STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD J. PASTUCH, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1399

) STATE OF FLORIDA, OFFICE OF FIRE ) MARSHAL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on July 17, 1981, in Melbourne, Florida. The Division received a transcript of the hearing on July 30, 1981.

APPEARANCES

For Petitioner: Ronald J. Pastuch, pro se

Palm Bay Fire Department

175 Northwest Palm Bay Road Palm Bay, Florida 32905

For Respondent: L. Terrye Coggin, Esquire

Florida Department of Insurance and Treasurer

Office of State Fire Marshal Room 428-A, Larson Building Tallahassee, Florida 32301

ISSUE

The issue posed for decision herein is whether or not the Respondent properly denied Petitioner's request to be certified as a fire fighter.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found.

   
   

2. Petitioner, Ronald J. Pastuch, is employed as a fire fighter by the City of Palm Bay. Petitioner was denied certification as a fire fighter by the State Fire Marshal because he has a history of diabetes which is being controlled by insulin medication. Petitioner was hired by the Chief of the Palm Bay Fire Department, David P. Green. Chief Green was unaware of the requirement that candidates for the fire-fighter classification were required to take and pass a physical examination prior to being employed. Chief Green is now aware

   of the requirement and acknowledged that an applicant in the fire-fighter classification cannot be certified if said applicant has diabetes. (See Respondent's Exhibit No. l.)

   
   

3. Several of Petitioner's coworkers appeared and testified that they had acknowledged no inability on the part of Petitioner's on-the-job performance as a fire fighter. (Testimony of Chief David P. Green; Captain Tom Knecht; Captain Arthur Fawcett; Lieutenant Jim R. Green, Training Officer and Shift Manager, and Lieutenant Robert Erario, all employees of the Palm Bay Fire Department.)

   
   

4. Dennis "Buddy" Dewar, Chief of the Fire Fighting Standards Commission, was received as an expert herein in the qualifications for certification of a fire fighter. Diabetes Mellitus is not considered a disease, but rather a metabolic disorder. Diabetes is a major contributor to cardiovascular disorders. According to Chief Dewar, diabetes is a bona fide occupational qualification (bfoq) and, in his opinion, to certify a diabetic, compounds the existing problems related to a diabetic's cardiovascular disorders. Chief Dewar unequivocally stated that an insulin dependent diabetic, as Petitioner, should not be certified as a fire fighter based on the standards and pertinent rules and regulations which do not permit such an applicant to he certified.

   Moreover, Chief Dewar noted that the tasks of a fire fighter were demanding, unpredictable and stressful. He, therefore, concluded that an insulin dependent candidate should not be certified due to the stress and uncertainties connected with fire fighting.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

   
   

6. The authority of the Respondent is derived from Chapter 633, Florida Statutes, Rule Chapter 4A-37, Florida Administrative Code, and the medical standards prescribed by Respondent which are published by the National Fire Protection Association in Pamphlet No. NFPA 1001, "Fire Fighter Professional Qualification," 1974 Edition.

   
   

7. The parties were duly noticed pursuant to the notice provision of Chapter 120, Florida Statutes.

   
   

8. The statutes and rules applicable herein require that any person initially employed as a fire fighter must "be in good physical condition as determined by a medical examination as prescribed by the Division." Chapter

   633.34 (5), Florida Statutes. The Division is thereafter required to issue a certificate of compliance to any person satisfactorily complying with the training program and the qualifications for employment in Chapter 633.34, Florida Statutes. No person shall be employed as a regular or permanent fire fighter until he has obtained such certificate of compliance. Chapter 633.35(2), Florida Statutes.

   
   

9. The medical standards prescribed by the Respondent are those published by the National Fire Protection Association in its Pamphlet NFPA No. 1001, "Fire Fighter Professional Qualifications," 1974 Edition, Section 2-2, "Medical Requirements for Fire Department Candidates," pp. 1001-8 through 1001-35, inclusive. Any applicant not satisfying the minimum requirements prescribed by the Respondent for the medical examination shall not be qualified for employment. Rule Chapter 4A-37.05(3), Florida Administrative Code.

10. One of the causes for rejection for appointment (of a fire fighter) shall be: Diabetes Mellitus. Rule Standard 2-2.25, NFPA Pamphlet No. 1001, "Fire Fighter Professional Qualifications," 1974 Edition, p. 1001-20. Based on Petitioner's admission that he suffers from Diabetes Mellitus, he does not meet the minimum qualifications for certification as a fire fighter. Based thereon, and the expert testimony herein as to the problems encountered by fire fighters, it is concluded that the Petitioner failed to meet the minimum requirements for certification as a fire fighter. Respondent, therefore, properly denied Petitioner's request for certification as a fire fighter.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED:

That the Petitioner's request for State certification as a fire fighter by the State Fire Marshal, be DENIED.

DONE and ENTERED this 10th day of September, 1981, in Tallahassee, Florida.

JAMES E. BRADWELL

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 10th day of September, 1981.

COPIES FURNISHED:

Ronald J. Pastuch

Palm Bay Fire Department

175 North West Palm Bay Road Palm Bay, Florida 32905

L. Terrye Coggin, Esquire Department of Insurance Room 428-A, Larson Building Tallahassee, Florida 32301

Docket for Case No: 81-001399

Orders for Case No: 81-001399