crime. As stated before, Ulysses Brown, one of the licensees, was found guilty of Sections 796.06 and 796.07(2)(c), Florida Statutes. Those violations were established through an entry of the judgment finding the licensee guilty on January 20, 1977. That finding was reached within five years of the date of the action for suspension or revocation. This finding by the Court, coupled with the continued involvement by Ulysses Brown in the operation of the licensed premises and the background problems which have been prevalent in the licensed premises, would justify action being taken against both licensees, to-wit, Alma Mae Young and Ulysses Brown. The action spoken of was the right of action under Section 509.261(4)(a), Florida Statutes, and is the right of direct action against Ulysses Brown and a right of indirect action against Alma Mae Young for her knowledge, negligence or lack of due diligence in the operation of the licensed premises.
Recommendation It is recommended that the license held by the Respondents Alma Mae Young and Ulysses Brown to trade as Young's Rooming House located at 7000 N.W. 21st Avenue, Miami, Florida, license No. 23-7079H be revoked. DONE and ENTERED this 12th day of April, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Lawrence D. Winson, Esquire Department of Business Regulation 725 South Bronough Johns Building Tallahassee, Florida 32304 Alma Mae Young Ulysses Brown Youngs Rooming House 7000 N.W. 21st Avenue Miami, Florida
Findings Of Fact Respondent was employed as building inspector of Suwannee County on or about November, 1974. and was terminated by action of Petitioner at a meeting on or about September 18, 1980. Respondent received a letter dated October 14, 1980 from Claude McDonald, Chairman, Suwannee County Board of County Commissioners, listing the following reasons for his termination: Gross neglect of duty. Absence without leave. Incompetence or unwillingness to render satisfactory services. Insubordination or serious breach of discipline. Habitual absences, tardiness or abuse of sick leave. Substantial violations of personnel regulations. Falsifying travel records. Fraudulent claims filed with the Board of County Commissioners `for reimbursement of travel expenses to job sites for inspections when, in fact, such inspections were not made, or in the alternative, making inspections which were not documented by signing building permits as required by established procedures. Respondent was the first building inspector for Suwannee County and established all of the procedures and forms used in the building department. He was bound by the personnel and fiscal regulations of Suwannee County, but was given a substantial degree of independence in setting up the building department, and thereafter in conducting the daily work of the department. In establishing and administering the department, Respondent consulted with other building inspectors and officials. In January, 1975 Respondent hired Connie Robinson as his secretary, and in February, 1979 he hired Pat Sura to be his assistant building inspector. Sura is now building inspector for Suwannee County. The evidence establishes that the regular business hours of the building department while Respondent was building inspector were from 5:00 a.m. to 5:00 p.m. This is consistent with the county's policy and with the practice of other county offices. Both Connie Robinson and Pat Sura, "employees" of the building department, testified that they worked from 8:00 a.m. to 5:00 p.m. Respondent would regularly arrive at the office at about 5:30 a.m., but he frequently conducted official county business both before arriving at the office and after leaving in the evening by visiting job sites. The building inspector is a "department head" as that term is defined in Part I, Suwannee County Personnel Regulations, and as such is exempt from a 8:00 a.m. to 5:00 p.m. work day and the 40 hours per week required by Part XIV, Section C, Suwannee County Personnel Regulations. Therefore, the evidence establishes that the "employees" of the building department maintained work hours consistent with applicable personnel rules at all times relevant herein, and also that Respondent's own work hours were not violative of applicable personnel rules. As a "department head", Respondent did not accrue compensatory time or earn over-time pay for hours worked beyond forty hours a week. Department heads were expected, when the need existed, to work more than forty hours a week. Respondent did earn vacation and sick leave. In order to use earned vacation or sick leave, Respondent was required to submit a request for leave as provided in Part XVI, Sections A4 and 55, Suwannee County Personnel Regulations. The evidence establishes that Respondent was absent from his office and did not perform official duties for the county on the following dates, although he was paid for work on these dates and did not submit a request to use either vacation or sick leave: February 5-12, 1980; June 3-13, 1980; September 15-16, 1980. This finding is based on the testimony of Connie Robinson and Pat Sura. Although Respondent called the office once during the February absence, notified the Board of County Commissioners in advance that he would be gone for two days during the June absence to attend an educational seminar in Orlando and also that he would need some additional time off due to his son's medical emergency, and had his wife call the office and leave a phone number where he could be reached during the September absence, Respondent never submitted a request for leave for any of this time. This failure followed a formal written warning concerning the use of leave issued by the Chairman of the Board of County Commissioners to Respondent on December 6, 1979. Despite being absent from the office without claiming leave on the dates specified in finding of fact 7 above, Respondent submitted false reports to the county indicating that he had conducted inspections on June 6 and 9, 1980 when in fact he was in Orlando for his son's medical emergency and for an educational seminar. From February 24, 1979 to November 21, 1979, Respondent was in the process of building his house. He did not use a general contractor, but rather acted as an owner-builder. There is conflicting testimony as to whether Respondent was absent from his job without claiming leave during this time, and whether he spent time during his normal working hours working on his house, rather than as building inspector for Suwannee County. After considering all of the evidence, it is specifically found that Respondent did take unreported time off during his normal work day to either work on his house, receive materials on site, or check on contractors who were working on his house. The frequency of his visits with these contractors indicates that these were not normal inspections made during the course of his duties as building inspector. This finding is based upon the testimony of Connie Robinson, Pat Sura, Respondent himself, and also Buddy McCall, Anthony Donald Selph, Jan Touchton and James Benton who either worked on Respondent's house or delivered materials to the job site between 5:00 a.m. and 5:00 p.m. during this time, and who testified that Respondent was regularly present on the site between the hours of 8:00 a.m. and 5:00 p.m. This finding is specifically made after considering the contrary testimony of Raymond Key, and Alfred Smith, and Respondent's denial that he took unreported leave to build, or worked on his home during his normal work hours. Although the exact number of unreported days off which Respondent took to work on his house in 1979 cannot be determined, there is competent substantial evidence based on the testimony of Connie Robinson and Pat Sura that Respondent took between 15 and 20 work days off between May and August, 1979 and did not report these absences. Respondent was paid his normal salary for these days by Petitioner. In May, 1980 Respondent was asked to submit a report to the Board of County Commissioners on the number of inspections he had personally made during the preceding twelve months, and thereafter to submit monthly inspection reports to the Board. This request was made on behalf of the Board by Jerry Scarborough, Clerk of the Court and Clerk to the Board. Claude McDonald, Chairman of the Board in 1950, testified that Commissioners had been receiving some complaints from the public that Respondent was frequently absent from his office, and that he was spending time at the real estate office of Robert Mahan where his wife worked. Robert Mahan confirmed that Respondent visited his wife during normal work hours quite often. Respondent reported to the Board of County Commissioners that he had made between 200 and 250 inspections during the preceding year while Pat Sura had made approximately 1200. He explained the difference was due to the fact that he had other duties, such as Public relations and administration, while Sura's sole job was to make inspections. However, subsequent to the request for regular reports which was made in May, 1980, the number of days per month when Respondent reported that he had conducted inspections increased substantially. Specifically, from January to April, 1980 he averaged inspections on 3 days per month while from May to August he averaged inspections on 11 days per month, according to his reports. From the evidence presented, it is found that Respondent did copy Pat Sura's inspection reports and submit them as his own regarding some of the inspections he reported after May, 1980. The exact number of falsified inspection reports cannot be determined, but it is clear that Respondent falsely reported an increased number of personal inspections in response to the request by the Board. From the evidence presented, it is also found that Respondent falsely claimed travel expense reimbursement for inspections which, in fact, he did not make on April 14 and 15, 1980 and September 2-4, 8, 9, 1980. The reimbursement received for travel associated with inspections during this time was less than $100, but it cannot be determined exactly how much of this claim was false. It is clear, however, from an independent audit conducted by Steven Collins, C.P.A., that the system for documenting travel expenses does not support a substantial number of the inspection trips claimed by Respondent on these vouchers. Respondent sought to explain the matters in findings of fact 12 and 13 by contending that on most of the inspections he made, he did not sign the building permit. However, he acknowledged that it was standard practice for the inspector to sign the permit when he made an inspection. Respondent indicated that his visits to a building site were not always formal inspections and that he might simply stop by to check up on a contractor or on the work of Pat Sura, or to make a public relations visit. Notwithstanding the possibility that some of his site visits and reported inspections may have, in fact, occurred as uncalled, surprise visits, a substantial number of these visits and inspections, as well as associated travel vouchers, were falsified by copying Pat Sura's inspection reports. On May 22, 1981, Lynn B. Martin, Appeals Referee, Unemployment Compensation Section, determined that Respondent was disqualified from receiving benefits for having been discharged for misconduct connected with his work. Respondent was not represented by counsel in that proceeding.
The Issue This case is presented for consideration based upon a claim by the Petitioner, E. R. Brannon, Sr. against the Respondent, Brevard County Sheriff's Department, contending that the Respondent, by its employment practices, has unlawfully discriminated against the petitioner Brannon related to an alleged handicap, in violation of Subsection 23.167(1)(a), Florida Statutes. In view of this purported violation, Petitioner Brannon requests money damages in the way of back salary payments and benefits, together with attorney's fees, in keeping with Subsection 23.167(13), Florida Statutes. The Petitioner Brannon declines the opportunity for any reinstatement in his former employment with the Brevard Sheriff's Office. In defending against these accusations, the Respondent has plead certain affirmative defenses and contends that its action dismissing the Petitioner Brannon was lawful in view of the provision, Subsection 23.167(8)(a), Florida Statutes, specifically related to the portion of that provision dealing with taking action based upon the need for an absence of a particular handicap as related to a "bona fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related."
Findings Of Fact Case History On April 2, 1979, the Petitioner, F. R. Brannon, Sr., executed a form complaint of discrimination with the Petitioner, Florida Commission on Human elations, which challenged his dismissal by the Brevard County Sheriff's Department, which occurred on January 5, 1979. After reviewing the complaint, the Petitioner Commission, by action of September 11, 1980, as filed on September 16, 1980, made its determination of case, i.e., reasonable cause to believe an unlawful employment practice had occurred reference the Brevard County Sheriff's Department's dismissal of the Petitioner Brannon. A separate notice of the determination of cause was forwarded to the complainant Brannon and the Respondent, Brevard County Sheriff's Department, on September 16, 1980. Efforts were then made to reach conciliation between the contesting parties and these efforts were unsuccessful and notification of this failure of conciliation was forwarded by the Commission on October 21, 1980. On November 21, 1980, counsel for the Petitioner Brannon made known his appearance before the Commission through written Notice of Appearance and filed a Petition for Relief on the subject of the aforementioned claim brought by the Petitioner Brannon. By document dated November 25, 1990, and placed on file November 26, 1980, the Commissioners of the Florida Commission on Human Relations were notified of the filing of Brannon's Petition for Relief from alleged unlawful employment practice. Subsequent to that notification, Brannon's Petition was transmitted to the State of Florida, Division of Administrative Hearings for consideration of the claim. This transmittal was made on November 26, 1980, and received by the Division of Administrative Hearings on December 1, 1980. On December 1, 1980, counsel for the Respondent, Brevard County Sheriff's Department, filed its answer to the Petition and statement of affirmative defenses. The Respondent also, by motion of that date, moved to dismiss the Petition. The Motion to Dismiss was denied on December 12, 1980. On December 31 1980, the Respondent, in the person of its former counsel, Charles F. Broome, Esquire, wrote to the Hearing Officer to advise that there had been a change in administration in the Brevard County Sheriff's Office and that the newly elected sheriff wished to have a substitution of counsel. There ensued a series of contacts on the part of this Hearing Officer to establish a hearing date which would accommodate the change in administration and substitution of counsel. After consultation with the parties, the month of March, 1981, was tentatively selected as a time for hearing. This determination was made upon consultation with counsel for the parties, to include Catherine Riley, Esquire, the substituted counsel for the Brevard County Sheriff's Office. The case was subsequently scheduled for hearing on March 9, 1981. Prior to the time for hearing, a letter was written by counsel for the Respondent on January 16, 1981, to advise that one of her witnesses was unable to attend the hearing until after March 30, 1981. By correspondence dated January 22, 1981, in response to the letter of January 16, 1981, which had been addressed to counsel for the Petitioner, counsel for the Petitioner acquiesced in the continuance of the hearing and asked that the matter be set at the first available date beyond March 29, 1981. The correspondence was treated as a motion to continue the case on behalf of the Brevard County Sheriff's office, and the matter was reset for hearing on April 9, 1981. The Respondent, Brevard County Sheriff's Department, had also moved to file an additional affirmative defense, and this motion was granted on February 2, 1981. The initial session of the hearing was held on April 9, 1981, and continued until May 29, 1981, allow the hearing to be concluded. The hearing was concluded on May 29, 1981, and this Recommended Order is being entered after such hearing. In the way of argument, the parties have submitted written memoranda through counsel and have suggested proposed findings of fact, conclusions of law and recommended disposition in this matter. To the extent that those proposals, conclusions and recommendations are consistent with the Recommended Order, they have been utilized. To the extent that the proposals, conclusions and recommendations are inconsistent with this Recommended Order, they are hereby rejected. Material Facts The Petitioner, E. R. Brannon, Sr., is an individual who was forty- three (43) years of age at the time of the formal hearing. In the course of his adult life he has worked primarily in law enforcement for a period of sixteen (16) to seventeen (17) years, to include service to the Lake City, Florida, police Department; Eau Gallie, Florida, Police Department: Melbourne, Florida, Police Department; two periods of service with the Brevard County, Florida, Sheriff's Office; the Orange County, Florida, Sheriff's Office and the Marion County, Florida, Sheriff's Office. On July 4, 1974, while working for the Marion County Sheriff's Office as a line deputy, the Petitioner Brannon was shot in his left side and left hand in an attempt to apprehend a felon. He was given a period of convalescence by his employer and then returned as an investigator for the Marion County Sheriff's Office. In September, 1976, after being returned to duty, the condition in his left hand was exacerbated by another job related injury, leading to the eventual amputation of his left hand on November 9, 1980, after the hand had become gangrenous. This final treatment intervention followed a series of approximately twenty (20) operations over the period of time following the initial gunshot wound. The Petitioner Brannon left his employment with Marion County and in January of 1977, took employment with the Brevard County Sheriff's Office where he was hired as a Lieutenant in charge of the division dealing with communications and vehicle maintenance. At all pertinent times to this inquiry, his employer, the Brevard County Sheriff's Office, was an employer with fifteen (15) or more persons working for that entity, for a period of twenty (20) weeks or more during the year. While Brannon was working for the Brevard County Sheriff's Office, he was placed in the position of Captain, awaiting pay adjustment to that grade. At the time of his dismissal from the Brevard County Sheriff's Office on January 5, 1979, he was receiving a salary of approximately $1,260.00 per month, with an additional $175.77 per month contributed for the benefit of his retirement. While serving as the Division Commander of the Communications and Maintenance Unit of the Brevard County Sheriff's Office, Brannon had as many as thirty (30) persons under his supervision. Brannon bad been hired by Sheriff Ronald W. Zimmerman and worked for that individual until September, 1978, when Zimmerman was suspended. Following Zimmerman's suspension from September, 1978, until January 5, 1979, the date of his discharge, Brannon worked for Sheriff David U. Strawn. During the course of Brannon's service under the command of Sheriff Strawn, the problem with Brannon's hand caused him mild to severe pain and led to frequent usage of Demerol and Vistaril to accommodate this problem. Although the visits were not made during working hours per se, Brannon made numerous visits to a local hospital during the September, 1978, to January 5, 1979, time frame, for purposes of treatment. The degree of his discomfort and the effect on Brannon was such that by January 30, 1979, his treating physician, Dr. Maurice Hodge, was of the opinion that Brannon was "totally disabled because he is unable [sic] to use his hand for any gainful purpose. See Petitioner's Exhibit No. 6, admitted into evidence and attachment identified as Respondent's No. 1. Notwithstanding the physical discomfort, Brannon attempted to perform his role as Deputy Sheriff and supervisor; however, there were numerous absences from duty during the time of the Strawn administration, to include a period December 18, 1978, through December 30, 1978. All of these absences were accounted for as authorized holidays, annual leave or sick leave. James H. Garvin, presently a Captain in the Brevard County Sheriff's Office, in the position of Jail Supervisor, was emoloyed with that Sheriff's Office during Sheriff Strawn's tenure. At that time, his office in the Sheriff's complex building was located adjacent to that of Brannon and to the extent that the two officers had contact, Garvin did not have difficulty with work coordination involving Brannon. Other officers who had association with Brannon during the time of Strawn's service as Sheriff, included Johnny L. Manis, who was a Captain in 1978, in the Brevard County Sheriff's Office. The communication section was included in his area of responsibility and upon Brannon's dismissal, Manis took over the responsibilities which Brannon had fulfilled in the communications section. Upon taking over, Captain, now Lieutenant, Manis, found the morale in that section to be less than acceptable and the turnover rate to be, in his estimation, excessive. Captain Charles Tenvooren who served as a Major in the Strawn administration, had supervisory responsibility for Brannon in that time period and recalls that Brannon was in the hospital at times. Tenvooren knew that Brannon was being treated for the condition related to his arm and hand and observed impairment in Brannon's job function. As supervisor, he spoke with Sheriff Strawn about the medication that Brannon was taking. Tenvooren also spoke with Brannon about the problem of impairment related to the injury to the arm, as described by the witness Tenvooren. Brannon, in talking with Tenvooren, mentioned the pain which he was experiencing. Lieutenant Harmon B. Wisby testified in the course of the hearing. When Strawn was Sheriff, Lieutenant Wisby was the coordinator of the reserve auxiliary group of the Sheriff's Department. During that time sequence, Wisby was aware of the fact that Brannon was under medication, information he gained from conversations he had with Brannon. Brannon indicated ythat he was having pain and that he was to go back to the hospital. Brannon also indicated to Wisby that he had been given medication to assist him in coping with the pain. Wisby recalls several times when Brannon did not seem aware of his surroundings while he was in the office building, in that Brannon would not respond to him when spoken to in the form of a greeting. Alice Alderman who is a Communications Officer with the Brevard County Sheriff's Office, who worked in the communications section while Brannon was supervisor during the Strawn administration, testified at the hearing. She admits that she had a personality conflict with Brannon. Nonetheless, she testified that during this time sequence he seemed to be "distant." Another employee within the communications section who testified at the hearing was Debbie Walden who was a Communications Dispatcher in the Brevard Sheriff's Office at the time that Strawn was Sheriff. Brannon was her shift supervisor and she recalls numerous absences by Brannon, who from her recollection worked on the same shift on which she was employed. She also indicated that morale was a problem at the time that Brannon was in charge of the section. On January 5, 1979, through correspondence, Sheriff Strawn dismissed Brannon. A copy of the dismissal may be found as Petitioner's Exhibit No. 5, admitted into evidence. In the course of the hearing, Strawn indicated that his decision to dismiss no basis for the correspondence was premised on evidence gained from other personnel in the Sheriff's Office; the medical reports pertaining to the Petitioner's physical condition related to his hand; the prognosis on that condition; the uses of pain medication; a few personal observations of the Petitioner in which Strawn felt the Petitioner to be "spacey"; the belief that the Petitioner was not capable of line duty, i.e., responsibilities as an armed deputy; the problem which Brannon appeared to have approaching his job with a "clear head"; the high turnover in the communications section, indicating a problem with management by Brannon; a property control problem related to equipment which Brannon had in his charge and Brannon's lack of ability as an administrator and supervisor. All of Strawn's background reasons and observations were an accurate depiction of the circumstance with the exception that there was insufficient proof in the course of the hearing to demonstrate that Brannon had acted inappropriately on the subject of property control of equipment in the communications section. Likewise, reported observations by coworkers are correct. In particular, the use of pain medication for the handicap related to the injured arm and hand was such that Brannon was incapable of performing the duty of a line officer charged with the direct protection of the public and the possibility of use of force to effect that purpose. This medication also compounded Brannon's problems as an administrator. When the dismissal letter was drafted, the prime focus of that letter was to the effect that the Sheriff's Office was concerned about Brannon's return to employment duties because of the belief by the Department that there would be exposure for liability in terms of workmen's Compensation claims by Brannon, in that the Sheriff's office believed that they would be entirely liable for physical disability if Brannon suffered an "industrial accident" while acting in the scope and capacity of his position within the Department. In further explanation, it was stated that the Department believed the health circumstance of Brannon was intense in view of the pain and associated use of special medications. For these reasons, Strawn was concerned that any negligent act by Brannon could result in liability for the Department, apparently from claims by third parties. The letter of dismissal went on to say that his duties were not being performed as well as expected because of Brannon's physical condition and the necessity for taking drugs to cope with those problems and further concern for fellow officers and members of the public. This statement can be related to Brannon's potential abilities as a lane officer and his primary function as supervisor of the communications and maintenance section. (Notwithstanding the fact that Brannon was not serving on a day-to-day capacity as a line officer, as a Deputy Sheriff he could reasonably be expected to be pressed into service in the eventuality of some emergency which called upon all appointees within the Sheriff's Office who are deputies to serve in that capacity, and as Brannon himself stated at the hearing, Sheriff's deputies are technically on duty twenty-four (24) hours a day.) Finally, the impression was created in the hearing process that the Strawn administration had been concerned about Brannon's absenteeism and morale in his section. Although this is not expressly stated in the letter of dismissal, the facts presented in evidence bear out the contention that Brannon was absent an inordinate number of times, notwithstanding the fact that the absences were taken under legitimate leave principles, and there were problems related to morale in the communications section. In addressing Strawn's worries, there was no procedure undertaken for formal evaluation of Brannon's performance. Sheriff Strawn did discuss Brannon's physical condition with him and what the Sheriff perceived to be a problem with the communications equipment inventory control system. On January 8, 1979, Brannon began to look for alternative employment and gained such employment with the Brevard County Public Safety Division, within the Brevard County Board of County Commissioners on march 26, 1979, and was employed by them until January 14, 1981. During the course of his employment, he received $16,812.40 in gross earnings, and was provided life insurance commensurate with his annual salary, as well as health insurance. In addition, this employer "paid-in" at the rate of 9.1 percent of annual salary, into a retirement system. This payment to the retirement system was not made during leave without pay between July 1, 1980, and August, 1980. Following his employment with the Brevard Counts' Public Safety Division, Brannon worked for the Sheriff of Lake County, Florida, eighteen (18) to twenty (20) days, a month maximum. Following Brannon's dismissal from the Brevard County Sheriff's Office, he also requested social security disability benefits in the summer of 1980, and that claim is now pending.
