STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE AND )

TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4458

)

JAMES M. YINGLING, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Ft. Pierce, Florida on March 20, 1992, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Elizabeth J. Gregovits, Esquire

Office of Legal Services

412 Larson Building Tallahassee, Florida 32399-0300

For Respondent: Michael J. Mortell, Esquire

2801 E. Ocean Blvd. Suite 2A Stuart, Florida 34996

STATEMENT OF THE ISSUES

The issue for consideration in this case is whether Respondent's certification as a fire fighter in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.

PRELIMINARY MATTERS

By Administrative Complaint dated June 24, 1991, the State Fire Marshal seeks to discipline the Respondent's certification as a fire fighter in Florida because, it is alleged, on January 22, 1991 Respondent swore to an affidavit affirming he had not been a user of tobacco or tobacco products for at least one year immediately preceding his application for certification as a fire fighter. By letter dated June 27, 1991, Respondent requested a formal hearing on the allegations, and on July 17, 1991 the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer.

By Notice of Hearing dated August 9, 1991, issued by the undersigned after the parties had responded to the Initial Order entered herein, a hearing was set in Ft. Pierce for November 12, 1991. However, on the basis of Petitioner's Motion For Continuance, the hearing was later postponed to January 30, 1992 and

upon subsequent request for continuance by Respondent, to March 20, 1992 at which time it was held as scheduled.

At the hearing, Petitioner presented the testimony of Louis S. Puka, field representative supervisor for the Bureau of Fire Standards and Training; John R. Scott, a volunteer fire fighter; George J. Schwarz, a former volunteer fire fighter; and Rebecca Ann Brown, a volunteer fire fighter and Mr. Scott's daughter. Petitioner also introduced Petitioner's Exhibits 1 through 4.

Respondent testified in his own behalf and presented the testimony of William Yurillo, formerly volunteer fire chief; Johnny Recca, a battalion chief and former fire Captain; John H. Wyley, volunteer fire fighter; and James B. Taylor, formerly volunteer fire Captain. Respondent also introduced Respondent's Exhibits A through C.

No transcript was provided. Only Petitioner submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the allegations herein, Petitioner, Department of Insurance and Treasurer, (Department), was the state Fire Marshal and the agency responsible for the certification of fire fighters in Florida. Respondent was either an applicant for certification or a certified fire fighter in this state.

   
   

2. On or about January 22, 1991, Respondent, James M. Yingling, submitted an application for certification as a fire fighter to the Division of State Fire Marshal, Florida State Fire College, Bureau of Fire Standards and Training, on which he indicated he had not used tobacco or tobacco products for at least one

   (1) year immediately preceding the filing of the application. Along with the application, Mr. Yingling submitted certain documentation including his high school diploma, his driver's license, a personal inquiry waiver, fingerprints, a report of medical examination, and an affidavit of even date in which he affirmed he had not been a user of tobacco or tobacco products for at least one year immediately preceding his application for certification as a fire fighter.

   
   

3. Provisions of Section 633.345, Florida Statutes, set out the requirements for certification as a fire fighter in Florida. One of these criteria calls for the applicant not to have

   used tobacco for one year prior to the filing of the application for certification. Had Respondent used tobacco or tobacco products within that year, he would not have been certified.

   
   

4. John R. Scott, a full time employee of Grumman Aircraft in Ft.Pierce, was a part-time volunteer fire fighter at the Jensen Beach Volunteer Fire Department when the Respondent became a member in August, 1990. Mr. Scott saw Respondent at the station house on several occasions and they went out on calls together. Mr. Scott executed a sworn statement on April 11, 1991, indicating that since he has known Respondent, Respondent has been a smoker. Scott claims he has seen Respondent smoking at the station on several occasions and on one occasion at a test site in Orlando when both were there to take the test for Emergency Medical Technician, in January, 1991. He claims to have seen Respondent borrow cigarettes from several fire fighters at the station and return a pack later on. Mr. Scott is a smoker and claims to have been approached by Respondent frequently to give him cigarettes.

5. In April, 1991, Mr. Scott requested that his daughter, Rebecca Brown, type several copies similar to that statement signed by him to be given to and signed by others who had agreed to do so. Only Mr. Schwarz and Ms. Brown actually signed such statements, however, and the others refused to do so. These signed statements, along with Mr. Scott's statement, were forwarded to the Fire Marshal's office. According to Mr. Scott, the others, who backed out, did so because they were afraid of repercussions, but none of these individuals were present to testify and the hearsay testimony of Mr. Scott on that point is insufficient to support a Finding of Fact to that effect.

   
   

6. Both Mr. Schwarz and Ms. Brown also indicated they had seen Respondent smoking either at the station or elsewhere from the time he was hired in August, 1990, until the time he applied for certification in January, 1991. No other fire fighter from whom Respondent is supposed to have borrowed cigarettes presented evidence to that effect, however.

   
   

7. Mr. Schwarz was recognized as a troublemaker at the fire department and was allowed to retire in lieu of disciplinary action. Ms. Brown is Mr. Scott's daughter and the wife of another fire fighter in the Department. The credibility of both is somewhat suspect.

   
   

8. Evidence regarding Mr. Scott also detracts from his credibility. He was known in the department to be a practical joker whose pranks from time to time got out of hand or were excessive. His honesty and integrity were seriously suspect due to his tendency to bring items taken, with or without permission, from his employer, Grumman, to work projects at the department. These were not always minor items, either, and Scott frequently remarked that he had gotten them from "G-Mart" under such circumstances as to give rise to the suspicion they were stolen.

   
   

9. On the other hand, Respondent, recognized as a hard driving, somewhat brash and bragging young man, is nonetheless well though of by the majority of his peers and superior in the Department. He categorically denies the allegations against him. Neither former Chief Yurillo nor Capt. Recta, both of whom worked with Respondent, recall having ever seen him smoke and neither was approached by Respondent for a cigarette. When the allegations involved here came up, an internal investigation was begun at the Department, a part of which included a voluntary urinalysis examination of the Respondent. The results of that test, done by an independent laboratory, reflected no evidence of the use of tobacco at the time the test was taken.

   
   

10. Mr. Scott and Mr. Schwarz both indicate that subsequent to the filing of their affidavits, Respondent came to them and suggested that if they were not sure of the facts they had alleged, they could withdraw them. In fact, neither did so voluntarily. Scott, in April, 1991, after a meeting with Yurillo and Respondent, executed a statement typed for him by Mr. Recca in which he claims he was mistaken in his original allegations regarding Respondent's tobacco use. Scott claims he was pressured into recanting. Yurillo, Recca and Respondent claim Scott's action was voluntary.

    
    

11. Whatever the facts regarding the withdrawal of Scott's original statement, analysis of the evidence of record indicates there is insufficient evidence to establish that Respondent used tobacco or tobacco products within a year immediately preceding his application for certification or that he falsified his application and the supporting affidavit, and it is so found.

    CONCLUSIONS OF LAW

    
    

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

    
    

13. Petitioner has alleged that Respondent's certification as a fire fighter in Florida should be disciplined because he falsified an affidavit submitted in support of his application for certification by stating he had not used tobacco or tobacco products within one year immediately preceding the filing of the application.

    
    

14. Under the provisions of Section 633.34(6), Florida Statutes, any person employed as a fire fighter must:

    
    

    Be a nonuser of tobacco or tobacco products for at least 1 year immediately preceding application, as evidenced by sworn affidavit of the applicant.

    
    

    Section 633.35(2), Florida Statutes, provides: The division shall issue a certificate of compliance to any person satisfactorily complying with the training program ..., and who possesses the qualifications for employment in s. 633.34.

    
    

15. A certificate of compliance shall be revoked by the division, under the provisions of Section 633.351(1):

    
    

    ...if evidence is found that the certification was improperly issued by the division or if evi- dence is found that the certification was issued on the basis of false, incorrect, incomplete, or misleading information.

    
    

16. The burden of proof in this case is upon the Department to establish its allegations against the Respondent by clear and

    convincing evidence Ferris v. Turlington, 510 So.2d 212 (Fla. 1987).

    
    

17. The evidence of record here presents a factual picture not easily clarified. On the one hand, Petitioner presents three witnesses who are adamant in their contention that they saw Respondent smoking and cadging cigarettes during the period from August, 1990 through January, 1991, when he submitted his application for certification. At least two of them also assert that Respondent came to them and suggested they might withdraw from their positions if they were really not sure of what they saw. If they are to be believed, and their evidence accepted as true, Petitioner would have shown that Respondent used tobacco within the prohibited one year period, that his certification was obtained by the use of false information, and that the certification should be revoked.

    
    

18. Two of these witnesses, Mr. Scott and Mr. Schwarz, are not well thought of at the fire department and notwithstanding his assertions to the contrary, there is strong evidence Mr. Scott's integrity is suspect. At the very least, their credibility is less than optimum. Ms. Brown's credibility is also suspect, though to a lesser degree.

19. On the other hand, Chief Yurillo, Mr. Recca, and the others who testified on Respondent's behalf speak highly of his ability and his motivation to be a fire fighter. Recognizing his sometimes brash self confidence is often abrasive, he is nonetheless considered an honest young man and a good employee. Further, the internal investigation conducted by the fire department apparently exonerated him of any wrongdoing in this matter, and the independent laboratory analysis of his urine indicated no evidence of recent tobacco usage. He has also denied any wrongdoing.

    
    

20. In sum, the evidence does not demonstrate with particularity that Respondent is innocent of the allegations against him, but by the same token, it falls far short of clearly and convincingly establishing his guilt.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be entered dismissing the Administrative Complaint in this matter which seeks to discipline Respondent, James M. Yingling's certification as a fire fighter.

RECOMMENDED in Tallahassee, Florida this 9th day of April, 1992.

ARNOLD H. POLLOCK

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 9th day of April, 1992.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-4458

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

For the Petitioner:

1. - 3. Accepted and incorporated herein.

   1. Accepted as the testimony of the witnesses. Not necessarily accepted as true.

   2. Rejected as testimony of Mr. Scott not considered credible.

   3. Accepted.

For the Respondent: None received.

COPIES FURNISHED:

Elizabeth J. Gregovits, Esquire Office of Legal Services

412 Larson Building Tallahassee, Florida 32399-0300

Michael J. Mortell, Esquire 2801 E. Ocean Blvd., Suite 2A Stuart, Florida 34996

Tom Gallagher

State Treasurer and Insurance Commissioner

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Bill O'Neill General Counsel

Department of Insurance

The Capitol, Plaza Level - 11 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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should b e filed with the agency which will issue the Final Order in this case.

Docket for Case No: 91-004458

Orders for Case No: 91-004458