STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DWIGHT K. MOBLEY, )

)

Petitioner, )

vs. ) CASE NO. 88-4090

) DEPARTMENT OF INSURANCE AND, ) TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer fron the Division of Administrative Hearings, on December 7, 1988, in Miami, Florida.

APPEARANCES

For Petitioner: Dwight K. Mobley, pro se

652 N.W. 46th Street Miami, Florida 33127

For Respondent: Lisa Santucci, Esquire

Department of Insurance and Treasurer

413-B Larson Building Tallahassee, Florida 32399-0300

PRELIMINARY STATEMENT

By letter dated duly 27, 1988 Respondent notified Petitioner that he did not qualify for certification as a fire-fighter because he did not meet the medical standards for visual acuity. Petitioner timely requested a formal hearing on that denial. Accordingly, the issue for determination herein is whether Petitioner's application for certification as a fire-fighter should be approved.

Petitioner testified on his own behalf, and Respondent presented the testimony of Frederick C. Stark. Additionally, Petitioner's Composite Exhibit numbered 1 and Respondent's Composite Exhibit numbered 1 were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On October 28, 1985 Petitioner was employed by the City of Miami Fire Department. He began attending fire college.

2. In November 1985 Respondent received Petitioner's application for certification as a firefighter. Petitioner's application and those of his classmates were transmitted in a group to Respondent by the City of Miami.

   
   

3. On January 22, 1986 Respondent wrote a letter to the Chief of Training for the City of Miami Fire Department advising him that Petitioner needed his vision re-checked. There is no evidence that that letter was ever received by the City of Miami, and the evidence is uncontroverted that Petitioner was never advised of its contents. Respondent's file copy of that letter admitted in evidence reflects a "received" date stamp of June 16, 1988.

   
   

4. Petitioner graduated from fire college and took the state licensure examination. He passed the examination on February 12, 1986, receiving a score of 82 on the written portion and a score of 93 on the practical portion.

   
   

5. By letter dated July 27, 1988, Respondent advised Petitioner that his application for certification as a firefighter filed with Respondent in November of 1985 was denied due to Petitioner's failure to meet the visual acuity standard. That letter from Respondent was the first communication from Respondent to Petitioner regarding his application for certification.

   
   

6. Pursuant to instructions from Respondent, the City of Miami Fire Department removed Petitioner from combat status although he had successfully performed his duties in combat status for approximately two and one half years. Petitioner is still employed by the City of Miami Fire Department.

   
   

7. Petitioner's uncorrected vision is 20/67 in his right eye and 20/50 in his left eye. His corrected vision with glasses is 20/29 in his right eye and 20/20 in his left eye.

   
   

8. On June 28, 1988 the Chief of Training for the City of Miami Fire Department wrote to Respondent (most probably in response to the City's receipt of Respondent's January 22, 1986 letter on June 16, 1988) regarding the status of the three individuals, including Petitioner, inquired about in Respondent's January 22, 1986 letter. The Chief of Training advised Respondent that Petitioner would be undergoing corrective surgery. Although Petitioner has pursued through several medical examinations the possibility of corrective surgery to his eyes, the doctors have declined to operate on Petitioner's eyes because his visual deficiencies are so minimal that they cannot justify the risk of surgery or the possibility of the surgery worsening Petitioner's visual acuity.

   
   

9. The City of Miami is not the applicant for certification as a firefighter. It is simply the entity which mailed the applications of Petitioner and his classmates to Respondent.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

11. Petitioner raises two issues for determination herein: (1) the timeliness of Respondent's acting on Petitioner's application; and (2) the meaning of Respondent's visual acuity standard.

12. Section 120.60(2) and (3), Florida Statutes, provides, in pertinent part, as follows:

    
    

    Licensing. -

    * * *

    1. When an application for a license

       is made as required by law, the agency shall conduct the proceedings required with reasonable dispatch and with due regard to the rights and privileges of all affected parties or aggrieved persons. Within 30 days after receipt of an application for a license, the agency shall examine the application, notify the applicant of any apparent errors or omissions, and request any additional information the agency is permitted by law to require. Failure to correct an error or omission or to supply additional information shall not be grounds for denial of the license unless the agency timely notified the applicant within this 30- day period. . . . Every application for license shall be approved or denied within 90

       days after receipt of the original application or receipt of the timely requested

       additional information or correction of errors or omissions unless a shorter period of time for agency action is provided by law.

       . . . Any application for a license, which is not approved or denied within the 90-day or shorter time period . . . shall be deemed approved, and, subject to the satisfactory completion of an examination, if required as

       a prerequisite to licensure, the license shall be issued. . . .

    2. Each applicant shall be given

       written notice either personally or by mail that the agency intends to grant or deny, or has granted or denied, the application for license. . . . The issuing agency shall certify that the notice was given. The certification shall show the time and date the notice was mailed or delivered and shall be filed with the agency clerk.

       
       

13. Petitioner has met his burden of proving that Respondent has failed to comply with the general licensing laws, and Petitioner is, therefore, entitled to certification as a firefighter as a matter of law. The statute clearly requires that the applicant be the one with whom the licensing agency communicates regarding any pending application for licensure or certification. Respondent failed to request the additional information regarding Petitioner's visual acuity within the 30 days allowed to Respondent to make such a request. Additionally, Respondent failed to either grant or deny Petitioner's application for certification within the required 90 days. The Chief of the Bureau of Fire Standards and Training for Respondent admitted that he was not even familiar with the provisions of Section 120.60, Florida Statutes, which regulates applications for licensure by every state agency.

14. Respondent's argument that it requested a reexamination of Petitioner by writing to the City of Miami is without merit. First, the statute mandates that all communications be made with the applicant, and the City of Miami is not the applicant but simply the entity which mailed Petitioner's application for him. Second, Petitioner was not advised of Respondent's desire for additional information within the mandatory 30-day time period. Third, although the evidence indicates that it has been Respondent's practice to communicate with employers of applicants for certification, Respondent's policy is contrary to the law and cannot absolve Respondent of responsibility for failure to comply with the law.

    
    

15. The license to which Petitioner is entitled "by default" due to the licensing agency's failure to comply with Section 120.60 is issued without regard to whether an applicant has met the qualifications for licensure. Accordingly; Petitioner's ability to meet any visual acuity standard is irrelevant. Respondent argues that the examination which it is still able to require of an applicant entitled to licensure due to an agency's failure to comply with Section 120.60 must mean a medical examination since a firefighter's certification is one of the kinds of licenses for which a medical examination is required. Respondent's argument has no basis in law or in fact. The passage of the medical examination is one of the qualifications for licensure; the examination permitted to be given by Section 120.60 is a licensure examination. Petitioner passed the state licensure examination, receiving high scores.

    
    

16. Petitioner has also met its burden of proof as to the second issue raised in this proceeding, thereby entitling Petitioner to be certified as a firefighter since he has met the standards for certification. Rule 4A-37.037, Florida Administrative Code, adopts the medical standards published by the National Fire Protection Association in its pamphlet NFPA NO. 1001, 1981 Edition. Section 2-2.7.2 of that publication sets forth the standards for vision and provides, in pertinent part, as follows:

    
    

    2-2.7.2 Vision. The cause for rejection for appointment shall be:

    * * *

    (b) 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.

    * * *

    
    

    It is undisputed that Petitioner's uncorrected vision is 20/67 in his right eye and 20/50 in his left eye, and Petitioner's corrected vision is 20/29 in his right eye and 20/20 in his left eye. Respondent argues that an applicant for certification as a firefighter must meet the visual acuity standard without correction and must meet the standard with correction because those two standards are connected by the word "and." Thus, Respondent argues that an applicant must meet both the without correction standard and the with correction standard. Respondent therefore argues that although Petitioner meets this standard with correction, he does not meet the standard without correction.

    Respondent offered no citation of authority to support its interpretation of this inartfully-phrased standard.

    
    

17. What the standard does is establish a range of visual acuity which, if met, requires rejection of an application for certification. Although

    Respondent argues that there are two parts to the visual acuity standard and an applicant must meet both parts because both parts are connected by the word and, Respondent fails to perceive that there are three "ands," contained within the sentence. Accordingly, there are four readings all of which must be met before an applicant can be rejected for certification due to falling within the range of visual acuity set by the four readings contained within the standard.

    Petitioner is not within the range established by the four readings, each of which must be met due to the standard's use of the word "and" throughout the standard.

    
    

18. Since Petitioner has met his burden of showing that he is entitled as a matter of law to certification as a firefighter due to Respondent's failure to comply with the provisions of Section 120.60, Florida Statutes, and since Petitioner has met his burden of showing that he is entitled to certification as a firefighter as a matter of fact due to his compliance with the qualifications for certification, and since Petitioner has successfully graduated from fire college and successfully completed the state licensure examination and satisfactorily performed his duties as a firefighter in combat status for two and one half years before being placed in non-combat status, Petitioner is clearly entitled to certification. Further, Petitioner is entitled to be certified as of February 1986, the date by which he had successfully completed the licensure examination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered certifying Petitioner as a

firefighter effective February of 1986.

DONE AND ORDERED this 28th day of February, 1989 in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1989.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-4090

1. Each of the unnumbered paragraphs contained in Petitioner's Proposed Recommended Order has been rejected as not constituting a finding of fact.

   
   

2. Respondent's proposed findings of fact numbered 5 have been adopted either verbatim or in substance in this Recommended Order.

3. Respondent's proposed finding of fact numbered 6 has been rejected as not constituting a finding of fact.

COPIES FURNISHED:

Dwight K. Nobley

652 N.W. 46th Street Miami, Florida 33127

Lisa Santucci, Esquire Department of Insurance

and Treasurer

413-B Larson Building Tallahassee, Florida 32399-0300

Honorable Tom Gallagher State Treasurer and

Insurance Commissioner Department of Insurance

and Treasurer

413-B Larson Building Tallahassee, Florida 32399-0300

Don Dowdell, General Counsel Department of Insurance

and Treasurer

413-B Larson Building Tallahassee, Florida 32399-0300

Docket for Case No: 88-004090

Orders for Case No: 88-004090