STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NICHOLAS LEISCHEN, )

)

Petitioner, )

)

vs. ) CASE NO. 89-2465

) FLORIDA DEPARTMENT OF INSURANCE ) AND TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly appointed Hearing Officer, J. Stephen Menton, held a public hearing in the above-styled case on March 14, 1990, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Eugene M. Steinfield, Esquire City Attorney

City of Margate

5790 Margate Boulevard

Margate, Florida 33063

For Respondent: Lisa S. Santucci, Esquire

Division of Legal Services

412 Larson Building Tallahassee, Florida 32399-0300

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent, Florida Department of Insurance and Treasurer, committed an unlawful employment practice by denying Petitioner certification as a permanent firefighter in the state of Florida.

PRELIMINARY STATEMENT

On September 21, 1987, the Petitioner applied to the Respondent through his employer, the Margate Fire Department, for certification as a firefighter pursuant to Section 633.35, Florida Statutes. That application was denied on September 24, 1987, on the grounds that Petitioner's right index and middle fingers had been amputated. Because of the amputations, the Respondent concluded that Petitioner did not meet the requirement that a firefighter be in "good physical condition" in accordance with the standards set forth in Section 633.34(5), Florida Statutes, Rule 4A-37, Florida Administrative Code and National Fire Protection Association ("N.F.P.A.") Pamphlet 1001. On October 21, 1987, Petitioner requested a formal administrative proceeding pursuant to Section 120.57(1), Florida Statutes, to contest the denial. On August 23, 1988, the Petitioner voluntarily dismissed that administrative proceeding.

On November 15, 1987, Petitioner filed a complaint with the Florida Commission on Human Relations alleging that the Respondent discriminated against him by denying him certification as a firefighter. On November 17, 1988, the Florida Commission on Human Relations issued a Notice of Determination: CAUSE, indicating that it found merit in Petitioner's complaint. On December 5, 1988, Respondent filed a Request for Redetermination. On March 23, 1989, the Florida Commission on Human Relations issued a Notice of Redetermination: CAUSE, reaffirming its determination that there was reasonable cause to believe that an unlawful employment practice had occurred. An attempt at reconciliation with the Commission was unsuccessful and Petitioner's Petition for Relief was transmitted to the Division of Administrative Hearings, which noticed and conducted a formal hearing in this case.

Shortly after the case was transmitted to the Division of Administrative Hearings, Respondent filed a Motion to Dismiss along with an answer to the Petition for Relief. Petitioner filed a Response to the Motion to Dismiss on June 5, 1989. A hearing on the Motion to Dismiss was conducted on June 15, 1989. At the conclusion of the hearing, the parties agreed to confer in an attempt to prepare a stipulation as to the facts in this case. As set forth in an Order dated January 9, 1990, the parties were unable to reach a stipulation and requested that an evidentiary hearing be conducted. The parties were granted leave to file memoranda of law in connection with the pending Motion to Dismiss. Both parties filed a memoranda prior to the formal hearing.

At the commencement of the formal hearing, the parties were advised that ruling on the Motion to Dismiss would be reserved and addressed in the conclusions of law section of the Recommended Order entered in this case. The Conclusions of Law set forth below address the issues raised in the Motion to Dismiss.

At the hearing, Petitioner testified on his own behalf. Petitioner also presented the testimony of Frederick C. Stark, Bureau Chief of the Bureau of Fire Standards and Training, Division of State Fire Marshal of the Department of Insurance, and Frank Porcella, Fire Chief for the City of Margate. Petitioner offered five exhibits into evidence, all of which were accepted. Respondent did not present any testimony. Respondent offered one exhibit into evidence, which was accepted.

A transcript of the proceedings has been filed. At the conclusion of the hearing, the parties jointly requested an extended period for filing proposed recommended orders because of scheduling conflicts. That request was granted. The parties subsequently sought an additional extension of time until June 30, 1990 for filing proposed recommended orders. That request was also granted.

Both parties have filed post-hearing submittals including proposed findings of fact. A ruling on each of the parties' proposed findings of fact is included in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is 39 years old and is employed by the City of Margate, Florida as a police officer. He is currently assigned as a detective.

   
   

2. When Petitioner was four years old, he had portions of his right index and right middle fingers amputated in a grinding machine. Petitioner's "handicap" condition has not changed since his boyhood accident and his condition will not deteriorate any further.

3. Because of his determination and his young age at the time of the accident, Petitioner has learned to deal amazingly well with his handicap. He has demonstrated an ability to function without limitation in a variety of job settings, including stints as a mailroom courier where he sorted and handled mail, as a construction worker where he used heavy equipment and performed manual labor such as carpentry and electrical work, and several other positions which required manual dexterity.

   
   

4. Throughout his life, Petitioner has experienced discrimination and skepticism as a result of his handicap. While he has been denied employment opportunities in the past because of doubts about his ability to handle jobs requiring manual dexterity, there is no indication that his handicap has ever prevented him from performing any job. Indeed, the evidence affirmatively established that his handicap has never hindered his job performance, even in jobs requiring a great deal of manual dexterity.

   
   

5. During the mid-1970's, Petitioner applied for several jobs as a police officer with several police departments in South Florida. Because of his handicap, he was turned down for a number of these positions.

   
   

6. In 1977, the City of Margate hired Petitioner for a position as a police officer and sent him to the Police Academy. Before the City of Margate hired him, Petitioner was required to demonstrate to certain police department supervisors that, despite his handicap, he possessed the strength, dexterity, eye-to-hand coordination and motor control necessary to be a police officer. As part of this process, he demonstrated an ability to expertly handle firearms with either hand.

   
   

7. When he entered the Police Academy, the instructors were aware of Petitioner's handicap and paid particular attention to his ability to perform. Petitioner had no difficulty completing any of the required tasks at the Academy.

   
   

8. As a police officer with the City of Margate since 1977, Petitioner has been required to utilize a wide variety of skills and has never had a problem because of his handicap. Petitioner has used handcuffs, firearms, flares, night sticks, numchukas and other such devices without any limitation. He has responded to hundreds of emergency calls and has assisted in extinguishing fires and removing people from fires. On one occasion, he rescued an unconscious boy from the back seat of a car which had crashed into a canal. Petitioner is qualified as an expert marksman with both hands and teaches marksmanship.

   
   

9. In 1985, the City of Margate initiated a program to cross-train police officers in firefighting skills. In connection with this program, Petitioner successfully completed an enhanced basic volunteer course in firefighting consisting of eighty eight hours of training with practical experience. Petitioner was able to complete the entire course without any difficulty, including using various ladders, "taking down" a breathing apparatus and utilizing tools for forcible entry. Petitioner also demonstrated the ability to handle ropes and tie all necessary knots and to handle and connect hoses and similar equipment. Petitioner's overall performance in the course was deemed to be above average.

   
   

10. In the later part of 1986, Petitioner successfully completed a more intensive training course for permanent firefighters at the Broward Fire Academy.

11. The Respondent has promulgated standards setting forth certain requirements that all fire academies must provide as part of their training. Included in these standards is a requirement for "psychomotor skills development which indicates the demonstrated ability to perform individually and as a member of a crew or group all tasks and operations associated with training. If,

    in the professional opinion of an instructor, a student does not possess the qualities necessary to satisfactorily perform psychomotor skills, a student may be dropped from the training program."

    
    

12. The Broward Fire Academy is one of thirty-one training centers certified by the Respondent to conduct minimum standards training for permanent firefighters. The curriculum at the Broward Fire Academy meets the minimum criteria established by the Respondent, including the standards established by

    N.F.P.A. 1001, Firefighter Professional Qualifications. All performance objectives for firefighters are covered as part of the training course. Satisfactory completion of the training according to state specifications must be certified by designated instructors of the Academy in order for an applicant to pass the course.

    
    

13. Petitioner completed two hundred and fifty hours of training at the Broward Fire Academy even though the Respondent only requires two hundred and forty hours of training to certify permanent firefighters. He passed all written and practical examinations at the Broward Fire Academy with a grade of

    89 or higher.

    
    

14. The instructors at the Broward Fire Academy were aware of Petitioner's handicap and scrutinized his performance more closely than they did the other students. He was frequently chosen as the student to perform practical demonstrations.

    
    

15. The Respondent administers a test to all individuals who have graduated from state fire academies as part of its certification process. In order to obtain a certification as a permanent firefighter from the Respondent, an applicant must pass both a written and a practical examination with a grade of 70 percent or higher.

    
    

16. An employee of the Respondent administered the state examination at the Broward Fire Academy on March 4 and 5, 1987. The individual administering the examination indicated to Petitioner that he did not believe Petitioner should be registered as a firefighter. Petitioner was singled out to perform more tasks than the other students who were taking the test. Nonetheless, Petitioner passed the state written examination administered by Respondent with a grade of 80.6 and the practical examination with a grade of 88.

    
    

17. After he passed the examinations, Petitioner was denied certification by Respondent as a paid permanent firefighter by a letter dated September 24, 1987. The sole basis for denying Petitioner certification was that he was missing portions of two of his fingers as described above.

    
    

18. The evidence established that Petitioner is fully capable of performing all necessary tasks expected of a firefighter, including all of the functions described in the City of Margate's job description for a firefighter.

    
    

19. The highest pay grade level for a public safety officer in Margate requires an officer to be eligible to serve as a firefighter. Because Petitioner has not been able to obtain his certification as a permanent

    firefighter from Respondent, he has not been able to advance to the next pay grade and job classification level to which he would otherwise be entitled based upon his experience and training. The City of Margate has indicated its willingness to hire Petitioner in such a position if he obtains a firefighter certification from Respondent.

    
    

20. The job description for a firefighter position in the City of Margate does not specifically require that an applicant be certified as a firefighter pursuant to Chapter 633, Florida Statutes. However, the applicable statute does not permit a municipality to employ an individual as a permanent firefighter for more than one year unless he has obtained a certification from Respondent. Respondent has notified the City that Petitioner cannot serve as a firefighter in "combat" status pending the outcome of this administrative process.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

22. Section 633.35(2), Florida Statutes (1987) provides that: The division [of State Fire Marshal]

    shall issue a certification of

    compliance to any person satisfactorily complying with the training program established in subsection (1) and the qualifications for employment in s.

    633.34. No person may be employed as a regular or permanent firefighter by the employing agency for a period of time in an excess of 1 year from the date of initial employment until he has obtained such certificate of compliance.

    
    

23. Section 633.34, Florida Statutes (1987) provides:

    
    

    Any person initially employed as a firefighter must:

    (5) Be in good physical condition as determined by a medical examination as prescribed by the division. Such examination may include, but need not be limited to, provisions of the National Fire Protection Association Pamphlet 1001. (Emphasis added)

    
    

24. In Rule 4A-37.037, Florida Administrative Code, the Respondent has adopted standards for the medical examination required by Section 633.34. Subparagraph (4) of that rule provides as follows:

    
    

    4A-37.037 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 firefighter, the applicant shall be given a thorough medical examination by a physician or surgeon licensed to practice in the State of Florida...

    3. Such examinations shall 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 satisfactorily and safely perform all the duties associated with firefighting and or predispose 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 deficiencies that would be disqualifying or limiting. 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", 1981 edition, 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. A copy of this publication may be obtained by writing the association, whose address is: National Fire Protection Association, Inc., Batterymarch Park, Quincy, Massachusetts 02269. Any applicant not satisfying the minimum requirements prescribed by the Division for the medical examination shall not be qualified for employment...

       
       

25. Pertinent to this case is, Section 2-2.6.1.2 of N.F.P.A. 1001, 1981 edition, which provides:

    
    

    Hands and Fingers. The cause for rejection for appointment shall be:

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

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

    
    

26. In sum, the statute grants the Respondent discretion to adopt standards defining "good physical condition" for firefighters and specifically cites N.F.P.A. 1001 thereby implicitly approving those standards. The Respondent has adopted these standards in Rule 4A-37, Florida Administrative Code. There are no specific provisions in the statute or rule which allow the Respondent to waive the medical standards set forth in N.F.P.A. 1001 and there is no evidence that the Respondent has failed to consistently apply the medical standards to all applicants for firefighter certification.

    
    

27. It is undisputed that the index finger and the middle finger on Petitioner's right hand have been amputated. If the N.F.P.A. standards are strictly applied, Petitioner does not meet the qualifications set forth in Section 633.34 because he is not in "good physical condition," as defined in

    N.F.P.A. 1001.

    
    

28. The Petitioner contends that he is entitled to certification as a firefighter because the Respondent has unlawfully discriminated against him due to his handicap. The Petitioner relies on the Florida Human Rights Act of 1977 which has been codified at Chapter 760, Florida Statutes (1987). The Human Rights Act prohibits certain specified unlawful employment practices and provides remedies for such violations. That statute provides in pertinent part as follows:

    
    

    1. PURPOSES; CONSTRUCTION; TITLE -

       1. The general purposes of ss. 760.01-

          760.10 are to secure for all individuals within the State freedom from discrimination because of race, color, religion, sex, national origin, age, handicap, or marital status and thereby to protect their interests in personal dignity, to make available to the state their full productive capacities, to secure the state against domestic strife and unrest, to preserve the public safety, health, and general welfare, and to promote the interests, rights, and privileges of individuals within the state.

       2. Sections 760.01-760.10 shall be construed according to fair import of its terms and shall be liberally construed to further the general purposes stated in this section and the special purposes of the particular provisions involved.

    
    

29. The Respondent's initial defense is that it cannot commit an "unlawful employment practice" against the Petitioner under Chapter 760, Florida Statutes because the Respondent does not employ the Petitioner. This contention is rejected.

30. Section 760.10(5), Florida Statutes (1987), states:

    
    

    Whenever, in order to engage in a profession, occupation, or trade, it is required that a person receive a license, certification, or other credential, become a member or an associate of any club, association, or other organization, or pass any examination, it is an unlawful employment practice for any person to discriminate against any other person seeking such license, certification, or other credential, seeking to become a member or associate of such club, association, or other organization, or seeking to take or pass such examination, because of such other person's race, color, religion, sex, national origin, age, handicap, or marital status. (Emphasis added)

    
    

31. While many of the unlawful employment practices prohibited by Section 760.10, Florida Statutes are applicable only to an "employer" or an "employment agency," see e.g., Sections 760.10(1) and (2), subsection (5) of Section 760.10, makes it unlawful for "any person" to discriminate against any other person seeking licensure, certification, etc. A person is defined in Section 760.012 as follows:

    
    

    (5) "Person" includes an individual, association, corporation,...; the state; or any governmental entity or agency.

    
    

    Thus, Respondent can be guilty of an unlawful employment practice under Section 760.10(5) even though it is not the "employer" of the Petitioner.

    
    

32. Respondent next contends that Petitioner's application for certification as a firefighter was not denied because of a handicap, but, instead, Petitioner was denied certification because he did not meet one of the five requirements set forth in Section 633.34, Florida Statutes as proscribed in Section 633.35, Florida Statute. 1/ Respondent argues that it is simply a regulatory agency which issues certificates of compliance after mandatory statutory requirements are met. Respondent claims that it has no discretion in interpreting the statutes and the provisions of Section 633.34 and 633.35, Florida Statutes are mandatory. This argument is also rejected. While Section 633.34(5) specifically references N.F.P.A. 1001, it does not mandate adoption of these standards. On the other hand, the Florida Human Right Act clearly prohibits a certifying agency from discriminating against an individual based solely upon his handicap. Respondent cannot hide behind its rules and the

    N.F.P.A. standards where those standards are inconsistent with the protections afforded to certain classes of individuals in the Florida Human Rights Act and in the Florida Constitution.

    
    

33. Respondent contends Rule 4A-37 and N.F.P.A. 1001 should be viewed as statutorily approved bonafide occupational qualifications in accordance with Section 760.10(8)(a), Florida Statutes. That statute provides:

    Notwithstanding any other provision of this section, it is not an unlawful employment practice under ss. 760.01-

    760.10 for an employer, employment agency, labor organization or joint labor-management committee to

    (a) Take or fail to take any actions on the basis of religion, sex, national origin, age, handicap, or marital status in those certain instances in which religion, sex, national origin, age, absence of a particular handicap, or marital status is a bonafide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related.

    (Emphasis added.)

    
    

34. Unlike subsection (5) which applies to "any person," the bonafide occupational qualifications defense is only available to an "employer, employment agency, labor organization, or joint/management committee." A potential employer can deny employment on the basis of the handicap if he can demonstrate such action is a bonafide occupational qualification for employment, but a certifying agency such as the Respondent cannot deny certification solely on the basis of a handicap.

    
    

35. This case presents a difficult and novel conflict between the Human Rights Act and a statute authorizing a certifying agency to adopt certain standards prior to issuing a certification. 2/ To further complicate matters, Section 633.34 specifically references the standards that have been applied. Without question, the Respondent is placed in a difficult position. However, after analyzing the applicable statutory provisions and the cases decided thereunder, it is concluded that the Respondent cannot mechanically apply its certification authority in a manner that contravenes the provisions of the Human Rights Act. As noted in Morrow v. Duval County School Board, 514 So.2d 1086 (Fla. 1987), Chapter 760, Florida Statutes, is intended to implement, in part, Article 1, Section 2 of the Florida Constitute which provides as follows:

    
    

    Basic rights. - All natural persons are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property; ... no person shall be deprived of any right because of race, religion or physical handicap.

    
    

36. Sections 633.34 and 633.35, Florida Statutes, should be read in pari materia with Section 760.10 in a manner that gives effect to the purposes of all three statutory provisions. Morrow, supra, at 1088. This can only be accomplished if Respondent is prohibited from automatically excluding handicapped persons from consideration for certification. In this regard, it is important to note that both written and practical examinations are administered by Respondent before certification. Thus, a mechanism is already in place to

    make a case by case determination of whether an individual can adequately perform all of the necessary job tasks expected of a firefighter.

    
    

37. Certainly, an individual who does not pass the written exam or is physically unable to perform certain job related functions expected of a firefighter can be denied certification regardless of whether he is handicapped. However, under the Florida Human Rights Act, the Respondent cannot deny certification to a handicapped person solely because of his handicap. A contrary interpretation would directly contravene the policy of the Human Rights Act. Morrow, supra.

    
    

38. The shifting burdens in a case under Chapter 760 were explicated in National Industries, Inc. v. Commission on Human Relations, 527 So.2d 894 (Fla. 5th DCA 1988). In that case, the court discussed McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and stated:

    
    

    Under that test, the plaintiff has the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination. If the plaintiff succeeds in proving that prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. at 802,

    93 S.Ct. at 1824 should the employer carry this burden, the burden then shifts back to the Petitioner to show by a preponderance of the evidence that the reasons offered by the employer were not its true reasons, but were a pretext for discrimination.

    
    

39. In this case, Petitioner has established a prima facie case of discrimination. The evidence established Petitioner was denied certification solely because of his handicap condition. The Respondent contends that it has articulated a legitimate reason other than discrimination for denying certification to Petitioner, i.e., the "mandatory" application of the certification standards set forth in Section 633.34 and 633.35, Florida Statutes. However, those standards should not be applied in a manner that ignores the protections afforded in the Human Rights Act and the Florida Constitution. As stated in the federal case of Kelly v. Bechtel Power Corp., supra:

the essence of unlawful employment discrimination is the application of unreasonable generalizations about people to the hiring... of workers. Prejudice in the sense of a judgment or opinion formed before the facts are known is the fountainhead of discrimination engulfing medical disabilities which prove upon examination to be unrelated to job performance or to be non-existent. The

intent of the law is to protect workers against such prejudgment based upon insufficient information.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Human Relations Commission enter a Final Order granting

Petitioner Nicholas Leischen's Petition for Relief.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 7th day of November, 1990.

J. STEPHEN MENTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1990.

ENDNOTES

1/ The term "handicapped" is not defined in the statute. In this case, there is no dispute that the Petitioner does not enjoy the full and normal use of his physical faculties, i.e., two of his fingers are missing. Nonetheless, Respondent contends that Petitioner should not be considered handicapped under Chapter 760 because, as Petitioner himself admits, Petitioner has no physical limits on the type of work that he can do. This argument is rejected. But for his physical condition, Petitioner would be entitled to certification as a fire fighter. Irrespective of Petitioner's ability to function normally, he is perceived as handicapped and, therefore, should be treated as such for purposes of the Human Relations Act. See, Kelley v. Bechtel Power Corp., 633 F.Supp. 927 (S.D. Fla. 1986).

2/ This case would be easier to resolve if Rule 4A-37 had been directly challenged as part of this proceeding. In view of the evidence presented, it would appear that the rule is unduly restrictive and/or creates an irrebuttable presumption regarding a handicapped individual's ability to perform as a firefighter. Such an irrebuttable presumption would appear to be arbitrary in its application. Cf., Davis v. Insurance Commissioner, 445 So.2d 630 (Fla. 1st DCA, 1984)(upholding the Respondent's adoption of N.F.P.A. 1001 as a valid exercise of the police power in setting forth minimum visual acuity standards. Because, that case does not discuss the standards in the context of the Human Relations Act.) However, this case was not brought as a rule challenge under Section 120.56, Florida Statutes, a more difficult issue is presented as to whether the Respondent has committed an unlawful employment practice by following its duly promulgated rules.

APPENDIX CASE NO. 89-6139

Both parties have submitted Proposed Recommended Orders including proposed findings of fact and conclusions of law. The Petitioner has 34 proposed findings of fact, they are addressed as follows:

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order were Accepted or

Reason for Rejection

1. Adopted in substance in Finding of Fact 1.

2. Adopted in substance in Finding of Fact 2.

3. Adopted in substance in Finding of Fact 3.

4. Adopted in substance in Findings of Fact 3 and 4.

5. Adopted in substance in Finding of Fact 4.

6. Adopted in substance in Finding of Fact 3.

7. Adopted in substance in Findings of Fact 5 and 6.

8. Subordinate to Findings of Fact 6 and 7.

1. Adopted in substance in Findings of Fact 18 and 19.

2. Adopted in substance in Finding of Fact 19.

3. Adopted in substance in Finding of Fact 2.

4. Rejected as vague, ambiguous and unnecessary.

5. Rejected as constituting legal argument and as unnecessary, vague, ambiguous and unnecessary.

6. Rejected as vague, ambiguous and unnecessary.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order were Accepted

or Reason for Rejection

1. Adopted in substance in Finding of Fact 1.

2. Incorporated in the preliminary statement.

3. Incorporated in the preliminary statement and addressed in Finding of Fact 17.

4. Incorporated in the preliminary statement.

5. Subordinate to Finding of Fact 20.

6. Rejected as vague and overly broad. This proposal takes a quote out of context and unjustifiably attempts to attach legal significance to it.

COPIES FURNISHED:

Eugene M. Steinfield, Esquire City Attorney

City of Margate

5790 Margate Boulevard

Margate, Florida 33063

Lisa S. Santucci, Esquire Division of Legal Services

412 Larson Building Tallahassee, Florida 32399-0300

Tom Gallagher

State Treasurer and Insurance Commissioner

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Don Dowdell General Counsel

Department of Insurance and Treasurer The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 89-002465

Orders for Case No: 89-002465