STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELVYN D. CLAPP, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1446

) STATE OF FLORIDA, INSURANCE ) COMMISSIONER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on October 10, 1980, in Fort Lauderdale, Florida. The hearing officially closed on November 15, 1980, the date the parties were afforded leave to submit proposed findings of fact and conclusions of law. 1/

APPEARANCES

For Petitioner: Andrea L. Wolfson, Esquire

and Mary Anne Robertson, Certified Legal Intern

Legal Aid Services of Broward County-Central Office

609 South Andrews Avenue

Fort Lauderdale, Florida 33301

For Respondent: Patrick F. Maroney, Esquire

Department of Insurance Office of State Treasurer,

Insurance Commissioner Room 428-A Larson Building Tallahassee- Florida 32301

ISSUE

The issue posed for decision herein is whether or not the Petitioner is physically qualified to be certified as a firefighter.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found.

   
   

2. Petitioner, Melvyn D. Clapp, is an applicant for certification as a fire-fighter. Petitioner has served as a volunteer fire-fighter since approximately November of 1973. To become eligible to be employed as a paid

   full-time fire-fighter, it is necessary for the candidate to be certified as professionally qualified as having met all standards established by the Bureau of Fire Standards and Training. In satisfying this requirement, candidates are given a thorough medical examination by a physician or surgeon licensed to practice medicine in the State of Florida pursuant to Chapters 458 or 459, Florida Statutes, and passage of the two-hundred (200) hour minimum standards course offered by the Bureau of Fire Standards and Training, Office of the State Fire Marshal.

   
   

3. On June 14, 1979, Petitioner was certified as having satisfactorily completed the two-hundred (200) hour minimum recruit training course administered by the Division of State Fire Marshal, Bureau of Fire Standards and Training. (Petitioner's Exhibit No. 1.) However, by letter dated July 1, 1980, the program coordinator for the Bureau of Fire Standards and Training advised Petitioner that he would not be certified as a fire-fighter, in that he "did not meet the qualifications set forth in Section 633.34(5), Florida Statutes," which provides in pertinent part that:

   
   

   "Any person initially employed as a fire fighter must be in good physical condition as determined by a medical examination

   as prescribed by the Division."

   
   

4. Pre-employment medical examination and subsequent reports submitted on behalf of Petitioner indicate that he suffered from hypertension and a hearing loss which was abnormal and fell outside the required parameters for certification as a fire-fighter.

   
   

5. In this regard, the evidence reveals that Petitioner is deaf in the right ear and his blood pressure, which is being controlled by the drug commonly referred to as "Minipress", is 180/140.

   
   

6. It is true that Petitioner has served as a volunteer fire-fighter in the past without difficulty. However, evidence herein reveals that fire- fighters are called upon to perform satisfactorily in stressful situations where background noises are often prevalent and the working area is usually heat intensified.

   
   

7. As a fire-fighter, Petitioner, much like other fire fighters, is not given any special consideration. Fire-fighters must maintain satisfactory performance in strenuous conditions and must respond quickly and be able to hear background noises. Fire-fighters are called upon to be calm and carry victims up and down stairs in smoke-filled rooms. (Testimony of expert witnesses, Dennis R. Dewor and Chief Holman.) Based thereon and the medical reports submitted which show that Petitioner's EKG is erratic and the audiologist's report of March, 1980, which shows that Petitioner is deaf in his right ear compels the conclusion that Petitioner was properly denied certification as a fire-fighter based on his failure to meet the minimum qualifications required of a fire-fighter. I shall so recommend.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

9. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

10. The authority of the Respondent is derived from Chapter 633, Florida Statutes, and Rule Chapter 4A-37, Florida Administrative Code.

11. Section 633.34(5), Florida Statutes, provides in pertinent part that: "Any person initially employed as a

    fire-fighter must be in good physical

    condition as determined by a medical examination as prescribed by the Division."

    
    

12. In keeping with this requirement, the Division promulgated Chapter 4A- 37.05, Florida Administrative Code, which sets forth qualifications for employment. That rule provides in pertinent part that prior to initial employment as a fire-fighter an applicant shall be given a thorough medical examination. . which shall be conducted for the purpose of detecting or determining the presence of deficiencies or abnormalities which would reasonably be expected to limit the abilities of the applicant to satisfactorily and safely perform duties associated with firefighting and/or predispose the applicant to injury or disability.

    
    

13. The medical tests required for compliance are those published by the National Fire Protection Association in its pamphlet entitled, "Fire-fighter Professional Qualifications", 1974 Edition, Section 2-2, "Medical Requirements for Fire Department Candidates," pages 1001-8 through 1001-35. Chapter 4A- 37.05(3), Florida Administrative Code. Applicants who fail to satisfy the minimum requirements as prescribed shall not be qualified for employment.

14. One of the causes for rejection of an [applicant] shall be: "Hearing acuity loss by audiometric test

    20 decibels or more...in either ear

    (Fire-fighter Professional Qualification Entrance Requirements. Section 2-2.4.2, Hearing, at page 1001-12.)

15. Another basis for the rejection of an [applicant] shall be: "Electrocardiographic evidence of major

    arrhythmias such as - `Unequivocal cardio

    graphic evidence of old or recent myocardial infraction; coronary insufficiency at rest or after stress; or evidence of heart muscle disease'."

16. Also, another basis for rejection of an [applicant] shall be: "Hypertension evidenced by preponderant

blood pressure readings of 150-mm or more systolic in an individual over 35 years of age or preponderant readings of 140-mm or more systolic in an individual 35 years of age or less. Preponderant diastolic pressure over 90-mm diastolic is cause for rejection

at any age." (Fire-fighters Professional Qualification Entrance Requirements, Sections 2-2.10.1(4) and 2-2.10.2 [Heart and Vascular System].)

In this regard, the evidence and medical reports of Petitioner indicate that he has evidence of an erratic electrocardiograph and blood pressure readings of 180/140. For the above reasons, it is concluded that Petitioner failed to satisfy the minimum requirements prescribed by the Division for the medical examination certification and is, therefore, ineligible for certification as a fire-fighter.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED:

That the Respondent's failure to certify Petitioner as eligible as a fire- fighter in the State of Florida be UPHELD.

RECOMMENDED this 26th day of November, 1980, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1980.

ENDNOTE

1/ Petitioner's counsel submitted Proposed Findings of Fact and Conclusions of Law which were considered by me in preparation of this Recommended Order. To the extent that such proposed findings and conclusions are not incorporated herein, they were considered either irrelevant or not supported by competent and substantial evidence.

COPIES FURNISHED:

Andrea L. Wolfson, Esquire and Mary Anne Robertson, Certified

Legal Intern

Legal Aid Services of Broward County-Central Office

609 South Andrews Avenue

Fort Lauderdale, Florida 33301

Patrick F. Maroney, Esquire Department of Insurance Office of State Treasurer,

Insurance Commissioner Room 428-A Larson Building Tallahassee, Florida 32301

Docket for Case No: 80-001446

Orders for Case No: 80-001446