STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS R. FELTS, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1924

) OFFICE OF TREASURER, INSURANCE ) COMMISSIONER, AND FIRE MARSHAL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 3 March 1981 at Miami, Florida.

APPEARANCES

For Petitioner: Mark A. Jacobs, Esquire

18204 Biscayne Boulevard

North Miami Beach, Florida 33160

For Respondent: Patrick F. Maroney, Esquire

Room 428-A, Larson Building Tallahassee, Florida 32301

By letter dated September 25, 1980 Thomas R. Felts, Petitioner, by and through his attorney, requested a formal hearing to contest the Office of the State Fire Marshal's determination that Felts is not certifiable as a professional fire fighter.

At the hearing Petitioner called three witnesses, including Petitioner, and five exhibits were admitted into evidence. Two of these exhibits are depositions of medical witnesses. There is no dispute regarding the facts in this case.

Proposed findings submitted by the parties and not included herein were not supported by competent and substantial evidence or were deemed unnecessary to the results reached.

FINDINGS OF FACT

1. Thomas R. Felts applied to the City of Hollywood, Florida for appointment as a firefighter. He took and passed the Civil Service examination, the physical examination and physical agility test used by the City of Hollywood to qualify firefighter applicants.

   
   

2. Following successful completion of the tests above noted two things only stood between Felts and employment as a firefighter. First, he had to

   complete the firefighter training school and second, receive certification from the State Fire Marshal's office. Prior to entering the four weeks training program Felts was advised by Respondent that, because of the condition of his hands, he could not meet the State's physical requirements for certification even if he successfully completed the training program.

   
   

3. Felts was born May 28, 1949. In 1969 he was involved in an industrial accident which severely damaged both hands. Upon his discharge from further treatment in 1972 Felts' hands are described in the attachment to Dr. Angelides' deposition as follows:

   
   

   Examination of the right hand re

   vealed a reconstituted thumb, extending to the level of the IP joint. The patient's index finger was totally absent having undergone a ray amputation. The long finger was amputated at the level of

   the PIP joint. The ring finer was amputated through the level of the DIP joint. There was a well-healed skin graft over the ulnar border of the finger, and the ulnar half of the finger was anesthetic. The fifth

   finger was normal. There were multiple well-healed lacerations of the right hand.

   
   

   Examination of the left hand revealed an amputation of the left thumb, through the level of the MP joint. The index ray was absent and the patient's long finger was amputated through the level of the PIP joint. The ring and fifth finger were normal. There were multiple well-healed scars and skin grafts of the left hand. There was a flexion deformity of forty degrees at the MP joint of the left long finger.

   
   

4. In lay language Petitioner has one-half thumb (reconstituted) on the right hand, no thumb on the left, no index finger on either hand, one half middle finger on each hand, and the tip of the ring finger missing on the right hand.

   
   

5. Subsequent to his accident Petitioner has worked as a life guard and as a building contractor. In the latter capacity he has wielded a hammer, climbed scaffolding, operated power tools and handled hoses for spraying and pouring concrete.

   
   

6. After his release from further medical treatment Petitioner started a physical therapy program including weight lifting. This program had been ongoing for some seven years at the time Petitioner applied for the firefighter's position. As a result of this program and Petitioner's dedication he has developed a powerful body on a 182-pound frame capable of bench pressing

   385 pounds and doing one-handed pull-ups (chins) with either hand.

   
   

7. When tested by the City of Hollywood Petitioner passed the Minimum Physical Fitness Requirements in National Fire Protection Association's Fire Fighter Professional Qualifications, NFPA No. 1001, plus a ten-foot rope climb and swimming tests not contained in NFPA No. 1001.

8. Prior to 1979 Respondent used the Minimum Physical Fitness Requirements of NFPA No. 1001 as a condition for certification. These requirements were abandoned as a result of a suit brought by EEOC alleging that these physical requirements, which test strength, endurance and agility, were unfair to female applicants who did not have sufficient upper body strength to perform those tasks. Although the physical fitness requirements were abandoned, Respondent retained the physical standards contained in NFPA No. 1001 and adopted those standards in Rule 4A-37.05(3), Florida Administrative Code.

   
   

9. These rules provide for rejection of a candidate for firefighter when the medical examination reveals any of the following conditions:

   
   

   2-2.6.1.2 Hand and Fingers. The causes for rejection for appointment shall be:

   1. Absence (or loss) of more than 1/3 of the distal phalanx of either thumb.

   2. Absence (or loss) of distal and middle phalanx of an index, middle or ring finger of either hand irrespec tive of the absence (or loss) of little finger.

   3. Absence of more than the distal phalanx of any two of the following fingers, index, middle finger or ring finger, of either hand.

      
      

10. Respondent is disqualified on each of these three grounds.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

    
    

12. Section 633.34, Florida Statutes, provides, in part, that any person initially employed as a firefighter must be in good physical condition as determined by a medical examination as prescribed by the division.

    
    

13. Rule 4A-37.05(3), Florida Administrative Code, provides in pertinent part:

    
    

    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," 1974 edi tion, Section 2-2, "Medical Requirements for Fire Department Candidates," pages 1001-8 through 1001-35, inclusive, 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.

14. In the absence of a challenge this rule is presumed to have been lawfully promulgated and has the force and effect of law. As such it is binding and controlling in the issues here presented.

    
    

15. It is noted that the National Fire Protection Association in explaining the standards established stated on p. v. of NFPA No. 1001:

    
    

    The Board directed all committees to develop standards in terms of terminal performance objectives, which are con sidered the minimum necessary for a person to be considered competent to engage in providing fire service at the respective level and in the role specified by the standard, no matter where that person is serving.

    
    

16. These standards were further explained at the hearing to be based upon safety factors involving the firefighter, his companion firefighters and fire victims who may have to rely upon the physical ability of others for their safety. Further, it was explained that presence of certain thumbs and fingers was necessary to allow the firefighters to connect hoses, operate power tools, climb ladders and perform other tasks requiring manual and tactile dexterity.

    
    

17. In the case of Felts there is good reason to believe that, because of his dedication and efforts to overcome the physical impediments resulting from his long-ago accident, he is capable of performing all those tasks expected of a firefighter with at least the competence of the average firefighter. However, because of the disfiguring accident he cannot meet the physical standards established by Respondent.

    
    

18. From the foregoing it is concluded that Thomas R. Felts does not have the requisite fingers and thumbs on either hand to meet the minimum physical qualifications for certification as a professional firefighter. It is therefore

RECOMMENDED that this petition be dismissed. DONE and ENTERED this 25th day of March, 1981.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1981.

COPIES FURNISHED:

Mark A. Jacobs, Esquire 18204 Biscayne Boulevard

North Miami Beach, Florida 33160

Patrick F. Maroney, Esquire Room 428-A, Larson Building Tallahassee, Florida 32301

Docket for Case No: 80-001924

Orders for Case No: 80-001924