Catholic Social Services v. State, Dept. of Commerce, Bd. of Review, KK-325

• Court: Florida District Court of Appeals
• Writing for the Court: SMITH
• Citation: Catholic Social Services v. State, Dept. of Commerce, Bd. of Review, 365 So.2d 427 (Fla. App. 1978)
• Decision Date: 19 December 1978
• Docket Number: No. KK-325,KK-325
• Parties: CATHOLIC SOCIAL SERVICES, Appellant, v. STATE of Florida DEPARTMENT OF COMMERCE, BOARD OF REVIEW and Teresa C. Menza, Appellees.

Page 427

365 So.2d 427

CATHOLIC SOCIAL SERVICES, Appellant, v. STATE of Florida DEPARTMENT OF COMMERCE, BOARD OF REVIEW and Teresa C. Menza, Appellees.

No. KK-325.

District Court of Appeal of Florida, First District.

Dec. 19, 1978.

Richard M. Denney of Timmel & Simpson, Fort Walton Beach, for appellant.

No appearance for appellees.

SMITH, Acting Chief Judge.

Appeal from an order of the Board of Review of the Department of Commerce. We allowed the Division of Employment Security to waive filing a brief in this case, upon its motion. Teresa C. Menza has made no appearance. This appeal and the proceedings below are governed by the Administrative Procedure Act, Chapter 120, Florida Statutes (1977). Section 120.57(1)(a)2 specifically provides that the Board of Review and unemployment compensation appeals referees may conduct Section 120.57(1) proceedings, in place of a DOAH hearing officer, in unemployment compensation appeals. Sections 20.17(5)(L ) and 443.07(4)(e) make orders of the Board of Review final agency action, thus subject to our review under Section 120.68. Section 20.17(5)(L ), mandating review of Board orders by "petition for writ of certiorari to the District Courts of Appeal" is not to the contrary. That section was enacted in 1977, in Chapter 77-399, Laws of Florida, and reflects that, at that time, we reviewed administrative orders under the rules governing certiorari. Yamaha International Corp. v. Ehrman, 318 So.2d 196 (Fla. 1st DCA 1975). Rule 9.110, Fla.R.App.P., now dictates that we review administrative orders by appeal proceedings.

In this case, the Board reviewed a decision of an unemployment compensation appeals referee finding that Teresa C. Menza was discharged from her employment for misconduct connected with her work, Section 443.07(4). As a result, Mrs. Menza was disqualified for unemployment benefits, Section 443.06(1). The Board reversed the decision, holding that the referee had improperly relied on "legally insufficient" hearsay evidence related by one of Mrs. Menza's former supervisors, Sister Winder, who was the only representative of the employer testifying at the hearing. We find, however, that the record contains competent evidence supporting the referee's decision.

The evidence consisted solely of testimony from Sister Winder and Mrs. Menza. Sister Winder testified that she was in charge of the office where Mrs. Menza formerly worked, and had been concerned with Mrs. Menza's conduct on a day-to-day basis. She related that she observed some incidents of Mrs. Menza's misconduct and received reports of numerous other incidents from Mrs. Menza's immediate supervisor and other employees. On this basis she reprimanded Mrs. Menza and counseled her, warning that Mrs. Menza would be discharged if her behavior did not improve. She testified that Mrs. Menza was discharged when the supervisors concluded that she was not responding to counseling and was...