STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES T. STEFFENS, )

)

Petitioner, )

)

vs. ) Case No. 82-3291

) DEPARTMENT OF INSURANCE AND ) TREASURER, DIVISION OF STATE ) FIRE MARSHAL, BUREAU OF FIRE ) STANDARDS AND TRAINING, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Tampa, Florida, on March 11, 1983, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Richard W. Gross, Esquire

Post Office Box 1302 Hialeah, Florida 33011

For Respondent: Susan E. Koch and

Dennis Silverman, Esquires

Department of Insurance and Treasurer 413-B Larson Building

Tallahassee, Florida 32301 ISSUE PRESENTED

Whether Petitioner should be certified as a firefighter pursuant to Chapter 633, Florida Statutes.

This case arose upon the provisional denial by Respondent Division of State Fire Marshal, Department of Insurance and Treasurer, of an application filed by Petitioner James T. Steffens for certification as a firefighter, on the ground that he did not meet state qualifications because of defective eyesight and a noticeable limp. Petitioner thereafter requested an administrative hearing.

At the hearing Petitioner presented the testimony of four witnesses and submitted one exhibit. Respondent presented the testimony of two witnesses and submitted three exhibits.

At the commencement of the hearing the parties stipulated that Petitioner does not meet the state visual acuity standards, and that Respondent possesses no medical evidence that the applicant is not in compliance with NFPA 1001, Section 2-2.6.2.4(d).

At the commencement of the hearing, Petitioner contested the jurisdiction of Respondent to require his certification on the ground that he performs primarily administrative duties as chief of a fire control district, and that his functions as a firefighter were purely in a voluntary status.

Posthearing submissions filed by the parties in the form of Petitioner's Proposed Recommended Order and Brief Regarding Jurisdiction, and Respondent's Proposed Order have been fully considered and those portions thereof not adopted herein are considered to be either unnecessary or irrelevant or unsupported in law or fact.

FINDINGS OF FACT

1. Petitioner James T. Steffens is currently employed as Chief of the Oneco-Tallevast Fire Control District located in Manatee County and has been so employed since June 1, 1982. The fire control district covers approximately 26 square miles southeast of Bradenton, and includes residential and commercial developments and some rural areas. The district employs six firefighters who, along with Petitioner, work a normal 3:00 A.M. to 5:00 P.M., Monday through Friday, work week. There are 28 volunteer firemen in the district who provide most of the firefighting services for the district. The career personnel are hired primarily to supplement the volunteer group during the ordinary work week. However, they and the Petitioner are also volunteer firefighters. During the period of his employment, Petitioner has taken charge of firefighting on six or seven instances, one of which occurred during his normal hours of employment. (Testimony of Steffens)

   
   

2. Petitioner was hired as a result of a screening and interview process by the Board of Commissioners of the Oneco- Tallevast Fire Control District. They were interested in a person who could unify factions within the district and modernize district procedures. The Board of Commissioners was more interested in Petitioner's administrative skills rather than his qualifications as a firefighter. However, it was aware from prior communications with Respondent's personnel that either a certified firefighter should be hired, or if not, that the individual hired would have to be certified in Florida. Petitioner primarily performs administrative functions, such as personnel and budget matters, training and scheduling of personnel, procurement of supplies, and scheduling of fire inspection and prevention programs. Actual fire inspections are conducted by the district fire marshal. (Testimony of Petitioner, Skinner)

   
   

3. Respondent's form FST-1 "Qualification of New Employee," was filed on behalf of Petitioner in June 1982 by Raymond F. Skinner, Jr., Secretary- Treasurer, Board of Commissioners, Oneco-Tallevast Fire Control District. The form reflected that Petitioner had completed the equivalency examination at the State Fire College, Ocala, Florida, on July 11, 1977, and the Report of Physical Examination that accompanied the form showed that he had no physical abnormalities. Upon inquiry by Respondent as to a discrepancy on the physical examination report that reflected Petitioner had adequate visual acuity, as compared to a prior medical report received by the Department showing that his uncorrected vision in the right eye was 20/200 and in the left eye, 20/400, the examining physician advised the Respondent that the earlier eye examination should be deemed correct. (Respondent's Exhibits 1-2)

   
   

4. By letter of October 5, 1982, Mr. Skinner was advised by the Office of the State Fire Marshal that Petitioner could not be certified because he did not meet the requirements of pertinent law and regulations as to visual acuity, and

   also due to the fact that he had a "noticeable limp." Specifically, he was advised that Section 633.34(5), Florida Statutes, required 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," and that Rule 4A-37.37, Florida Administrative Code, implementing the statutory provision, provided in subsection (3) for adoption of the standards of NFPA 1001 (1974). The letter further stated that NFPA 1001, Chapter 2-2.7.2(b), provided that standard visual acuity, without correction, of less than 20/40 in one eye, and 20/100 in the other eye, was cause for rejection for appointment, and that Chapter 2-2.6.2.4(d) provided that shortening of a lower extremity resulting in any limp of noticeable degree was also cause for rejection. Subsequent to receipt of the letter from Respondent, Petitioner requested an administrative hearing. (Respondent's Exhibit 1)

   
   

5. Petitioner does not meet the visual acuity standards set forth in the above-cited law and regulations in that his uncorrected eyesight is 20/200 in his right eye and 20/400 in his left eye. (Respondent's Exhibit 1-2, Stipulation)

   
   

6. Respondent's ground for rejection of certification because Petitioner has a "noticeable limp" was based solely on observation of Petitioner by Mr. Raymond Schaffner, Program Coordinator for Fire Standards, Office of the State Fire Marshal. However, Mr. Schaffner has no knowledge of Petitioner having a shortening of either leg, nor is there any medical evidence in that regard. Although he is of the opinion that a person with a limp would have difficulty as a firefighter carrying heavy weights on stairs, or maintaining control on a ladder with his legs to free his hands, he is unaware of any actual limitations that Petitioner might have in this regard. (Testimony of Schaffner)

   
   

7. Petitioner concedes that he has a slight limp, but can offer no medical explanation for it. He purchases trousers which have the same inseam for both legs. The problem becomes more pronounced if he becomes overweight. It has never hampered his sports activities in the past, or his prior activities as a volunteer firefighter since 1956. In 1977, he successfully completed the equivalency examination at the State Fire College in Ocala, which required that he perform field "evolutions" or practical exercises in firefighting. Although they do not necessarily test an individual's endurance, Petitioner participated in advancing heavy hoses and carried a man down from a ladder during his equivalency examination. He has performed "leg locks" on ladders "hundreds of times" in the past. (Testimony of Schaffner, Petitioner)

   
   

8. Volunteer firefighters are not required to be certified by the state. However, Respondent's interpretation of applicable statutes is that the employed chief of a fire control district must be certified if he meets the definition of "firefighters" set forth in Section 633.31, Florida Statutes. (Testimony of Schaffner, Stark)

   
   

   CONCLUSIONS OF LAW

   
   

9. Section 633.34, Florida Statutes, provides in pertinent part as follows:

   
   

   633.34 Firefighters; qualifications for employment.-- Any person initially employed as a firefighter must:

   * * *

   (5) Be in good physical condition as deter- mined by a medical examination as prescribed by the Division. Such examination may in- clude, but need not be limited to, provisions of the National Fire Protection Association Pamphlet 1001.

   
   

10. Pursuant to the above statutory authority, Respondent has promulgated Rule 4A-37.33, Florida Administrative Code, which states pertinently:

    
    

    4A-37.33 Qualification of New Employee Upon the initial employment of a firefighter, the employing agency shall forward to the "Divi- sion", as that term is defined in section 633.30(5), Florida Statutes, and used through- out these rules, a completed FST-1 form en- titled "Qualification of New Employee" (See Rule 4A-37.39) which evidences that the new employee has met the qualification require- ments of Section 633.34, Florida Statutes.

    This form, along with the FST-2 form "Medical Examination" (See Rule 4A-37.39) . . . shall be submitted to the division within five (5) days after initial employment.

    Rule 4A-37.37, F.A.C., provides pertinently as follows: 4A-37.37 Pre-employment Medical Examination

    1. Establishment of good physical condition

       of the applicant by a medical examination is a pre-employment requirement which must be met prior to initial employment as a firefighter in compliance with section 633.34(5), Florida Statutes.

    2. Prior to initial employment as a fire- fighter, the applicant shall be given a thorough medical examination by a physician or surgeon licensed to practice in the State of Florida pursuant to Chapter 458, Florida Sta- tutes

    3. Such examinations will be conducted for the purpose of detecting or determining the presence of deficiencies or abnormalities which would reasonably be expected to limit the abilities of the applicant to satisfac- torily and safely perform all the duties associated with firefighting and/or predis- pose the applicant to injury or disability.

    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 defi- ciencies that would be disqualifying or li- miting. The medical standards prescribed by the Division are those published in the Na-

       tional Fire Protection Association in its pamphlet NFPA No. 1001, "Fire Fighter Profes- sional Qualifications," 1974 edition, Section 2-2, "Medical Requirements for Fire Department Candidates," pages 1001-8 through 1001-35, in- clusive, which is hereby incorporated in this rule and made a part of the rule by reference

       . . . Any applicant not satisfying the mini- mum requirements prescribed by the Division for the medical examination shall not be qua- lified for employment. The results of the me- dical examination shall be reported to the Division on a completed FST-2 form entitled "Medical Examination" (See 4A-37.39).

       
       

11. Paragraph 2-2.6.2.4(d) of NFPA Pamphlet 1001 provides that a cause for rejection for appointment shall be "Shortening of a lower extremity resulting in any limp of noticeable degree." Paragraph 2-2.7.2() provides that a cause for rejection shall be "Standard visual acuity without correction, less than 20/40 in one eye, and 20/100 in the other eye."

    
    

12. The evidence shows and Petitioner has conceded that he does not meet the visual acuity standards for appointment as a firefighter. However, the evidence failed to show that Petitioner should be rejected under paragraph 2- 2.6.2.4(d) involving shortening of a lower extremity resulting in any limp of noticeable degree. No medical evidence or other competent evidence was submitted to establish that Petitioner should be rejected for that reason.

    
    

13. Petitioner's attack upon Respondent's jurisdiction to require his certification would ordinarily not be raised in a proceeding of this nature where certification has been sought by an applicant. However, Section 633.34 and the implementing rules, in effect, require that a person employed as a firefighter must meet the statutory requirement and be certified by the state. (See Rule 4A-37.32(2), F.A.C.)

    
    

14. Section 633.30(1), Florida Statutes, defines "Firefighter" as follows:

    
    

    1. "Firefighter" means any person initially employed as a full-time professional fire- fighter by any employing agency, as defined herein, whose primary responsibility is the prevention and extinguishment of fires, the protection of life and property, and the en- forcement of municipal, county, and state fire prevention codes, as well as of any law per- taining to the prevention and control of fires.

       
       

       Section 633.30(2) defines "Employing agency" as including any political subdivision of the state, including authorities in special districts, employing firefighters. Petitioner contends that Respondent has no jurisdiction to require that he meet the provisions of Chapter 633 in that he was employed by the Oneco-Tallevast Fire Control District solely to perform administrative functions, and that in those instances when he is acting as a fire chief in fire suppression activities, he is doing so as a volunteer fireman and not as a paid employee of the fire district.

15. Petitioner's contention is without merit. It is true that the Board of Commissioners of the Oneco-Tallevast Fire Control District hired Petitioner primarily with a view to his administrative expertise. However, his title is that of "Chief" of the Fire Control District and he acts as commander of both career and volunteer firefighters at all fires occurring in the district. Although he has only commanded the firefighting forces on one occasion during regular duty hours since his employment, the fact remains that he is responsible for the performance of such duties during the course of his employment. Additionally the statutory definition of "firefighter" is not limited to the extinguishment of fires, but also concerns matters relative to their prevention, and the enforcement of governmental fire prevention codes, as well as other laws relating to the prevention and control of fires. The statutory definition therefore is sufficiently broad to encompass the normal duties of fire chiefs generally, and specifically in the case of Petitioner. As Fire Chief, he has the ultimate responsibility for the protection of life and property, and the enforcement of laws relating to the prevention and control of fires in the fire district. His administrative duties are an integral part of such responsibilities and cannot be separated for the purpose of avoiding statutory requirements.

    
    

16. In view of the foregoing, it is concluded that Respondent has jurisdiction to require Petitioner to meet the requirements of Section 633.34, F.S., incident to his employment, and that Petitioner is not so qualified due to his disqualifying visual acuity.

RECOMMENDATION

That Petitioner James T. Steffens be determined unqualified for employment and certification as a firefighter pursuant to Chapter 633, Florida Statutes.

DONE and ENTERED this 3 day of 1983, in Tallahassee, Florida.

THOMAS C. OLDHAM

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 3rd day of May, 1983.

COPIES FURNISHED:

Richard W. Gross, Esquire Post Office Box 1302 Hialeah, Florida 33011

Susan E. Koch and

Dennis Silverman, Esquires Department of Insurance 413-B Larson Building

Tallahassee, Florida 32301

The Honorable William Gunter State Treasurer and Insurance Commissioner

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 82-003291

Orders for Case No: 82-003291