01-000053 William T. Pfeil vs. Department Of Law Enforcement Status: Closed Recommended Order on Tuesday, March 27, 2001.

Summary: Petitioner was within scope of employment at time of wreck of state vehicle and therefore should not be personally liable for damage to state vehicle he was driving.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM T. PFEIL , )

)

Petitioner , )

)

vs. ) Case No. 01-0053

)

DEPARTMENT OF LAW ENFORCEMENT , )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this cause on

February 27, 2001, before Don W. Davis, Administrative Law

Judge with the Division of Administrative Hearings (DOAH), in

Tallahassee, Florida. The following appearances were entered:

For Petitioner : Thomas A. Klein, Esquire

Florida Police Benevolent

Association, Inc.

300 East Brevard Street

Tallahassee, Florida 32301

For Respondent : D. David Sessions, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

At issue is whet her Petitioner was within the scope of

his employment, and therefore not personally liable for

damages sustained by the state-owned vehicle driven by him at

the time of a traffic accident.

PRELIMINARY STATEMENT

On June 14, 2000, Respondent Florida Department of Law

Enforcement (FDLE) delivered a written reprimand to

Petitioner. Petitioner was reprimanded for safety violations

committed by him which resulted in a traffic accident on

March 8, 2000.

In addition to the reprimand, the written communiqué to

Petitioner also included a directive that Petitioner arrange

for repayment to FDLE for damage suffered to FDLE’s vehicle

while being operated by Petitioner. The reason for the

reimbursement directive, as written by Director Dennis Wilson,

was that the Florida Department of Insurance, Division of Risk

Management (RISK ), had determined that Petitioner was not

within the scope of his employment at the time of the

accident. Consequently, RISK had determined that state

payment for damage repair to the state owned vehicle, was not

possible.

On or about June 22, 2000, Petitioner filed a Petition

for Administrative Hearing with FDLE and with RISK. RISK

summarily denied Petitioner's request for hearing.

FDLE honored Petitioner's request and on or about Januar y

4, 2001, requested assignment of an Administrative Law Judge

to conduct formal administrative proceedings in the case.

At the final hearing, Petitioner presented testimony of

six witnesses and 13 exhibits. FDLE presented the testimony

of one witness and four exhibits.

The parties did not order a transcript of the

proceedings. After the hearing, the parties were granted

leave to file proposed recommended orders more than 10 days

following the final hearing.

Both parties submitted proposed recommended orders, which

have been reviewed and utilized in the preparation of this

recommended order.

FINDINGS OF FACT

1. On or about March 8, 2000, Petitioner had an

automobile accident, while driving his state-owned vehicle.

Petitioner received administrative discipline from FDLE, his

employer, for his role in the accident. Specifically,

Petitioner received a written reprimand for safety violations

committed by him in the operation of the state-owned vehicle.

2. Additionally, Petitioner was ordered to reimburse

FDLE for the repair of damage sustained by the automobile. At

the time, FDLE had no administrative rule, which gave notice

to Petitioner or required him to pay for the vehicle’s damage.

Instead, FDLE exclusively relied upon the opinion of Risk in

determining that the accident took place while Petitioner was

"on a personal mission" of his own and was, therefore, not

within the scope of his employment.

3. At all times material to this case, Petitioner was a

special agent of FDLE, assigned to the agency's Live Oak,

Florida, office.

4. As part of his employment by FDLE, Petitioner was

assigned a state-owned vehicle to operate.

5. Petitioner resides with his family in Madison,

Florida.

6. On the date of the traffic crash, Petitioner was

working on an ongoing criminal investigation in conjunction

with the Hamilton County Sheriff’s Office (HCSO) in Jasper,

Florida.

7. On the morning of March 8, 2000, Petitioner drove his

state vehicle directly to HCSO from his residence.

8. In the afternoon of March 8, 2000, Petitioner

received a call at HCSO originating from his wife which

notified him that his father had been taken to the Madison

County hospital due to a heart attack. Petitioner then

informed his wife of his intent to drive the state vehicle

back to their personal residence, so that he could retrieve

his personal vehicle for the trip to Madison County Hospital.

9. Following the conversation with his wife, Petitioner

left HCSO in the state vehicle and shortly thereafter became

involved in the automobile accident. Petitioner informed HCSO

Investigator David Ehlert, after the latter had arrived at the

accident scene, that he was in the course of driving the state

vehicle to his personal residence, so that he could retrieve

his personal vehicle for the trip to the Madison County

Hospital.

10. Just prior to the accident, Petitioner activated his

vehicle’s emergency lights and siren for which he later

received a reprimand for breach of safety conditions attendant

to driving his "Class C" vehicle. The automobile accident

caused damage to the state vehicle estimated at approximately

$8,325.00.

11. When Petitioner’s state vehicle is not in use it is

routinely parked at his personal residence, as authorized by

FDLE policy.

12. Petitioner has been authorized to use this "Class C"

vehicle for state business purposes only, which includes

"incidental use" in "limited situations."

13. Petitioner and other FDLE agents, who have been

issued "Class C" vehicles are routinely subject to service

calls on a 24-hour basis, requiring that they respond directly

from their personal residences. Additionally, these same

agents serve routinely as "duty agents" after their regularly

scheduled work hours.

14. On the date of the accident, Petitioner drove along

State Road 6, which is the most direct travel route between

his personal residence and HCSO. Further, on this date,

Petitioner neither "departed from his usual route" nor

employed the vehicle for "incidental use." Instead, on

March 8, 2000, Petitioner was operating the vehicle while "on

duty" and was paid by FDLE for performing this task within his

regularly scheduled work hours.

15. Petitioner's intent to retrieve his personal vehicle

before going to the Madison County Hospital was based on his

father’s past history of heart-related hospitalization and the

likelihood that the patient would be transferred to a larger

hospital in either Tallahassee or Jacksonville. Such a

journey would have required Petitioner to use his personal

vehicle.

16. Petitioner’s personal residence is located

approximately one-fourth mile from the intersection of U.S. 90

and State Road 6. This very short distance would have

permitted Petitioner to retrieve his personal vehicle in a

matter of moments. Additionally, it was the same route

traveled by Petitioner that morning.

17. Conversely within the same time frame, Special Agent

Don Ugliano, a fellow employee, had an automobile accident

involving his rear-ending of another automobile with his

"Class C" vehicle but RISK paid that claim.

18. Shortly after Petitioner's accident, personnel of

RISK sent Petitioner a RISK agency publication, which

purported to explain the parameters of when RISK will and will

not insure a state employee who has been involved in an

automobile accident. Prior to this time, neither Petitioner

nor any of his FDLE supervisors had seen the publication or

had been advised by RISK of its coverage policies. The

publication was sent to FDLE and Petitioner. It was RISK’s

first issue of the publication.

19. RISK’s publication specifically provides that state

insurance coverage is in effect "for an employee whose regular

work time requires him to work away from the office (in the

'field')" such as "when commuting to and from work."

20. At all times material, Petitioner was operating the

vehicle while "on duty" and "within the scope of his

employment." The candid and direct testimony of Petitioner's

supervisor and author of the directive requiring reimbursement

for damages to the state vehicle, establishes that the

demanded reimbursement was apart from the reprimand language

included in the document and added by FDLE based exclusively

upon RISK’s position. A new rule, addressing situations such

as Petitioner’s, was in the course of development by FDLE on

the same date as the accident. However, that rule was

technically "unadopted" at the time of the accident.

21. Prior to the accident, attempts by FDLE personnel,

inclusive of Petitioner, were made to secure a private

insurance "rider" coverage for those incidents, which RISK

might not insure. The answer received in response to these

inquiries was that no private carrier would agree to submit

itself to the arbitrary and capricious coverage determinations

of RISK.

CONCLUSIONS OF LAW

22. It is well-established principle of administrative

law that a party, whose "substantial interests" have been

affected by an "agency," has the right to a formal

administrative hearing before the Division of Administrative

Hearings (DOAH). McDonald v. Department of Banking and

Finance , 346 So. 2d 569 (Fla. 1st DCA 1977). See also Sections

120.569 and 120.57, Florida Statutes.

23. Entitlement to a formal administrative hearing is

not automatic but requires the existence of "disputed issues

of material fact." McDonald , supra . The "affected" party

must make an objective showing that the agency’s proposed

action will result in a party’s substantial and immediate

"injury-in-fact." Amalgamated Transit Union, Local 1267 v.

Benevolent Association of Coachmen, Inc. , 576 So. 2d 379 (Fla.

4th DCA 1991) ; United Health, Inc. v. Department of Health and

Rehabilitative Services , 579 So. 2d 342 (Fla. 1st DCA 1991) ;

Fairbanks Inc. v. State Department of Transportation , 635 So.

2d 58 (Fla. 1st DCA 1994) review denied 639 So. 2d 977.

24. An agen cy’s demand for financial reimbursement meets

the "substantial interest" test for purposes of affording an

"affected" party the right to a formal administrative hearing.

United Health, Inc. v. Department of Health and Rehabilitative

Services , supra .

25. It is abundantly clear from the evidence, that

Petitioner’s "substantial (financial) interests" have been

"affected" by FDLE’s affirmative demand that he reimburse the

agency $8.325.00. It is likewise abundantly clear from the

evidence that Petitioner’s "substantial (financial) interests"

have been "affected" by RISK’s communication to FDLE

withdrawing state insurance coverage for the accident.

Petitioner has been substantially affected, is entitled to a

DOAH hearing, and DOAH has jurisdiction of this cause.

26. The "disputed material facts" in this case are

whether Petitioner’s accident took place "within the scope of

his employment" and whether Petitioner’s return trip was a

"distinct departure for a non-essential personal errand."

27. Additionally, Section 120.57(1)(e )1, Florida

Statutes, provides in pertinent part that, "Any agency action

that determines the substantial interests of a party and that

is based on an unadopted rule is subject to de novo review by

an administrative law judge."

28. FDLE has admitted that a new rule addressing

Petitioner’s circumstances was technically "unadopted" at the

time and was subsequently applied to Petitioner.

29. The Administrative Procedure Act (APA) requires that

agencies give affected parties a "clear point of entry" into

administrative proceedings to contest an agency’s actions.

Mansota-88, Inc. v. State Department of Environmental

Regulation , 417 So. 2d 846 (Fla. 1st DCA 1982).

30. On June 14, 2000, when FDLE issued Petitioner a

memorandum of written reprimand with the additional provision

that he make arrangements to reimburse the agency no later

than August 1, 2000, no point of entry was given. Petitioner

was not informed of his right to a hearing. However, on June

22, 2000, Petitioner filed a petition requesting a formal

hearing with both RISK and FDLE. FDLE correctly applied an

objective review and granted Petitioner access to

administrative proceedings. RISK's summary denial of an

administrative hearing to Petitioner has no effect on these

proceedings.

31. FDLE made no objective showing of the absence of

disputed issues of material fact. Additionally, the weight of

the evidence presented shows entitlement by Petitioner to the

relief requested.

32. Section 768.28(9)(a), Florida Statutes, states in

pertinent part that:

No officer, employee, or agent of the state

. . . shall be held personally liable in

tort or named as a party defendant in any

action for any injury or damage suffered as

a result of any act, event or omission of

action in the scope of her or his

employment , unless such officer, employee,

or agent acted in bad faith or with

malicious purpose or in a manner exhibiting

wanton and willful disregard of human

rights, safety or property. . . . The

state . . . shall not be held liable in

tort for the acts or omissions of an

officer, employee, or agent committed while

acting outside the course and scope of her

or his employment . . . (Emphasis supplied)

33. The term "within the scope of employment" is a

statutory term of art, which is commonly employed in deciding

tort and workman’s compensation claims. See Chapters 440 and

768, Florida Statutes. Whether an employee was "within the

scope of his employment" when an accident took place is a

factual determination , to be decided by the trier of fact.

Gardner v. Holifield , 639 So. 2d. 652 (Fla. 1st DCA 1994).

34. An injury resultant from an automobile accident was

considered to have taken place "within the scope of

employment" if an employee’s job requires travel to and from

various locations within a certain geographic area to perform

necessary job duties, which are essential to his employment

activity. Florida Hospital v. Garabedian , 765 So. 2d 987 (Fla.

1st DCA 2000).

35. Most importantly to the case at bar, an injury

received by a full-time law enforcement officer, when his

unmarked police vehicle became involved in an accident as he

was driving it home for lunch, was considered to have taken

place "within the scope of employment." Klyse v. City of

Largo , 765 So. 2d 270 (Fla. 1st DCA 2000).

36. Similar to Petitioner, Investigator Klyse had been

issued a government-owned vehicle and was by agency policy

"on-duty" at the time of the accident. Like Petitioner, Klyse

was authorized to drive the vehicle to and from his personal

residence and he was subject to being "called out" even when

on lunch break. In overturning the findings of the claims

judge, the Court specifically recognized the uniqueness of law

enforcement employment, which requires full-time officers to

be subject to call and to carry identification, weapons, and

radio within his normal working hours.

37. It is undisputed that Petitioner made the trip to

HCSO to perform necessary job duties, which were essential to

his employment; namely, to conduct an investigative interview.

There is likewise no factual dispute that at the time of the

accident he was by FDLE policy, "on-duty," within his normal

working hours and was paid for the time he was in route to

home. Petitioner was required to carry his identification,

weapons, and radio, and was subject to being "on-call" 24

hours a day.

38. The facts in this case demonstrate that Petitioner’s

roundtrip travel to and from HCSO, on the most direct route,

was essential to the business of his employer. To find

otherwise would create a chilling effect on the ability of law

enforcement officers to provide an immediate response when

called. Additionally, the absurdity of concluding that that

Petitioner should have left his "Class C" vehicle in Jasper,

when he received the personal call about his father is self-

evident.

RECOMMENDATION

Based upon the foregoing analysis, findings of fact and

conclusions of law, FDLE has no basis in fact or in law to

demand reimbursement from Petitioner.

It is recommended that FDLE enter a final order finding

Petitioner to have been in the course of employment at the

time of the traffic accident in question and rescinding FDLE

attempts to seek reimbursement from Petitioner for damage to

the state-owned vehicle.

DONE AND ENTERED this 27th day of March, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of March, 2001.

COPIES FURNISHED:

D. David Sessions, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Thomas A. Klein, Esquire

Florida Police Benevolent

Association, Inc.

Post Office Box 11239

Tallahassee, Florida 32302

Michael Ramage, General Counsel

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

James T. Moore, Commissioner

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any

exceptions to this Recommended Order should be filed with the

agency that will issue the Final Order in this case.