Judges: JAMES E. BRADWELL
Agency: Department of Revenue
Latest Update: Jul. 07, 1989
Summary: The issue presented for decision herein is whether or not Petitioner qualifies for a certificate of tenure as a fire fighter on the basis that he was engaged in the duties of a full- time fire fighter on or before July 5, 1969.Whether respondent satisfies the requirements to be certified as a tenured firefighter pursuant to grandfather certification.
89-0137STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JOHN C. AVERY, )
)
Petitioner, )
vs. ) CASE NO. 89-0137
) DEPARTMENT OF INSURANCE AND ) TREASURER, DIVISION OF FIRE ) STANDARDS AND TRAINING, )
)
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 March 24, 1989, in Tampa, Florida. Thereafter, the parties filed proposed recommended orders which were considered in preparation of this Recommended Order. Proposed findings which are not incorporated herein are the subject of specific rulings in an Appendix attached hereto.
APPEARANCES
For Petitioner: Robert G. Walker, Jr., Esquire
HOLLOWAY AND WALKER
250 North Belcher Road, Suite 101
Clearwater, Florida 34625
For Respondent: Lisa S. Santucci, Esquire
Office of Legal Services
412 Larson Building Tallahassee, FL 32399-0300
STATEMENT OF THE ISSUES
The issue presented for decision herein is whether or not Petitioner qualifies for a certificate of tenure as a fire fighter on the basis that he was engaged in the duties of a full- time fire fighter on or before July 5, 1969.
PRELIMINARY STATEMENT
On October 20, 1988, Petitioner, through counsel, applied for a Certificate of Tenure (certificate) as a fire fighter pursuant to Section 633.41, Florida Statutes. Thereafter, by letter dated November 16, 1988, Respondent notified Petitioner that his application for a certificate was incomplete and requested additional information. Based on that request, Petitioner on December 2, 1988, submitted additional documents to the Respondent consisting of an affidavit and copies of documents entitled "Daily Activities". By letter dated December 16, 1988, Respondent notified Petitioner that his application for a certificate was denied because the documents supplied failed to indicate that on or before July
5, 1969, Petitioner was engaged in the sole activity of a full-time fire fighter as defined in Section 633.30, Florida Statutes.
On or about December 28, 1988, Petitioner requested a formal hearing pursuant to Section 120.57(1), Florida Statutes to contest the denial.
Petitioner's Exhibits 1-4 were received into evidence without objection and Respondent's Exhibit No. 1 was received into evidence.
Petitioner testified on his own behalf and presented the following witnesses: Alan Harrison, Lyle Fox, Harold Whitney, Herman Humphries, Donald Mecomber, Lee Roy Wheat1ey and Respondent presented the testimony of Paul Steckle, a field representative supervisor employed by the Division of State Fire Marshall.
Based on my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings:
FINDINGS OF FACT
On October 20, 1988, John C. Avery, Petitioner herein, filed an application for a Certificate of Tenure as a fire fighter pursuant to Section 633.41, Florida Statutes. On November 16, 1988, Respondent notified Petitioner that his application for a certificate was incomplete. Petitioner submitted additional information, however, on December 16, 1988, Respondent determined that Petitioner failed to substantiate that he was engaged in the duties of a full-time firefighter on or before July 1, 1969, and denied his application for a certificate.
On July 5, 1969, Petitioner was employed in the position of fire and communication equipment operator.
At the time Petitioner was hired by Pinellas County, a full-time firefighting and crash rescue entity existed at the Pinellas County Airport for the primary purpose of providing fire suppression, fire prevention, and crash rescue services to the Pinellas County Airport. On July 5, 1969, there existed a full-time firefighting detachment at the Pinellas County Airport and such fire fighting personnel, including Petitioner, were commonly known and referred to as the Airport Fire Department.
Petitioner was intially employed as a full-time Airport Fireman in 1966, at which time he was issued fire protective clothing ("bunker gear"), a badge which bore the legend "Pinellas County Fireman" and was provided a jumpsuit which bore the words "CD Fire" on the back and patches on the sleeve. Petitioner, like all other firefighting detachment employees, who were engaged in firefighting duties at the time, were issued similar gear, badges, and uniforms but other civil defense personnel not engaged in fire fighting were not issued such equipment.
At the time of his hire, Petitioner was told that his primary responsibility was fire prevention and extinguishment of fires, the protection of life and property, and enforcement of applicable fire prevention codes.
Petitioner engaged in other duties related to the monitoring of civil defense radios and telephones after hours when civilian personnel charged with that responsibility were off duty. However, such duties were secondary and
incidental to Petitioner's primary responsibility as an Airport Fireman. Likewise, all fire fighters, civil defense directors and the airport fire chiefs made it clear to all fire fighters that any civil defense activity would be abandoned in the event of an emergency requiring a firefighting or crash rescue response and to the contrary, Airport Fire Department employees never abandoned their fire fighting responsibility for any civil defense activity.
From June 19, 1966 until 1984, the Airport Fire Department was operated under the Pinellas Civil Defense Department although a fire chief was in direct command of the fire fighters.
The full-time Airport Fire Department was established at the Pinellas County Airport in the late 1950's to provide fire and crash protection in accordance with commercial air carrier requirements and about the same time a United States Air Force contract with Fairchild-Hi1ler, a private defense contractor, was executed which called for a full-time fire department at the airport. Fire protection equipment and personnel were to be present at the Fairchild-Hiller facilities during fueling, defueling, engine testing, and flight testing of multi-engine C-130 military transport and KC-135 refueling aircraft. While all five commercial aircarriers eventually withdrew from the airport, the Fairchild-Hiller operation continued through the mid-70's.
Petitioner participated in fire protection and prevention duties on a regular basis during the life of the Fairchild-Hiller contract often standing by with fire protective clothing, a firefighting vehicle and another airport fireman to assist in the event of a fire emergency.
The fire prevention and suppression activity engaged in by Petitioner and other fire fighters during the Fairchild-Hiller era was more intense than is customary by today's standards.
During the mid-60's when Petitioner was initially hired, it was common practice throughout the United States to assign a fire chief or senior fire department official as the Civil Defense Director and to assign the local fire department additional civil defense duties which were generally unrelated to fire suppression, prevention or protection (i.e., radiological monitoring and other duties associated with the then prevailing threat of nuclear war), but which were thought to be sufficiently related to public safety and potential fire hazard as to be within the ambit and natural function of a local fire department.
Fire fighting and crash rescue operations prior to and after July 5, 1969, were regularly logged in a ledger which bore the handwritten title "fire runs". No such similar ledger existed to document civil defense activities.
Full-time civil defense employees and full-time fire fighting employees had distinctly separate functions with the latter working 24-hour shifts around the clock for the paramount purpose of providing a full-time fire and crash rescue capability at the airport.
Petitioner, as other members of the Airport Fire Department, regularly engaged in firefighting or fire prevention activities at brush fires, controlled structure burns, aircraft crash alerts, military aircraft operations and were occasionally called to assist other fire departments at fires off the airport premises both before and after July 5, 1969.
The duties and functions of the Airport Fire Department has remained substantially unchanged from the time of Petitioner's hiring to the present, although operational control has been transferred to various department heads over time for administrative and other reasons.
Petitioner and other members of the Airport Fire Department frequently engaged in fire fighting training among themselves and with other fire departments, which training included the extinguishment of fuel fires and familiarization with explosive devices and typical training exercises for the maintenance of firefighting proficiency.
Airport fire personnel infrequently engaged in civil defense training, and such training as was received was undertaken as additional training similar to that which was provided to other fire department personnel around the nation, use of gieger counters and similar radiological equipment).
At no time was more than one airport firefighter (of three available and on duty to answer fire or crash calls) permitted to engage in other activities unrelated to their fire protection responsibility and even that temporarily indisposed firefighter was required to maintain radio contact and respond to any fire or crash emergency at the airport.
From the date of his hiring up until mid-1988, neither Petitioner nor any other airport firefighter was required by the State of Florida or Pinellas County to be a certified firefighter. Petitioner was affirmatively informed by his employer that his status as airport firefighter did not require certification as a firefighter.
The Bureau of Fire Standards, through its Bureau Chief, Fredrick C. Stark, rejected Petitioner's application for a certificate of tenure because Petitioner was not "engaged in the sole activity of a full-time firefighter as defined in Sections 633.30, Florida Statutes".
The requisite requirement in Section 633.30, requires that a firefighter's "primary responsibility" be fire protection, fire prevention and protection and the protection of life and property. The requirement is not that such activity be the "so1e activity" of a firefighter.
An airport fire department has considerable time periods between fire responses and no major crash of a large commercial aircraft has occurred at the county-owned airport. However, it is the potential for such an event and the likelihood of conflagration and catastrophic loss of lives and property on a massive scale. That is the reason for airport fire departments being located on aircraft property to be in such a high state of readiness.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to subsection 120.57(1), Florida Statutes.
The parties were duly noticed pursuant to the notice provision of Chapter 120, Florida Statutes.
The authority of the Respondent is derived from Chapter 633, Florida Statutes.
Pinellas County is an employing agency within the meaning of Section 633.30, Florida Statutes.
"Firefighter" is a defined term in Chapter 633, Florida Statutes specifically in Section 633.30, Florida Statutes which states in pertinent part:
"Firefighter" means any person initially employed as a full-time professional firefighter by an employing agency, as defined herein, whose primary responsibility
is the prevention and extinguishment of fires, the protection of life and property, and the enforcement of municipal, county, and state fire prevention codes, as well as of any law pertaining to the prevention and control of fires.
The statutory provisions for a Certificate of Tenure, more commonly known as the "grandfather clause" is found in Section 633.41, Florida Statutes which states:
Firefighters employed on the effective date of this part are not required to meet the provisions of Sections 633.34 and 633.33 as a condition of tenure or continued employment; nor shall their failure to fulfill such requirements make them ineligible for any promotional examination for which they are otherwise eligible or affect in any way any pension rights to which they may be entitled on the effective date of this part.
The above-referenced statutory provisions became effective July 5, 1969. See, Chapter 69-323, 5.18, Laws of Florida.
The Certificate of Tenure is provided for in Rule 4A-37.050(1), Florida Administrative Code, which provides in pertinent part that a "Certificate of Tenure" is:
. . . a "Grandfather" Certificate issued to all firefighers who were employed within Florida by an employing agency on or prior to July 5, 1969, signifying that the firefighter comes within the purview of the savings clause set forth in Section 633.41,
Florida Statutes ....
Competent and substantial evidence was offered by Petitioner which reveals that prior to July 5, 1969, Petitioner was employed by an employing agency, Pinellas County, as a firefighter whose primary responsibility was the prevention and extinguishment of fires as that term is statutorily defined in Subsection 633.30, Florida Statutes.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That Respondent enter a Final Order stating that Petitioner is eligible for the issuance of a Certificate of Tenure as a firefighter.
DONE AND ENTERED this 7th day of July, 1989, in Tallahassee, Leon County, Florida.
JAMES E. BRADWELL
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 7th day of July, 1989.
ENDNOTE
1/ Although the denial letter references July 1, 1969, it is found herein that July 5, 1969 is the operative date as noted herein.
COPIES FURNISHED:
Honorable Tom Gallagher State Treasurer and
Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300
Robert G. Walker, Jr., Esquire HOLLOWAY AND WALKER
250 North Belcher Road, Suite 101
Clearwater, Florida 34625
Lisa S. Santucci, Esquire Office of Legal Services
412 Larson Building Tallahassee, FL 32399-0300
Shephen Barron, Esquire General Counsel
131 Montgomery Building
2562 Executive Center Circle, East Tallahassee, Florida 32399
Docket for Case No: 89-000137
Orders for Case No: 89-000137
| Issue Date |
Document |
Summary |
|
Jul. 31, 1989 |
Agency Final Order
|
|
|
Jul. 07, 1989 |
Recommended Order
|
Whether respondent satisfies the requirements to be certified as a tenured firefighter pursuant to grandfather certification.
|
