The Issue Whether Respondent was overpaid for 27.5 hours in the amount of $271.70, originally credited as administrative leave?
Findings Of Fact The DJJ is an agency with a centralized personnel office in Tallahassee, Florida. All the records of its personnel are kept and maintained in Tallahassee, Florida. Petitioner, Jennifer Carter Nicholson, was employed in the category of an Other Personnel Services (OPS) employee by DJJ from May 8, 2002 until September 12, 2002, at the Marion Juvenile Detention Center as a Juvenile Detention Officer. As an OPS employee, Petitioner did not earn sick or annual leave credit. Petitioner was employed by DJJ as a Career Service employee from September 13, 2002 until October 6, 2002, at the Alachua Juvenile Detention Center. As a Career Service employee, Petitioner earned three hours' credit of annual leave and three hours' credit of sick leave during her employment from September 13, 2002 until October 6, 2002. Petitioner did not work from September 23, 2002 until the effective date of her resignation on October 6, 2002, because of complications from asthma, which was why she tendered her resignation. During the last week of her last pay period, Petitioner worked 12.5 hours. A time sheet appears to have been submitted in her behalf by a person or persons unknown claiming 27.5 hours of sick leave. The payroll clerk apparently determined that Petitioner was not entitled to 27.5 hours of sick leave, and erroneously credited Petitioner with 27.5 hours of administrative leave. Upon that basis, Petitioner was paid for a full week's work. This amounted to $855.87, or 80 hours at a rate of $10.70 per hour. However, the records indicate, and Petitioner does not deny, that she did not work 27.5 hours during the second week of the period. Thereafter, an audit of her account revealed that Petitioner was not entitled to administrative leave, and this action was initiated within the statute of limitations to seek re-payment of $271.70. During the period in question, Petitioner's attendance and leave record reflects that Petitioner earned three hours of annual leave and three hours of sick leave. See Respondent's Exhibit 6.1/ This leave was not credited against the 27.5 hours. Therefore, crediting Petitioner with the six hours of leave she had earned, the time actually taken in the status of leave without pay should have been 21.5 hours. At Petitioner's rate of pay, this would have been an over-payment of $230.05, minus the $22.51 originally deducted for miscellaneous deductions, or $217.44.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That the Department of Juvenile Justice enter a final order directing the repayment of $217.44 from Petitioner. DONE AND ENTERED this 6th day of November, 2003, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 6th day of November, 2003.
The Issue The issue is whether Respondent is liable for a penalty of $286,400.01 for the alleged failure to maintain workers’ compensation insurance for its employees in violation of Subsection 440.107(7)(d), Florida Statutes (2008).1
Findings Of Fact Petitioner is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers’ compensation for the benefit of their employees in accordance with the requirements of Section 440.107. Respondent is a Florida corporation engaged in the construction business. On May 19, 2009, Petitioner's investigator inspected one of Respondent's job sites located at 6665 Mirabella Lane, Naples, Florida. The purpose of the inspection was to determine whether Respondent was in compliance with workers' compensation requirements. The investigator observed workers laying concrete block in a residential development under construction. The investigator interviewed the workers and learned the identity of the individual owner of Respondent. The investigator determined through the Coverage and Compliance Automated System (CCAS) that Respondent had secured workers' compensation coverage. However, Respondent maintained minimum coverage identified in the record as an "if any" policy. An "if any" policy imposes a premium based on zero employees and zero payroll and requires Respondent to notify the insurer of any new employees within three days of being hired. Respondent had reported no workers to his workers' compensation carrier, but had reported 54 employees for purposes of unemployment compensation taxes.2 None of the individuals reported for unemployment compensation taxes had secured workers' compensation coverage for themselves. Respondent is liable for workers' compensation for the 54 workers described in the preceding paragraph, which the trier of fact finds are employees of Respondent. None of the workers has an exemption from workers' compensation coverage. Petitioner correctly calculated the amount owed by Respondent, which is $286,400.01.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order imposing a penalty assessment in the amount of $286,400.01. DONE AND ENTERED this 13th day of July, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 2010.
The Issue Whether Proposed Rule 33.9007(9), Florida Administrative Code, is an invalid exercise of delegated legislative authority.
Findings Of Fact Steven Rivera, Petitioner, is currently serving a prison sentence at Walton Correctional Institution at DeFuniak Springs, Florida. He is on his fifth commitment to prison. Respondent supervises the operation of correctional institutions in Florida and promulgates rules governing the operation of the prisons and various subjects relating to inmates of these prisons. The proposed rule here under challenge provides: Any inmate who is serving his fourth commitment to prison or higher shall be excluded from work release if the inmate has previously been given the opportunity to participate in work release, except that an inmate may be given consideration if the inmate has demonstrated outstanding institutional adjustment and if extenuating circumstances exist. Petitioner has been admitted to the work release program in a prior commitment and, with more than four prison commitments is in the class of prisoner covered by this rule. Accordingly, he has standing to challenge the rule. The work release program is intended to motivate the individual offender toward self improvement, to ease the transition from prison into the community, place the inmate in employment to which he or she may return after release from the institution, permit the offender to contribute towards his own support and the support of his or her family, help determine the prisoner's readiness for parole, preserve family and community ties, and permit the offender to develop or maintain occupational skills. (Exhibit 6) The Florida work release program has been in effect for many years allowing Department of Corrections officers the opportunity to gain experience in the effectiveness and efficacy of the program. First commitment offenders are more likely to benefit from work release than are those who have three or more prior commitments. Inmates who have been given one chance in the work release program and are subsequently recommitted to the prison institution have thereby demonstrated that they did not obtain the anticipated benefit of remaining crime free subsequent to being admitted to the work release program. Following a murder committed by a prisoner who escaped from the work release program at another institution, a Task Force was set up to study the work release program and prepare recommendations affecting this program. As a result of this Task Force's recommendations, wide ranging changes to the rules affecting the work release program were promulgated of which the rule here challenged is only one small subsection. Furthermore, prior to the commission of the crime referred to above, there were approximately 4000 prisoners admitted to the work release program. Legislative changes since that time have limited the maximum number of prisoners admitted to the work release program to 2100. Although Petitioner contends that there is no rule definition of commitment, this is a word that is well recognized in the prison community. As defined by one of Respondent's witnesses in these proceedings, each time a prisoner is committed following a release from a prior commitment whether in Florida or in another jurisdiction, this counts as an additional commitment. If the inmate commits an offense while in confinement, is taken to court and receives an additional sentence, this is not counted as an additional commitment. This method of counting commitments inures to the benefit of the prison inmates. Petitioner also contends that the phrase "has demonstrated outstanding institutional adjustment and if extenuating circumstances exist" is arbitrary and vests unbridled discretion in the prison officials. However, admission to the work release program is a privilege which all prisoners admitted to such program must earn. They earn this privilege by adhering to the code of conduct established for prisoners, by participating in education, drug and alcohol abuse programs, and by other acts contributing to earning gain time. Certain classes of prisoners, e.g. those who have committed serious crimes, sex crimes, and crimes evincing a violent disposition must demonstrate more clearly than does the less violent criminal that he is eligible for work release. No one act can show that one prisoner is better deserving for the limited number that can be admitted to the work release program than is another prisoner. Accordingly, it is necessary to consider innumerable factors to determine which are the prisoners most likely to benefit from work release based upon their history and their current conduct in the prison system. A finite list of factors to be considered in determining those most eligible for work release is impracticable because the list would be too numerous and could still omit factors deserving consideration. The proposed rules, including the rule in issue here, provide that certain prisoners are not eligible for work release; but the rule provides two exceptions to this general disqualification, to wit: those who "demonstrate outstanding institutional adjustment and extenuating circumstances." By providing these exceptions, the rule removes the arbitrary exclusion of certain prisoners from work release regardless of their good conduct in prison and demonstration that they have totally reformed and are most unlikely ever to again commit a crime.
The Issue Whether Mike Futch, d/b/a Futch Construction Company, (Respondent) violated Sections 440.10 and 440.38, Florida Statutes, and if so, what penalty should be imposed. References to sections are to the Florida Statutes (2004).
Findings Of Fact Petitioner is the state agency responsible for enforcing provisions of Florida law, specifically Chapter 440, Florida Statutes, which requires that employers secure workers’ compensation coverage for their employees. At all times material to this case, Respondent was engaged in the construction business within the meaning of Chapter 440, Florida Statutes. Its individual principal, Mike Futch (Mr. Futch), was responsible for the day-to-day operations of the business. At all times material to this case, Respondent is an employer within the meaning of Section 440.02(16)(a), Florida Statutes. At all times material to this case, Respondent was legally obligated to provide workers' compensation insurance in accordance with the provisions of Chapter 440, Florida Statutes, for all persons employed by Respondent to provide construction services within Florida. Chapter 440 requires that the premium rates for such coverage be set pursuant to Florida law. It is undisputed that Respondent had not furnished the required coverage, and that there was no valid exemption from this requirement. Accordingly, on May 12, 2004, the Stop Work Order was properly entered. Thereafter, Petitioner reviewed Respondent's payroll records, which revealed that Respondent employed individuals whose identities are not in dispute, under circumstances which obliged Respondent to provide workers' compensation coverage for their benefit. Based upon Respondent’s payroll records, Petitioner correctly calculated the penalty amount imposed by law under all the circumstances of the case, and issued the Amended Order imposing a penalty assessment in the amount of $198,311.82. Respondent did not persuasively dispute the factual or legal merits of Petitioner's case. Rather, Respondent suggested that this forum has some type of general equity powers to lessen the penalty on the grounds that Respondent made a good faith effort to provide coverage for its workers. The record does demonstrate that Mr. Futch in good faith engaged a Georgia insurance agent and instructed him to obtain workers' compensation coverage which would satisfy the requirements of Florida law with respect to Respondent's Florida operations. The Georgia agent's failure to obtain coverage that satisfies Florida's requirements is a regrettable circumstance, but it raises no issue over which this forum has authority.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order that affirms the Amended Order in the amount of $198,311.82. DONE AND ENTERED this 28th day of January, 2005, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 28th day of January, 2005. COPIES FURNISHED: Joe Thompson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 Patrick C. Cork, Esquire Cork & Cork 700 North Patterson Street Valdosta, Georgia 31601 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issues in the case are whether J. D. Tree Service, Inc. (Respondent), conducted business in violation of a previously- issued Stop-Work Order, and, if so, whether the Department of Financial Services, Division of Workers' Compensation (Petitioner), properly calculated the applicable penalty assessment.
Findings Of Fact The Petitioner is the state agency charged with the responsibility to enforce chapter 440, Florida Statutes (2010),1/ which essentially requires that Florida employers secure workers' compensation coverage for their employees. The Respondent is a Florida corporation providing various tree services, including trimming and related activities. On June 11, 2007, the Petitioner issued a Stop-Work Order (07-172-D7) and an Order of Penalty Assessment based on the Respondent's failure to obtain proper workers' compensation insurance coverage for employees. On June 14, 2007, the Petitioner issued an Amended Order of Penalty Assessment for $147,419.52 against the Respondent. The amended order was personally served on the Respondent on the date of issuance. The Respondent did not challenge either the Stop-Work Order or the Amended Order of Penalty Assessment. On June 15, 2007, the Respondent executed a "Payment Agreement Schedule for Periodic Payment of Penalty" (hereinafter "Agreement"). The Agreement permitted the Respondent to satisfy the penalty through a ten percent down payment and 60 subsequent monthly payments. Based on the execution of the Agreement, the Petitioner lifted the Stop-Work Order on the condition that the Respondent complied with the terms of the Agreement. The Agreement specifically stated that failure to meet the terms set forth therein would "result in the immediate reinstatement of the Stop-Work Order, and the remaining unpaid balance of the penalty to be paid by the employer shall become immediately due." The Respondent was provided a copy of the Agreement and acknowledged understanding the terms set forth therein. The Respondent made the down payment required at the time the Agreement was executed, but thereafter made none of the monthly payments due under the Agreement. On May 18, 2007, the Petitioner issued an Order Reinstating Stop-Work Order (the "Reinstatement Order") based on the Respondent's failure to comply with the payment terms of the Agreement. The Reinstatement Order identified the unpaid balance as $132,674.52 and directed the Respondent to "cease all business operations in the State of Florida" until certain conditions were met. Such conditions included satisfaction of the existing unpaid penalty balance as well as any additional penalty related to business operations conducted in violation of the Stop-Work Order and a determination by the Petitioner that the Respondent was in compliance with workers' compensation coverage requirements. The Respondent did not challenge the Reinstatement Order, and it became effective on June 6, 2008. On December 14, 2009, a workers' compensation compliance investigator employed by the Petitioner observed tree service operations being conducted at a recreational vehicle park in Naples, Florida. The investigator observed that there were persons wearing t-shirts bearing the Respondent's identification. Upon inquiry by the investigator, the workers stated that they were working for the Respondent. The investigator observed that the vehicles from which the workers were operating bore the Respondent's insignia. The investigator determined that there was an existing Stop-Work Order against the Respondent. On January 8, 2010, the Petitioner issued a Request for Production of Business Records, seeking to identify the number of days during which the Respondent had operated in violation of the Stop-Work Order, and provided the request to the Respondent. Also on January 8, 2010, the Petitioner issued an Order Assessing Penalty for Working in Violation of Reinstated Stop-Work Order, seeking to impose a penalty of $555,000.00. The penalty calculation was based on the 555 calendar days from June 7, 2008, to December 14, 2009. The Respondent challenged the penalty assessment and requested a formal administrative hearing. On May 21, 2010, the Respondent submitted payroll records for the period of March 21, 2009, through December 11, 2009. The records established that the Respondent had conducted business operations during the period that the Stop- Work Order was effective. The records also indicated that the Respondent routinely conducted business operations from Monday through Friday of each week, but did not operate on Saturdays, Sundays, or usual legal holidays. On January 21, 2011, the Department issued an Amended Order Assessing Penalty for Working in Violation of Reinstated Stop-Work Order in the amount of $381,000.00, based on the Respondent's routine work schedule with the deletion of the Saturdays, Sundays, and legal holidays that had been included in the January 8, 2010, Assessment. On January 25, 2011, the Petitioner filed a Motion to Amend Order of Penalty Assessment. The Motion was granted without objection at the commencement of the hearing. All orders relevant to this dispute were hand- delivered or were mailed to the Respondent's corporate address, which was also the residential address for the principals of the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order assessing a penalty of $381,000.00 against the Respondent for conducting business operations in violation of the reinstated Stop-Work Order. DONE AND ENTERED this 29th day of March, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2011.
The Issue The issue to be determined is whether Respondent complied with coverage requirements of the workers' compensation law, Chapter 440, Florida Statutes. A determination of whether Respondent functioned as an employer is a preliminary issue to be resolved.
Findings Of Fact Petitioner is the agency of state government currently responsible for enforcing the requirement of Section 440.107, Florida Statutes, that employers secure the payment of compensation for their employees. Respondent works in the construction industry as a house framer. Petitioner's investigator received a report of a violation of the workers' compensation law on May 21, 2002. When the investigator arrived at the construction site located at 8225 Southwest 103rd Street Road, Ocala, Florida, he observed four men, including Respondent, installing trusses at a residence under construction. Respondent was identified by the other men as the person for whom they were working on the job. All four men told the investigator that they were employees of Dove Enterprises (DOVE). Upon further investigation, the owner of DOVE and also the general contractor of record, Steven Slocumb, stated to the investigator that DOVE operated as the subcontractor for Triple Crown Homes. Slocumb further stated that DOVE, through Slocumb, in turn subcontracted the work to Respondent on a piece rate or square foot basis. Respondent, according to Slocumb, in turn hired the other three men. When Petitioner's investigator returned to the construction site, the four men were gone. None of the four men had an exemption from coverage requirements of the workers' compensation law and none of them had workers' compensation insurance. Consequently, the investigator determined that Respondent was an employer both of himself and the three other workers and that all four were unprotected by workers' compensation insurance. On June 27, 2002, the investigator issued the Stop Work and Penalty Assessment Order at issue in this proceeding. The Order levied the minimum penalty under Section 440.107, Florida Statutes, of $1,100.00. Slocumb and Respondent appeared at the final hearing. Respondent's position was that he and the other three men were employees of DOVE. None of the men produced documentation of such an employment relationship. Rather, documentation presented shows that DOVE paid Respondent for equipment rental. Additionally, payments to Respondent from DOVE for the jobs in question did not include adjustments for employment taxes that would have applied had Respondent been an employee. Respondent's testimony is not credited. Slocumb confirmed the facts determined by the investigator. Slocumb's testimony was candid, direct and creditable.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order confirming the Stop Work and Penalty Assessment Order at issue in this proceeding. DONE AND ENTERED this 8th day of July, 2003, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 8th day of July, 2003. COPIES FURNISHED: Lawrence Simon 1683 Southeast 160th Terrace Oklawaha, Florida 33379 David C. Hawkins, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Lower Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact Petitioner is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees as required by Section 440.107, Florida Statutes (2008). Respondent is a Florida Corporation engaged in the construction business. Respondent was incorporated on February 21, 2008. Jose Garcia, John Jones and Jamar Armstrong are corporate officers of Dice Construction, Inc. and have been since its’ inception. On December 16, 2008, Petitioner's investigator, Michael Robinson, conducted an investigation at 5524 Marathon Parkway, Jacksonville, Florida. Mr. Robinson observed one worker on the roof removing shingles and another worker on the ground cleaning up the shingles. The workers at the site identified themselves to Mr. Robinson as James Sutton and Derrick Sutton. The workers stated they were employees of Dice Construction, Inc. Mr. Robinson then spoke with Fernanda Dice, Respondent's president. Mr. Dice stated that he had an exemption from workers’ compensation insurance. Mr. Robinson was able to confirm that Mr. Dice had a current valid construction exemption, specifically for carpentry and remodeling. However, Mr. Dice did not have a roofing exemption that would apply to the type of work being performed on December 17, 2008. Additionally, neither worker at the site had a workers’ compensation insurance policy nor an exemption. On December 17, 2008, Mr. Robinson issued and personally served on Respondent a Stop-Work Order and Order of Penalty Assessment for failure to comply with statutory requirements. Mr. Robinson also issued a Request for Production of Business Records for Penalty Assessment Calculation. The specific records requested were enumerated and described on the request. In response to the request, Respondent only provided bank statements for a two-month period. Mr. Dice subsequently told Mr. Robinson, “I didn’t have any bank statements because I cash the checks to pay bills right there, and I didn’t have no circulation in my bank account.” Mr. Dice never produced documentation sufficient to calculate Respondent’s payroll. Since Respondent’s actual payroll could not be determined, Petitioner imputed the payroll as the average weekly wage rate multiplied by 1.5. pursuant to Section 440.107, Florida Statutes (2008). Respondent provided no documentation showing that the three corporate officers listed with the Florida Division of Corporations were not working for the corporation. Petitioner issued an Amended Order of Penalty Assessment based upon the imputed payroll on January 14, 2009, in the amount of $96,094.44.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent issue a final order affirming the Stop-Work Order and Amended Order of Penalty Assessment in the amount of $96,094.44. DONE AND ENTERED this 14th day of August, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 2009 COPIES FURNISHED: Fernanda Dice Dice Construction, Inc. 12256 Cobblefield Circle, South Jacksonville, Florida 32224 Paige Billings Shoemaker, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 Tracey Beal, Agency Clerk Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 Benjamin Diamond, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
The Issue The issue in this case involves a consideration of whether the Petitioner has abandoned his job position with the Respondent as described in Rule 22A- 7.010, Florida Administrative Code.
Findings Of Fact In the relevant time period which is associated with this case, Petitioner was employed by the Department of Revenue as an Appraiser II in the Jacksonville, Florida, office of the Northeast Region, Bureau of Field Appraisals, Division of Ad Valorem Tax. He worked with the Respondent agency beginning April 1980 until his dismissal from the agency on December 17, 1986, based upon the theory that he had allegedly abandoned his job within the meaning of Rule 22A-7.010(2)(a), Florida Administrative Code. During his employment Petitioner operated out of his home, which was in Palm Coast, Florida. Douglas Drozd, an employee of the Respondent agency, was sent to the Jacksonville office of the Bureau of Field Appraisals, Division of Ad Valorem Tax to serve as a temporary Appraiser Supervisor for that office. This assignment occurred on October 6, 1986. On October 21, 1986, Albert Johnson, the former Appraiser Supervisor with the Jacksonville office, left that position. Following the departure of Johnson, Drozd became the permanent Appraiser Supervisor for the Jacksonville office. From October 6, 1986, through November 18, 1986, Drozd acted in the capacity as the immediate supervisor of the Petitioner. Beyond that date, Robert Worley, an Appraiser II in the Jacksonville office, took over the position of Appraiser Supervisor in the subject regional office. Worley served in the capacity of supervisor from November 19, 1986, until December 22, 1986, when he returned to his duties as Appraiser II. While Worley was serving as Appraiser Supervisor, Drozd took over the function of Property Appraiser, Duval County, Florida. On December 22, 1986, Drozd returned to his duties as Appraiser Supervisor for Respondent's Jacksonville office. On November 17, 1986, Petitioner asked the permission of his supervisor, Drozd, to take annual leave for days in December 1986. This request was not made in writing and was not responded to in writing. Although Rule 22A- 8.002(4), Florida Administrative Code, contemplates that leave shall be requested in writing, it gas the custom and practice of the Respondent agency for oral requests for annual leave to be made and approved orally. At the time of the conversation on November 17, 1986, between the Petitioner and Drozd concerning the request for annual leave, Drozd initially granted that request without any reservations or contingencies being applied to the permission given. Subsequently, on that same day, Drozd told Richards that he expected that all "field work" assigned to the Petitioner should be completed before leave was taken. This arrangement included work being done on vacant parcels of property as well as improved parcels. More particularly, "field work" includes: Completion of neighborhood analysis form Dr-549 Completion of structural elements form Dr-551 Measurements of all improvements Notes pertaining to subject property (condition of property, any unusual circumstances) Sketching and traversing (perimeter measurements for calculating square footage) Pictures Completion of factual change of physical characteristics forms. Worley was unaware on November 17, 1986, of the arrangement between Drozd and the Petitioner concerning conditions placed upon the permission for the Petitioner to take leave as set forth by Drozd. Petitioner's work assignment involved 180 parcels. Effective December 12, 1986, 27 parcels had "field work" which was incomplete, according to his flow chart of that date. Effective that date, Petitioner had turned in field folders for 88 of the 180 parcels. He kept 92 field folders for the remaining parcels. Thus, his supervisor was unable to verify whether Petitioner had completed his "field work" as summarized in his flow chart submitted on December 12, 1986. According to Petitioner's account set forth in his flow chart of December 12, 1986, which is part of Petitioner's Exhibit R submitted by the Respondent and admitted into evidence, the 27 parcels pertained to vacant land. Petitioner further conceded that other minor problems existed concerning the completeness of the "field work" pertaining to the improved parcels reported in his flow chart. Prior to Petitioner's departure from the Jacksonville office on December 12, 1986, Worley, who was then serving as the Appraiser Supervisor, did not have a detailed knowledge of the flow chart submitted by the Petitioner on that date. Worley had reviewed some of the Petitioner's files and noted shortcomings in the work; however, on balance, Worley took no issue with Petitioner's work progress. Worley acquiesced in the Petitioner's departure on the afternoon of December 12, 1986, as a prelude to the commencement of Petitioner's annual leave on December 15, 1986 This acquiescence was by a verbal expression to the effect that the Petitioner should have a nice holiday. By contrast, on December 12, 1986, Drozd became aware, upon examination of Petitioner's flow chart, that certain parcels had not been completed in terms of "field work." Drozd's observations about Petitioner's flow chart became significant when Worley and Drozd spoke to supervisors in Tallahassee, Florida, on the afternoon of December 12, 1986, in the person of Ben Faulk, Chief of the Bureau of Field Operations in the Respondent agency, and Eugene White, who was the Deputy Director of the Division of Ad Valorem Tax for that organization. In actuality, there were two conversations, and in the latter conversation Drozd participated in a discussion in which Faulk, White and Drozd determined that Petitioner should not be allowed to proceed with annual leave based upon his failure to comply with the contingency which Drozd had established on November 17, 1986, pertaining to Petitioner's wish to take annual leave, the contingency being completion of "field work." The latter conversation between Worley, Drozd, White and Faulk took place following Petitioner's departure from the Jacksonville office. At the time this conversation was held, Drozd was not a member of the Respondent agency. On the other hand, Faulk and White were appropriate officials within the Respondent agency with power to make determinations concerning the annual leave of a subordinate employee, in this instance, the Petitioner. Worley was also a proper source of policy in she management chain. It was decided that Worley should try to telephone the Petitioner and forestall the use of the annual leave by Petitioner. Emphasis is placed upon the fact that Faulk and White felt that this denial of Petitioner's annual leave based upon Petitioner's failure to meet a contingency concerning his "field work" was an appropriate disposition of the case. Around 6:00 p.m., Worley was able to reach Petitioner by telephone while Petitioner was at his daughter's home, preparing to leave for a trip to Washington, D.C. In placing the telephone call to Petitioner, Worley did not favor the revocation of leave opportunity. Nonetheless, he did revoke the leave while acting as supervisor for the Northeast Region, at the behest of Drozd and upon authority of Faulk and White. In the conversation with Petitioner on December 12, 1986, by telephone, Worley told Petitioner that his leave had been revoked and that Petitioner should report to his job assignment at 8:00 a.m. on Monday, December 15, 1986, or be considered on unauthorized leave. Further, it was explained to Petitioner that he would be considered to have abandoned his job position if he had not returned to work by 5:00 p.m. on Wednesday, December 17, 1986. These remarks by Worley were not equivocal, and Petitioner understood the significance of those instructions and the implications of his failure to attend his duties on the dates described. This understanding of the explanation of unauthorized leave and potential abandonment of his job position was held by the Petitioner at the point of the conversation at approximately 6:00 p.m. on December 12, 1986. Instead of reporting to work on December 15, 1986, at 8:00 a.m., Respondent absented himself from his job assignment on that date and on December 16 and 17, 1986. For those three consecutive days in which Respondent did not attend his job, his nonattendance was without authorization to take any form of leave and in the face of having been advised that he was in the posture of unauthorized leave. The days that Petitioner was missing from his job were work days. Petitioner's choice to go forward with his vacation plans and ignore the instruction of his supervisor concerning returning to his job position was made knowingly, with volition, with intent and showed willful disregard of a legitimate order of a superior. Petitioner had decided that since he had longstanding plans for taking annual leave in Washington, D.C., and given the fact that his wife was already there awaiting the arrival of the Petitioner and his daughter, he would go forward with his plan on the expectation that someone in his employment system would not allow a conclusion to be drawn that he had abandoned his job position. In furtherance of the assertion that the Petitioner would be considered to have abandoned his job position if he didn't return before the conclusion of the work day on December 17, 1986, a memorandum was sent to the Petitioner at his residence on December 15, 1986. A copy of that memorandum may be found as Respondent's Exhibit Q admitted into evidence. Petitioner did not become aware of this memorandum until returning from his vacation. When he returned, he signed for service of correspondence of December 18, 1986, which constituted the Respondent agency's notice of claimed abandonment and notice of rights to administrative hearing to contest that claim. A copy of that notification may be found as part of the Respondent's Exhibit M admitted into evidence, together with the return receipt signed by the Petitioner on December 29, 1986. A timely petition requesting consideration of the agency's claims of abandonment was filed by the Petitioner on January 5, 1987.
