The Issue Whether Appellant on February 6 and 7, 1977, violated Department of Highway Safety & Motor Vehicles Personnel Rules and Regulations 2.1C and Florida Highway Patrol General Order 19, paragraph 11, as specifically alleged in the disciplinary letter of March 14, 1977. Whether the Appellee's suspension of Appellant should be sustained.
Findings Of Fact Appellant Jerry Shores is employed by the Appellee Department of Highway Safety and Motor Vehicles, Florida Highway Patrol, in Troop B, Orange County, Florida, with the rank of Trooper. He was so employed on December 26, 1976, and on February 6 and 7, 1977. A letter dated March 14, 1977, sent by Certified Mail with Return Receipt Requested was mailed to Appellant Shores notifying him that he was being suspended for sixteen (16) hours without pay based on the violation which is the subject of this hearing. The letter was signed by J.E. Beach, Colonel, Director, Florida Highway Patrol and was approved by Ralph Davis, Executive Director of the Department of Highway Safety and Motor Vehicles. The Appellant Shores appealed this suspension. 3 Documentary evidence and testimony of the witnesses for the Appellee established that on February 6, 1977, during his regular patrol duty hours, Trooper Shores stopped at a "Seven-Eleven" store at 8:30 a.m. without checking in and out of his station by radio then proceeded to his home at 8:40 a.m. where he stopped and went inside without checking out, then left his home at 9:00 a.m. without checking back in by radio, and at 9:30 a.m. stopped at a plant nursery without checking out by radio. At 9:50 a.m. Trooper Shores, while at the nursery, received a call to investigate and assist a disabled vehicle. Trooper Shores did not leave the nursery to attend to the disabled vehicle and while still at the nursery the Patrol Station called him at 10:15 a.m. advising him to work an accident. Trooper Shores then radioed that the reason that he did not get to the disabled vehicle was that he was busy with another disabled vehicle. On Tuesday, February 8, 1977, the Patrol Station called Trooper Shores on the radio during his regular patrol duty hours at 3:50 p.m. The station did not make radio contact although several attempts were made until 4:20 p.m. when Trooper Shores advised he was out of the patrol car. On December 26, 1976, Trooper Shores received a written reprimand from Sergeant J. C. Rique because he was out of his patrol car at the Hilton Inn on West State Road 50 without either checking out by radio or by telephone. Trooper Shores had depended upon another person to check him out.
Recommendation Sustain the penalty of sixteen (16) hours without pay. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of June, 1977. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Enoch J. Whitney, Esq. Department of Highway Safety & Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32304 Jerry Shores Route 2, Box 526-C Apopka, Florida 32702
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner by terminating his employment in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Olaciregui was employed as a road patrol trooper with FHP. His work schedule typically consisted of a 40-hour shift. Petitioner worked an average of 16-to-24 additional hours per week because he needed the income to survive, which made him tired. Petitioner never told his employer he was tired. On or about January 26, 2004, Petitioner decided to seek medical attention for his fatigue and lack of sex drive. He went to PowerMedica, a clinic. At PowerMedica, Olaciregui filled out a Confidential Medical History Form regarding his medical history. Petitioner did not answer the questions on the form accurately. He did not disclose his medical problems, and he put on the form that he had no problems. On question number 32, he checked "no" for decreased sexual potency. After meeting with the doctor, Petitioner was provided a prescription to obtain a blood test. The prescription contained the address of a physician located in New York. Petitioner had his blood drawn at LabCorp of America, a separate and unaffiliated business from PowerMedica. Petitioner had his blood work done at LabCorp and returned to PowerMedica to get the results. Petitioner met with Dr. Almarashi and went over the blood-work results. He was informed that his testosterone levels were below average. Petitioner's results were 129 above the bottom end of the range at a level of 370. The top of the normal range is 827, and the low end of the normal range is 241. No additional evidence was provided to support Petitioner's allegation of low testosterone. Petitioner decided to follow the treatment plan the doctor provided him after he was told he had low testosterone and take prescription medication. The PowerMedica doctor gave Petitioner a prescription that he could not fill at Walgreens or CVS but that could only be filled in the PowerMedica pharmacy. Petitioner did not question the prescriptions or ask anything about them. PowerMedica visits and the prescription medications were not covered under Petitioner's health insurance. His initial bill totaled approximately $1,529.95, but he purchased and used all the medications, including three controlled substances that were anabolic steroids. Petitioner did not report his medical treatment to FHP. On or about June 8, 2004, Petitioner was hit by a car and FHP placed him on workers' compensation. Petitioner was under a doctor's care while receiving workers' compensation but never advised the doctor about the medications he was taking from PowerMedica. He also failed to disclose to the workers' compensation doctor that he was being treated for any other medical conditions. In June 2004, Petitioner went back to the clinic for a follow-up visit. He obtained additional medication, which he took. When Petitioner stopped his treatment at PowerMedica, it was because he could no longer afford it. During treatment and after leaving PowerMedica, Petitioner never voluntarily informed FHP that he lacked a sex drive, that he was tired, or what his testorene level was because he was embarrassed and felt the issue was private. Approximately four years after Petitioner stopped going to PowerMedica, a FHP lieutenant provided Petitioner a document explaining that he was under investigation. The investigation stemmed from the U.S. Food and Drug Administration's (USFDA) closing down PowerMedica for unlawfully selling steroids and Human Growth Hormones. USFDA provided Petitioner's medical records seized by search warrant from PowerMedica to Lieutenant Paul Sharp and Sergeant Mark Shoaff, the two internal affairs officers assigned to investigate the matter. On or about July 2, 2008, Petitioner provided statements to Lieutenant Sharp and Sergeant Shoaff regarding the investigation. During his interview, Petitioner was questioned about PowerMedica, Dr. Almarashi, and the treatment he received at the clinic. Petitioner admitted to the investigators filling his PowerMedica medical prescriptions for steroids and taking nandrolone decanoate, oxymetholone, and stanozole, which were controlled substances. Petitioner also finally disclosed his medical condition to FHP during the interview and told the investigators that he "had severe aches and pains, low testosterone and [he was] lacking a sex drive." After the investigation was complete, FHP by letter dated September 4, 2008, informed the Petitioner that the Department was proposing to dismiss him from his position as a Law Enforcement Officer with FHP. The FHP Investigation Report states: Trooper Michael Olaciregui admitted that he purchased and used controlled substances from PowerMedica in 2004. Olaciregui further admits and PowerMeidca's records confirm, that he made his first purchase of controlled substances, syringes and needles on January 26, 2004 for $1529.95 (Exhibit #3). The purchase is confirmed by a credit card receipt signed by Olaciregui on January 26, 2004 and the prescriptions were filled and dated on January 26, 2004. The records also indicated that this purchase and the receipt of these controlled substances by Olaciregui on January 26, 2004 was done four (4) days prior to him going to LabCorp (Exhibit #4) and submitting his blood for analysis on January 30, 2004. Records further indicate that he made other purchases from PowerMedica for controlled substances on April 16, 2004, June 14, 2004, June 28, 2004 and on July 6, 2004. Petitioner requested a predetermination conference that was held on October 27, 2008. FHP determined that no additional facts were presented to change the disciplinary action and that the termination as a disciplinary action was warranted. On January 14, 2009, FHP provided Olaciregui a termination letter that provided factual allegations of the investigation and the following violations as grounds for termination: * * * Section 893.13(6) (a) Florida Statutes, Possession of a controlled substance without a valid prescription, 3rd Degree Felony; Florida Highway Patrol Policy Manual, Chapter 3.03.06(A) 7. Code of Conduct states: "Members will maintain a level of moral conduct in their personal and business affairs which is in keeping with the highest standards of the law enforcement profession;" Florida Highway Patrol Policy Manual, Chapter 3.03.06(a) 51. Code of conduct states: "Members will not possess or use cannabis or any controlled substances except when prescribed by law and Division directives"; Florida Highway Patrol Policy chapter 5.11.05, Substance Abuse. These violations constitute the following disciplinary offenses: Possession, Sale, Transfer or Use of Drugs Off the Job, first offense; Violation of Statutory Authority, rules, Regulations or Policies, Fourth Offense; Conduct Unbecoming a Public Employee, first offense. After approximately 12 years of employment, FHP terminated Petitioner's employment on January 14, 2009, for using controlled substances that he received from PowerMedica in 2004.
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 Petitioner's Petition for Relief. DONE AND ENTERED this 23rd day of November, 2009, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 23rd day of November, 2009.
The Issue Whether Petitioner has just cause to terminate Respondent’s employment as a teacher based on his conviction of the crime of vehicular homicide.
Findings Of Fact Respondent was hired as a teacher by Miami-Dade County Public Schools in February 2000. On August 13, 1999, Respondent was involved in a motor vehicle accident in Monroe County, Florida. The accident resulted in criminal charges filed against Respondent in December 2000 for vehicular homicide (Section 782.071, Fla. Stat. [sic]). On or about May 2002, Respondent pled no contest and was adjudicated guilty of the offense of vehicular homicide by the Circuit Court for the Sixteenth Judicial Circuit in and for Monroe County, Florida. Respondent was placed on probation for five years, ordered to pay $50.00 court costs per month for his suspension [sic], and ordered to perform 500 hours of community service work. On March 15, 2006, Petitioner took action to suspend and initiate dismissal proceedings against Respondent due to his conviction of a crime involving moral turpitude. School Board Rule 6Gx13-4C-1.021 defines vehicular homicide (Section 782.071, F.S. [sic]) as a crime involving moral turpitude.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order terminating Respondent’s employment. DONE AND ENTERED this 11th day of September, 2007, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 11th day of September, 2007.
Findings Of Fact At the times pertinent to this proceeding, the Dade County School Board (School Board) was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Dade County, Florida. By Memorandum dated August 27, 1976, the attorney for the School Board recommended that it approve a list of individuals to serve as "hearing examiners" in certain hearings pertaining to personnel matters as required by different collective bargaining contracts and as to student expulsion cases. The Memorandum thereafter listed the individuals who were recommended by the School Board attorney to serve as hearing examiners. On September 8, 1976, the School Board adopted the recommendation of its attorney. The minutes of the September 8, 1976, meeting of the School Board, reflect, in pertinent part, the following pertaining to this action: A memorandum was received from the Legal Department, advising that the collective bargaining agreements between the School Board and the unions provide that in various circumstances, including suspension, dismissal and reduction in grade, the employee has the right to a review of the action. Also, the Florida Administrative Procedure Act was amended to provide for informal hearings con- ducted by impartial hearing examiners in student expulsion cases. With a view toward obtaining unbiased hearing examiners who can expedite cases at a minimal cost to the Board, the Office of the School Board Attorney and the Division of Employee Relations have solicited the services of various members of the Florida Bar and persons with experience in labor arbitration. It is believed that the following list of examiners will meet the needs of the Board in this area. These individuals have agreed to serve at the rate of $40.00 per hour. The minutes of the September 8, 1976, meeting of the School Board reflect the names of seventeen individuals who were recommended to serve as impartial hearing examiners. The minutes of the September 8, 1976, meeting of the School Board reflect that the following motion was adopted: That the school Board approve the list of persons named above to act as impartial hearing examiners in appropriate proceedings involving personnel and pupils, the hearing examiners to be reimbursed at the rate of $40.00 per hour for their time and to be designated as needed by the Superintendent or his designee. That the Superintendent or his designee be authorized to strike from the list the name of any hearing examiner who does not submit his or her recommended order within the time prescribed. The list of individuals to serve as impartial hearing examiners (who were sometimes referred to as hearing officers) was revised by the School Board on June 27, 1990, and on September 20, 1995. Petitioner's daughter is a student at one of the schools under the authority of the School Board who receives services as a gifted student under the School Board's Exceptional Education Program. Local hearing officers do not conduct proceedings pertaining to students in the Exceptional Education Program. Petitioner has never requested a hearing before a hearing examiner (or hearing officer) appointed by the School Board pursuant to the School Board's action of September 8, 1976, or as subsequently revised, and he is not involved in any pending or threatened administrative proceeding that would require the appointment of a local hearing officer by the School Board. Petitioner's daughter has never requested a hearing before a hearing examiner (or hearing officer) appointed by the School Board pursuant to the School Board's action of September 8, 1976, or as subsequently revised, and she is not involved in any pending or threatened administrative proceeding that would require the appointment of a local hearing officer by the School Board. Petitioner has never applied for appointment as a local hearing officer. He is not a member of the Florida Bar and there was no evidence that he is experienced in labor arbitration. Petitioner is not employed by the School Board. Petitioner is not affected by who has or has not been approved by the School Board to serve as a local hearing officer.
Findings Of Fact Six signs were described in a violation notice to Respondent Dandy Signs from Petitioner, Florida Department of Transportation dated July 7, 1977. The notice stated the signs were alleged to be in violation of Chapter 479 and rules 14-10.04; rule 14-10.03. By stipulation of the parties the charges on the signs listed were dropped except for the following two signs: a sign located one mile west of U.S. 1, State Road 44, Mile Post 28.25 with copy "Bob's Sandpiper Restaurant" and a sign located at Junction 17-92 Deland, U.S. Highway 17 (Section 35 Mile Post .02) with copy "Buddy Sheats". The foregoing signs have no permit and evidence was presented to show that each sign is nearer to a permitted sign than 500 feet. The Respondent admits that neither sign has been permitted and that both signs violate the spacing requirements. Respondent was given time to submit evidence that the signs had at one time been permitted, but no evidence was submitted to this hearing officer although the hearing was held in excess of three months before this order is being entered.
Recommendation Remove the subject signs and invoke penalty under Section 479.18, Florida Statutes. DONE and ENTERED this 3rd day of March, 1978. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1978. COPIES FURNISHED: Philip S. Bennett, Esquire Florida Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Dan Richardson, Owner Dandy Signs 324 Flagler Street New Smyrna Beach, Florida 32069
The Issue The sole and limited issue in this case is whether John E. Wimberly "resigned" his position by abandonment as provided in Rule 22A-7.10(2)(a) Florida Administrative Code.
Findings Of Fact The following facts are established by the parties' Prehearing Stipulation dated October 3, 1986: The Respondent, John E. Wimberly, at all times material herein was employed as a trooper by the Florida Highway Patrol in Troop F, Manatee County Florida. The Respondent was assigned the following work shift: Friday, April 11, 1986: 7:00 p.m. 3:00 a.m. Saturday April 12, 1986: 3:00 p.m. 11:00 p.m. Sunday April 13, 1986: 3:00 p.m. 11:00 p.m. Monday April 14, 1986: 3:00 p.m. 11:00 p.m. The Respondent was involved in an automobile accident in Dade County, Florida, on April 10, 1986, while off duty. His brother, Willie Wimberly, and a third person, Felix Bush, were also in the vehicle. The Respondent was admitted to Palmetto hospital on April 10, 1986, and discharged on April 12, 1986, as a result of injuries sustained in the automobile accident. The Respondent underwent surgery performed on his right index finger for repair of a lacerated tendon. The Respondent's brother, Willie Wimberly, was admitted to Palmetto Hospital with injuries. The Respondent did not report for work on April 11, 12, 13, 14, and 15. The Respondent did not personally contact a supervisor or a duty officer of the Florida Highway Patrol to report his absence until approximately 11 30 p.m. on April 15, 1986. The State of Florida Personnel Rules and the provisions of the Florida Highway Patrol Policy Manual referenced in the Petitioner's Composite Exhibit #1 were in effect during the time period of April 10, 1986 through April 16, 1986. On July 23, 1985 and September 27, 1985 the Respondent John E. Wimberly acknowledged receipt of the Florida Highway Patrol Forms and Procedures Manual and further acknowledged reading said manual and being afforded an opportunity to ask questions of a supervisor concerning any questions about the manual. Sgt. Anderson from the Dade County troop of the Highway Patrol, who was investigating the accident told Trooper Wimberly in the hospital that he would contact Wimberly's immediate supervisor. Troop F in Bradenton was notified of Wimberly's accident at approximately 11:40 p.m. on Thursday, April 10, 1986. Petitioner's Exhibit #1 testimony of Wimberly). On Friday, April 11th, Major Paul Taylor, Troop F Commander, instructed his secretary to call the hospital to determine Trooper Wimberly's condition. Efforts to reach Wimberly were unsuccessful but the associate of the attending physician informed Major Taylor that the injuries were minor, that surgery was going to be done on Wimberly's finger and he would be released on Saturday, April 12th. (testimony of Taylor; Petitioner's Exhibit #1) Trooper Wimberly was released from the hospital in Miami at 1:30 p.m. on the 12th. On the evening of that date, his supervisor, Sgt. Cheshire, began trying to reach him at his home in Bradenton. Similar efforts were made on Sunday and Monday. On Monday night Sgt. Cheshire was told by Trooper David L. McCarter, Jr. that Trooper Wimberly was still in Miami and would be in to see him (Sgt. Cheshire) Tuesday. Trooper McCarter had called Wimberly in Miami. (Petitioner's Exhibit #1 testimony of Wimberly) At no time during his absence from April 11th through 15th did Trooper Wimberly, or anyone on his behalf, request leave. Wimberly's injuries in the accident consisted of a lacerated tendon in his right hand and a sprained ankle. He had a soft cast on his leg, and after surgery, a cast on his hand. He admits that he could have physically contacted his supervisors at Troop F but was concerned about his brother who had been seriously injured and after his own release, spent most of his time at the hospital. (testimony of Wimberly) Relevant sections of the Florida Highway Patrol Policy Manual provide Reporting Late for Duty If, due to an illness or other circumstances, a member cannot report for duty at the assigned time but will be late, the member will contact his/her supervisor before the start of the shift to explain the situation and provide an estimated time of arrival. Failure to Report for Duty Due to Illness. Any member unable to report for duty due to illness or injury shall notify his or her immediate supervisor as soon as possible on the first day of absence. If possible, the member should provide at least a 2 hour notice to allow for a replacement to be obtained. . . . Absence Without Authorized Leave Florida Highway Patrol officers are expected to report for duty on their assigned shift except when prevented by injury, illness, or emergency situations. Any leave of absence with or without pay shall be approved prior to the leave period except when emergency situations prevent such action. If an employee takes unauthorized leave, the employee will be placed on leave without pay status. Abandonment of Position Any member who is absent without authorization for 3 consecutive work days shall be deemed to have abandoned the position and to have resigned from Career Service. Any member who separates under such circumstances shall not have the right to appeal to the Career Service Commission and is subject to all pro- cedures outlined in Section 22A7.10(2) of the Rules of the Career Service Commission. 5.09.00 Sick Leave Members will be permitted to take sick leave only for instances of illness, injury or other reasons as specified in Section 22A-8.11 of the Personnel Rules of the Career Service System. The Department may, after three workdays of absence in any 30 calendar day period, require a medical certification of the member's illness before authorizing any additional use of sick leave credits by the member. Abuse of sick leave benefits by reporting off ill or injured when actually fit for duty will be grounds for disciplinary action. A member, while on sick leave for any reason, is expected to be at his or her residence, or to notify the immediate supervisor of any other location. (Petitioner's Exhibit #4) Trooper Wimberly was aware of the policy and has followed it in the past. (testimony of Wimberly) The absence of law enforcement personnel affects the staffing of shifts and sometimes court appearances cannot be honored. The details of when and how long an individual will be absent are important to the effective functioning of the troop. (testimony of Taylor)
Recommendation Based upon the foregoing, it is recommended that a final order be entered finding that Respondent was appropriately terminated for abandonment in accordance with Rule 22A-7.010(2)(a) Florida Administrative Code. DONE AND ORDERED this 29th day of October 1986, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 29th day of October, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2154 The following constitute my specific rulings on the findings of fact submitted by the parties in this case. Findings by Petitioner 1. through 5. Adopted in paragraph #1. Adopted in paragraph #3. Rejected as unnecessary. Relevant portions of the policy manual are addressed in paragraph #4. Adopted in paragraph #4. and 11. Adopted in paragraph #1. Rejected as irrelevant. Rejected as unnecessary. Adopted in general in paragraph #5. The fact of termination is addressed in the Background portion of the Recommended Order. Findings of Fact Proposed by Respondent 1. through 3. Adopted in paragraph #1. 4. and 5. Adopted in general in paragraph #2. The period of hospitalization is addressed in paragraphs #1 and #2. Thursday night until early Saturday afternoon does not constitute three days. Rejected as immaterial. Major Taylor also testified that he could have been assigned to other duties. The issue was not his ability to function as a trooper. Addressed in part in paragraph #3 otherwise rejected as immaterial. Adopted in paragraph #3. Adopted in paragraph #2. Adopted in paragraph #1 as to the date and time of trooper Wimberly's return; otherwise rejected as provided in paragraph 7 above. Adopted in paragraph #4. Rejected as immaterial. His subjective intent was inconsistent with his failure to seek authorized leave. Ruling on Exceptions to Recommended Order Exceptions of Petitioner Department of Highway Safety and Motor Vehicles 1. Not an exception - simply restates Hearing Officer's Findings of Fact 3 and 4. 2. Not an exception - simply restates Hearing Officer's Conclusion of Law 7. 3. Not an exception. 4. Rejected. Exceptions of Respondent Santiago Baez 1. 1 through 4 Rejected for the reasons set out in the Recommended Order in Conclusion of Law 7. COPIES FURNISHED: R. W. Evans, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 John E. Wimberly c/o Robert A. Pell, Esquire Florida Police Benevolent Association Post Office Box 11239 Tallahassee Florida 32301
