STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD N. HARPER, )

)

Petitioner, )

vs. ) CASE NO. 88-5655

) DEPARTMENT OF INSURANCE AND ) TREASURER, DIVISION OF STATE ) MARSHAL, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in this case was held in Lakeland on March 1, 1989. Before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Lawrence C. Stewart, Jr., Esquire

Winter Haven, Florida

For Respondent: Lisa S. Santucci, Esquire

Tallahassee, Florida STATEMENT OF ISSUES

The issue is whether the Respondent, the Department of Insurance and Treasurer, Division of State Fire Marshal, should grant the application of the Petitioner, Richard N. Harper, for certification as a fire fighter. Specifically, the only issue is the Petitioner's visual acuity.

FINDINGS OF FACT

1. On or about April 14, 1988, the Petitioner, Richard

   N. Harper, applied with the Respondent, the Department of Insurance, Division of State Fire Marshal, for certification as a fire fighter.

   
   

2. On or about April 26, 1988, the Department notified the Petitioner, through his employer, the Polk County Fire District, that additional information was needed on his

   application--including, among other things, a re-check of his uncorrected vision by an optometrist.

   
   

3. On or about September 6, 1988, the Department again notified the Petitioner that additional information was needed on his application--again including, but not limited to a re-check of his uncorrected vision by an optometrist.

   
   

4. On or about October 17, 1988, the Department notified the Petitioner that his application was being denied because his uncorrected visual acuity allegedly is not good enough.

   
   

5. The Petitioner's uncorrected vision is 20/200 in both eyes; his corrected vision is 20/20 in both eyes.

   
   

6. The National Fire Protection Association's pamphlet entitled NFPA NO. 1001, "Fire Fighter Professional Qualifications," 1981 edition Section 2-2, "Medical Requirements for Fire Department Candidates," prescribes medical standards which include the following standards for vision:

   
   

   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.

   
   

   CONCLUSIONS OF LAW

   
   

7. Section 633.34, Florida Statutes (1987), provides in pertinent part:

   
   

   Any person initially employed as a firefighter must:

   * * *

   (5) Be in good physical condition as determined by a medical examination as prescribed by the division [of state fire marshal.] Such examination may include, but need not be limited to, provisions of the National Fire Protection Association Pamphlet 1001.

8. F. A. C. Rule 4A-37.037(4) provides, in pertinent part:

   
   

   It is emphasized that the medical requirements establish a minimum standard for compliance. . . . The medical standards prescribed by the Division are those published by the National Fire Protection Association in its pamphlet NFPA NO. 1001, "Fire Fighter Professional Qualifications," 1981 edition, Section 2-2, "Medical Requirements for Fire Department Candidates," which is hereby incorporated in this

   rule and made a part of the rule by reference. . . . Any applicant not satisfying the minimum requirements prescribed by the Division for the medical examination shall not be qualified for employment.

   
   

9. As found, the National Fire Protection Association's pamphlet entitled NFPA NO. 1001, "Fire Fighter Professional Qualifications," 1981 edition, Section 2-2, "Medical Requirements for Fire Department Candidates," prescribes medical standards which include the following standards for vision:

   
   

   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 20/1OO in the other eye; and with correction, less than 20/20 in one eye, and 20/40 in the other eye.

   
   

   (Emphasis added.) As written, this language sets out a "standard" of poor vision that will disqualify an applicant. As the language is written, an applicant whose uncorrected vision is worse than 20/40 in one eye and worse than 20/106 in the other eye and whose corrected vision is worse than 20/20 in one eye and worse than 20/40 in the other eye is to be rejected. In this case, Harper's corrected vision is 20/20 in both eyes, and his vision is not bad enough for him to be rejected on the basis of vision.

   
   

10. The Department has taken the position in this case that the NFPA vision standards should be read as a standard of good vision which must be met by the applicant in all of its component parts. This argument is based in part on the

parts of F.A.C. Rule 4A-37.037(4) that refer to the medical requirements as "minimum standards" and "minimum requirements." (In part, this argument also seems to be based on the general expectation that qualification standards would be written as standards to be achieved by an applicant.) But, first, the argument cannot overcome the plain meaning of the language of the NFPA vision standard-- they are written as standards of bad vision that will not be tolerated in a fire fighter (regardless what one's expectations might be. Second, even as written, the NFPA vision standards do establish a kind of minimum standard, and the NFPA standards, as written, are not inconsistent with the concept of a minimum standard. Finally, by Final Order, Mobley v. Department of Insurance and Treasurer, DOAH Case No. 88-4090, entered April 11, 1989, the Department adopted conclusions of law in the Recommended Order that are consistent with these Conclusions of Law.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of Insurance and Treasurer, Division of State Fire Marshal, enter a final order granting the application of the Petitioner, Richard N. Harper, for certification as a fire fighter.

RECOMMENDED this 2nd day of May, 1989, in Tallahassee, Florida.

Hearings

Hearings

1. LAWRENCE JOHNSON Hearing Officer

   Division of Administrative

   
   

   The DeSoto Building 1230 Apalachee Parkway

   Tallahassee, Florida 32399-1550

   (904) 488-9675

   
   

   Filed with the Clerk of the Division of Administrative

   
   

   this 2nd day of May, 1989.

   APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5655

   
   

   To comply with the requirements of Section 120.59(2), Florida Statutes (1987), the following rulings are made on the parties' proposed findings of fact:

   
   

   Petitioner's Proposed Findings of Fact.

   
   

   1. Accepted but unnecessary.

2.-6. To the extent they propose that Harper's uncorrected vision is better than 20/200 in either eye, rejected as subordinate to facts contrary to those found. To the extent they propose that, except for vision, Harper is physically qualified to be a fire fighter, accepted but irrelevant to the issues raised in this proceeding. To the extent that they propose that Harper's vision meets licensure requirements, accepted and incorporated.

7. Accepted but subordinate.

8.-9. Accepted but subordinate and unnecessary.

Respondent's Proposed Findings of Fact.

1. Accepted but unnecessary.

2.-6. Accepted and incorporated to the extent necessary.

7. Unnecessary.

COPIES FURNISHED:

Lawrence C. Stewart, Jr., Esquire Jollay and Stewart, P.A.

Post Office Box 979

Winter Haven, Florida 33882-0979

Lisa S. Santucci, Esquire Office of Legal Services 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, Esquire General Counsel Department of Insurance

and Treasurer

1. Larson Building Tallahassee, Florida 32399-0300

   
   

   ============================================================

   =====

   AGENCY FINAL ORDER

   ============================================================

   =====

   
   

   OFFICE OF THE TREASURER DEPARTMENT OF INSURANCE

   
   

   RICHARD N. HARPER,

   
   

   Petitioner,

   
   

   vs. DOAH CASE NO. 88-5655

   DOI CASE NO. 89-L-

   412DSS

   DEPARTMENT OF INSURANCE AND TREASURER, DIVISION OF STATE FIRE MARSHAL,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   THIS CAUSE came before the state Fire Marshal, Treasurer and Insurance Commissioner of the State of Florida for consideration and final agency action. By letter dated October 17, 1988, the Department of Insurance and Treasurer, Office of the State Fire Marshal (hereinafter "Respondent")

   notified Richard N. Harper (hereinafter "Petitioner") that he did not qualify for certification as a firefighter as he failed to meet the visual acuity standards required for firefighter certification. By letter dated November 27, 1988, the Petitioner requested a formal proceeding pursuant to Section 120.57(1), Florida Statutes, to contest the denial. Pursuant to notice, the Honorable J. Lawrence Johnston, a Hearing Officer assigned by the Division of Administrative Hearings, conducted a formal hearing on March 1, 1989 in Lakeland, Florida.

   
   

   Upon consideration of the evidence and argument presented at said hearing, and the Proposed Recommended Orders submitted by the respective parties, on May 2, 1989 the Hearing Officer issued a Recommended Order (attached hereto as Exhibit "A") to the State Fire Marshal, Treasurer and Insurance Commissioner. The Hearing Officer, after making Findings Of Fact and Conclusions Of Law, recommended entry of a Final Order certifying Petitioner as a firefighter.

   
   

   The Respondent filed timely exceptions to the Recommended Order.

   
   

   RULINGS ON RESPONDENT'S EXCEPTIONS

   
   

   1. Respondent initially except to the Hearing Officer's characterization that the Department notified the Petitioner that his uncorrected visual acuity allegedly was "not good enough". (Finding Of Fact #4 in the Recommended Order). Although somewhat technical in nature, this exception is granted as it is clear that Petitioner was specifically notified that his uncorrected visual acuity was outside the parameters established by Section 2-2.7.2, NFPA 1001 (1981) for firefighter applicants in Florida.

      
      

   2. Respondent next excepts to Conclusion Of Law #3 in the Recommended Order to the extent the Hearing Officer concludes that a firefighter applicant must fail to meet all four visual acuity standards contained in Section 2-2.7.2 in order to be denied certification.

      The National Fire Protection Association pamphlet entitled NFPA No. 1001, entitled "Fire Fighter Professional Qualifications", 1981 edition, Section 2-2, "Medical Requirements for Fire Department Candidates", prescribes medical standards which include the following requirements for vision:

      
      

      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 20/2 in one eve, and 20/40 in the other eye. (Emphasis added.)

      
      

      A review of this language reveals Respondent's exception to be well-founded. Examination reveals that each of the four numerical visual acuity requirements listed are isolated by punctuation and logically stand independently.

      1/ Utilizing these general rules of statutory construction, each of the four standards would then have to be met in order to obtain firefighter certification.

      
      

      Accordingly, any applicant seeking qualification as a firefighter must meet a two-pronged test (corrected and uncorrected vision) that includes two requirements in each category: uncorrected vision no worse than 20/40 in one eye and no worse than 20/100 in the other eye and corrected vision no worse than 20/20 in one eye and 20/40 in the other eye. As it is uncontested in the record that Petitioner's uncorrected vision is 20/200 in both eyes, he fails to meet this visual acuity standard. Respondent : Exception #2 is therefore ACCEPTED.

      
      

   3. In a related exception, the Respondent excepts to Conclusion Of Law #4 in the Recommended Order in which the Hearing Officer again characterizes the vision requirements as standards of "bad vision". However, in the next sentence of the Recommended Order, the Hearing Officer does characterize the vision requirements in terms of "minimum standards". Although couched in negative terms, the vision requirements are inescapably minimum standards that must be met by all applicants. The purpose of that section (and NFPA 1001) is to set minimum safety standards for firefighter applicants, not to list the exclusive circumstances under which a regulatory body may have authority to reject certification. As fully set forth in paragraph two (2) above, the evident intent of the visual acuity standard (Section 2-2.7.2, NFPA 1001) is to establish

visual requirements for both corrected and uncorrected vision. The long-standing interpretation of this standard by the Department, who is charged with its enforcement, is reasonable in light of the hazardous nature of firefighting and the need to protect both firefighters and the public they serve. Moreover, the Department has consistently interpreted Section 2-2.7.2, NFPA 1001 in this precise manner. See, In the Matter of Albert G. Pitts; 5 FALR 1116- A (Final Order issued March 28, 1 983); In the Matter of Jack D. Leeth, Jr.; Case No. 86-L-384SF (Final Order issued February 13, 1987) and In the Matter of Richard Elliott; Case No. 88-L-124L5 (Final Order issued October 18, 1988).

It is appropriate at this juncture to note that an agency's interpretation of its own adopted rules is entitled to great weight. State Department of Commerce, Division of Labor v. Mathews, 358 So.2d 256 (Fla. 1st DCA 1978); Pan American World Airways v. Florida Public Service Commissioner, 427 So.2d 716 (Fla. 1983). Great weight is especially accorded to the meaning assigned to rules which have been in effect over an extended period of time by officials charged with their administration, unless the construction is clearly erroneous. Pan American at 719.

The Pan American Court also noted that this deference to administrative agency expertise in regulatory interpretation has been similarly followed by federal courts and opined that an agency's interpretation of a regulation it has promulgated is entitled to deference even when the meaning of a regulation may be unclear from its wording. Id. at 719.

In the instant case, the Respondent has consistently interpreted the perhaps inartfully drafted provisions of Section 2-2, NFPA 1001, to include a two-pronged test in which both non-corrected and corrected vision standards must be met for certification. The Department has longstanding expertise in administering technical firefighting issues and possesses a full appreciation of the hazardous nature of firefighting. Moreover, the Department's construction of the visual acuity standard in question comports generally with established guidelines of statutory construction. The Respondent's established insistence on a two-pronged test is thus reasonable, promotes legitimate safety concerns and should be deferred to. Accordingly, Respondent's Exception

3 is ACCEPTED.

This Order does not address whether the strict visual acuity guidelines contained in Section 2-2.7.2, NFPA 1001 are still necessary in light of changing visual aid technology. The appropriate forum for such a review is a Section 120.56, F.S. proceeding.

Upon consideration of the foregoing and the record and being otherwise fully advised in the premises, it is

ORDERED:

1. The Hearing Officer's Findings Of Fact are adopted, with the exception of paragraph four (4) as noted above.

   
   

2. The Conclusions Of Law of the Hearing Officer are adopted, with the exception of paragraphs three (3) and four

   (4) as noted above.

   
   

3. The Hearing Officer's recommendation for certification is rejected for the reasons stated above. Accordingly, the application for firefighter certification of the Petitioner, Richard N. Harper, is DENIED.

Any party to these proceedings adversely affected by this Order is entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Fla.R.App.P. Review proceedings must be instituted by filing a petition or notice of appeal with the General Counsel, acting as the agency clerk at 412 Larson Building, Tallahassee, Florida 32399-0300, and a copy of the same with the appropriate district court of appeal within thirty (30) days of rendition of this Order.

DONE and ORDERED this 28th day of June, 1989.

TREVOR G. SMITH

Assistant Treasurer and Insurance Commissioner

ENDNOTE

1/ Under the rules of statutory construction, commas are used to separate each member of a class (i.e. classes of offenses, standards, etc). Volume 1A, Sutherland Statutory Construction, S. 21.15. Additionally, clauses separated by a semi-colon generally stand alone and often contain independent though related thoughts. W. Statsky, Legislative Analysis and Drafting, 2nd Edition, at 142.

COPIES FURNISHED:

Mr. Richard N. Harper 7204 Tom Paine Road Bartow, Florida 33830

Lawrence C. Stewart, Jr., Esquire JOLLAY AND STEWART, P.A;

Post Office Box 979

Winter Haven, Florida 33882-0979

Lisa S. Santucci, Esquire Office of Legal Services

412 Larson Building Tallahassee, Florida 32399-0300

J. Lawrence Johnston Bearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-0300

Docket for Case No: 88-005655

Orders for Case No: 88-005655