Wensil v. Department of Environmental Protection

675 So. 2d 1040, 1996 Fla. App. LEXIS 6885, 1996 WL 365943

• Court: District Court of Appeal of Florida
• Decided: July 3, 1996
• Docket: No. 95-3692
• Status: Published

Opinion

PER CURIAM.

James C. Wensil, a career service employee, appeals a decision by the Public Employees Relations Commission (PERC) affirming his dismissal by the Department of Environmental Protection from the Florida Marine Patrol. Mr. Wensil was dismissed for “conduct unbecoming a public employee” based upon charges of child abuse (to which Mr. Wensil pleaded nolo contendere and for which he has been placed on the child abuse registry) and for violating a court order to have no contact with his stepchildren. Mr. Wensil asserts in this appeal that PERC erred in affirming his dismissal without evidence “beyond a reasonable doubt” that he did in fact commit child abuse by giving his stepson an excessive beating with a belt. The correct standard, by a preponderance of the evidence, was applied by the hearing officer. See Department of Agriculture v. Edwards, 654 So.2d 628, 631 (Fla. 1st DCA), review denied mem., 662 So.2d 931 (Fla.1995)(“the agency must affirmatively prove the essence of the allegations by a preponderance of the evidence”). PERC correctly concluded that it was obligated to affirm the decision of the hearing officer if the findings in the recommended order were supported by any competent substantial evidence. See Brogan v. Carter, 671 So.2d 822, 823 (Fla. 1st DCA 1996).

The standard of review by the appellate court requires us to affirm if the decision of the administrative tribunal is supported by competent substantial evidence. See Florida Dep’t of Health and Rehabilitative Services v. Career Service Comm’n, 289 So.2d 412, 415 n. 2 (Fla. 4th DCA 1974). We find the record contains competent substantial evidence to support the dismissal of Mr. Wensil.

Accordingly, the decision of PERC is AFFIRMED.

BARFIELD, C.J., and ERVIN and DAVIS, JJ., concur.