STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES CARDOVA, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6299

) DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on March 19, 1993, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Richard M. Saccocio, Esquire

6175 Northwest 153rd Street, Suite 225 Miami Lakes, Florida 33014

For Respondent: Lisa S. Santucci

Division of Legal Services

412 Larson Building

Tallahassee, Florida 32399-0300 STATEMENT OF THE ISSUES

At issue in this proceeding is whether petitioner's application for certification as a firefighter should be approved.

PRELIMINARY STATEMENT

By letter of September 21, 1992, respondent notified petitioner that he did not qualify for certification as a firefighter because he did not meet the medical standards established by Rule 4A-37.037, Florida Administrative Code.

Specifically, petitioner's application revealed that his left eye was blind. In response, petitioner filed an election of rights, disputing the predicate for respondent's denial, and the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner testified on his own behalf and called Rohoda Mae Kerr, Benjamin Alderson, and Henry Cytacki as witnesses. Petitioner's exhibits 1-4 and 6 were received into evidence. 1/ Respondent called Frederick Stark as a witness and its exhibits 1-4 were received into evidence.

The transcript of hearing was not ordered and, consequently, the parties were granted leave until March 29, 1993, and later, at petitioner's request, until April 8, 1993, to file proposed findings of fact. The parties' proposals have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. On September 3, 1992, petitioner, James Cardova, filed an application for certification as a firefighter with respondent, Department of Insurance and Treasurer, Division of State Fire Marshal (Department). Such application included a report of medical examination which reflected that petitioner was without vision in his left eye. Indeed, the proof at hearing confirmed that due to a childhood injury, petitioner had lost the use of his left eye, and it had been replaced by a glass prosthesis.

   
   

2. By letter of September 21, 1992, the Department notified petitioner that his application was denied because he did not meet the medical standards established by the National Fire Protection Association (NFPA) in its pamphlet NFPA No. 1001, adopted by reference in Rule 4A-37.037(4), Florida Administrative Code. Specifically, Section 2 of NFPA pamphlet No. 1001 provides:

   
   

   2-2 Medical Requirements for Fire Department Candidates. The candidate shall be rejected when the medical examination reveals any of the following conditions:

   * * *

   2-2.7.1.9 Miscellaneous Defects and Disease.

   The causes for rejection of appointment shall be:

   * * *

   (b) Absence of an eye.

   
   

3. In response to the Department's letter of denial, petitioner filed a timely request for formal hearing to contest the Department's decision.

   
   

4. Here, the gravamen of petitioner's case is his contention that, notwithstanding the absence of his left eye, he is qualified to perform the duties of a firefighter and, therefore, under the provisions of the Americans with Disabilities Act, 42 USC 12101, et seq., the Department is obligated to grant his request for certification.

   
   

5. Regarding petitioner's abilities, the proof demonstrates that petitioner has reasonably compensated for the absence of his left eye such that its absence does not significantly limit any of his major life activities. Moreover, petitioner has satisfactorily completed all of the basic firefighting school requirements, as well as the written and practical state examination. Indeed, among the firefighting instructors who know of him, petitioner's ability to perform the skills required of a firefighter is not deemed to be adversely affected by his loss of vision in one eye.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

   
   

7. At issue in this proceeding is whether the petitioner's application for certification as a firefighter should be approved. As the applicant,

   petitioner has the burden of demonstrating his entitlement to licensure. Florida Department of Transportation v. J. W. C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981), and Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

   
   

8. Pursuant to Section 633.35(2), Florida Statutes, an applicant for certification as a firefighter must meet the qualifications for employment established by Section 633.34, Florida Statutes. That section provides, in pertinent part, as follows:

   
   

   Any person initially employed as a firefighter must:

   * * *

   (5) Be in good physical condition as determined by a medical examination given

   by a physician or surgeon licensed to practice in the state pursuant to chapter 458, or an osteopathic physician or surgeon licensed to practice in the state pursuant to chapter 459. Such examination may include, but need not be limited to, provisions of the National Fire Protection Association Pamphlet 1001 . . . .

   
   

9. Under the authority granted by Section 633.45(2)(a), Florida Statutes, the Department has adopted Rule 4A-37.037, Florida Administrative Code, to implement the provisions of Section 633.34(5), Florida Statutes. That rule provides:

   
   

   Pre-certification Medical Examination.

   1. Establishment of good physical condition of the applicant by a medical examination is a requirement which must

      be met prior to certification as a firefighter in compliance with Section 633.34(5), Florida Statutes.

      * * *

      (4) It is emphasized that the medical requirements establish a minimum standard for compliance. The medical test is the examination by the physician which searches

      for systemic, organic, or skeletal deficiencies that would be disqualifying or limiting. The medical standards are those published by the National Fire Protection Association in its pamphlet NFPA No. 1001, "Firefighter 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. . . .

      
      

      And, Section 2-2 of NFPA pamphlet No. 1001, 1981, provides:

      2-2 Medical Requirements for Fire Department Candidates. The candidate shall be rejected when the medical examination reveals any of the following conditions:

      * * *

      2-2.7.1.9 Miscellaneous Defects and Diseases.

      The causes for rejection of appointment shall be:

      * * *

      (b) Absence of an eye.

      
      

10. Here, the proof demonstrates that petitioner lacks an eye. Accordingly, under the foregoing provisions of law, petitioner lacks the medical requirements for certification as a firefighter, and the Department's denial of his application was appropriate.

    
    

11. In reaching the foregoing conclusion, petitioner's contention that the provisions of the Americans with Disabilities Act, 42 USC 12101, et seq., should prevail over the Department's rules has not been overlooked; however, such contention is without merit. Rather, it is axiomatic that agency rules and regulations, duly promulgated under authority conferred by statute, have the force and effect of the statute. State v. Jenkins, 469 So.2d 733 (Fla. 1985), and Florida Livestock Board v. Gladden, 76 So.2d 291 (Fla. 1954). Under such circumstances, "agencies must honor their own substantive rules until, pursuant to Section 120.54 [or 120.56], Fla. Stat. . ., they are amended or abrogated." Gadsden State Bank v. Lewis, 348 So.2d 343, 345 (Fla. 1st DCA 1977). Accord, Decarion v. Martinez, 537 So.2d 1083 (Fla. 1st DCA 1989). Accordingly, in this Section 120.57(1) proceeding, the Department's rules must be applied as written.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered denying petitioner's application

for certification as a firefighter.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of April 1993.

WILLIAM J. KENDRICK

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 15th day of April 1993.

ENDNOTE

1/ On March 29, 1993, petitioner filed as a late exhibit a copy of his graduation certificate from the Broward County Fire Fighters Academy. No objection has been raised to such exhibit. Accordingly, such document was marked as petitioner's exhibit 6 and received into evidence.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1 & 2. Adopted in paragraph 1.

1. Adopted in paragraph 2.

2. Adopted in paragraph 3.

3. Adopted in substance in paragraph 5.

Respondent's proposed findings of fact are addressed as follows:

1 & 2. Adopted in paragraph 1.

1. Adopted in paragraph 2.

2. Adopted in paragraph 3.

COPIES FURNISHED:

Richard M. Saccocio, Esquire Suite 225

6175 Northwest 153rd Street Miami Lakes, Florida 33014

Lisa S. Santucci

Division of Legal Services

412 Larson Building Tallahassee, Florida 32399-0300

The Honorable Tom Gallagher

State Treasurer and Insurance Commissioner The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Bill O'Neil, Esquire General Counsel Department of Insurance

The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-006299

Orders for Case No: 92-006299