ALBERT G. PITTS, )
vs. ) CASE NO. 82-2737
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 20 January 1983 at New Port Richey, Florida.
For Petitioner: John K. Renke, II, Esquire
For Respondent: Daniel Y. Sumner, Esquire
By letter dated October 1, 1982, the City of New Port Richey, on behalf of Albert G. Pitts, Petitioner, requested an administrative hearing to contest the State Fire Marshal, Respondent's, determination that Pitts is ineligible for state certification as a firefighter because his visual acuity is below acceptable levels. Specifically, the determination that Pitts, who was hired as a fire chief by New Port Richey on 8 February 1982, cannot be certified, because his uncorrected visual acuity is 20/100 in his right eye and 20/200 in his left eye, is contested. As grounds therefore it is alleged that fire chiefs should not be required to meet the same standards as firefighters because their duties are administrative in nature rather than as an operational firefighter and that administrative oversights existed in notification received by New Port Richey from the Fire Marshal's Office while Pitts was being hired. At the hearing New Port Richey contended that on the basis of these oversights the City and Pitts changed their positions, relying on information received from Respondent, and Respondent is now estopped to deny certification. At the hearing three witnesses, including Petitioner, were called by Petitioner; six witnesses were called by Respondent; and seven exhibits were admitted into evidence. Proposed findings submitted by the parties and not included below were not supported by the evidence or were deemed immaterial to the results reached.
After advertising, receiving several applications, and interviewing applicants, the City of New Port Richey, on 8 February 1982, hired Albert G. Pitts as Fire Chief for the City of New Port Richey. Pitts had been employed as a fireman since 1967 when he was appointed a probationary firefighter by the City of Morton Grove, Illinois. At Morton Grove he was promoted to lieutenant in 1973, served as department training officer in 1974, and appointed deputy chief in 1975. In 1976 he was appointed Fire Chief in DeKalb, Illinois, and served in that capacity until December, 1979, when he resigned to operate a family-owned restaurant (Exhibit 1 - Pitts' resume). Pitts is fully qualified by training and experience for the job as chief of the New Port Richey Fire Department.
During his meetings with City personnel, Petitioner was advised that he had to become certified as a firefighter by the State Fire Marshal's Office as a condition to being employed by the City of New Port Richey. He was also advised that the personnel officer had checked with the Fire Marshal's Office and was told that Florida granted reciprocity to Illinois certified firefighters.
Gail Hyslop, New Port Richey personnel assistant, did the personnel work leading to Petitioner's employment. This included calling the Fire Marshal's Office to ask about the requirements for certification. Her testimony regarding what she was told conflicts with the testimony of Paul Steckle, the individual with whom she spoke in the State Fire Marshal's Office. In a 26 January 1982 telephone conversation Ms. Hyslop spoke with Steckle and understood from the conversation that Florida has reciprocity with Illinois and certificates issued in Illinois will be accepted by Florida except EMT. Steckle testified that he told Ms. Hyslop that Florida had reciprocity with Illinois as far as training certification is concerned and to be employed in Florida the applicant needed a high school diploma or equivalent and must pass the physical exam.
The Fire Marshal's Office mailed physical evaluation forms to all fire departments in Florida in January, 1982. After Petitioner was hired by New Port Richey, the City requested additional forms from the Fire Marshal's Office to process Petitioner's application for certification.
On 23 February 1982 Pitts was given a physical examination by the New Port Richey city physician, Dr. Marlowe. Petitioner carried the blank medical examination form to Dr. Marlowe's office when he was given the 23 February 1982 examination. The form used by Dr. Marlowe to report this examination is FST-2, the form provided by the State Fire Marshal's Office to all fire departments.
On the face of this form (Exhibit 5) the allowable limits for visual acuity are: uncorrected vision 20/200 and 20/40 with corrected vision of 20/40 and 20/20.
This examination revealed Pitts had uncorrected vision right eye of 20/100 and uncorrected vision left eye of 20/200 with both eyes correctable to 20/20. This medical examination, plus other documents required for certification, was sent to the Fire Marshal's Office on March 18, 1982. When this information was evaluated, the Fire Marshal's Office advised New Port Richey that Pitts had failed the visual acuity portion of the physical examination. The date this physical examination was received was not shown; however, by letter dated March 5, 1982, New Port Richey was advised that Pitts' visual acuity was below standard and should be rechecked. This March 5 letter was mailed undated and the handwritten date added several weeks later. In any event, New Port Richey was promptly advised of the deficiency in Pitts' application by the Fire Marshal's Office upon receipt of the physical examination form.
In telephone conversations between the Fire Marshal's Office and the City of New Port Richey, the latter was advised that Pitts should be reexamined, preferably by an opthamologist, and that he could qualify as a fire inspector (for which a physical examination is not required). Miss Hyslop's records show she talked by telephone with Ray Shaffner at the Fire Marshal's Office August 3, 1982, and was told: (a) to have Pitts' eyes examined by another physician; (b) that Shaffner did not care how Pitts passed the examination; (c) that Shaffner would allow the City until the end of August to complete this process before sending a letter demanding termination of Pitts; and (d) the City could change the job description and avoid all the hassle. Shaffner denies saying Pitts could be hired as Fire Chief if given another title and job description.
On August 23, 1982, Pitts was examined by Dr. Rosenfeld, an opthamologist, who reported visual acuity of 20/80 in his right eye and 20/30 in his left eye. By letter dated 1 September 1982 Dr. Rosenfeld was requested by the Fire Marshal's Office to recheck his findings to see if an error was made because, with the discrepancy between the two examinations, a third would be required. By letter dated 9/13/82 Dr. Rosenfeld acknowledged a clerical mistake had been made and that Pitts' visual acuity was 20/100 and 20/200.
Around June of 1982 Pitts sold his home in Illinois, purchased a home in New Port Richey, and moved his family to New Port Richey.
By letter of September 16, 1982, the Fire Marshal's Office advised the City of New Port Richey that Pitts could not be certified because he did not meet the visual acuity requirements required for certification.
The job description for Fire Chief at New Port Richey was admitted into evidence as Exhibit 3. This accentuates the role of Fire Chief as planner and trainer of the firemen who fight fires under the Fire Chief's supervision. The City Manager testified that he had specifically directed Pitts not to engage in actual fire fighting without having a very good reason for doing so.
Two certified firefighters, one the Fire Chief of Altamonte Springs, and the other the Assistant Fire Chief at Tampa, testified to the duties normally performed by senior fire fighting personnel when extinguishment of a fire is required. New Port Richey has a 15-man fire department plus the chief, fire marshal, and an inspector. Accordingly, only five men are available on each shift. These men are one lieutenant and four firefighters. Two pieces of equipment are sent to each fire, with two men manning one and three men on the other. The chief goes to the fire at his discretion. Petitioner testified that his duties at a fire are to set up a command post outside the burning building and direct operations of the firefighters. Both certified firefighters testified that it is frequently necessary for the person in overall charge of the firefighting to go inside the burning building to see what is needed by the people actually fighting the fire. The chief of a large fire department, such as Tampa, when in charge of the operation, often goes inside the burning building. Chief Siegfried of the Altamonte Springs Fire Department generally sets up his command post outside of the burning building, puts his second-in- command in charge of that post, and goes into the burning building to direct the firefighting operations. Altamonte Springs has some 60-odd firefighters in its department. The Assistant Chief at Tampa, Howard Souther, directs the training and operations of 530 certified firefighters in the Tampa Fire Department. Souther is notified of all two-alarm fires and always goes to three-alarm fires. He assumes command-post position at fires at which he is in charge. In case of
a fire in a highrise building, defined as having a top floor the ladders can't reach, the command post is set up in the burning highrise.
Assistant Chief Souther and Chief Siegfried have had considerable training and experience in manning requirements for firefighting equipment.
Both opined that three men on one piece of equipment was inadequate to properly man the equipment to fight the fire and five men were inadequate to man two such pieces of equipment. In their opinion it would be necessary for the chief to directly participate in fighting a fire if he was the sixth man on the scene.
In his resume (Exhibit 1) Chief Pitts stated that while he was Fire Chief at DeKalb he moved the Fire Chief's office out of City Hall and into the fire station so he could be available and visible to his men. He stated he responded to most fires and his personnel generally did an excellent job but he "felt the men must be aware that I was a firefighter and not just an administrator."
Breathing apparatus is standard equipment for firefighters and today few burning buildings are entered by firefighters not using such equipment. This equipment cannot be worn over glasses and contact lenses cannot satisfactorily be used in burning buildings. Breathing apparatus fitted with prescription lenses is available; however, if this equipment is damaged the visual acuity gained by using the lenses may be lost.
Florida adopted most of the minimal physical standards for firefighters developed by the National Fire Protection Association (NFPA). Dr. Carl W. Irwin has served on NFPA committees for some 20 years and has been involved in the development of these minimum standards. Good eyesight is deemed essential to firefighters. When an individual has a combined visual acuity of 20/100 he can only see form and movement. He cannot read the labels on canisters. Firefighters are notoriously susceptible to head injuries. Accordingly, those wearing glasses or prescription eyeglass breathing apparatus are subject to loss of or damage to these corrective lenses. Dr. Irwin described the worst case scenario when the firefighter with defective vision loses his good eye and is forced to extricate himself from the fire with only the use of his bad eye. The eye standard of the physical requirements is deemed to be a life-threatening condition, both for the firefighter, his fellow firefighters, and the persons he is attempting to rescue.
Standards for firefighters were first established by the Florida Legislature in 1969. At that time all who were serving as paid firefighters were "grandfathered-in" and did not have to meet either the state physical requirements or training requirements. Many of the cities having fire departments require physical examinations tougher than the minimum state standards and require periodic physical examinations. The state physical examination is required only by those first entering the fire fighting service as defined in Florida Statutes. Volunteer firefighters, although subject to the same dangers as paid firefighters, do not have to meet the physical requirements for state certification. Certification is not required for voluntary firefighters but is required for paid firefighters.
In 1970 there were 11 firefighter deaths in Florida. A decade later this figure had dropped to two despite a doubling of the number of firefighters in Florida. Stricter physical standards for firefighters is credited with a significant portion of this improvement in firefighters' mortality rate in Florida.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 633.30, Florida Statutes, contains the following definitions:
"Firefighter" means any person initially employed as a full-time pro- fessional firefighter by any employing agency, as defined herein, whose primary responsibility is the prevention and ex- tinguishment of fires, the protection of life and property, and the enforcement of municipal, county, and state fire prevention codes, as well as of any law pertaining to the prevention and control of fires.
"Employing agency" means any municipality or county, the state, or any political subdivision of the state, including authorities and special dis- tricts . . .
Petitioner's contention that "firefighter" does not include the Fire Chief is without merit. Not only is the Fire Chief charged with the responsibility of protecting life and property in cases of fire, but also Pitts was designated in the special risk category of the Florida Retirement System in accordance with Section 121.0515, Florida Statutes. That section provides in pertinent part:
(2) CRITERIA. -- A member, to be desig- nated as a special risk member, must meet the following criteria:
(b) The member must be employed as
a firefighter and be certified, or required to be certified, in compliance with s.
633.35 and be employed solely within the fire department of the employer or agency of state government. In addition, the member's duties and responsibilities must include on-the-scene fighting of fires or direct supervision of firefighting units, or the member must be the supervisor or command officer of a member or members who have such responsibilities; provided, how- ever, administrative support personnel, including, but not limited to, those whose primary duties and responsibilities are
in accounting, purchasing, legal, and personnel, shall not be included.
Section 633.34, Florida Statutes, establishes the following qualifications for employment as a firefighter:
Be a high school graduate or the equivalent, as the term may be determined by the division.
Not have been convicted of a felony or of a misdemeanor involving moral turpitude, as the term is defined by law. If an applicant has been con- victed of a felony, such applicant must be in compliance with s. 112.011(2)(b).
Have his fingerprints on file with the division or an agency desig- nated by the division.
Have a good moral character as determined by investigation under pro- cedure established by the division.
Be in good physical condition as determined by a medical examination as prescribed by the division. Such examination may include, but need not be limited to, provisions of the National Fire Protection Association Pamphlet 1001.
Rule 4A-37.31, Florida Administrative Code, provides:
The term "initially employed", as used in this rule chapter, means that point at which a person assumes the responsibilities for or performs the duties of a firefighter, as outlined
in Section 633.30(1), Florida Statutes, for an "employing agency", as that term is defined in Section 633.30(2), Florida Statutes, and used throughout these rules. In order for a person to be eligible to be initially employed he must meet all requirements as outlined in Section 633.34, Florida Statutes.
Petitioner's contention that he was employed as a firefighter, albeit in Illinois, when certification was initiated in Florida and therefore should be "grandfathered in" as were firemen serving in Florida, is not supported by the provisions of Chapter 633 and is without merit. Those statutory provisions require the employing agency be a municipality, county, state, or political subdivision thereof. This has long been interpreted by the Fire Marshal's Office to include only Florida municipalities, counties, and political subdivisions of the state. That is a reasonable interpretation of the definition of employing agency since the Legislature obviously has no jurisdiction to regulate firefighters outside the State of Florida.
Rule 4A-37.37, Florida Administrative Code, provides the establishment of good physical condition of the applicant by a medical examination as a pre- employment requirement which must be met prior to initial employment as a firefighter. This rule further provides the minimum medical standards are those established by the NFPA in pamphlet NFPA No. 1001, pages 1001-8 through 1001-35. Section 2-2.7.2 of NFPA No. 1001 at page 1001-20 provides a cause for rejection for applicant shall be:
(b) STANDARD VISUAL ACUITY. Standard visual acuity without correc- tion, less than 20/40 in one eye, and 20/100 in the other eye; and with cor- rection, less than 20/20 in one eye, and 20/40 in the other eye.
It is clear that Petitioner failed to meet this requirement and was employed by the City of New Port Richey, before taking a physical examination, with the proviso that he be certified as a firefighter by Respondent.
Petitioner contends that because of information provided to the personnel department by the Fire Marshal's Office Respondent is estopped to deny certification. In order to demonstrate estoppel, the following elements must be shown:
A representation as to a material fact that is contrary to a later asserted position;
Reliance on that representation;
and
A change in position detrimental
to the party claiming estoppel, caused by the representation and reliance thereon.
Greenhut Construction Company vs. Henry A. Knott, Inc., 247 So.2d 517 (Fla. 1 DCA 1971).
Petitioner contends that Respondent gave incorrect information to New Port Richey who passed the incorrect information on to him; and that relying upon this information sold his home in Illinois, purchased a home in New Port Richey, and moved his family to New Port Richey. Assuming, without deciding, that Petitioner is entitled to rely on what is claimed to be erroneous statements made to a third party in his claim of estoppel, estoppel has not been shown. True, Petitioner relied to his detriment on the alleged misstatements; however, certain rules have been laid down with respect to estoppel against the state. Equitable estoppel will be applied against the state only in rare instances and under exceptional circumstances. North American Company v. Green,
120 So.2d 603 (Fla. 1 DCA 1973). The state cannot be estopped through mistaken statements of the law. State, Department of Revenue v. Anderson, 403 So.2d 397 (Fla. 1981).
Here, the Fire Marshal's employee who is alleged to have told Miss Hyslop that applicants from Illinois who were certified there were granted reciprocity denied stating reciprocity extended beyond the training requirements. It clearly appears that Miss Hyslop understood that the successful applicant had to present evidence of high school diploma or equivalent as well as evidence of good moral character. By including Form FST-2 in the envelope given to Petitioner when he went for his physical examination, it is evident she also realized he had to pass the physical examination contained on the form provided Petitioner. It is concluded that what Paul Steckle told Miss Hyslop was misinterpreted by her and she was not told that applicants for certification did not have to pass the physical examination.
Even if Steckle had told Miss Hyslop that Pitts did not have to pass a physical examination before being certified, that would have been an inaccurate statement
of law as contained in Chapter 633 and, in accordance with Anderson, supra, it would not constitute grounds for estoppel.
Although no determination regarding the constitutionality of the physical requirements provision of the statute can be made by this tribunal, Petitioner did raise those issues, viz. that there was no difference between the tasks performed or hazards encountered by volunteer firefighters than by professional firefighters, that Petitioner was treated differently from Florida firefighters who became employed as firefighters before 1971 and were "grandfathered-in" as certifiable, and that visual acuity was a handicap and he was discriminated against because of this handicap. In McCrea v. Cunningham,
277 NW 2d 52 (Neb. 1979) the Supreme Court of Nebraska, in a case involving the failure of the City of Omaha to employ an applicant for the position of firefighter on grounds he did not meet the visual acuity standards prescribed by the city, after a discussion of the job related nature of the requirements, the exercise of the police powers of the city in enacting the requirement, and the handicap nature of the disability, ruled against the applicant.
From the foregoing it is concluded that Albert G. Pitts did not pass the visual acuity portion of the physical examination for firefighter, that a fire chief must be certified as a firefighter, and that the state is not estopped from denying Pitts certification. It is therefore
RECOMMENDED that a Final Order be entered denying Albert G. Pitts certification as a firefighter by reason of not meeting the physical requirements for certification.
ENTERED this 28th day of February, 1983, at Tallahassee, Florida.
K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1983.
John K. Renke, II, Esquire Bill Gunter, State Treasurer 4198 Moon Lake Road and Insurance Commissioner New Port Richey, Florida 33552 The Capitol, Plaza Level
Daniel Y. Sumner, Esquire Department of Insurance 413-B Larson Building
