Rubin v. Shapiro
| Decision Date | 09 May 1967 |
| Docket Number | No. 66--462,66--462 |
| Parties | Simon E. RUBIN, Sam A. Goldstein, Allen Goldberg, Henry E. Wolff, Carl Susskind, Paul Seiderman, Stanley Glatter, A. B. Freed and Tom D. Womble, duly qualified and acting as the Personnel Board of the City of Miami Beach, Florida, Appellants, v. Julius SHAPIRO, Appellee. |
| Court | Florida District Court of Appeals |
Joseph A. Wanick, Miami Beach, for appellants.
Irving Cypen, Miami Beach, Sam Daniels, Miami, for appellee.
Before CHARLES CARROLL, BARKDULL and SWANN, JJ.
The Personnel Board of the City of Miami Beach, Florida appeals from a final order of the Circuit Court of Dade County, Florida.
In Rubin v. Shapiro, Fla.App.1965, 170 So.2d 460, this court affirmed an order of the Circuit Court which held that Julius Shapiro should be restored to his regular status (fireman of the City of Miami Beach) as of the date of his dismissal and that he was entitled to all benefits and emoluments of his employment.
Once reinstated as a fireman, Shapiro filed a motion in the Circuit Court to require the City to pay him all wages lost as a result of the disciplinary proceedings. The City argued that Shapiro was required to mitigate his damages and that it should only be required to pay him his back wages, less any monies he had earned during his unemployment from the disciplinary proceedings. No testimony was taken or proffered at the hearing on the motion and the trial court entered an order that Shapiro was entitled to all wages that he would have received for the period of his discharge, without diminution. The Personnel Board of the City of Miami Beach now appeals from that order.
The question before us is whether a City of Miami Beach employee discharged under disciplinary proceedings is entitled to his full back salary upon reinstatement, or only to the difference between the salary and that which he earned in other jobs during the suspension.
This court has followed the doctrine that A discharged or suspended public employee who is subsequently reinstated has the duty to mitigate his damages during the interim. City of Miami v. Loughrey, Fla.App.1964, 166 So.2d 236. This doctrine was enunciated by Justice Sebring in State ex rel. Dresskell v. City of Miami, 153 Fla.90, 13, So.2d 707 (1943).
The appellee contends that these cases are not applicable to the case at bar for the following four reasons, which we will discuss:
(1) The burden is on the employer to adduce evidence to mitigate damages and the record herein is silent as to the kind of work Shapiro supposedly performed and how much compensation, if any, Shapiro received from outside sources during his unemployment.
We do not agree. There is no requirement in law that the City must present evidence on a motion hearing of this nature. This was not a hearing on a rule to show cause and the City was without knowledge of any requirement that it produce evidence, and there was no duty on its part to present evidence at a hearing on such a motion.
(2) The City is precluded from raising the issue of mitigation on this appeal, because it failed to raise the issue on the former appeal, and since the order on the former appeal provided that Shapiro was to receive 'all benefits and emoluments of his employment' he is entitled to full pay without diminution.
The language of the previous order simply stated that Shapiro was to receive all benefits and emoluments of his employment. There was no issue raised at that time in the trial court or in the subsequent appeal as to the specific amount of money which Shapiro was entitled to receive under the broad general...
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Rubin v. Sanford, s. 68-238--68-241
...on previous occasions. See: Rubin v. Sanford, Fla.App.1964, 168 So.2d 774; Rubin v. Shapiro, Fla.App.1965, 170 So.2d 460; Rubin v. Shapiro, Fla.App.1967, 198 So.2d 854; Rubin v. Sanford, Fla.App.1967, 198 So.2d 856. Subsequent to mandates in the prior appeals, the respective courts awarded ......
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...Bank of Miami v. Gulf American Land Corp., 212 So.2d 17, 21 (Fla. 3d DCA), cert. denied, 219 So.2d 706 (Fla.1968); Rubin v. Shapiro, 198 So.2d 854, 855 (Fla. 3d DCA), cert. denied, 204 So.2d 331 Second, although the affidavit in support of the subject search warrant states ample probable ca......
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Sanford v. Rubin
...was entitled to set off what these firemen had earned in outside employment against the salaries due the firemen. Rubin et al. v. Shapiro, 198 So.2d 854 (Fla.App.3rd, 1967); Rubin et al. v. Sanford, 198 So.2d 856 (Fla.App.3rd, 1967). In the latter opinion, the District Court on remand order......
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Ragucci v. City of Plantation, 80-1163
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