vs. ) Case No. 98-0588
Respondent. )
A formal hearing was held by the Division of Administrative Hearings, before Administrative Law Judge, Daniel M. Kilbride, on May 12, 1998, by way of video teleconference to Orlando, Florida. The following appearances were entered:
For Respondent: M. Joel Prather, Esquire
Whether the Petitioner is entitled to a certificate of compliance as a fire fighter under the provisions of
Rule 4A-37.0515, Florida Administrative Code.
certificate of compliance as a firefighter. The Respondent notified Petitioner on October 3, 1997, that her certificate of completion had been revoked on June 30, 1995. The Petitioner requested an informal proceeding on October 23, 1997. On January 6, 1998, Petitioner notified the Respondent that she did dispute material facts and requested a formal proceeding. On January 27, 1998, the Hearing Officer entered an Order Requiring Referral to the Division of Administrative Hearings (DOAH) and Closing File. This matter was referred to DOAH on January 29, 1998. A formal administrative hearing was scheduled for May 12, 1998.
At the hearing, Petitioner testified in her own behalf and called one witness, Bartholomew Wright. Petitioner did not submit any exhibits. The Respondent presented one witness, Larry McCall, and Exhibits 1 through 10 were admitted in evidence.
A copy of Sections 633.162, 633.35, and 633.45, Florida Statutes.
A history of Section 633.35, Florida Statutes, documented in copies of Laws of Florida, ss. 1, 6, ch. 75-151; s. 3, ch. 81-
205; s. 11, ch. 84-243; s. 24, ch. 89-233; s.
2, ch. 92-187; s. 14, ch. 93-276; s. 16, ch.
95-379; s. 435, ch. 97-102; s. 4, ch. 97-124.
37.056, Florida Administrative Code.
A transcript of the hearing was filed on June 2, 1998.
of law as of the date of this order. Respondent filed its proposals on June 16, 1998.
Petitioner completed 240 hours of firefighter minimum standards training at the Orlando/Orange County Fire Training Academy in 1982 and was issued a certificate of completion at the end of the course.
Between 1982 and 1985, Petitioner served as a reserve firefighter with the Winter Park Fire Department.
From 1985 to June 1989, Petitioner was on inactive status.
From June 1989 until March 1990, Petitioner completed technical training in American Sign Language.
From 1990 through 1993, Petitioner completed a Bachelor of Science degree, with a double major in business and marketing.
Between 1996 and February 1997, Petitioner was re-certified and also became a fire inspector.
In February 1997, Petitioner was awarded an Associate of Science degree in Fire Science.
Petitioner has served as a contract fire inspector with the Orange County Fire Department and has been a principal in a private arson investigation company for the past thirteen or fourteen years in Orange County, Florida.
Florida law was amended in 1989 to require that a person pass an examination as prescribed by the Department, in addition to completing the firefighter minimum standards training program and being qualified for employment to be issued a certificate of
compliance.
Promulgated in 1991 and amended in 1995, a Florida administrative rule granted those persons that had been issued a certificate of completion by the opportunity to upgrade their certificate of completion to a certificate of compliance by
June 30, 1995, without having to comply with the current requirements of the law.
Petitioner did not upgrade her certificate of completion to a certificate of compliance by June 30, 1995.
During the years 1991 through 1995, Petitioner made no effort to keep informed about the current requirements of becoming certified as a firefighter.
Petitioner had a total of four years in which to upgrade her certificate of completion into a certificate of compliance.
More than 11,000 certificates of completion were upgraded to certificates of compliance by June 30, 1995; 2,900 were not.
Eighty percent of those certificates of completion that had been issued by the State, since certificates of completion were first issued in 1969, were upgraded to certificates of compliance by June 30, 1995.
Petitioner's first inquiry into the status of her certificate of completion and request for a certificate of
compliance was made by letter dated August 12, 1997, to the Fire Marshall's office.
Respondent responded to Petitioner's August 12, 1997, letter with a letter dated October 3, 1997, which informed Petitioner that any certificate of completion not upgraded by June 30, 1995, was revoked.
Respondent's October 3, 1997, letter also informed Petitioner that failure to follow the procedures outlined in Rule 4A-37.0515, Florida Administrative Code, for upgrading certificates of completion would require the individual to meet the current requirements of the law, which include having to complete 360 hours of firefighter minimum standards training, passing the Minimum Standards Certification Examination, and being qualified for employment according to Section 633.34, Florida Statutes, in order to be issued a certificate of compliance.
There are no provisions in the rule for an extension after the cutoff date of June 30, 1995.
There is no firefighter minimum standards training program consisting of 120 hours of instruction for the Petitioner to take which would enable Petitioner to meet the current requirements of Section 633.35, Florida Statutes, which require a total of 360 hours of firefighter minimum standards training, as Petitioner had completed only 240 hours of firefighter minimum standards training in 1982.
Prior to 1984, a person needed both a certificate of completion and a certificate of compliance to become a firefighter.
At that time, to be qualified for a certificate of compliance, a person had to successfully complete firefighter
minimum standards training and satisfy the qualifications for employment found in Section 633.34, Florida Statutes.
Section 633.35, Florida Statutes, was amended in 1984 with the result that the Respondent no longer issued certificates of completion, which had been issued since 1969, for the successful fulfillment of the firefighter minimum standards training program.
Rule 4A-37.56 Florida Administrative Code, was amended in order to implement the amendments made in 1989 to
Section 633.35, Florida Statutes.
Rule 4A-37.056, Florida Administrative Code, was amended to establish the Minimum Standards Certification Examination, as required by the 1989 amendments to Section 633.35, Florida Statutes.
Rule 4A-37.0515, Florida Administrative Code, was promulgated in order to implement the amendments made in 1989 to Section 633.35, Florida Statutes.
In order to upgrade a certificate of completion to a certificate of compliance, Rule 4A-37.0515, Florida Administrative Code, provided that a person who had been issued a certificate of completion was required to make application to the Respondent for certification as a firefighter.
Rule 4A-37.0515, Florida Administrative Code, as initially promulgated in 1991, stated that certificates of completion had to be upgraded to certificates of compliance by
June 30, 1993.
Respondent published a Notice of Changes to Rule Chapter 4A-37, Florida Administrative Code, including the promulgation of Rule 4A-37.0515, in the Florida Administrative Weekly on March 15, 1991.
Respondent keeps a mailing list, which includes every fire department and training center in the State of Florida, to facilitate mailing out notices of anything that effects the fire service, including changes in the statutes and rules governing the fire service.
Respondent sent a copy of the Notice of Changes to Rule Chapter, 4A-37, Florida Administrative Code, including the promulgation of Rule 4A-37.0515, to every fire department and training center in the State of Florida on July 26, 1991.
Respondent sent a copy of the Notice of Changes to Rule Chapter 4A-37, Florida Administrative Code, including the promulgation of Rule 4A-37.0515, to every fire department and training center in Orange County, Florida appearing on the Department's mailing list.
Petitioner has lived and worked in Orange County, Florida, all of her life.
Individual notices were not sent to certificate holders.
Rule 4A-37.0515, Florida Administrative Code, became effective on June 30, 1991.
Petitioner did not upgrade her certificate of
completion to a certificate of compliance by June 30, 1993.
Section 633.35, Florida Statutes, was amended in 1993 to require that firefighter minimum standards training would be composed of at least 360 hours of instruction.
Respondent published a Notice of Changes to Rule Chapter, 4A-37, Florida Administrative Code, including the Rule 4A-37.0515, in the Florida Administrative Law Weekly on December 2, 1994.
Respondent also sent a copy of the Notice of Changes to Rule Chapter, 4A-37, Florida Administrative Code, including the amendment of Rule 4A-37.0515, to every fire department and training center in the State of Florida on April 24, 1995.
Respondent sent a copy of the Notice of Changes to Rule Chapter, 4A-37, Florida Administrative Code, including the amendment of Rule 4A-37.0515, to every fire department and training center in Orange County, Florida appearing on the Department's mailing list on April 24, 1995.
Notice of Changes to the rule were not sent to individuals who held certificates.
On March 20, 1995, Rule 4A-37.0515, Florida Administrative Code, was amended, extending the deadline by which certificates of completion could be upgraded to certificates of compliance from June 30, 1993, to June 30, 1995.
Rule 4A-37.0515, Florida Administrative Code, was further amended to state that those individuals who held certificates of completion but did not upgrade them by June 30,
1995, would be required to meet the current requirements of Section 633.35, Florida Statutes, which included having to complete 360 hours of firefighter minimum standards training, passing the Minimum Standards Certification Examination, and being qualified for employment according to Section 633.34, Florida Statutes, in order to be issued a certificate of compliance.
Certificates of completion which were not upgraded to certificates of compliance by June 30, 1995, were revoked that same day.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), Florida Statutes.
As an applicant for a certificate of compliance, Petitioner bears the burden of proving entitlement to the certificate. Petitioner must show by a preponderance of the evidence that she meets all the relevant criteria to satisfy this burden. Florida Dep't of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
Section 633.35, Florida Statutes, prohibits any person from being employed as a regular or permanent firefighter for a period of time in excess of one year from the date of initial employment until they have obtained a certificate of compliance.
Section 633.35, Florida Statutes, currently provides in
pertinent part:
The division shall establish a firefighter training program of not less than
360 hours, administered by such agencies and institutions as it approves for the purpose of providing basic employment training for firefighters. Nothing herein shall require a public employer to pay the cost of such training.
The division shall issue a certificate of compliance to any person satisfactorily complying with the training program established in subsection (1), who has successfully passed an examination as prescribed by the division, and who possesses the qualifications for employment in s. 633.34, except s. 633.34(5). No person may be employed as a regular or permanent firefighter by an employing agency, or by a private entity under contract with the state or any political subdivision of the state, including authorities and special districts, for a period of time in excess of 1 year from the date of initial employment until he or she has obtained such certificate of compliance. A person who does not hold a certificate of compliance and is employed under this section may not directly engage in hazardous operations, such as interior structural firefighting and hazardous- materials-incident mitigation, requiring the knowledge and skills taught in a training program established in subsection (1). However, a person who has served as a volunteer firefighter with the state or any political subdivision of the state, including authorities and special districts, who is then employed as a regular or permanent firefighter may function, during this period, in the same capacity in which he or she acted as a volunteer firefighter, provided that he or she has completed all training required by the volunteer organization.
Petitioner did not upgrade her certificate of completion to a certificate of compliance by June 30, 1995, as required by Rule 4A-37.0515, Florida Administrative Code.
A prospective licensee or a person currently licensed in the State of Florida must exercise some diligence to remain aware of the evolving licensing requirements of their profession. As she has testified, Petitioner made no effort, during the years of 1991 through 1995, to keep informed about the current requirements of becoming certified as a firefighter.
Petitioner's first inquiry into the status of her certificate of completion was not made until August 12, 1997, more than six years after Rule 4A-37.0515, Florida Administrative Code, was initially promulgated. Petitioner's own, acknowledged neglect created the situation in which she presently finds herself.
Ignorance of the law has never been an acceptable excuse. We are all charged with the knowledge of the existing law. Morey's Lounge, Inc. v. State. Dept. of Business and Professional Regulation, Div. Of Alcoholic Beverages and Tobacco, 673 So. 2d
538 (Fla. 4th DCA 1996).
Those persons who had been issued certificates of completion were given a total of four years, from June 30, 1991, when Rule 4A-37.0515, Florida Administrative Code, was initially promulgated, until the deadline date of Amended Rule 4A-37.0515, Florida Administrative Code, which was June 30, 1995, in which to upgrade their certificates of completion to certificates of compliance.
The vast majority of those certificates of completion that had been awarded since 1969 were upgraded to certificates of
compliance by the June 30, 1995 deadline.
Petitioner's various degrees, including an A.S. degree in Fire Science, and certifications, do not entitle Petitioner to a certificate of compliance; nor does Petitioner's involvement in public relations programs used in various school systems or Petitioner's reserve work with both Orange County and Winter Park fire departments entitle her to a certificate of compliance.
None of Petitioner's activities and academic accomplishments include or equal 360 hours of firefighter minimum standards training, the present requirement of Section 633.35, Florida Statutes. Further, none of the Petitioner's activities or academic accomplishments develop or evaluate her skills as a firefighter, as do the firefighter minimum standards training program and the Minimum Standards Certification Examination. The Petitioner is not qualified to be issued a certificate of compliance.
In compliance with the amendments passed by the Florida Legislature in 1989 to Section 633.35, Florida Statutes, the Department promulgated Rule 4A-37.0515, Florida Administrative Code, and amended Rule 4A-37.056, Florida Administrative Code, establishing the Minimum Standards Certification Examination. Rule 4A-37.0515, Florida Administrative Code, which became effective on June 30, 1991, was promulgated to provide a mechanism for those persons who had been issued certificates of completion to upgrade them to certificates of compliance.
The decision to provide such a mechanism was based on the fact that before the 1989 amendments to Section 633.35, Florida Statutes, those persons who had been issued certificates of completion were qualified to be issued a certificate of compliance upon employment as a regular or permanent firefighter with a paid fire department, at any time in the future. However, the amendments made to Section 633.35, Florida Statutes, in 1989 required that a person successfully pass an examination as prescribed by the Respondent, the Minimum Standards Certification Examination as established by Rule 4A-37.056, Florida Administrative Code, in addition to completing the firefighter minimum standards training program and being qualified for employment according to Section 633.34, Florida Statutes, before a certificate of compliance would be issued.
A deadline was included in the Rule 4A-37.0515, Florida Administrative Code, to provide a reasonable time period for the upgrade of certificates of completion to certificates of compliance but to establish a date certain for administrative purposes.
In order to provide those persons who had been issued certificates of completion notice of Rule 4A-37.0515, Florida Administrative Code, and its requirement that an application to upgrade a certificate of completion to a certificate of compliance had to be submitted by June 30, 1993, the Department published a Notice of Changes to Rule Chapter, 4A-37, Florida
Administrative Code, including the promulgation of Rule 4A- 37.0515, in the Florida Administrative Weekly on March 15, 1991. The Department further sent a copy of the Notice of Changes to Rule Chapter, 4A-37, Florida Administrative Code, including the promulgation of Rule 4A-37.0515, to every fire department and training center in the State of Florida on July 26, 1991.
In 1991 and 1995, the Respondent was not required to mail a copy of the Notice of Changes to Rule Chapter, 4A-37, Florida Administrative Code, to each individual who had been issued a certificate of completion. An agency is not required to notify individually every affected party, but rather allows an agency to give reasonable notice to classes of persons to whom the intended action is directed. Publication in the Florida Administrative Weekly is adequate notice of an agency's intent to implement new requirements for certification.
The notices published and mailed by the Respondent in March and July of 1991 were sufficient to give notice to those persons, including the Petitioner, who had been issued a certificate of completion of Rule 4A-37.0515, Florida Administrative Code, and its requirement that an application to upgrade a certificate of completion to a certificate of compliance had to be submitted by June 30, 1993.
Rule 4A-37.0515, Florida Administrative Code, as amended in 1995 provided those persons who had been issued certificates of completion additional time in which to upgrade
their certificates of completion to certificates of compliance.
In order to provide those persons who had been issued certificates of completion notice of the latest amendment extending the deadline to June 30, 1995, the Respondent published a Notice of Changes to Rule Chapter, 4A-37, Florida Administrative Code, including the amendment of Rule 4A-37.0515, in the Florida Administrative Weekly on December 2, 1994. The Department further sent a copy of the Notice of Changes to the Rule, including the amendment of Rule 4A-37.0515, to every fire department and training center in the State of Florida on
April 24, 1995.
The notices published and mailed by the Respondent in December of 1994 and April of 1995 were sufficient to give notice to those persons, including the Petitioner, that an application to upgrade a certificate of completion to a certificate of compliance had to be submitted by June 30, 1995.
Petitioner did not seek to upgrade her certificate of completion to a certificate of compliance until her August 12, 1997, letter.
The Petitioner failed to comply with the procedures outlined by Rule 4A-37.0515, Florida Administrative Code, for upgrading a certificate of completion. As required by Rule 4A- 37.0515, Florida Administrative Code, the Petitioner must now meet the current requirements of Section 633.35, Florida Statutes, which include having to complete 360 hours of
firefighter minimum standards training, passing the Minimum Standards Certification Examination and be qualified for employment according to Section 633.34, Florida Statutes, in order to be certified as a firefighter and be issued a certificate of compliance.
RECOMMENDED that a Final Order be entered denying the Petitioner's request for a certificate of compliance by the Department's Bureau of Fire Standards and Training of the Division of the State Fire Marshal.
DONE AND ENTERED this 13th day of July, 1998, at Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1998.
M. Joel Prather, Esquire Department of Insurance
Daniel Y. Sumner, Esquire
Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300
Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
