The Issue Whether the respondent discriminated against the petitioner on the basis of
Findings Of Fact In the summer of 1981, petitioner took emergency medical technician (EMT) training and in the fall of 1981, attended Orange-Orlando Fire Training Academy. She received her emergency medical technician certification from the State of Florida in the fall of 1981, and on November 13, 1981, received a certificate of completion from the fire training academy. Thereafter, petitioner submitted applications for employment with several fire departments throughout Central Florida. On December 16, 1981, petitioner submitted an application for employment with Orange County which reflected that petitioner was "studying paramedics." On January 6, 1982, petitioner supplemented her written application to the county with a Fire Fighter Data Questionnaire which indicated that she was "presently taking paramedics." On the questionnaire, the petitioner explained her reasons for wanting to become a fire fighter as follows: "I want to be a paramedic firefighter because I enjoy being trained to help people & save lives. I want to work emergency care in the streets rather than in the hospital." In June, 1982, petitioner's name came to the top of the eligibility list, and she was contacted by Mr. John Jung, Administrative Assistant, Orange County Fire Department (OCFD or Department). By that time, petitioner had moved from Orlando to Medeira Beach, Florida, and was enrolled in a paramedic course offered by St. Petersburg Junior College. Mr. Jung offered petitioner the fire fighter position that was open and explained that the position would have to be filled by the middle of July. Petitioner indicated to Mr. Jung that she was currently enrolled in paramedic school, and therefore could not accept the position. Mr. Jung was aware that there was a critical shortage of paramedics within the Orange County Fire Department 2/, and therefore he asked petitioner if she would be willing to accept the position if it were possible to hold the position open until she graduated from school. The petitioner asked Mr. Jung if the Department would be in a position to reimburse her for her paramedic schooling. Mr. Jung discussed the telephone call with his superior, Chief Cragan. Mr. Jung explained that he had an applicant that was completing paramedic training and asked if it would be possible to hold an opening for that candidate. Mr. Jung also asked if the Department could reimburse the candidate for her paramedic educational training. Mr. Jung was told that the Department could not legally reimburse a non-employee, but that it would be permissible to hold an opening for the candidate contingent upon the person practicing as a paramedic. Thereafter, Mr. Jung called petitioner and informed her that, although she could not be reimbursed for her paramedic training, a position would be held open for her until completion of her paramedic training if she would agree to function as a paramedic. Petitioner accepted the position, and Mr. Jung informed her that the OCFD would contact her at the time she was completing school and make arrangements for her processing. 3/ On August 20, 1982, after successfully completing her paramedic training, the petitioner moved to Orlando. The petitioner's employment with the Orlando County Fire Department began on September 13, 1982. Petitioner's first working assignment was Station 30 under Lieutenant Hurd. Chief Dryburgh was the Battalion Chief for Station 30, but during most of the time that petitioner was assigned to that station, Norman Scholar was Acting Battalion Chief. On or about October 11, 1982, petitioner was transferred to Station 66 where she worked under Lieutenant Robert Danks. Shortly after her transfer, Chief Dryburgh delivered petitioner's 30 day evaluation to her. On the evaluation form the category "quality of work" had been changed from "needs improvement" to "acceptable", and "physical condition" had been changed from "acceptable" to "needs improvement". The petitioner testified that the changes were made after she had signed the evaluation and that Chief Dryburgh stated to her that he had made the changes. Chief Dryburgh testified that he saw Lieutenant Hurd make the changes on the form and that he then delivered the employment evaluation to petitioner and she signed it at that time. The dates next to the signatures of Lieutenant Hurd and petitioner show that both signed the evaluation on October 17, 1982. Petitioner was not assigned to the same station as Lieutenant Hurd at that time, and the only reasonable conclusion that can be made is that Lieutenant Hurd signed the form, gave it to Chief Dryburgh for delivery to petitioner, and then petitioner signed the form. However, the questions of whether the alterations were made prior to petitioner's signature and who made them are irrelevant. The evaluation was not related to the decision to terminate petitioner's employment. Further, the changes were not negative, petitioner's overall evaluation was good and the form indicates that petitioner was meeting probationary requirements. While at Station 66, an unpleasant incident occurred between petitioner and Lieutenant Danks, her supervisor. When the incident occurred, the fire truck had just returned to the station. Petitioner, as the fire fighter in the jump seat, had the job of getting off the truck, going to the rear, and directing the driver in backing the truck into the garage. Petitioner did not get off the truck when she should have because she heard a radio call coming in and thought that the crew might be going out on another call. When Lieutenant Danks saw that the petitioner was still sitting on the truck, rather than being in position to direct the truck into the garage, he started yelling at her to get off the truck and back it in. He was shouting so loudly that the fire fighters inside the station could hear him. He then went into the station, and a few minutes later the petitioner approached him and asked if she could talk to him because she felt that he had reprimanded her in an inappropriate manner. Lieutenant Danks stated that he was busy at the moment and would talk to her later. About 15 minutes later Lieutenant Danks told petitioner that he was ready to talk to her and they went to the Chief's office. The focus of this conversation was petitioner's concern about the manner in which Lieutenant Danks reprimanded her rather than petitioner's failure to get off the truck as quickly as she should have. Again Lieutenant Danks raised his voice to the level where the other fire fighters could hear him even though the door to the Chief's office was closed. Lieutenant Danks had never before reprimanded a fire fighter under his command in the manner in which he reprimanded the petitioner. A few hours after the meeting in the Chief's office, Lieutenant Danks informed the petitioner that she was being suspended because she had taken sick leave on an earlier shift. The petitioner had taken sick leave because she had injured her hand while on a prior shift and had not had the time to go to the doctor and obtain a medical release. However, the suspension was cancel led due to the Intervention of Chief Moody. Although Lieutenant Danks' behavior on the day in question may have been inappropriate, there is nothing that would suggest that he reacted in the manner that he did due to petitioner's sex. The shouting incident was an isolated occurrence. Lieutenant Danks had never before reprimanded petitioner or any other fire fighter, male or female, in that manner. Further, petitioner's treatment at Station 66 was totally unrelated to the later events which led to petitioner's termination and is, therefore, irrelevant. Subsequently, and in accordance with petitioner's request, petitioner was transferred to Station 80 where she worked under the immediate supervision of Lieutenant Brus. Lieutenant Brus had an interview with petitioner, as he did with all new personnel assigned to his shift, to advise her as to what would be expected of her and as to what she should expect from him. During the course of the interview, petitioner told Lieutenant Brus that she had gone to school to get her paramedic certification and that she had been hired by the OCFD with the understanding that she would function as a paramedic as soon as she got notification from the state that she had passed the state examination. Petitioner was proud of the fact that when the OCFD had contacted her instructor to find out how she was performing in school, the instructor told them that she was expected to graduate in the top of her class. On December 4, 1982, while assigned to Station 80, petitioner received notification from the state that she had passed the paramedic exam and was state certified to practice. The next shift day Battalion Chief Brock asked petitioner if she had heard from the state regarding her exam, and she informed Chief Brock that she had passed. On December 7, 1982, Battalion Chief Hall, second-in- command of the Emergency Medical Services unit under Chief Montes de Oca, called petitioner to find out when she would get her Orange County paramedic card. 4/ Petitioner informed Chief Hall that she did not intend to get her Orange County card because she did not want to work for the Orange County Fire Department as a paramedic. Chief Hall agreed to meet with petitioner later that day to discuss the situation. On the afternoon of December 7, 1982, petitioner met with Chief Hall, Chief Montes de Oca, and Lieutenant Brus. Once again petitioner stated that she did not intend to get her Orange County card at anytime in the near future and stated that if she did obtain the card, it would not be to work as a paramedic for the OCFD but to work on her days off for a private ambulance service. She stated that since the OCFD had not paid for her paramedic education, she could not be required to function as a paramedic unless the OCFD reimbursed her for the cost of her schooling. She also stated that she did not want to work as a paramedic for the OCFD because she did not want to be transferred due to problems she had previously had. Chief Montes de Oca explained that the meeting was not to discuss a potential transfer but to discuss petitioner's obtaining an Orange County card. Chief Montes de Oca concluded the meeting by ordering the petitioner to obtain her county certification by Monday morning, December 13th, or face disciplinary action. Petitioner was told to show Lt. Brus proof of county certification on Friday, December 10th. After Chief Montes de Oca and Chief Hall left the meeting, Lt. Brus talked with petitioner about her attitude toward ranking officers of the OCFD. Throughout the meeting petitioner had been disrespectful, outspoken, and argumentative. Lt. Brus advised petitioner that she would have to get the card on the following two days, which she had off, because Friday, December 10th, she would be on duty; the bureau that handles the cards would be closed on Saturday and Sunday; and she had to have the card when she reported to work at 7:30 a.m., Monday morning. Petitioner again stated that the OCFD should reimburse her for her schooling if they expected her to work as a paramedic. Lt. Brus told her that she was given an order and was expected to carry it out. Petitioner stated that she would get the card. On December 10, 1982, petitioner reported to work without the Orange County card. She told Lt. Brus that she did not have the time to get the card because she was taking or studying for final exams in school on December 8th and 9th. Lt. Brus contacted Chief Hall and informed him that petitioner did not have her card and Chief Hall notified Chief Rivers, head of personnel, whose initial reaction was to suspend petitioner immediately. However, since petitioner was officially given until December 13th to get her card, it was decided that petitioner would be given time off from duty on December 10th in order to get the card. Chief Montes de Oca instructed Lieutenant Brus that petitioner could have time off, without pay, to get the card, and Lieutenant Brus relayed that information to petitioner. Later in the discussion with petitioner, Lieutenant Brus exercised his authority as petitioner's immediate supervisor and offered her time off with pay. Petitioner explained that she did not have transportation available because her boyfriend, now her husband, had driven her to work. Lieutenant Brus then offered petitioner the use of his personal car, which she refused. She was not offered transportation by the OCFD, which petitioner felt she was entitled to. Petitioner testified as to her demand for transportation from the Department as follows: I said to them, if it is that important and it really does have to do with my job and you want to transport me down there, I'll get my card, and I'll go down there. * * * So that's why I figured if it was really that important for them to have it, then they could certainly -- if they had to have it that day and couldn't wait and wanted to do it on my work day, then they could provide the trans- portation. (T-117, 118) Because the Department did not provide transportation, the petitioner did not get her card. 5/ On Monday morning petitioner attended a meeting with Chief Rivers, Chief Montes de Oca, Chief Hall, and Lieutenant Brus. The petitioner was asked if she had obtained her Orange County card as she had been ordered to do. She said she had not. She was asked if she intended to get it, and she said no. Chief Rivers then informed the petitioner that he had no alternative but to discharge her for failing to obey a direct order of a superior officer and for insubordination. The petitioner was notified of her termination by certified letter dated the same day. Evidence was presented that certain male fire fighter/paramedics had been allowed to stop functioning as paramedics. However, the evidence also showed that the reassignments of those fire fighters from paramedic duties to other duties were sound management decisions and were not unilateral decisions of the fire fighters. In two of the cases the individuals showed signs of stress which demonstrated itself in the form of inadequate decision making and inadequate skills. In one case the individual lost his certification due to incompetency. In another case the individual was promoted to inspector, and the last case involved a situation where all the engineer/paramedics had to commit to either paramedic or engineer so that the county could determine whether they had engineer slots open or paramedic slots. 6/ Obviously, not one of the situations involving the male fire fighter/paramedics is similar to petitioner's situation. 7/ Petitioner's termination from her employment had nothing to do with her sex. A position on the Orange County Fire Department was held open for the petitioner solely because of her paramedic training and her expressed desire to serve as a paramedic. The Orange County Fire Department had a desperate need for paramedics and had every reason to expect that the petitioner would take all the steps necessary to become certified to function as a paramedic in Orange County. Prior to her hiring, the petitioner was told that she could not be reimbursed for her paramedic training. Yet when her superior officers inquired about her county certification, the petitioner informed them that she would not obtain it without the county paying her $4,000 to reimburse her for her schooling. When, as a last resort, she was ordered to get her Orange County card, she refused to obey the order. Petitioner's continued insubordination and her refusal to comply with a direct order of her superior officer, justifiably caused her to be dismissed from her position with the Orange County Fire Department.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the petition for relief filed by the petitioner. DONE and ENTERED this 30th day of August, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1985.
The Issue Whether Petitioner's application for registration as a trainee real estate appraiser should be denied on the ground set forth in the Florida Real Estate Appraisal Board's Notice of Intent to Deny.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a 35-year-old divorced man (born in October 1972) who resides in Miami-Dade County, Florida, with his parents. He is the father of a six-year-old son whom he shares custody of with his former wife. In early 2003 (when he was 30 years of age), fueled by a desire to increase his wealth, Petitioner engaged in the trafficking of counterfeit Procrit to drug wholesalers. (Procrit is a prescription drug manufactured by Amgen, Inc.) In so doing, Petitioner recklessly exposed the intended consumers of these counterfeit drugs to the risk of serious bodily harm. Prior to engaging in this criminal enterprise, Petitioner had lived a law-abiding life. Petitioner was arrested on or about February 28, 2003, and subsequently charged in the United States District Court for the Southern District of Florida with the federal crime of trafficking in counterfeit goods in violation of 18 U.S.C. § 2320. The information against Petitioner alleged, in pertinent part, that, "[f]rom on or about January 20, 2003 to on or about February 27, 2003, at Miami, Miami-Dade County, in the Southern District of Florida, and elsewhere, the defendant, Eddy Gorrin, did intentionally traffic and attempt to traffic in goods, that is, Procrit prescription drugs, and knowingly used a counterfeit mark on and in connection with such goods without authorization from Amgen, Inc., such mark being identical with and substantially indistinguishable from the genuine mark in use and registered for those goods by Amgen, Inc. on the principal register in the United States Patent and Trademark Office, and the use of which counterfeit mark was likely to cause confusion, to cause mistake, and to deceive." With Petitioner's post-arrest assistance, the authorities recovered all of the counterfeit Procrit that Petitioner and his co-perpetrators had distributed. On or about May 22, 2003, Petitioner entered into a plea agreement with the federal prosecutor's office. The agreement provided, in pertinent part, as follows: The defendant agrees to waive prosecution by indictment and plead guilty to Count One of an Information, which charges the defendant with intentionally trafficking and attempting to traffic in goods and knowingly using a counterfeit mark on those goods in violation of Title 18, United States Code, Sections 2320 and 2. The defendant is aware that the sentence will be imposed in conformity with the Federal Sentencing Guidelines and Policy Statement (hereinafter "Sentencing Guidelines"), and that the applicable guidelines will be determined by the Court. The defendant is also aware that a sentence imposed under the guidelines does not provide for parole. Knowing these facts, the defendant agrees that this Court has jurisdiction and authority to impose any sentence within the statutory maximum set for his offense. This Office and the defendant agree that, although not binding on the Probation Office or the Court, they will jointly recommend that the Court make the following findings and conclusions regarding the applicable Sentencing Guidelines: Applicable Offense Guideline: That pursuant to Section 1B1.2(a) of the Sentencing Guidelines, the offense guideline applicable to the defendant's offense is Section 2B5.3 of the Sentencing Guidelines, which provides for a base offense level of eight; Amount of Loss: That under Sections 2B1.1(b)(1) and 1B1.3 of the Sentencing Guidelines, the amount of loss resulting from the defendant's offense conduct is between $200,001 and $400,000, increasing the defendant's offense level by twelve levels. Manufacture of Counterfeit Drug: That under Section 2B5.3(b)(2) of the Sentencing Guidelines, the defendant's offense involved the manufacture of the counterfeit prescription drug Procrit and that his offense level should therefore be increased by two levels. Conscious or Reckless Risk of Serious Bodily Injury: That under Section 2B5.3(b)(4) of the Sentencing Guidelines, the defendant's offense involved the conscious or reckless risk of serious bodily harm, and that as a result, his offense level should be increased by two levels. Acceptance of Responsibility: That under 3E1.1 of the Sentencing Guidelines, the Sentencing Guideline level applicable to the defendant's offense should be reduced by three levels based upon his recognition and affirmative and timely acceptance of personal responsibility for the offense, provided further that the defendant makes a full, accurate and complete disclosure to the United States Probation Office of the circumstances surrounding defendant's relevant conduct and does not engage in any misconduct after entering into this agreement . . . . Other Adjustments: That no other additional downward adjustments from Chapters 2 or 3 of the Sentencing Guidelines are applicable in this case. Restitution and Fine: That pursuant to Section 5E1.1(a) of the Sentencing Guidelines, the defendant agrees that he shall pay restitution in the amount of $8,000 to the U.S. Food and Drug Administration, which takes into account the $25,000 voluntarily restituted in March 2003, prior to the filing of the information in this case. It is also agreed that this payment will be a condition of the defendant's probation and/or supervised release. After a through review by the parties of both the offense conduct and the application of the Sentencing Guidelines to this offense conduct as outlined in paragraph 3 of this Agreement, this Office and the defendant agree, pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, that the applicable total resulting offense level in this case is an offense level 21. This Office does not object to the defendant's request to be sentenced at the low end of the guideline range, that is, 37 months. The defendant understands and agrees that the Court may impose any sentence authorized by law and that the defendant may not withdraw his plea solely as a result of the sentence imposed. The defendant also understand and agrees that the Court may impose a statutory maximum term of imprisonment of up to ten years, followed by a maximum supervised release term of three years. In addition to a term of imprisonment and supervised release, the Court may impose a fine up to $2,000,000. The defendant understands and agrees that, in addition to any sentence imposed under paragraph 5 of this agreement, a special assessment in the amount of $100 will be imposed on the defendant. The defendant agrees that any special assessment imposed shall be paid at the time of sentencing. The defendant is aware that the sentence has not yet been determined by the Court. The defendant is also aware that any estimate of the probable sentencing range that he may receive from his counsel, the government or the Probation Office, is a prediction, not a promise, and is not binding on the government, the Probation Office or the Court. * * * After entering his plea of guilty, Petitioner was sentenced to 37 months in federal prison. He was also fined and ordered to pay restitution. Petitioner began serving his prison sentence on October 16, 2003. While in prison, Petitioner took a correspondence course in real estate appraising. He also participated in and completed a nine-month alcohol rehabilitation program (for which he was eligible because he had a history of alcohol abuse). As a result of his completion of the program, his prison sentence was shortened. In March 2005, Petitioner was released from prison and placed on supervised probation for a period of three years. For the first six months of his probation, Petitioner was under house arrest and had to wear a monitoring device on his ankle. Petitioner's probation officer recommended that he be discharged early from probation inasmuch as he had "complied with the rules and regulations of probation/supervised release and [was] no longer in need of supervision." On November 22, 2006, the sentencing judge issued an order adopting this recommendation and discharging Petitioner from probation. Since his release from prison in March 2005, Petitioner has led a crime-free life and become a productive member of society. He has abstained from the use of alcohol, with the exception of having an occasional glass of wine. He has gone back to school and completed the necessary coursework to obtain his Associate of Arts degree from Miami- Dade Community College. He has been gainfully employed throughout the post- incarceration period. From March 2005, to April 2006, Petitioner worked for two companies owned by Patsy Stecco: Mortgage Processors of South Florida, Inc., where he helped process mortgages, work that required him to handle money (which he did without incident); and Buyers Home Connection, Inc., where he was a credit analyst with managerial responsibilities. During this time period, he took a "real estate mortgage broker course . . . to get more of an understanding of what the work entail[ed]." Ms. Stecco has known Petitioner for the past ten years,1 having first met him "through a niece of [hers who] was friend[ly] with his ex-wife."2 Ms. Stecco was aware of Petitioner's criminal past when she hired him. In April 2006, Petitioner went to work for a Florida- certified residential appraiser, Gaston Gosselin, Jr. Mr. Gosselin owns his own appraisal business, Precision Appraisers and Company, Inc. He hired Petitioner based upon Ms. Stecco's recommendation. Before hiring Petitioner, Mr. Gosselin did not inquire as to whether Petitioner had a criminal record, and Petitioner did not volunteer that he did. It was not until two or three months after Petitioner began working for him that Mr. Gosselin found out (from Ms. Stecco) about Petitioner's criminal past. When Mr. Gosselin confronted Petitioner about the matter, Petitioner was candid and forthright, and he apologized to Mr. Gosselin for not making the disclosure sooner. While Mr. Gosselin was concerned about Petitioner's "initial[]" lack of openness regarding the matter, Petitioner had so impressed him during the "short time" they had known each other that, despite this concern, Mr. Gosselin retained Petitioner as an employee. Petitioner did research and marketing work for Mr. Gosselin. He also assisted with office personnel matters. In February 2008, Mr. Gosselin had to let Petitioner go because, due to deteriorating business conditions, he could no longer afford to keep Petitioner on the payroll. He has "stayed in touch" with Petitioner, however, and now "consider[s] him a friend." Ms. Stecco and Mr. Gosselin (both of whom testified, credibly, at the final hearing on Petitioner's behalf3) found Petitioner to be a hardworking, quick-learning, reliable, dedicated, competent, honest, and trustworthy employee. Mr. Gosselin would not hesitate to serve as Petitioner's supervising appraiser were Petitioner's application for registration as a trainee real estate appraiser to be granted.4 He believes that Petitioner would be a "great asset to [him] and [his] business." Since February 2008, Petitioner has been a staffing manager with Robert Half International (RHI). RHI does not "know about [Petitioner's] criminal history." It has not "inquire[d] [of Petitioner] about [his] criminal past," and Petitioner has not come forward and made any unsolicited disclosures regarding the matter. In addition to working full-time for RHI, Petitioner works evenings and weekends for his father's company, EDGO General Consulting Services, Inc. (EDGO), which "owns rental properties." Petitioner collects rents and makes deposits, as well as does needed repair work, for the company. Petitioner had worked for EDGO prior to his incarceration. In 2001, he was "involved in overseeing" a residential construction project undertaken by the company. In applying for the staffing manager position he now holds with RHI, Petitioner submitted a copy of a resume, wherein he had listed, "oversee construction development of single family spec homes," as one of his duties at EDGO. In so doing, he meant to convey that "oversee[ing] construction development of single family spec homes" was one of things that he had done during his employment with EDGO, not that it was among his current job duties. The resume also contained the following entry regarding his employment with Precision Appraisers and Company, Inc. (under the heading of "Professional Experience"): Precision Appraisers & Company, Inc., Office Manager/Appraiser 04/2006-02/2008 Establish productive marketing strategies and incentives for existing and potential clients. In charge of interviewing new prospective personnel for clerical and administrative positions. Research all records of properties being appraised and provide all information to the appraiser performing the appraisal. Organize bi-weekly payroll for staff and independent contractors. It was Petitioner's intent, in describing his position as "Office Manager/Appraiser," to indicate that he was an "office manager for an appraiser firm," not that he himself was an appraiser. Under the heading of "Education/Qualifications" on the resume appeared the following: Real Estate Appraiser Real Estate Mortgage Broke[r] Associates in Arts, Business Administration Petitioner listed "Real Estate Appraiser" and "Real Estate Mortgage Broke[r]" under this heading to indicate that he had taken "Real Estate Appraiser" and "Real Estate Mortgage Broke[r]" coursework. He did not mean to represent that he was authorized to act as a "Real Estate Appraiser" and a "Real Estate Mortgage Broke[r]." While the resume entries discussed above were not models of precision, neither were they intentionally deceptive. Petitioner has become a more mature and responsible person than he was at the time he engaged in the criminal conduct that led to his incarceration. He is repentant and remorseful about his crime and recognizes the importance of his being a positive role model for his son. He understands all too well what his ill-advised decision five years ago has cost him and his family, particularly his son, who did not have a father around during the time Petitioner was in prison. More importantly, he feels "terribly" about the potential harm to which he exposed the public and is "thankful that no one was [actually] harmed." Petitioner is embarrassed and ashamed of what he did and is committed to not making the same mistake again in the future and jeopardizing his freedom and ability to be with his son and the rest of his family. He has "learned [a] lesson" from the price he and his family has paid for his one criminal indiscretion. He has no intention of ever "put[ing] [him]self in a position like that again." In short, in the five years that have passed since his crime, Petitioner has been rehabilitated, and it appears that the interest of the public will not likely be endangered if he is granted the registration he seeks and is able to work as a trainee real estate appraiser under the supervision of a licensed or certified appraiser.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue a Final Order granting Petitioner's application for registration as a trainee real estate appraiser. DONE AND ENTERED this 11th day of July, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 2008.
The Issue The issues presented are whether Petitioner is entitled to supplemental compensation payments, and, if so, whether those payments should be retroactive.
Findings Of Fact At all times material hereto, Petitioner has been a certified firefighter, having become certified in February 1999. On December 17, 1994, Petitioner received a Bachelor of Science degree with a major in hospitality administration. In 1999, Petitioner applied for admission to the Firefighters Supplemental Compensation Program at the bachelor's degree level. Petitioner's current job title with the Miami-Dade Fire Department is "firefighter." He submitted a copy of his job description. The "Nature of Work" in his job description is described as "specialized work in the protection of life and property through combatting [sic] fires, performing emergency medical rescue duties and participating in fire prevention activities." Petitioner agrees that his main job duties are fire prevention, fire suppression, protection of life and property, and medical rescue. Petitioner's job description lists the following under "Knowledges [sic], Abilities and Skills": Knowledge of modern firefighting techniques and principles. Knowledge of basic mechanical principles in operating a variety of complex equipment and apparatus. Knowledge of department regulations and operational procedures. Knowledge of firefighting equipment and gear on assigned apparatus. Knowledge of the fundamental principles of hydraulics. Knowledge of emergency medical rescue practices, methods, and techniques. Knowledge of the geography of the metropolitan area. Knowledge of fire prevention principles and programs. Knowledge of the need for personal hygiene and clean living quarters. Ability to react promptly and correctly in emergency situations. Ability to assess a situation, draw valid conclusions, and take appropriate action. Ability to read, retain and apply guidelines, regulations and policies to a variety of situations. Ability to understand and carry out written and verbal instructions. Ability to use basic hand and power tools. Ability to read, interpret and comprehend diagrams, charts, and gauges. Physical strength and agility sufficient to perform assigned duties including physical tasks requiring sustained effort. None of the skills listed in Petitioner's job description relates to a major in hospitality administration. A college degree is not required in order to become a firefighter for the Miami-Dade Fire Department. The level of education required is either a high school diploma or the equivalency. Rule 4A-37.084, Florida Administrative Code, lists nine major study concentration areas for which supplemental compensation will be paid to qualified firefighters. Hospitality administration is not one of the nine majors listed in the Rule. The Department has never awarded an applicant supplemental compensation for a Bachelor of Science degree with a major in hospitality administration. The Department makes a determination of whether a particular college degree which is not one of the nine listed in the Rule is readily identifiable as applicable to fire department duties by reviewing the applicant's job description and verifying the degree received according to the applicant's college transcript. Petitioner's major is not readily identifiable to his fire department duties as evidenced by the transcript and job description Petitioner submitted to the Department. If a required job activity is prevalent, it should appear on the official job description. Unlike protection of life and property and fire suppression which are listed on Petitioner's job description, customer service is not a main part of a firefighter's duties nor is it listed on Petitioner's job description. Petitioner has not yet achieved the rank of lieutenant or fire chief with the Miami-Dade Fire Department although he intends to achieve those ranks over time. A lieutenant's or a fire chief's job descriptions would reflect different duties from those listed on a regular firefighter's job description. Petitioner's Fire Chief is Chief Paulison. Paulison declined to write a letter to the Department stating that Petitioner's degree is directly related to Petitioner's job duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's application for supplemental compensation. DONE AND ENTERED this 19th day of April, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2000. COPIES FURNISHED: Bill Nelson, State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Elenita Gomez, Esquire Department of Insurance Division of Legal Services 200 Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333 Walter W. Wray 2983 Northwest 200th Terrace Miami, Florida 33056
Findings Of Fact At all times material hereto, Respondent was employed as a fire inspector by the City of Clearwater with permanent status in the civil service system. Respondent has approximately nine years experience with the City of Clearwater as a fire inspector, and prior to this incident had never been the subject of disciplinary action. As a permanent civil service employee, Ordinance 1831 of the City of Clearwater, Guidelines of Disciplinary Action dated October 23, 1978, and Civil Service Rule 14 dealing with Suspensions, Demotions and Dismissals are applicable to the facts of this case and govern disciplinary action taken against Respondent. On September 17, 1985, Respondent was suspended for three (3) working days, without pay, and given forty (40) disciplinary points. In the Notice of Suspension the grounds for this action are stated as follows: Inspector Christopher Kingsley violated Rule 14, Section 1, Paragraph (k) of the Civil Service Rules and Regulations: "Has violated any lawful and reasonable official regulation or order or failed to obey any lawful and reasonable direction made and given to him by his superior officer when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in a lower morale in the department or to result in loss, inconvenience, or injury to the City or to the public. * * * On June 15, Captain Yaudes dispatched Inspector Kingsley to 1468 Belleair Road to observe and assist Inspector Mattheus with the fire investigation. When Inspector Kingsley arrived at the fire scene he more or less worked independently. He did not provide the assistance or opinion to Inspector Mattheus when requested. This is further violation of the Guidelines for Disciplinary Action, Level 4, #3 offense: "Insubordination by refusal to perform work assigned or by failure to comply with written or verbal instructions of the supervisory force." Based upon the testimony and documentary evidence presented, the following findings of fact are made about Respondent's actions relative to the fire at 1468 Belleair Road on June 15, 1985: Between approximately 7:30 a.m. and 7:40 a.m. on June 15, 1985 Respondent arrived at work, although his shift did not begin until 8:00 a.m. When Respondent arrived, Captain Gordan Yaudes was talking with Captain Coleman about a radio transmission they had just overheard indicating that Inspector Harry Mattheus had been dispatched to investigate the Belleair Road fire. Since neither Captain Yaudes or Captain Coleman knew Inspector Mattheus, Captain Yaudes called Respondent into the office to see if Respondent knew anything about Mattheus' qualifications or background. Although Respondent and Mattheus had been working out of the same office for two months at the time, Respondent had only a brief acquaintance with Mattheus. They had never been introduced after Mattheus had been hired, their shifts and assignments were different and Mattheus had not yet done a fire scene investigation in the City of Clearwater. Therefore, Respondent told Captain Yaudes he did not know about Mattheus' qualifications. Captain Yaudes ordered Respondent to go to the Belleair fire scene, find out what was going on, and assist Inspector Mattheus, if necessary. Captain Yaudes testified that he wanted Respondent to take command of the investigation if Respondent determined that Mattheus was not properly certified. He specifically denied that he ordered Respondent to do a joint investigation with Mattheus. This order was given prior to 8:00 a.m., and thus prior to either Respondent or Captain Yaudes being on duty. Captain Coleman, who was on duty at the time, concurred in the order. Mattheus had been on the scene for thirty minutes before Respondent arrived. When Respondent arrived he put on protective pants, boots and gloves and entered the premises, a small flower shop. The fire had already been extinguished. Fire damage was confined to a twelve foot by twelve foot area at the front of the store where the cash register had been. Mattheus was not wearing protective gear since he had not been issued any at the time, although he was wearing his own steel reinforced boots. Upon approaching Mattheus at the scene, Respondent asked why he was there and on whose authority. Mattheus indicated he had been placed on the "call list" the night before by Fire Marshal Nic Lewis, and he was responding to a call to investigate the scene he received that morning at home. In making this inquiry, Respondent was responsive to Captain Yaudes' order that he go to the scene, find out what was going on and assume command of the investigation if he determined Mattheus was not qualified. Inspector Mattheus had been employed as a life safety inspector approximately two months prior to this incident. He is a certified fire inspector and was therefore qualified to be on the "call list" and to investigate fires. This was his first investigation for the City of Clearwater. After determining what was going on at the scene and that Mattheus was qualified to do the investigation, Respondent proceeded to assist Mattheus in several ways, including: surveying and discussing the scene together examining electrical wire and sockets, as well as the floor at the scene for possible causes of the fire clearing the area where the cash register had been and suggesting initially that Mattheus keep an aerosol can that had been punctured by a nail as possible evidence. Later, when arson was ruled out, he concurred in Mattheus' decision to discard the can. Respondent also helped clean up the scene since he was wearing protective clothing and Mattheus was not, and discussed an early morning thunderstorm with Mattheus as a possible cause of the fire. In this manner Respondent was responsive to Captain Yaudes' order that he render assistance, if necessary. On several occasions during the approximately thirty minutes when Respondent was at the fire scene, Inspector Mattheus asked him his opinion on the cause of the fire. Respondent responded by saying he did not know, or by shrugging his shoulders. He told Mattheus to list the cause as "unknown" if Mattheus could not determine a cause. Respondent also said to Mattheus on several occasions, "This is your fire." When Mattheus asked if Respondent was going to write a report on this fire, Respondent replied in the negative since this was Mattheus' fire. It is standard operating procedure for the first inspector on the scene to be the primary investigator who writes the report, and for other inspectors to assist the primary investigator. Mattheus was the primary investigator in this fire, and was in charge of the investigation. The terminology, "It's your fire," is commonly understood among firefighters and inspectors to mean that "you are in charge and will write the report." Respondent's use of this phrase in responding to Mattheus was therefore accurate and in recognition of standard operating procedures, and does not indicate any lack of cooperation on his part. Respondent was not ordered to conduct a "joint investigation," according to Captain Yaudes. When the term "joint investigation" is used, it is understood by firefighters and inspectors to mean an investigation which involves another agency, such as the State Fire Marshal's Office or the Electrical Department, in which the other department assists the Fire Department in trying to determine the cause of a fire. On June 14, 1985, the day prior to the Belleair fire, Respondent had called Inspector Jeff Daniels and expressed concern that life safety inspectors would be used to investigate fires since he felt they were not qualified. He also expressed concern about Inspector Mattheus' qualifications. Despite this prior expression of concern, when Respondent was ordered to the fire scene the next day, he did determine that Mattheus was qualified and assisted him as ordered. The testimony of Lieutenant Frank Hill and Firefighters John Milano and Charles Daniels, who were all at the scene on June 15, 1985, specifically confirms that Respondent and Mattheus worked together on the investigation without discord.
Recommendation Based upon the foregoing, it is recommended that the disciplinary charge against Respondent be dismissed, and that Respondent receive three days back-pay and the removal of all disciplinary points in his record arising from this charge. DONE and ENTERED this 27th day of January, 1986, at Tallahassee, Florida. DONALD D. CONN, 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 27th day of January, 1986. COPIES FURNISHED: Miles Lance, Esquire Assistant City Attorney Post Office Box 4748 Clearwater, Florida 33518 Stuart M. Rosenblum, Esquire, 220 South Garden Avenue.C3 Clearwater, Florida 33516 APPENDIX Rulings on Petitioner's Proposed Findings of Fact: Adopted in part in Finding of Fact 4(c) and rejected in part in Finding of Fact 4(g). Adopted in Finding of Fact 4(a). Adopted in Finding of Fact 4(f). 4-6 Adopted in part in Finding of Fact 8, but otherwise rejected as irrelevant, unnecessary and not based on competent substantial evidence. Rejected in Finding of Fact 4. Adopted in Findings of Fact 4(h) and 6. Rejected in Finding of Fact 4(g). 10,11 Adopted in part in Finding of Fact 4(h), but otherwise rejected as irrelevant. Adopted in Finding of Fact 4(i). Rejected in Finding of Fact 4. Respondent did cooperate and assist as necessary. Adopted in Finding of Fact 4(h) and 6, but otherwise rejected as erroneously stating Respondent failed to aid Inspector Mattheus. 15,16 Rejected as simply a summation of testimony rather than a proposed finding of fact. 17 Adopted in part in Finding of Fact 4(e), but otherwise rejected as irrelevant and unnecessary. 18,19 Rejected as irrelevant and unnecessary. Adopted in part in Finding of Fact 8 but otherwise rejected as irrelevant and unnecessary. Rejected as irrelevant and unnecessary. Rulings on Respondent's Proposed Findings of Fact, as contained in Sections A and B of Respondent's Memorandum, Proposed Findings and Conclusions of Law: Adopted in part in Finding of Fact 4 but otherwise rejected as irrelevant and unnecessary. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 3. 4,5 Rejected as irrelevant and unnecessary. Adopted in part in Findings of Fact 1 and 2. Rejected as irrelevant and unnecessary. 8-12 Adopted in Findings of Fact 4(a)-(e). Adopted in part in Finding of Fact 4(g), but otherwise rejected as unnecessary and cumulative. Adopted in Findings of Fact 4(h), (i). Adopted in Finding of Fact 6, but otherwise rejected as irrelevant. Adopted in Finding of Fact 3.
The Issue Whether Petitioner's challenge to the failing score he received on the Practical Examination for Retention of Firefighter Retest he took on May 17, 2012, should be sustained.
Findings Of Fact Because no evidence was offered at the final hearing held in the instant case, no findings of fact are made.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services, Division of the State Fire Marshall, enter an order denying Petitioner's challenge to the failing score he received on the Practical Examination for Retention of Firefighter Retest he took on May 17, 2012. S DONE AND ENTERED this 17th day of August, 2012, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 2012. COPIES FURNISHED: Jesse Beauregard 10731 Northwest 18th Court Coral Springs, Florida 33071 Linje E. Rivers, Esquire Department of Financial Services 200 East Gaines Street, Sixth Floor Tallahassee, Florida 32399-0333 Julie Jones, CP, FRP, Agency Clerk Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0390
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following facts are found: The Largo Fire Department is comprised of approximately 70 employees and maintain three stations, with a fourth station apparently in the planning stage. The chief administrative officer in full command of the entire Department is the fire chief, who is directly responsible to the City Manager. In descending order of command are two assistant chiefs, three fire captains and twelve fire lieutenants. There are also two fire inspectors, forty-six fire fighters, three or four dispatchers and one secretary. (Exhibit No. 6). Assistant Fire Chiefs - Second in the line of command are the two assistant fire chiefs. They work a standard forty-hour week, 8:00 a.m. to 5:00 p.m., five days a week. Their office is one half block away from the main fire station. If the chief is out of town or unavailable, one of the assistant chiefs assumes command. When the chief and both assistant chiefs are unavailable, either a captain or a lieutenant is designated to be in command. With regard to the personnel evaluations made by either captains or lieutenants, assistant chiefs normally accept the recommendations made by them. On occasion an assistant chief will attach an additional memo to a recommendation submitted by an inferior officer. Assistant chiefs have no authority to fire Department personnel or to prevent merit pay increases. Only the chief has these powers, subject to review by the City Manager. There was testimony that after an applicant goes through certain testing procedures with the City's personnel department, the chief and assistant chiefs make the ultimate decision as to who is hired. Assistant chiefs receive input from captains and lieutenants with regard to purchasing new equipment and personnel transfers. With regard to the budget, assistant chiefs may purchase items within the guidelines of the budget. They make recommendations respecting the formulation of the budget, but the chief makes the ultimate decision as to what will be submitted to the City for the budget. If everything is going well at a fire scene, assistant chiefs stand back and observe rather than assume control. Equipment placements and transfers are made by the assistant chiefs. With regard to collective bargaining, assistant chiefs would directly assisting administering the outcome of the negotiations. Fire Captains - Like fire fighters, captains work a 24-hour shift and then are off 48 hours. They wear the same work uniform as fire fighters, but their dress uniform includes a white, rather than a blue, shirt. The captains eat their meals with and sleep in the same quarters as fire fighters. Each captain is responsible for a third of the combat portion of the Fire and directs the operations of the officers and men on their particular shift. On the fire scene, captains are the working supervisor and perform the normal functions of search and rescue. Around the station, captains participate in the minimal domestic and maintenance duties and tasks as part of a team effort. In the event that both the chief and assistant chief are absent, a captain designated by the chief assumed the duties and responsibilities of an assistant chief. With regard to authority to transfer men, discipline men and make policy, there was testimony that such authority is solely in the form of making recommendations in those areas. A lower grade officer or fire fighter can also submit written reports or charges concerning disciplinary action. While the job description for captain's requires them to make thorough weekly inspections of each station, apparatus and personnel the chief has been personally making such inspections for the past several months. While captains are required to keep records of sick leave, the the administrative secretary actually handles all leave records. Captains do have the authority to visit persons on sick leave if there is reason to believe a sick leave is not legitimate. The job description requires captains to forward to headquarters every six months a written personnel evaluation report on all personnel under their command. This is done by a standardized form sent to the captains by City's personnel department. Captains also have the authority to give mutual aid assistance when requested by a neighboring unit by sending men and equipment. While captains have the authority to make changes within their subordinates' command, in emergency situations, most changes in command come out in the form of memos from the administrative chief. In the captain's absence, his duties are assumed by a lieutenant. If a lieutenant is not present the lieutenant's duties are assumed by what is known as a lead fire fighter - a senior fire fighter by virtue of tenure and training. Captains do not formulate policies applicable to the Fire Department nor do they prepare of administer the budget. They can make recommendations with regard to the budget, as can lieutenants and other officers. They cannot buy equipment, nor can they move equipment between stations without written permission. Changes in the organizational structure are not discussed with captains. Any type of procedural recommendation which is made is discussed among the three captains and is then presented to the assistant chiefs and chief for final action. It was opined by Captain Lambert that captains would have no duties or responsibilities to management with respect to collective bargaining and that, as a member of a union, there would be no conflict of interest between the performance of their duties and the possibility of grievances filed within the union. It was Captain Lambert's opinion that policy' decisions were implemented, rather than formulated, by him. Fire Lieutenants - There is one lieutenant assigned to work each of three shifts at each of the stations. Lieutenants report to and perform under the general direction of the captain, also known as the shift commander, who reviews the decisions of the lieutenants. In addition to the job description contained in Exhibit No. 6, there was testimony that lieutenants and fire fighters work on the same time schedule, sleep in the same quarters, eat at the same table, prepare meals jointly and perform fire fighting duties jointly. Lieutenants are in charge at the scene of a fire until a senior officer arrives. There was testimony that although lieutenants participate in the normal evaluation procedure which is used as a basis for merit pay increases and they supervise the duties of the men in the station to which they are assigned, their basic duties are fighting fires. Lieutenants do not have anything to do with preparing or administering the budget nor would they work in the City's behalf with regard to collective bargaining negotiations. They have no authority in actually formulating the policy of the Largo Fire Department. If a fire fighter wants to change his schedule or get time off, he would submit a request to a lieutenant or a captain, depending on who was on duty that day. If both were on duty, he would go to a lieutenant. Fire Inspectors - With respect to inspectors, the petitioner simply submitted the job classification contained in Exhibit No. 6 and suggested that none of the tasks enumerated therein meet the statutory criteria of management employees of F.S. Ch. 447. As noted above, it was the City's position that inspectors do not share a community of interest with line personnel that are responsible for fire suppression in that they do not work the same shift and their duties are primarily fire code enforcement rather than fire combat. Dispatchers - The primary duties of dispatchers are to receive and dispatch fire and emergency calls. They dispatch calls solely for the fire department and do not dispatch for the police department or any other city agency. Another of their duties is to maintain files on equipment usage. Dispatchers work eight-hour shifts and eat with the fire fighters when a meal is served during their eight-hour shift. Their uniform is the same as the fire fighters. When a dispatcher is absent from work, a fire fighter fills in for him; although a dispatcher would never fill in for a fire fighter. Dispatchers have nothing to do with formulating policies of the department nor with preparing or administering the budget. They would not assist management in collective bargaining negotiations. Dispatchers are immediately responsible to the lieutenant, then the captain and on up the line of command. One of the four dispatchers of the Largo Fire Department is presently a member of and is represented by the Largo Employees Association, which presently has a collective bargaining agreement with the City. (Exhibit No. 5) This agreement includes public safety dispatchers in the unit. At the time of the hearing the LEA had not yet been certified by PERC. The one dispatcher who testified would prefer to be represented by petitioner, rather than the LEA. Fire Fighters and Chief - As noted above in the introduction, the parties stipulated that fire fighters were properly included in the proposed unit and that the chief is properly excluded from the unit. Recognition history - In the first letter from petitioner's president to the City Manager, recognition was requested for a unit consisting of captains, lieutenants and fire fighters. After the petitioner first spoke to representatives of the City regarding the bargaining unit, the staff assistant to the City Manager first recommended to the Manager that a unit consisting of fire fighters and lieutenants be approved. The City Commission questioned the inclusion of lieutenants. At that point, communications apparently broke down and unfair labor practice charges were filed by both the petitioner and the City. Their charges were subsequently dismissed. After that the petitioner filed its petition for Certification of Representation requesting inclusion of assistant chiefs, captains, inspectors and dispatchers, in addition to lieutenants and fire fighters, since the issue would then be before PERC and PERC could then rule on everybody once and for all. Although petitioner's constitution and by-laws speaks of a unit consisting of the ranks of captain, lieutenant and fire fighter, the same is in the process of being amended. In accordance with F.S. Section 447.307(3)(a) and F.A.C. Rule 8H-3.23, no recommendations are submitted. DONE and ENTERED this 18th day of November, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: G.R. McClelland, Esquire City Attorney City Hall Largo, Florida 33540 Mr. Robert Jewell City Hall Largo, Florida 33540 Terry A. Furnell 501 South Fort Harrison Clearwater, Florida 33516 Mr. Barry Burkhart 2320 East Bay Drive, No. 135 Clearwater, Florida 33516 Mrs. Lawrence C. Black 152 8th Avenue Southwest Largo, Florida 33540
