STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOUIS C. DECKER, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1317

) FLORIDA DEPARTMENT OF INSURANCE, ) OFFICE OF STATE FIRE MARSHAL. )

)

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 July 17, 1981, 1/ in Melbourne, Florida.

APPEARANCES

For Petitioner: Andrew Graham, Esquire

Reinman, Harrell, Silberhorn, Moule & Boyd, P.A.

1825 South Riverview Drive Melbourne, Florida 32901

For Respondent: L. Terrye Coggin, Esquire

Florida Department of Insurance and Treasurer, Office of State

Fire Marshal

428-A Larson Building Tallahassee, Florida 32301

ISSUE

Whether Petitioner was wrongfully denied certification as a fire fighter due to his visual problems.

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. Petitioner, Louis C. Decker, is currently employed as a paid fire fighter in the City of Palm Bay, Florida. Additionally, Petitioner serves as a volunteer fire fighter in the town of Micco, Florida. Petitioner has served as a fire fighter in both a paid and/or volunteer status for approximately two and one-half (2 1/2) years.

2. By letter dated April 9, 1981, Respondent, Office of the State Fire Marshal, advised Petitioner that he would not be certified as a fire fighter in Florida based on "pre-employment paper work submitted to the Bureau of Fire Standards and Training [which] reflect that [Petitioner] does not meet the qualifications set forth in Section 633.34(5), Florida Statutes." That statute 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." That letter added that a pre-employment medical examination of Petitioner indicates a condition other than normal which is outside the parameters of the visual acuity medical standards for fire fighters.

   
   

3. Dr. Andrew Zorbis, an ophthalmologist, was received as an expert in ophthalmology herein. Dr. Zorbis examined Petitioner on July 15, 1981. The results thereof reveal that Petitioner's uncorrected visual acuity with the right eye was 20/50 minus 2 and the uncorrected visual acuity with Petitioner's left eye was 20/50 plus 1, with the total uncorrected visual acuity in both eyes being 20/50 plus 2. During the examination, Petitioner was "squinting" severely, which provided him with the best possible uncorrected visual acuity. That is, without squinting, Petitioner's visual acuity would have been much worse and most probably would have been within the range of 20/200 to 20/100. Dr. Zorbis concluded that Petitioner could not be certified based on the NFPA booklet which sets forth the State's Fire-Fighter Standards 2/ and provides that the cause for rejection for an appointment shall be standard visual acuity without correction less than 20/40 in one eye and 20/100 in the other eye. That rule also provides that the corrected vision must be less than 20/20 in one eye and 20/40 in the other eye. Dr. Zorbis also examined Petitioner with his current prescription glasses which reveal a visual acuity of 20/40 in the left eye and 20/30 in the right eye, with corrected vision in both eyes of 20/30 plus

1. Based on the current standards of required visual acuity, Petitioner, therefore, failed to meet either the uncorrected or the corrected visual acuity standards. Dr. Zorbis added that Petitioner was examined under optimum circumstances under a variety of targets. Accordingly, the above test results of Petitioner's vision are the best that Dr. Zorbis could obtain.

   
   

   1. Dennis "Buddy" Dewar, Chief of the Bureau of Fire Standards and Training, was received as an expert in fire fighter certification standards and qualifications. The task of a fire fighter requires excellent visual acuity. Fire fighters perform a variety of arduous functions under stress, both mental and physical and in so-called "smoky" conditions. Fire fighters are called upon to safely drive vehicles despite glare from light, road moisture or wetness. Fire fighters usually work in smoke-filled rooms and buildings. The permissible visual acuity parameters are 20/40 in one eye and 20/100 in the other eye, uncorrected; correctable to 20/20 in one eye and 20/40 in the other eye. A fire fighter suffering from a visual acuity problem worse than 20/40 puts himself in a position whereby he would have difficulty seeing through smoke and thereby jeopardized his life, the safety of himself, his peers and the safety of the citizens that he is charged with protecting. Chief Dewar indicated that fire fighters often find themselves disoriented in darkened, smoke-filled rooms.

      With the normal emotional and psychological stresses involved in a fire fighting activity, a fire fighter suffering uncorrected vision outside the Prescribed parameters compounds the stressful duties under which a fire fighter must perform. Finally, Chief Dewar examined the breathing mask used by Petitioner which has an insert for a corrective lens. Chief Dewar credibly testified that the particular mask used by Petitioner, with the breathing apparatus and corrective lens insert intact, has not been approved by the National Institute of Safety and Occupational Health or the American National Standards Institute.

   2. Petitioner, Louis C. Decker, as previously stated herein, has been employed as a fire fighter for approximately two and one-half (2 1/2) years. During this period, Petitioner has worked approximately twenty (20) fires as a volunteer fire fighter. Petitioner was denied certification and was not permitted to enroll in the certification and standards school based on certain pre-enrollment documents submitted which indicated that he suffered from a visual acuity problem. Petitioner has had hose-line and ladder training. Additionally, Petitioner has undergone emergency medical services training, salvage training, and hydraulics training. Petitioner has also fought "fake" fires. Petitioner uses a device called a Scott air mask which is a device used to enter a burning structure. According to Petitioner, with his corrective lens inserted in the Scott air mask, his visual acuity is 20/20. 3/

      
      

   3. It was noted that Petitioner was told to refrain from driving a vehicle due to a problem he was experiencing with his vision. Several of Petitioner's coworkers appeared and testified as to his satisfactory performance in fighting fires. (Testimony of Captain Green, Lieutenant Samuel Evans and Bryon Williams Varn.) 4/

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

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

      
      

   6. The authority of the Respondent is derived from Chapter 633, Florida Statutes, Rule Chapter 4A-37, Florida Administrative Code, and the Medical Standards prescribed and published by the National Fire Protection Association, Pamphlet NFPA No. 1001, Fire Fighter Protection qualifications, 1974 Edition.

      
      

   7. The statutes and rules applicable herein provide in pertinent part that:

      
      

      1. 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 (State Fire Marshal). Chapter 633.34(5), Florida Statutes.

         
         

         The Respondent shall issue a certificate of compliance to any person satisfactorily complying with the training program and the qualifications for employment in Chapter 633.34, Florida Statutes. No person shall be employed as a regular or permanent fire fighter until he has obtained such certificate of compliance. Chapter 633.35(2), Florida Statutes. Any applicant not satisfying the minimum requirements prescribed by the Respondent (State Fire Marshal) for the medical examination shall not be qualified for employment. Rule 4A- 37.05(3), Florida Administrative Code.

         
         

   8. The cause for rejection for appointment shall be. STANDARD VISUAL ACUITY. Standard visual acuity without correction, less than 20/40 in one eye and 20/100 in the other eye; and with correction, less than 20/20 in one eye and 20/40 in the other eye. Rule 2-2.7.2, NFPA, Pamphlet No. 1001, Fire Fighter Professional Qualifications, 1974 Edition, p. 1001-20. Petitioner's visual

acuity as reflected herein, failed to satisfy the minimum qualifications for certification. Based thereon, and Chief Dewar's expert testimony to the effect that fire fighters are routinely called upon to perform in emergency situations requiring the use of protective breathing apparatus in smoke filled rooms and tremendous heat which restricts a fire fighter's peripheral vision, Petitioner was properly denied certification due to his failure to comply with the minimum visual acuity standards requirement. Chapter 633.34(5), and Chapter 633.35(2), Florida Statutes; Rule 4A-37.05, Rules of the Department of Insurance, Division of State Fire Marshal and Medical Standard 2-2.7.2(b), National Fire Protection Association Pamphlet NFPA No. 1001, 1974 Edition, at page 1001-20.

RECOMMENDATION

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

RECOMMENDED:

That Petitioner's request for State certification as a fire fighter by the State Fire Marshal, be DENIED.

RECOMMENDED this 11th day of September, 1981, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1981.

ENDNOTES

1/ The Division of Administrative Hearings received a transcript of the proceedings herein on August 1, 1981.

2/ The NFPA standards are properly adopted by Rule Chapter 4A- 37.05(3) , Florida Administrative Code.

3/ In this regard, in view of the credible testimony by Chief Dewar to the effect that the Scott air mask, which has been approved, loses any certification by the National Institute of Safety and Occupational Health and the American National Standards Institute by alteration or any changes whatsoever, the undersigned concluded that the Scott air mask with the corrective lens insert is not a permissible device which has been tested by the testing agencies and thus, cannot be considered herein as a basis for accepting Petitioner's claimed acceptable visual acuity.

4/ Zurick v. Tynes, 372 So.2d 133 (Fla. 1st DCA 1979), cited by Petitioner was deemed factually distinguishable and would not require a contrary result herein. Moreover, Petitioner's failure to obtain certification was based solely on his inability to satisfy the minimum visual standards established for fire fighters. Those standards, properly promulgated, have not been attacked herein.

COPIES FURNISHED:

Andrew Graham, Esquire 1825 South Riverview Drive Melbourne, Florida 32901

L. Terrye Coggin, Esquire Florida Department of Insurance

and Treasurer

Office of State Fire Marshal 428-A Larson Building Tallahassee, Florida 32301

Docket for Case No: 81-001317

Orders for Case No: 81-001317