Department of Business Regulation, Div. of Alcoholic Beverages and Tobacco v. Jones, BA-446

Citation10 Fla. L. Weekly 1887,474 So.2d 359
Decision Date08 August 1985
Docket NumberNo. BA-446,BA-446
Parties10 Fla. L. Weekly 1887 DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellant, v. James JONES and the Career Service Commission, Appellees.
CourtCourt of Appeal of Florida (US)

Sandra P. Stockwell, Staff Atty., Dept. of Business Regulation, Tallahassee, for appellant.

Bernard Dempsey, Jr., of Dempsey & Goldsmith, Orlando, for appellee James Jones.

Jim Smith, Atty. Gen., Arthur C. Wallberg, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, for appellee Career Service Com'n ERVIN, Judge.

Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division), appeals from an order of the Career Service Commission (Commission) reducing Jones' dismissal to a 60-day suspension and reinstating him as a Division employee. We affirm.

On December 15, 1983, the Division dismissed Jones, after 17 years of service as a Beverage I Officer, based on incidents that occurred on November 17, 1983. The Division alleged that (1) while on duty, assisting in the seizure of alcoholic beverages at a restaurant, Jones consumed one or more drinks of such beverages; (2) prior to leaving the premises, Jones accepted gifts including food and four lamps or lanterns; (3) upon returning to the Division's district office, Jones consumed one or more drinks while unloading the seized beverages; (4) after returning a fellow employee's van which had been used for the seizure of the beverages, Jones consumed almost another full beer; and (5) at approximately 9:30 p.m. on the same evening, Jones was involved in a single vehicular accident, which he did not, as required by the procedure manual, report immediately to his supervisors, but did report the following morning.

The Division found that "[t]hese actions constitute conduct unbecoming a State employee, use of intoxicants while on duty[,] and willful violation of written rules and policies including section 7-2.13, F.A.C. and sections 2M and 13F of the Division ... Policy and Procedure Manual." 1 The Division concluded these violations were just cause for dismissal.

Jones, a career service employee, appealed his dismissal to the Career Service Commission, and a de novo hearing was held pursuant to Section 110.309(1), Florida Statutes. In its final order, the Commission found that Jones' conduct constituted just cause for disciplinary action; however, the Commission found, pursuant to Section 110.309(4), Florida Statutes, although just cause existed for disciplinary action, that his conduct did not justify dismissal. Therefore, the Commission reduced the dismissal to a 60-day suspension and reinstated Jones thereafter, together with back pay from the date of reinstatement.

The Commission's order adopted certain of Jones' proposed conclusions of law, stating:

There is not substantial competent evidence to establish that Officer Jones violated § 2M of the Policy and Procedure manual or § 7-213, F.A.C., in that the [food and lamp] items given to the officers at the premises were considered items which would be thrown away and, therefore, of no value. It is obviously the intent of this provision of the manual to avoid any appearance of impropriety in an investigation of a licensee ... [However], there is not one scintilla of evidence to suggest that any promises were made to the employees or any presumptions made on the part of the employees that they would receive favorable treatment as a result of giving these items to the officers.

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* * *

While technically Officer Jones may have violated § 13F of the procedure manual which requires that an officer immediately report an accident, his actions were justified under the circumstances.

* * *

* * *

The Division has failed to meet its burden of proof and has not established by substantial competent evidence that the actions of Officer Jones warranted dismissal from his employment with the Division.

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* * *

The evidence shows that Officer Jones made no attempt to hide any of his actions and was willing, even through this Commission hearing, to make a full and complete accounting of his actions on that date.

The Commission also adopted the following findings of fact proposed by Jones:

Over the years, Officer Jones has maintained an impeccable record with the Division. In fact, he has received several commendations and not a single letter of reprimand. In addition, the majority of Officer Jones' job evaluations establish that he was considered an excellent beverage officer, one of the most productive in the Orlando office.

The Division argues that Section 110.309, Florida Statutes, giving the Commission the power to reduce a dismissal to a suspension, is unconstitutional as an exercise of unlawfully delegated legislative discretion since the statute contains no adequate standards by which the Commission's power can be checked. Section 110.309(4)(a) states:

Upon a finding that just cause for disciplinary action existed, but did not justify the severity of the action taken, the commission may, in its discretion: (a) Reduce a dismissal to a suspension for such time as the commission may fix; ...

Specifically, the Division argues that section 110.309(4)(a) gives the Commission unbridled discretion, since after finding "just cause" for disciplinary action, it may, in its discretion, reduce a dismissal to a suspension based on an amorphous standard that the disciplinary action did not "justify the severity of the action taken."

In Askew v. Cross Key Waterways, 372 So.2d 913 (Fla.1978), the Florida Supreme Court reiterated the strict view in Florida that Article II, Section 3 of the Florida Constitution 2 prohibits the delegation of legislative powers absent ascertainable minimal standards and guidelines. Accord Orr v. Trask, 464 So.2d 131, 134 (Fla.1985). There are, however, "[t]wo generally recognized exceptions to the general rule that the legislature should provide certain legislative guidelines when delegating discretion to an agency to act ... [:] (1) when the subject of the statute relates to licensing and the determination of the fitness of the applicant to be licensed, and (2) when the statute regulates businesses operated as a privilege rather than as a right which are potentially dangerous to the public." Florida Waterworks Association v. Florida Public Service Commission, 473 So.2d 237, 245 (Fla. 1st DCA 1985); see also, Permenter v. Younan, 159 Fla. 226, 31 So.2d 387, 389 (Fla.1947); Astral Liquors, Inc. v. State, Department of Business Regulation, 432 So.2d 93 (Fla. 3rd DCA 1983), aff'd., 463 So.2d 1130 (Fla.1985); Solimena v. State, Department of Business Regulation, 402 So.2d 1240 (Fla. 3rd DCA 1981), review denied, 412 So.2d 470 (Fla.1982); Brewer v. Insurance Commissioner and Treasurer, 392 So.2d 593 (Fla. 1st DCA 1981). The Florida Supreme Court early on set forth the following exception to the general rule of non-delegation:

The general rule, which requires an express standard to guide the exercise of discretion is also subject to the exception that where it is impracticable to lay down a definite comprehensive rule, such as where regulation turns upon the question of personal fitness, or where the act relates to the administration of a police regulation and is necessary to protect the general welfare, morals, and safety of the public, it is not essential that a specific prescribed standard be expressly stated in the legislation. In such situations the courts will infer that the standard of reasonableness is to be applied.

North Broward Hospital District v. Mizell, 148 So.2d 1, 4, n. 11 (Fla.1962) (quoting 1 Am.Jur.2d, Administrative Law, Section 116) (emphasis supplied). As we stated in Burgess v. Florida Department of Commerce, 436 So.2d 356, 358 (Fla. 1st DCA 1983), review denied, 447 So.2d 885 (Fla.1984), " '[T]he exigencies of modern government have increasingly dictated the use of general rather than minutely detailed standards in regulating enactments under the police power.' " (Quoting from Dickinson v. State, 227 So.2d 36, 37 (Fla.1969).) " '[T]he specificity of standards and guidelines may depend upon the subject matter dealt with and the degree of difficulty involved in articulating finite standards.' " (Quoting from Askew v. Cross Key Waterways, 372 So.2d at 918.)

In the case at bar, Jones, at the time of his improper conduct, was aiding in the service of a search warrant upon a business which had been serving alcohol without a license. Jones' duties clearly fell within the public policy exception where the "act [Commission's discretionary disciplinary authority under Section 110.309, Florida Statutes] relates to the administration of a police regulation and is necessary to protect the general welfare, morals, and safety of the public". (emphasis supplied) North Broward Hospital District v. Mizell, 148 So.2d at 4.

Under the circumstances above, direct legislative supervision would be impractical, hence detailed legislation would also be impractical. Wells v. State, 402 So.2d 402, 406 (Fla.1981); State, Department of Citrus v. Griffin, 239 So.2d 577 (Fla.1970); Solimena v. State, Department of Business Regulation, 402 So.2d at 1246. The legislature has determined that, in cases involving agency disciplinary action against career service employees, the Commission may conduct a full-blown 120.57(1) de novo evidentiary hearing pursuant to section 110.309(1), thereby reflecting the legislative intent to give the Commission broad discretion to determine what it considers to be the appropriate sanction, regardless of what the employer agency recommends. The Commission assumes both the roles of fact-finder and adjudicator at a de novo...

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