vs. ) CASE NO. 83-2017
JOHN M. McCARTHY, )
Respondent. )
Consistent with notice timely given, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Ft. Myers, Florida, on March 15, 1984. The issue for consideration here was whether Respondent's certification as a fire inspector had been properly rescinded.
For Respondent: Steven E. Kastner, Esquire
On May 11, 1983, by letter to the Respondent, the Chief, Bureau of Fire Standards and Training, Office of the State Fire Marshal, voided Respondent's certificate as a Municipal Fire Inspector on the basis that Respondent was not a full-time fire inspector prior to taking the examination for that position administered to incumbents. Thereafter, on June 1, 1983, Respondent's then- attorney, by letter, objected to the administrative decertification and requested a formal hearing.
At the hearing, Petitioner presented the testimony of Frederick C. Stark, Bureau Chief, Bureau of Fire Standards and Training, who took the decertification action involved; Robert J. Weatherbee, former Fire Marshal of Ft. Myers Beach; Charles J. Mulac, former Fire Chief, Ft. Myers Beach; and in rebuttal, Mark Hart, a reporter with the Fort Myers News Press; and introduced Petitioner's Exhibits 1-5. Respondent testified in his own behalf, presented the testimony of Victoria R. Carrees, an administrative assistant to the Ft.
Myers Fire Control District; Keith K. Hiatt, former Chairman of the Ft. Myers Fire Control District Board; and Frederick G. Buchner, a former member of the Board; and introduced Respondent's Exhibits 1-31 and 33-52. The Hearing Officer
took official recognition of several sections of the Florida Statutes, certain Special Laws of the State of Florida, and Rule 4A-39 of the Florida Department of Insurance.
By addition to Section 633.081(2), Florida Statutes, in 1981, the Florida Legislature required the State Fire Marshal to renew, on a triennial basis, the certification of fire inspectors in the State of Florida and to, by January 1, 1982, establish procedures to do so by rule. This statute and the 1979 edition thereof stipulated that all required fire inspections be conducted by a person certified as having met the inspection training requirements set by the State Fire Marshal and charged that individual with maintaining current files on all certified inspectors.
Consistent with that mandate, on October 16, 1981, a representative of the Bureau of Fire Standards and Training of the State Fire Marshal, by memorandum to all "Incumbent Fire Safety Inspectors," forwarded the procedures established by the Bureau to initiate the required certification process. The memorandum clearly indicated the test to be given during December, 1981, at various locations throughout the state would be to any "qualified' inspector. The term "qualified" was defined in the attachment to the memo as being:
ndividuals who are currently functioning as fire inspectors provided they meet the requirements specified below.
Have a minimum of one year of experience as a full-time fire safety inspector as of January 1, 1982, and have successfully completed a 40 hour course of instruction in Codes and Standards; or
Have a minimum of five years experience as a full-time fire safety inspector as of January 1, 1982.
This incumbent test was an open-book examination in all sections, and was not to be used to test new inspectors who had not been serving in that job. The test for new inspectors is open book in only one of five sections.
On November 9, 1981, Respondent, John M. McCarthy, then serving as Fire Chief for the Fort Myers Beach (Florida) Fire Control District (FMBFCD), submitted his request to take the Incumbent Fire Safety Inspector examination. The application form Respondent submitted, verifying he had served as a full- time fire inspector for four years beginning September 11, 1977, to the date the application was signed by Respondent, as fire chief, as the certifying agent. Respondent contends he was advised to do just that by a representative of Petitioner in a phone call to Petitioner's Ocala office prior to the application. Mr. Stark, currently the bureau chief, was not serving in that capacity at that time. The then-incumbent is no longer at that office and did not testify.
On the basis of Respondent's application and the verification of status appearing thereon, he was permitted to take the incumbent exam, which he passed, and was subsequently certified as a fire safety inspector.
In early April, 1983, John Dahlgren, Jr., Vice Chairman of the Board of Fire Commissioners, FMBFCD, in the company of Mr. Robert J. Weatherbee, then lieutenant in the Fort Myers Beach Fire Department, came to Mr. Frederick C. Stark, Bureau Chief, Bureau of Fire Standards and Training, Office of the State Fire Marshal, and presented a letter to him to the effect that it was the majority opinion of the members of the Board, FMBFCD, that Respondent was not qualified to take the incumbents' fire inspector examination when he did because he had not had the required one year experience as a full-time fire inspector and, therefore, his certification as such was in error. A letter to that effect, dated April 7, 1983, was also delivered. The following day, April 8, 1983, Mr. Stark wrote to Respondent, informing him of this allegation and offering him the opportunity to refute the allegation. Apparently, that same date, Mr. Stark sent a similar letter to Mr. Keith Hiatt, Chairman of the FMBFCD; and on April 12, 1983, Mr. Hiatt responded by letter, indicating that Respondent was, at the time of taking the exam, the full-time paid inspector, as well as full-time paid fire chief, citing the training that Respondent and another fire official gave to Mr. Weatherbee to qualify him for the position of fire marshal. Similar sentiments were contained in a letter, same date, from Mr. Frederick Bruchner, member of the Board, to Mr. Stark.
Also on April 12, 1983, Respondent responded by letter to Mr. Stark, outlining his experience in fire prevention and detailing that his position as fire chief gives him final review and decision-making authority on the operation of the department's fire inspector, Mr. Weatherbee.
Shortly thereafter, on April 29, 1983, Mr. Weatherbee and Charles Mulac, former Fire Marshal and acting Fire Chief, signed affidavits which subsequently got to Mr. Stark on May 2, 1983, which indicated that during their tenure in their respective offices, going back to June, 1979, Respondent had not served that department as a full-time inspector. Prior to signing his affidavit, Mr. Weatherbee personally went through all the inspection files, including approximately 180 residentials, 100 Businesses, 100 mercantiles, 5 schools, and some industrials. He recalls that Respondent was with him on some of his inspections, but does not recall any cases where Respondent did the inspection alone.
During this period, Respondent called Mr. Stark and told him there were documents in the department files which showed he had done fire inspections, so on May 2, 1983, Mr. Stark wrote to Mr. Mulac, as acting Chief, and requested he search the department's fire inspection records for the period 1977-1980 for any documentation, such as inspection records, surveys, or the like, to indicate inspections done by Respondent. On May 5, Mulac responded in writing, indicating that a thorough search of the records in question disclosed no documentation on inspections by Respondent, nor did the records show Respondent was ever a part-time or full-time, paid or nonpaid, inspector during the period 1977-1980. In addition to the lack of full-time inspector employment, the Bureau also concluded that Respondent's training records did not reflect the required training in that it is felt he did not have training in:
Blueprint reading and plan examination;
Inspection procedures;
(a) Private protection systems (sprinklers, alarms); and
(d) Causes and origins of fires.
Without this background, the Bureau concluded Respondent could not function as an inspector, as all are pertinent to that operation, especially in light of
current building methods. Further, concerning the experience requirement, this was considered to be imperative because there are many aspects of fire safety which are learned only through experience. Without the experience, even the training would not, in Stark's opinion, make an individual a qualified inspector. Respondent's duties as fire chief, which required him to oversee inspections done by others, was not, in Stark's opinion, sufficiently connected to the inspection process to allow him to sit for the incumbents' examination.
Therefore, on May 11, 1983, Mr. Stark, as Bureau Chief, voided Respondent's Municipal Fire Inspector certificate and advised him of that fact by letter.
Respondent contends that Mr. Stark's action was taken without adequate investigation and was based on irrelevant matters. As to the latter issue, Mr. Stark admits that the discussion he had in his office with Dahlgren and Weatherbee related to the rules and procedures as they applied to Respondent. Mr. Stark assured these two gentlemen only that he would look into their allegations. Prior to this visit, he had no indication there was anything wrong with Respondent's certification or that of Mr. Taylor, also from the Fort Myers Beach Fire Department. About a week after this visit, Mr. Stark received a package in the mail that consisted mostly of newspaper clippings concerning Respondent and alleged improprieties in the District, but, he contends, he read only one, and none of this had any bearing on the decision to decertify Respondent as a fire inspector. He also received numerous phone calls from individuals in Fort Myers regarding Respondent's status, and he referred them all to the Fire Marshal's Office in Tallahassee. Without concluding at this point whether that decision was appropriate or not, it is clear there is no reason to disbelieve Mr. Stark in this regard or to conclude the decision was based on any improperly considered evidence.
As to the adequacy of the investigation into the allegations, it is also clear that Mr. Stark could have improved little on what he did. He could have, himself, examined the department's records and, in light of the fact that at the time in question Respondent had been suspended as chief and was barred from the department offices (he could not, therefore, get to the files to secure copies of his inspection reports, if any existed), perhaps should have done so. However, at no time did Respondent contend he had done inspections himself, but instead, in his response to Mr. Stark's initial letter, relied solely on his supervisory position, the responsibility that went with it, and his efforts on behalf of the Interlocal Agreement. In light of the evidence presented to him, Mr. Stark had no requirement to go further, and it is clear his inquiry into the matter was adequate.
At the time of the test, no rule had been promulgated for the certification process. The Fire Marshal's Office took the statutory language calling for "certification" of inspectors as the authority to give the test to incumbents to certify them. It is the opinion of Mr. Stark that some of the 400 to 500 individuals who took the incumbent test, out of the 23,000 inspectors working in this state, had very little fire inspection training or experience at all. However, since the Training Bureau has only two individuals to do the checking for the entire state, he had to rely on the integrity of the individual who verified the experience claimed on the application form. If, however, the Bureau received information that someone was not qualified, it decertified that individual, utilizing the same procedure as done in the instant case; that is, to decertify after investigation, but without hearing prior to the decertification action. In fact, to the best of Mr. Stark's knowledge, there
were five other cases where certificates were looked into because of alleged irregularities such as here.
Respondent applied for employment with the FMBFCD on May 15, 1976. Prior to coming to Florida, he worked as a fire fighter in New York since 1965 and while there took numerous fire fighting courses and officers' training. After coming to Florida, he enrolled in St. Petersburg Junior College and Edison Community College by which latter institution he was awarded the Associate of Science Degree in Fire Administration. During the course of study, he took courses in:
Introduction to Fire Protection;
Fire Protection Systems;
(a) Fire Company Leadership;
Fire Fighting I;
Fire Company Management;
Fire Codes;
Protection Organizations;
Fire Prevention Investigation;
Hazard Material;
Fire Fighting II;
and graduated in the winter of 1983 from Edison Community College with an overall grade point average of 3.22 out of a possible 4.
Respondent submitted extensive documentation in the form of memoranda, notations, calendar memos, and newspaper articles to show that he was actively engaged in fire inspection. However, careful review of these documents reveals that while he was frequently embroiled in controversy over the inspections of various commercial and residential establishments in Fort Myers Beach, and while he may, from time to time, have actually been personally involved in inspections, for the most part he was the upper echelon supervisor who was called upon to resolve disputes over inspections conducted by others, on the basis of policy or whatever other concern was pertinent to the issue. Whatever else he did, it is clear Respondent was not a full-time fire inspector. In fact, Respondent admits that though he has personally participated in many inspections in the field, assisting Mr. Weatherbee, who was, at the time, the Fire Inspector (Marshal) for the FMBFCD, and bringing to his attention various aspects of the fire codes, he did not do the actual inspection and has never done one by himself. However, because of the periodic friction between Weatherbee and Mulac, then the Assistant Fire Chief, he found himself going out into the field with both, frequently to do inspections.
Respondent contends that the area of fire prevention and code enforcement, into which fire safety inspection falls, is the biggest part of his job, which also entails fire suppression and rescue. During the period in question, Fort Myers Beach did more building in general than the rest of the county. As a result, he was always out at the site looking at plans and consulting with the builder. In that regard, however, he has, by his own admission, taken no course work in blueprint reading or plans review that was certified by the State Fire Marshal. Finally, concerning this particular subject, when Respondent was temporarily suspended from his job as fire chief in April, 1983, he was contacted by a reporter from the local paper who read to him, over the phone, from the long list of charges laid against him, of which, prior to that moment, he had no knowledge and had not seen. In response to the reporter's question about inspections, 1/ Respondent is quoted as having
denied participating in fire inspections and indicating he had nothing to do with fire codes.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of the proceedings.
The requirement for certifying fire inspectors was first recognized by officials of the State Fire Marshal's Office as a result of a 1981 change in Section 633.081(2), Florida Statutes, which required, at subsection (b), the establishment of a rule for triennial renewal of certification. Both the 1979 and 1981 statutes required certification of fire inspectors, but apparently no procedure for certification had ever been established. The 1981 edition of the statute provided:
(b) Every fire safety inspector certificate shall be valid for a period of 3 years from the date of issuance. The division shall renew certification upon receipt of the renewal application. By January 1, 1982, the division shall establish, by rule, a procedure for triennial renewal of certification. The rules shall prescribe a continuing education requirement of up to 40 hours of continuing education triennially as a requirement for renewal. In the absence of the 40 hours of continuing education units meeting the requirements of this paragraph, the rules shall provide for the requirements of this paragraph to be met by challenge examination.
The examination taken by Respondent and the criteria set for eligibility to sit for it were developed by officials of the State Fire Marshal's Office and promulgated in the letter of October 16, 1981, to all incumbent fire safety inspectors. This publication, which was used in place of a rule, was not developed using appropriate rule-making procedures as outlined in Chapter 120, Florida Statutes. The actual rule which was lawfully promulgated under the legislative mandate of Section 633.081(2)(b), Florida Statutes (1981), did not come into effect until over two years later. However, Respondent has not contested the validity of the October 1981 letter as a rule. Respondent's contest relates to whether he meets the criteria of the October 1981 letter, not their propriety or legality.
A thorough review of the evidence presented clearly indicates that though Respondent was serving creditably as a fire chief for Fort Myers Beach; though he supervised those individuals who routinely conducted fire safety inspections and, in fact, periodically assisted in those inspections; and though he reviewed and acted upon the inspection reports of his subordinates, it cannot fairly be said he was, at the time of the incumbents' exam, a full-time fire safety inspector. In addition, while he had taken all fire fighting courses offered by Edison Community College and St. Petersburg Junior College and had been awarded the Associate of Science Degree in Fire Administration, in the opinion of Mr. Stark, who had the responsibility to evaluate applicants' academics, he did not have sufficient courses in the subjects pertinent to the area of fire safety inspection. Taken together, these defects in qualifications made Respondent ineligible to sit for the fire safety inspectors' incumbent
examination, notwithstanding the fact that he passed it. Having been ineligible to sit initially, his passing score is immaterial, and he cannot lawfully be certified as a fire safety inspector based on it.
The parties have submitted memoranda of law which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.
Respondent's certification as a fire safety inspector be rescinded. RECOMMENDED this 22nd day of May, 1984, in Tallahassee, Florida.
ARNOLD H. POLLOCK
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1984.
1/ It is obvious that the impetus behind the notification tothe State Fire Marshal's Office of Respondent's alleged ineligibility to sit for the incumbents' exam was politically motivated. There appears to have been a sharp division of feeling about Respondent among the members of the FMBFCD Board with some members, such as Hiatt and Bruchner, avidly supporting him and others, such as Dahlgren and Zimmerman, opposing him. The entire issue of this political divisiveness is, however, immaterial as it pertains to the ultimate factual issue of Respondent meeting the qualifications to sit for the incumbents' exam.
Steven E. Kastner, Esquire Post Office Box 3050
