JAMES BEMBANASTE, APPELLANT,
v.
CITY OF HOLLYWOOD, FLORIDA, A MUNICIPAL CORPORATION OF THE STATE OF FLORIDA, AND SAM D. MARTIN, AS POLICE CHIEF OF THE CITY OF HOLLYWOOD, FLORIDA, APPELLEE

Fla. 4th DCA | 1981-02-18
No. 78-2458
MOORE and BERANEK, JJ., concur.
394 So. 2d 1053 Florida District Court of Appeal, Fourth District (1981) Caution
Cited by 2 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

A probationary police officer employed by the City of Hollywood was terminated without a hearing or stated cause. The officer appealed a summary judgment dismissing his suit, arguing he was entitled to a pre-termination hearing and that his Policeman's Bill of Rights were violated. The court affirmed the summary judgment, holding that probationary employees may be terminated without cause or hearing under the city's civil service regulations.


Holding

A probationary police officer may be terminated without cause and without a hearing under the city's civil service regulations. The court did not reach the substantive Policeman's Bill of Rights claims because the officer failed to seek timely enforcement pursuant to the statutory remedy and did not allege that his termination resulted from exercising those rights.


Headnotes

[1] Probationary employees may be terminated without cause and without a hearing if civil service regulations permit such termination.

[2] A plaintiff must seek timely enforcement of rights granted by The Policeman's Bill of Rights pursuant to statutory provisions.

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Key Quotes

“the City of Hollywood's civil service regulation permitted termination of probationary employees without cause and without a hearing”

Establishes the authority under which the city terminated the officer without a pre-termination hearing

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Facts & Procedural History

James Bembanaste was employed as a probationary police officer by the City of Hollywood. On January 3, 1978, he was interrogated by senior officers re…

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Opinion of the Court
HURLEY, Judge.

HURLEY, Judge.

James Bembanaste, plaintiff in the trial court, appeals from an adverse summary final judgment. We affirm.

The proof below established that appellant was employed, on a probationary status, as a police officer with the City of Hollywood. On January 3, 1978, he was interrogated by two senior officers of the Hollywood Police Department regarding an incident which involved overtime pay. The next day he received a written notice of termination which stated that he had “failed to satisfactorily complete the required probation.”

Appellant instituted suit against the City and the Chief of Police, contending that (1) he was entitled, as a matter, of right, to a pre-termination hearing, and (2) certain rights guaranteed by Section 112.532(1) et seq., Florida Statutes (1977), had been violated during the interrogation process. Consequently, the complaint prayed for reinstatement with back pay, plus costs and attorney’s fees. Defendants moved for summary judgment noting that the City’s civil service regulations permitted probationary employees to be terminated without cause and without a hearing. The trial court granted summary final judgment for defendants/appellees and this appeal ensued.

Despite the fact that appellant’s complaint alleges violations of rights guaranteed by Section 112.532(1) et seq., commonly known as The Policeman’s Bill of Rights, the record does not disclose that appellant ever sought timely enforcement of those rights pursuant to Section 112.534, Florida Statutes (1977).1 Cf. West v. State, Depart ment of Criminal Law Enforcement, 371 So. 2d 107 (Fla. 1st DCA 1978); Waters v. Purdy, 345 So. 2d 368 (Fla. 3d DCA 1977). Moreover, the complaint does not allege that appellant’s termination resulted from an attempt to exercise any of the rights set forth in Section 112.532(1) et seq. See Section 112.532(5).2 Therefore, we do not reach the issue of whether a probationary police officer is “employed full time” within the meaning of Section 112.531(1)3 and thus entitled to the protections of the Policeman’s Bill of Rights.4

The proof below unequivocally established that Officer Bembanaste was employed on a probationary status. Furthermore, it was shown that the City of Hollywood’s civil service regulation permitted termination of probationary employees without cause and without a hearing. Thus the trial court was correct in determining that no genuine issue of material fact existed to preclude the entry of summary final judgment.5 See Purdy v. Cole, 317 So. 2d 820 (Fla. 3d DCA 1975), appeal dismissed, 303 So. 2d 16 (Fla.1976). Accordingly, the judgment is affirmed.

MOORE and BERANEK, JJ., concur. . If any agency employing law enforcement officers fails to comply with the requirements of this part, a law enforcement officer employed by such agency who is personally injured by such failure to comply may apply directly to the circuit court of the county wherein such employing agency is headquartered and permanently resides for an injunction to restrain and enjoin such violation of the provisions of this part and to compel the performance of the duties imposed by this part.

Section 112.534, Florida Statutes (1977).

. No law enforcement officer shall be discharged; disciplined; demoted; denied promotion, transfer, or reassignment; or otherwise discriminated against in regard to his employment, or be threatened with any such treatment, by reason of his exercise of the rights granted by this part.

Section 112.534, Florida Statutes (1977).

. As used in this act:

(1) “Law enforcement officer” means any person, other than a chief of police, employed full time by any municipality or this state or any political subdivision thereof, whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, traffic, or highway laws of this state. (Emphasis supplied.)

Section 112.531(1), Florida Statutes (1977).

. See Judge Booher’s thorough opinion in Longo v. City of Hallandale, 42 Fla.Supp. 53, 56-59 (Fla. 17th Cir. Ct. 1975), for the legislative history and purpose of the statute.

. We further note that appellant’s complaint did not allege “stigmatization” such as would require a hearing on due process grounds. See Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977).


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Citator

Cited By

  • Smith v. Town OF Golden Beach, 403 So. 2d 1346 (Fla. 3d DCA 1981)
    …ty of property or liberty interest). First, Smith cites us no Florida case and we find none which grants to a probationary policeman the protections offered by Section 112.531, et. seq., Florida Statutes (1979).1 In Bembanaste v. City of Hollywood, 394 So. 2d 1053 (Fla. 4th DCA 1981), the court specifically declined to reach the issue of whether a probationary police officer is “employed full time” within the meaning of Section 112.531(1), Florida Statutes (1979)2 in holding that a probationary policeman was…

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