The Issue The issue in this case is whether the Petitioner is entitled to supplemental compensation pursuant to Section 633.382(2)(a)2, Florida Statutes.
Findings Of Fact The Petitioner is certified as a firefighter. She has been so certified at all material times. The Petitioner is presently employed as a "firefighter-paramedic" with the City of Rivera Beach Fire Department. She has been so employed at all material times. In her present position the Petitioner performs the "essential job functions" described in her job description. Those functions are: Lays, connects and places hose line in operation. Raises and climbs ladders. Enters building and other fire involved areas. Uses extinguishers, bars, hooks, lines, and axes and other hand equipment. Ventilates burning buildings and structures. Throws salvage covers and removes debris. Makes regular inspections of apparatus and equipment and notifies supervisor of defects. Assists Driver-Engineer routine maintenance and apparatus check-out as required. Makes visual and physical inspections of buildings to locate fire hazards. Rescues and removes individuals from danger. Administers Advanced Life Support medical treatment to sick, injured or afflicted persons. Makes periodic inspections of buildings to locate fire hazards. Performs physical cleaning and maintenance tasks on department buildings and equipment using brooms, mops, vacuum cleaners, etc. Performs hydrant maintenance. Attends training and drill sessions in such subjects as firefighting and inspection methods, equipment operations and emergency medical treatment. In her present position the Petitioner is required to have and use the "knowledge, skills, and abilities" described in her job description. The required knowledge, skills, and abilities set forth in the job description are: Knowledge of the street locations, geography and takes of construction in the City. Knowledge of advanced Life Support Emergency Medical procedures, practices and techniques. Knowledge of various types of fire hazards of the City. Knowledge and skill in the use of Advanced Life Support (ALS) emergency medical treatment, practices, and procedures. Knowledge of firefighting techniques, policies, procedures and practices. Ability to learn and perform many and varied fighting techniques and procedures. Ability to understand and follow oral and written instructions. Ability to perform prolonged and arduous work under adverse conditions. Ability to work at heights. Ability to drive fire apparatus over the road safely under emergency conditions. Skill in the use and maintenance of firefighting equipment. In 1987 the Petitioner was awarded a Bachelor of Liberal Studies degree, with a major in Liberal Studies, by Barry University. Review of the Petitioner's transcript from Barry University does not reveal any course that appears to be "readily identifiable as applicable to fire department duties" performed by the Petitioner in her present position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying the Petitioner's application for Firefighters' Supplemental Compensation. DONE AND ENTERED this 26th of March, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 26th of March, 1999. COPIES FURNISHED: Maria Fonzi-Gonzalez 212 Southwest 12th Avenue Boynton Beach, Florida 33435 Maria Fonzi-Gonzalez 14915 78th Place, North Loxahatchee, Florida 33470 Elenita Gomez, Esquire Department of Insurance 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Honorable 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 Capital, Lower Level 26 Tallahassee, Florida 32399-0300
The Issue The issues to be decided concern the question of the entitlement of the Petitioner to receive retirement benefits envisioned by Section 121.091(7)(c)1., Florida Statutes, related to the alleged in-line-of-duty death of her husband, Eddie Lee Robinson, Jr.
Findings Of Fact From January 7, 1969, until his death on April 12, 1984, Eddie Lee Robinson, Jr., served as a deputy sheriff in Gadsden County, Florida. In May 1971 the deceased was made a shift commander with that department and those were his duties from that period until the end. He held the rank of Captain at the time of his death. In his capacity as a shift supervisor, Eddie Lee Robinson, Jr., was in charge of the overall sheriff's office for part of the day. In essence, Robinson was the senior officer in charge while actively serving as a shift commander. The shift which Robinson worked would vary over time. The normal work week for Robinson at the time of his death was 46 to 50 hours. During his employment with the Gadsden County sheriff's office, Captain Robinson had been enrolled in the Florida Retirement System. Robinson had married Petitioner Margie Robinson, formerly Margie Rittman Mashhurn, on August 18, 1980, and was married to the Petitioner at the time of his death. In early October 1983 Eddie Lee Robinson, Jr., experienced an onset of severe chest pain syndrome. At that time he was seen by Dr. Earl Britt, a licensed physician in the state of Florida, who is board eligible in cardiology. In the patient history given to Dr. Britt at the time, Robinson indicated that he had a cardio-respiratory complaint as early as 1975 and was seen in an emergency room for that condition. The chest pain that he suffered on that occasion persisted off and on from that date forward and became more pronounced in the several weeks prior to the October 1983 visit with Dr. Britt. At that point in time Robinson complained of shortness of breath, even with limited physical activity. In 1976 Robinson had been diagnosed as suffering with diabetes and was taking medication for that condition. In October 1983 Robinson was overweight and suffered from hypertension. When seen by Dr. Britt on this occasion, Robinson was a smoker who had used a pack of cigarettes a day for approximately 35 years. At the time of his visit in October 1983 Robinson indicated that he had experienced what Dr. Britt describes as postcoital chest discomfort, some emotionally provoked chest pain and postprandial chest pain. Upon the recommendation of Dr. Britt, Robinson submitted himself to a coronary arteriogram which was done on October 4, 1983. This catherization process was performed by Dr. Charles C. Bianco, a licensed Florida physician who specializes in diagnostic radiology and, in particular, cardiovascular radiology. Dr. Bianco is a board certified radiologist. The results of the coronary arteriogram which Dr. Bianco performed revealed blockages ranging from 95% to 100% in the coronary arteries of three vessels. Given these facts, Dr. Britt recommended that Captain Robinson submit himself to by- pass surgery to correct these conditions. Captain Robinson declined this treatment, opting instead to be treated with medication provided by Dr. Britt. Following the October 1983 episode, Captain Robinson returned to his duties with the Gadsden County Sheriff's Office. His employer was aware of Robinson's heart condition when he returned to work. At the time of his death and those days before his death, Captain Robinson was on regular duty for the sheriff's office as a shift commander. The sheriff's office had made provision for him to take an hour off at the end of his shift to exercise by walking on those days when his shift ended around 6:00 p.m. This arrangement was not carried out if his duties demanded that he remain at his post throughout the entire shift sequence. In the late evening of April 10, 1984, Captain Robinson was summoned to the Gadsden County jail to assist the chief jailer, Lieutenant Cecil Morris. In particular, Lieutenant Morris was experiencing problems with an inmate, Morris Brown, who was incarcerated for attempted armed robbery and some form of aggravated battery or assault. Brown was a juvenile who had been adjudicated under the criminal law system pertaining to adults. He was some 6'1" and 200 pounds. Brown was a problem inmate who had destroyed lockers within the jail. On the night in question when Captain Robinson was summoned to the jail around 8:00 or 9:00 p.m., Brown had flooded his jail cell. Robinson and Morris entered the jail cell and Robinson talked to Brown to try to calm the inmate down. In doing so, Robinson shook a can of mace and told Brown that if Brown did not calm down, Robinson would have to mace him. Brown responded by indicating that he wished that Robinson would do that so that he could sue him. Brown also told Robinson, "If I get out, I know where you live." Eventually, Brown became less belligerent. Robinson then explained to Brown that they were going to have to put handcuffs on him, to which Brown replied that nobody was going to cuff him. Robinson and Morris then took the prisoner by the arms and moved him toward a bed or bunk within the cell. While this was transpiring, the prisoner pulled away from Morris, causing Morris to have to grab his arm again. Subsequently, Brown was moved back toward the bunk and pulled down to the bunk's surface. While Brown was seated on the bunk, a third officer put cuffs on him, and Brown struggled while this was being achieved. Throughout this episode Brown's basic demeanor evidenced antagonism. The situation with Morris Brown lasted for a period of five to fifteen minutes. Captain Robinson's reputation in his law enforcement work was that of an officer who was able to diffuse difficult situations with persons he encountered in his law enforcement work by talking to them as opposed to physical confrontation. Nonetheless, there were occasions where Robinson was called upon to physically subdue prisoners. In the experience of Lieutenant Morris, the previously described circumstance was the only occasion in which Robinson had been observed to interact physically with a prisoner. The extent of that physical confrontation did not include exchange of punches between the participants. When Captain Robinson returned home following the incident with Brown, he discussed that situation with his wife. The discussion was held on that same evening or the early hours of the following morning. His remarks and physical appearance pointed out how disturbed he was about the Brown incident. He seemed despondent. In the course of the conversation, Robinson took nitroglycerin because of his physical condition. He had not taken nitroglycerin for an identifiable period prior to that evening. (Nitroglycerin had been prescribed by Dr. Britt for Captain Robinson's heart condition.) Robinson remarked to his wife that he was "hurting." He told her that the prisoner Brown had flooded the jail cell and he had to go in and help restrain the prisoner. This was only the third incident, to the knowledge of his wife, in which Robinson had physically struggled with someone while performing his duties. On the following day, Captain Robinson went off duty. He visited with his mother, Lena Robinson, on a couple of occasions during that day and talked to two of his acquaintances, Luke McCray and King Baker. While in the presence of his mother and the other two individuals, there was no indication of pain on the part of Captain Robinson, nor did he use any medication. In their presence he did not appear troubled. In the late night of April 11 or early morning of April 12, 1984, while at home, Captain Robinson complained to his wife that he could not breathe. He took two nitroglycerin, began to have cold sweats and expired, having suffered a fatal heart attack described as an acute myocardial infarction, sudden death syndrome. At the time of his death, Eddie Lee Robinson, Jr., was 50 years old. Dr. Britt is qualified to give expert medical opinion testimony on the question of the cause of death of Eddie Lee Robinson, Jr. Those qualifications are based upon Dr. Britt's training and experience as a physician and specialist in cardiology, his familiarity with the deceased's underlying health and his knowledge of the basic facts of Robinson's encounter with Brown, the remarks of the Petitioner about the deceased's condition on the evening of the Brown incident when the deceased returned home and the explanation of the death approximately 26 to 28 hours later. In remarking on these matters, in his deposition of May 22, 1986, at page 9 under questioning by counsel for the Petitioner, Dr. Britt said: Assuming these facts, Doctor, within a reasonable degree of medical probability, is it your medical opinion that the struggle at the jail that night caused the death of E.L. Robinson? A I can answer that in the hypothetical fashion by stating that there are well- documented markers as to what will trigger a stable anginal pattern in a patient with documented coronary artery disease being emotional provocation with physical exertion as a very common trigger for what we call the inciting event for a fatal result. If you give the clinical scenario that you have just described and ask me to mark it, use it as an index marker of likely cause and effect, it would be very high as a probable cause of the effect that occurred to him within the next 24 to 36 hours as the inciting or provocative cause. Q Within a reasonable degree of medical probability then, it could be stated that the struggle at the jail precipitated the cardiological event that resulted in E. L. Robinson's death? A It would be reasonable to say that this was the inciting event that caused an unstable setting to occur out of which a sudden death syndrome could arise. Having considered these remarks by Dr. Britt, it is concluded that within a reasonable degree of medical probability the encounter between the deceased and Brown was the precipitating event of the death of Captain Robinson. Dr. Bianco, who had knowledge of the Robinson case and the patient's death, felt that the overall condition of the patient, that is significant coronary artery disease and the fact of participation in a job which was much too stressful for his physical condition, was more likely the cause of death than the specific incident with Brown. That condition is made the more threatening, according to Dr. Bianco, due to the patient's habit of smoking, the patient's diabetes and high blood pressure and obesity. Dr. Bianco emphasized the effect of stress as a contributing factor in the patient's demise. However, in the final analysis, Dr. Bianco defers to Dr. Britt on the subject of the causation of Captain Robinson's death, and for that reason the opinion of Dr. Bianco is discounted and does not form the basis of fact determination on the question of the causation of the death of Captain Robinson.
Findings Of Fact The decedent, James C. Daniels, was employed as a fire fighter with the Village of Miami Shores, Florida, in April of 1972. The Miami Shores Fire Department was subsequently assimilated by Metropolitan Dade County, Florida, and at the time of the decedent's death on July 20, 1976, he was employed by Dade County as a fire fighter/emergency medical technician. On November 4, 1975, the decedent received a physical examination which showed no evidence of heart disease, and an electrocardiogram, the results of which were within "normal" limits. The decedent had no history of heart disease or circulatory problems, did not drink, and began smoking only in 1974 or 975. At the time of his death, the decedent's customary work routine involved 24 hours on duty, from 7:00 a.m. to 7:00 a.m., followed by 48 hours off duty. The decedent's duties included answering emergency calls along with his partner in a rescue vehicle. These calls included such incidences as automobile accidents, fires, violent crimes involving injuries to persons, and various and sundry other emergency situations. Upon answering an emergency call, the decedent was required by his job to carry heavy equipment, sometimes weighing as much as 80 pounds, to the place where the injured person was located. On occasion, the decedent would transport injured persons from the scene to local hospitals. At the time of his death, the decedent appeared outwardly to be in good physical condition. In fact, he engaged in a regular program of physical exercise. During the approximately two months prior to his death, the decedent participated in a busy work schedule which often included numerous rescues, in addition to false alarms and other drills required of his unit. In fact, only four days prior to his death, the decedent and his partner during one twenty- four hour shift, were involved in 13 rescues and one building fire. During that day, the decedent worked for 24 straight hours, apparently without sleep. On July 19, 1976, at 7:00 a.m., the decedent began his last work shift prior to his death. During that day, the decedent's unit participated in two rescues and two drills. That evening, several of decedent's fellow workers noticed that he looked "bad", "tired" or "drawn out". During the night, decedent was observed getting out of bed from three to five times, and holding his left arm, left side or armpit. At 7:00 a.m. on July 20, 1976, the decedent went off duty and returned home. Upon returning home, he ate breakfast, and later washed down a new brick fireplace at his home. After showering, resting and eating a lunch, he joined several other men near his home whom he had agreed to help in pouring cement for some new construction. The decedent mentioned pains in his neck and shoulder to these men before the truck carrying the cement arrived. The decedent mentioned that he had been under a lot of tension and pressure as a result of the busy work schedule at the fire station. When the cement truck arrived, cement was poured into several wheelbarrows and several of the men, including the decedent, pushed the wheelbarrows to the rear of the structure on which they were working. It appears that the decedent pushed approximately four wheelbarrow loads of cement weighing about 75 pounds each to the rear of the structure. Approximately one-half hour elapsed during the time that the decedent was engaged in this activity. Soon thereafter, the decedent was observed to collapse and fall to the ground. He was given emergency medical treatment and transported to Palmetto General Hospital, where he was pronounced dead at 5:24 p.m. on July 20, 1976. An autopsy was performed on the deceased on July 21, 1976 by Dr. Peter L. Lardizabal, the Assistant Medical Examiner for Dade County, Florida. In pertinent part, the autopsy showed moderate arteriosclerosis of the aorta, and severe occlusive arteriosclerosis of the proximal third of the anterior descending coronary artery in which the lumen, or opening, through which the blood passes through the artery was hardly discernible. The remaining coronary arteries appeared unaffected by the arteriosclerosis. The decedent's certificate of death, which was also signed by Dr. Lardizabal, listed the immediate cause of death as acute myocardial infarction due to severe occlusive arteriosclerosis of the left coronary artery. Dr. Lardizabal performed the autopsy examination of the decedent by "gross" observation, that is, without the benefit of microscopic analysis. However, microscopic slides were made during the course of the autopsy which were subsequently examined by other physicians whose testimony is contained in the record of this proceeding. Findings contained in the autopsy report, together with an evaluation of the aforementioned microscopic slides, establish that the myocardial infarction suffered by the decedent occurred at least 24 hours, and possible as many as 48 hours, prior to the decedent's death. This conclusion is based upon the existence of heart muscle necrosis, or tissue death, which would not have been discernible had the decedent died immediately following a coronary occlusion. In fact, for a myocardial infarction to he "grossly" observable at autopsy, that is, without the benefit of microscopic examination, it appears from the record that such an infarction would have to occur a substantial period of time prior to the death of the remainder of the body. Otherwise, the actual necrosis of heart muscle tissue would not be susceptible to observation with the naked eye. Although it appears probable from the evidence that the decedent went into a type of cardiac arrhythmia called ventricular fibrillation which led to his death, the actual proximate cause of his death was the underlying myocardial infarction, which in turn was a result of arteriosclerosis which had virtually shut off the supply of blood to the affected area of his heart. Although the causes of arteriosclerosis are not presently known to A medical science, it appears clear from the record that acute myocardial infarctions can be caused by emotional or physical stress, and that the decedent's myocardial infarction was, in fact, caused by the stress and strain of his job as a fire fighter and emergency medical technician. In fact, it appears from the medical testimony in this proceeding that the decedent was having a heart attack which led to the myocardial infarction on the night of July 19, 1976, or in the early morning hours of July 20, 1976, while he was still on duty. It further appears that, although physical exertion, such as the pushing of the wheelbarrow loads of cement by the decedent, might act as a "triggering mechanism" for ventricular fibrillation, the decedent's activities on the afternoon of July 20, 1976, had very little to do with his death. The type of lesion present in the decedent's heart, which had occurred as much as 48 hours prior to his death, was of such magnitude that he would likely have died regardless of the type of physical activity in which he engaged on July 20, 1976. Petitioner, Dolores A. Daniels, is the surviving spouse of James C. Daniels.
Findings Of Fact At the commencement of formal hearing, Respondent moved ore tenus to dismiss upon grounds that no disputed issues of material fact existed. Upon representations of Petitioner's counsel that there remained issues of whether or not there had been selective application of the rules to Petitioner (TR 6-7 and 19), of whether or not the license restrictions imposed upon Petitioner duplicated education already completed by the Petitioner at Jackson Memorial Hospital, and a representation that the evidence to be adduced at formal hearing would include educational events up to the date of the de novo formal proceeding sufficient to entitle Petitioner to certification without any probationary period or restrictions (TR 10-12, 16 and 18), ruling was reserved on the motion to dismiss until the completion of Petitioner's case-in-chief. At the conclusion of Petitioner's case-in-chief, Respondent again renewed its motion to dismiss. The motion was denied without prejudice, pending review of the full application file and other documentary evidence admitted in Petitioner's case-in-chief. Respondent has raised the motion yet again in its post-hearing proposals and it is ruled upon in the following conclusions of law. By its January 21, 1987 Order, the Board of Medicine, Advisory Council for Respiratory Care granted Petitioner a license as a respiratory care practitioner subject to the following restrictions: ...the license shall be issued subject to probation upon the conditions: Applicant is not to work in any critical care area, including the emergency room, and, Applicant will not do ventilator care in the home. This probation shall be in force until Applicant has successfully completed an advanced care registry eligibility program with adequate supervision. Said program may be approved by the Chair of the Council. It is stipulated that Petitioner meets standard requirements for licensure. It is disputed as to whether she is entitled to an unlimited/unrestricted license absent the probationary educational requirements. Petitioner received several written and oral warnings relating to incidents of improper patient care while employed at Mount Sinai Medical Center, Miami, Florida, from 1979 to 1982 and prior to making application for her license in 1986. One significant incident involved Petitioner's supervising a student using a sidearm nebulizer and treatment in the Mount Sinai surgical intensive care unit. Petitioner failed to verify information given to her by the student in that she did not personally view the patient and left the room while the treatment was still in the patient. Another significant incident involved Petitioner leaving another sidearm nebulizer in line with a ventilator circuit on a patient. Petitioner admitted her error with regard to these incidents and admitted their inherent danger to patients. The Petitioner was terminated from employment at the Mount Sinai Medical Center on July 21, 1982, for negligence in performance of her duties. Petitioner began work at Jackson Memorial Hospital, Miami, on August 9, 1982. She has maintained continuous employment with Jackson Memorial Hospital up to the date of formal hearing. Until the January 21, 1987 Council Order, Petitioner also worked critical care areas of Jackson Memorial Hospital and did home ventilator therapy for a private company called "Allied." Since January 21, 1987, she has limited her work as required by the licensing order, and since its entry she has performed only duties involving floor care and treatments in the units. Petitioner testified at formal hearing that she successfully completed Respiratory Therapy Theory I and II at Miami Dade Community College subsequent to leaving Mount Sinai, as well as numerous other introductory education courses (TR 35- 36). This testimony is in part contrary to her testimony before the Advisory Council on November 18, 1986. By that prior testimony, she admitted she had not received any clinical course experience of any kind and did not do any ventilating at Jackson Memorial Hospital subsequent to her dismissal from Mount Sinai Medical Center and prior to the Council hearing on November 18, 1986. (Jt. Ex. 2 pp. 59-62) With one exception, all of Petitioner's formal training and clinical training as a respiratory technician for which documentation exists, shows that her training occurred prior to her firing from Mount Sinai in 1982. The one exception is a certificate dated March 16, 1985, showing that Petitioner was found to have fulfilled the educational requirements of the National Board of Respiratory Care, but there is no showing in the record of what these requirements might be or of when they were fulfilled. (Jt. Ex. 1) Petitioner admitted at formal hearing that she has completed no specific course of study and has not completed any advanced care registry eligibility program. The individual subjects she has claimed to have completed since her Mount Sinai experience do not appear to be either clinical or to offer hands- on experience. On periodic Jackson Memorial Hospital Employee Evaluations, Petitioner has received "low" ratings in the categories of "work habits" for the period 8/14/83 to 8/12/84; for "quantity of work" and "personal relations" for the period 8/15/84 to 8/11/85; and again for "work habits" for the period 8/11/85 to 8/10/86. She has "Satisfactory" or "High" ratings in other categories during each of these periods. No proof of arbitrary, capricious, or selective imposition of educational or probationary requirements was demonstrated.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law it is, RECOMMENDED that the Board of Medicine enter a Final Order affirming its January 21, 1987 Order. DONE and RECOMMENDED this 17th day of December, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 17th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1412 The Petitioner's proposals were struck. Rulings upon the Respondent's proposed findings of fact (PFOF) are hereafter ruled upon pursuant to section 120.59(2), Florida Statutes: Respondent's PFOF: 1. Rejected as subordinate and unnecessary and as covered in FOF 1 and 2 and the Conclusions of Law. 2-3. Covered in FOF 3. Covered in FOF 5. Covered in FOF 7. 6-7. Modified in FOF 9-10 to conform to the greater weight of the evidence as a whole and to exclude irrelevant material. 8. Covered in FOF 11. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medicine 130 North Monroe Street Tallahassee, Florida 32399-0750 Gregory F. Esposito, Esquire 5440 North State Road 7 Suite 23 Fort Lauderdale, Florida 33319 Allen R. Grossman, Esquire Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32399-1050 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Petitioner, the surviving spouse of Ralph Timmerman, is entitled to receive "in line of duty" death benefits?
Findings Of Fact Petitioner is the surviving spouse of Ralph Timmerman, who died on January 23, 1998, at 48 years of age. Petitioner and Mr. Timmerman had been married since September 5, 1981. They had two daughters, who are now four and thirteen years of age. Mr. Timmerman was a member of the Florida Retirement System. At the time of his death, Mr. Timmerman was employed by Martin County as the Assistant Building Maintenance Superintendent. Mr. Timmerman had been Martin County's Building Maintenance Superintendent until December of 1990, when he suffered a heart attack and had five-vessel by-pass surgery. Following his return to work, he was reassigned to the position of Assistant Building Maintenance Superintendent. This was a new supervisory position that had been specifically created for him. By design, it was less demanding than the Building Maintenance Superintendent position he had formerly held. One of Mr. Timmerman's former subordinates, Harold Markey, was tapped to succeed Mr. Timmerman as the Building Maintenance Superintendent, a decision that Mr. Timmerman supported. As the Assistant Building Maintenance Superintendent, Mr. Timmerman worked under Mr. Markey's supervision. Mr. Markey made an effort to avoid assigning Mr. Timmerman any tasks that, given Mr. Timmerman's history of heart problems, might jeopardize Mr. Timmerman's health. Mr. Timmerman's primary duties were to directly supervise the building maintenance staff and to deal with contractors hired by Martin County to perform building maintenance and repair work. Mr. Markey did not ask Mr. Timmerman to attend or make presentations at Martin County Board of County Commissioners meetings because he knew that Mr. Timmerman would feel uncomfortable performing these duties. Neither did Mr. Markey require Mr. Timmerman to do any physically demanding work. In fact, whenever, he saw Mr. Timmerman engaged in such physical labor, he would intervene and instruct Mr. Timmerman to stop. Whenever Mr. Timmerman indicated during the course of the work day that he was tired or not feeling well, Mr. Markey allowed Mr. Timmerman to leave work and go home.7 Notwithstanding these accommodations made for him, Mr. Timmerman, on a number of occasions, complained to Mr. Markey about (what Mr. Timmerman perceived to be) Mr. Markey's lack of understanding and compassion as a supervisor. He expressed these views in a loud and argumentative manner.8 As a general rule, following these outbursts, Mr. Timmerman apologized to Mr. Markey for the manner in which he had acted. It was during such an outburst on January 23, 1998, at his work site and during his normal working hours, that Mr. Timmerman suffered cardiac arrest and subsequently died. The day before, Mr. Timmerman and members of his staff had attended a meeting with Mr. Markey. Among the subjects discussed at the meeting was the response of Mr. Timmerman and his staff to a water main break that had occurred at the Martin County-operated library in Hobe Sound on January 20, 1998. The discussion concerning this subject lasted approximately 15 to 20 minutes. Mr. Markey was not at work on January 20, 1998, and therefore it was Mr. Timmerman's responsibility to coordinate the efforts to repair the break and remedy any water damage that had occurred at the library. Mr. Timmerman was notified of the water main break by Teresa Van Cardo, a Martin County employee occupying the position of Administrator Coordinator II for General Services. After some time had passed, Ms. Van Cardo became concerned that Mr. Timmerman had not yet arrived at the library. She therefore telephoned Mr. Markey at home to express her concerns about Mr. Timmerman's delay in responding to the scene. (Huey Cummings, Martin County's lead plumber, however, was on the scene and assessing the situation.) After speaking with Ms. Van Cardo, Mr. Markey telephoned Mr. Timmerman and told him that "he needed to get to the site and he needed to make an assessment of it." Mr. Timmerman replied that Huey Cummings was already at the library. When Mr. Timmerman came home from work that day he told Petitioner about what had happened at the library and that he was "very pleased at the way the whole situation was handled" by his staff. At the January 22, 1998, staff meeting (which was a regularly scheduled meeting), Mr. Markey voiced his criticism of the manner in which the staff had responded to the water main break at the library two days before,9 and he indicated what improvements the staff needed to make in responding to similar incidents in the future. It should not be necessary, he told his subordinates at the meeting, for anyone to have to bother him at home for guidance in dealing with a situation such as the one that arose at the library. At least one of the employees at the meeting (Patti Smith) could sense (based upon her observations of Mr. Timmerman's body movements as Mr. Markey spoke) that Mr. Markey's comments upset Mr. Timmerman. Indeed, Mr. Timmerman was upset. He felt that Mr. Markey's criticism was unwarranted, and, after Mr. Markey had voiced his criticism, Mr. Timmerman told Mr. Markey and the others at the meeting that, in his opinion, "everybody responded exceptionally." That evening, when he arrived home from work, Mr. Timmerman was still upset about the negative comments that Mr. Markey had made at the staff meeting earlier that day. Mr. Timmerman shared with Petitioner what Mr. Markey had said at the meeting and expressed his disappointment that Mr. Markey had criticized, rather than praised, his subordinates. The following morning (January 23, 1998), Mr. Timmerman woke up at 5:30 a.m. He ate a small breakfast and, after spending time with his youngest daughter, left for work at 6:30 a.m. He appeared to be "very calm" when he left. Mr. Timmerman arrived at work at or about 7:00 a.m. At around 7:30 a.m., Mr. Markey, at the request of another employee, went to Mr. Timmerman's office (which was located in a different building than Mr. Markey's office) and requested that Mr. Timmerman not park his assigned Martin County- vehicle in the staff parking lot (which was reserved for personal vehicles). Mr. Timmerman reacted with displeasure to the request. He told Mr. Markey, "This is bull crap," or at least used words to that effect. Mr. Markey repeated his request and then left Mr. Timmerman's office. Shortly thereafter, Mr. Markey discovered that two expensive vacuum cleaners were missing from the storage area where they were supposed to be kept. A few months earlier, Mr. Markey had instructed Mr. Timmerman to put up a "sign-out" sheet outside the storage area for employees to sign whenever they removed an item from the storage area. After discovering that the vacuum cleaners were missing from the storage area, Mr. Markey looked for, but did not find, such a "sign-out" sheet. When he returned to the building where Mr. Timmerman's office was located, Mr. Markey confronted Mr. Timmerman and asked him where the vacuum cleaners were. Mr. Timmerman told Mr. Markey that it was not his (Mr. Timmerman's) day to watch the vacuum cleaners and that he did not know where they were. Mr. Markey then said to Mr. Timmerman, "We need to get them located today," to which Mr. Timmerman responded, "Well, later on today, I will get somebody on it and we'll try to find them." Mr. Markey was not satisfied with Mr. Timmerman's response. He advised Mr. Timmerman that he wanted Mr. Timmerman, not someone else, to look for the vacuum cleaners and that he wanted Mr. Timmerman to look for them that morning, not later in the day. He also told Mr. Timmerman that he expected Mr. Timmerman to place a "sign-out" sheet outside the storage area before the morning was over. Mr. Markey then walked away and left the building. When Mr. Markey was approximately 30 feet away, Mr. Timmerman yelled out to him, "What do you have up your ass today?" Mr. Markey stopped and replied, "Obviously you." Mr. Markey then continued walking and returned to his office. Approximately four or five minutes later, an obviously very upset Mr. Timmerman stormed into Mr. Markey's office, yelling and screaming that Mr. Markey mistreated his staff and lacked understanding and compassion. Mr. Markey told Mr. Timmerman to calm down so that they could discuss what was bothering Mr. Timmerman. Mr. Timmerman, however, continued to yell and scream. In fact, if anything, he became louder. Mr. Markey made further attempts to persuade Mr. Timmerman to sit down and talk calmly about his grievances, but these efforts were to no avail. During his exchange with Mr. Timmerman, Mr. Markey, like Mr. Timmerman, raised his voice. Mr. Timmerman left Mr. Markey's office in a huff. As he was walking down the hallway, he shouted back to Mr. Markey, "I take-up for you all of the time with the guys," and then added, "I treat you like a F-en prince, and this is what I get." Mr. Timmerman then went into another employee's (Sharon Barnes') office and started pacing back and forth. His face was red and he was visibly agitated. Ms. Barnes told Mr. Timmerman to calm down. He replied to her that it was "too late." Mr. Timmerman thereupon returned to Mr. Markey's office and continued his ranting. Mr. Markey shouted back at Mr. Timmerman. When Mr. Markey told Mr. Timmerman to "sit down," Mr. Timmerman said that he "couldn't" and then turned to leave. Mr. Markey asked where Mr. Timmerman was going. Mr. Timmerman responded that he was going to take a ride in his truck. As Mr. Timmerman exited Mr. Markey's office and walked toward his truck, Mr. Markey followed behind him. Mr. Markey believed that, given Mr. Timmerman's agitated emotional state, Mr. Timmerman was in no condition to drive. He urged Mr. Timmerman not to go to his truck. Mr. Markey was ultimately able to convince Mr. Timmerman to sit down on a bench outside the building where Mr. Markey's office was located. Mr. Timmerman remained on the bench, however, for just a couple of seconds before getting up and walking away. As Mr. Timmerman walked away, he continued to yell and scream at Mr. Markey. Mr. Markey shouted back at Mr. Timmerman, repeating his plea that Mr. Timmerman not drive off in his truck. When Mr. Timmerman was approximately 20 feet from the bench, he started breathing heavily and leaned against a wall for support. Mr. Markey ran over to Mr. Timmerman to make sure that he did not fall. Mr. Markey again exhorted Mr. Timmerman to calm down. Mr. Timmerman, as he had done previously, told Mr. Markey that he "couldn't." Mr. Timmerman then collapsed in Mr. Markey's arms. After gently lowering Mr. Timmerman to the ground, Mr. Markey ran to Ms. Barnes' office window, which was approximately ten or 15 feet away. When he got Ms. Barnes' attention, he instructed her to "call 911." Paramedics subsequently arrived on the scene. They were unable to revive Mr. Timmerman. He was pronounced dead at 8:35 a.m. on January 23, 1998. An autopsy was performed the following day by Frederick Hobin, M.D., the Medical Examiner for the 19th Medical Examiner District of Florida. Dr. Hobin is a Florida-licensed physician, who is board-certified in anatomic, clinical, and forensic pathology. Following the completion of the autopsy, Dr. Hobin prepared an autopsy report, which contained the following findings and observations, among others (which the undersigned accepts as accurate): PATHOLOGIST'S OPINION MECHANISM OF DEATH: SUDDEN CARDIAC DEATH DUE TO ISCHEMIC CARDIOMYOPATHY CAUSE OF DEATH: OCCLUSIVE CORONARY ARTERIOSCLEROSIS MANNER OF DEATH: NATURAL . . . GROSS AUTOPSY PROTOCOL EXTERNAL EXAMINATION . . . INTERNAL EXAMINATION . . . CARDIOVASCULAR SYSTEM The heart weighs 680 grams. The increase in weight is attributed to biventricular hypertrophy. All of the chambers are markedly dilated. There is a dense gray scar throughout the posteroseptal myocardium. There are some focal areas of hyperemia in the inferior septum. The cardiac valves appear functionally intact. The coronary arteries have diffuse calcific occlusive arteriosclerosis. There is indication of a double remote bypass coronary graft procedure. There is some sclerosis of both of the grafts and one of the grafts appears to have been occluded by thrombus material throughout its entire length. The thrombus material appears remote in age and it is gray and friable. There is moderate arteriosclerosis of the aorta with some reduced elasticity. . . . FINDINGS AT GROSS AUTOPSY Arteriosclerotic cardiovascular disease. Occlusive coronary artery disease. Remote coronary artery bypass graft. Remote thrombosis of coronary artery graft. Ischemic cardiomyopathy. Healed posteroseptal myocardial infarction. . . . MICROSCOPIC EXAMINATION HEART There is marked hypertrophy of the myocardium as well as very extensive scarring. This is associated with sclerosis of the coronary artery bypass grafts and they are occluded by degenerated thrombus material. There appears to be minimal fibrosis of the mitral valve. Appended to Dr. Hobin's autopsy report were the written results of laboratory tests that had been conducted in conjunction with the autopsy. Such testing, according to the written results, revealed the presence of cannabinoids (cannabis metabolites) in Mr. Timmerman's blood.10 Although at the time of his death, Mr. Timmerman (as the autopsy reflected) was suffering from a chronic, degenerative, life-threatening cardiovascular disease that had evolved over a prolonged period of time, he was able to, and did in fact, lead a relatively normal life notwithstanding his disease. He was still able to work, and he continued his employment with Martin County11 until his death. Mr. Timmerman, however, because of his disease, was vulnerable to sudden cardiac death. Sudden cardiac death is a term the medical profession uses to indicate that a person has undergone a rapid, fatal deterioration as a result of an adverse cardiac event. In most, but not all, instances, the adverse cardiac event is an arrhythmia (as was the situation in Mr. Timmerman's death). Emotional stress and excitement can produce physiological changes that increase cardiac demand and consequently may precipitate an arrhythmia that leads to sudden cardiac death. Whether a particular incident or situation will produce such a result depends, not only on the individual's physical health, but on his or her emotional makeup as well. In the instant case, it appears, within a reasonable degree of medical probability, that work-related emotional distress (which manifested itself during the confrontations Mr. Timmerman had with Mr. Markey immediately preceding Mr. Timmerman's death) aggravated Mr. Timmerman's preexisting cardiovascular disease and thereby precipitated his demise.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Division of Retirement issue a final order finding that Petitioner is qualified to receive "in line of duty" death benefits from the account of her late husband, Ralph Timmerman. DONE AND ENTERED this 13th day of August, 1999, in Tallahassee, Florida. 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 13th day of August, 1999.
The Issue The issues presented concern the question of whether Petitioner, as a surviving spouse of Frederick A. McCall, is entitled to receive a pension, premised upon the fact that Officer McCall died in the line of duty, while employed with the Jacksonville Sheriff's Office.
Findings Of Fact On February 7, 1982, Frederick A. McCall, a uniformed patrol officer with the Jacksonville Sheriff's Office, Jacksonville, Duval County, Florida, died during the course of a routine arrest of a suspect for disorderly conduct and intoxication. Officer McCall is survived by his widow, Delores McCall, Petitioner in this action, who seeks the grant of a survivor's pension, in keeping with Subsection 121.091(7)(c)1., 2/ Florida Statutes, based upon the belief that her husband died in line of duty within the meaning of Subsection 121.021(14), 3/ Florida Statutes. The pension has been denied Petitioner by proposed action on the part of Respondent and that decision is contested by Petitioner in this Subsection 120.57(1), Florida Statutes, hearing. The date of hearing de novo was October 22, 1982, and the Recommended Order is being entered as a part of the hearing process. Officer McCall had been employed by the Jacksonville Sheriff's Office for more than ten (10) years. Some of the duty assignments which Officer McCall had performed prior to assignment to the uniformed patrol division included "pawn shop" detail. In that position he surveyed pawn shops to determine if those businesses were receiving illegal or stolen property. He was transferred from that assignment to a burglary detail conducting investigations in burglary cases. Testimony of his supervisors indicated that he performed in a satisfactory manner in those assignments. The only evidence of any problem concerns a counseling session and written reprimand related to over-utilization of a departmental automobile. This disciplinary action report may be found as Respondent's Exhibit No. 1, admitted into evidence, dating from August 20, 1981. In November, 1981, McCall was transferred to the uniformed patrol division. The basis for this transfer was not established in the course of the hearing. Nonetheless, the evidence is sufficient to demonstrate that the Jacksonville Sheriff's Office was satisfied that McCall could perform the duties of a uniformed patrol officer. In that position, McCall was assigned to several duty watches throughout the 24-hour duty cycle. These shifts were eight hours in length and McCall's duty watch would rotate on a monthly basis such that he would serve on each of the eight-hour duty shifts within the 24-hour duty cycle. Among the duty functions of a uniformed patrol officer within the Jacksonville Sheriff's Office are those functions of investigating disturbances "on the street," at business locations and residences. Testimony by various officers within the hearing established that the investigation of residential disturbance causes more apprehension on the part of an officer than those matters "on the street" or in business establishments. This is due to the familiarity of the suspect with his surroundings and the fact that the suspect might be more prone to act in a proprietary way in his home to impress family members or friends, at the expense of an arresting officer's safety. Officer McCall, in his duty shift of February 7, 1982, was dispatched to investigate a disturbance at 1139 North Laura Street, Jacksonville, Florida. This occurred at around 12:50 P.M. on that date. He was in the company of Officer Samuel Aldridge, in keeping with the custom of the Sheriff's Office to dispatch two (2) officers when dealing with residential disturbances. The officers had been informed that the nature of the complaint concerned a disturbance being caused by an intoxicated suspect. McCall was the primary responding officer. When the officers arrived, they went inside the residence and found the suspect Samuel Riley, standing on a stairway. Riley was reported as drinking and had broken out a window in the residence and turned over a can of paint. McCall asked Riley if he was the individual who had broken the window and the suspect informed McCall that he had broken out the window while he was "aggravated." McCall instructed Riley to stand against the wall. Riley complied and a "shake-down" check was made of his person to determine if he was carrying a weapon. Riley was not armed and McCall then took him by the belt in the back of Riley's trousers and began to escort Riley to the door of the residence. This procedure of supporting the suspected intoxicated person is pursuant to a policy of the Jacksonville Sheriff's Office. The suspect informed McCall that he did not need to be held by the pants and McCall responded that he would "help the suspect along." During the course of these matters, Riley was advised by McCall that he was under arrest for disorderly intoxication. Before they exited the door, Riley indicated that his shoe was coming off. When they reached the sidewalk outside the residence, Riley again complained about his shoe coming off and turned toward Officer McCall. This movement on the part of the suspect was not aggressive. Aldridge reached to get Riley by the arm and before this could be accomplished, McCall and the suspect toppled to the ground. McCall fell as a result of heart failure, not actions by Riley. Riley got up from the ground and was handcuffed. A rescue unit was called at 12:59 P.M. and left for a local hospital at 1:25 P.M., arriving at 1:31 P.M. At 2:00 P.M. Officer McCall was pronounced dead as a result of a heart attack. Samuel Riley was twenty-four (24) years old at the time of the arrest. He was six (6) feet tall and 185 pounds, and known by the officers to have problems with intoxication. In the course of the incident, Riley had been verbally belligerent but had not been physically aggressive toward the officers and he was not charged with any form of resistance in the arrest process. McCall had gone on duty at 7:00 A.M. on the date of his death and the number of incident responses that he had made in his capacity as police officer prior to the incident with Riley was not established, other than one call occasioned by a burglary alarm which proved to be false. McCall had commented to Officer Aldridge prior to the Riley incident that McCall felt sleepy and that he had a sensation of indigestion. Nether Officer McCall nor the Department had any suspicion of a heart condition on the part of McCall, notwithstanding the fact that he was five (5) feet, nine (9) inches tall and 221 pounds at forty-five (45) years of age. It was only after an autopsy was performed that it was discovered that McCall suffered from a pre-existing heart condition. Testimony of Dr. Bonifacio T. Floro and his autopsy report which is found as Respondent's Exhibit No. 3, establish that the cause of death was heart disease. There was an 80 percent occlusion by atherosclerosis of the left anterior descending and the left circumflex coronary arteries. The right coronary artery had 95 percent occlusion by atherosclerosis at the ostium and the remaining portion of the artery had a 75 percent occlusion. McCall's heart was a Class IV, the most dramatic condition possible in describing the seriousness of the occlusion. Four centimeters away from the ostium of the right coronary artery, a dark reddish gray occlusive thrombus was found. When the heart was transversely sectioned, a transmural white discoloration in the lateral wall of the left ventricle surrounding a 0.5 centimeter subendocardial area of marked hyperemia was found. This latter item indicated that he had suffered a previous myocardial infarction approximately six (6) weeks before. McCall also suffered from arteriosclerosis and his heart was enlarged. McCall's heart was such that stress, when added to the pre-existing condition would affect the oxygen requirement and promote the heart failure. While it is impossible to tell how long Officer McCall would have lived in view of the pre-existing heart condition, and recognizing that he may have died while asleep or by some other sedentary activity, the arrest circumstances involving the suspect was the incident that brought on the fatal heart attack.
The Issue The issue in this case is whether the Petitioner, the Department of Health and Rehabilitative Services (HRS), should fine the Respondent, Willie Mae Johnson, d/b/a Leisure Living Retirement Home, based on an Administrative Complaint that alleges that ten Class III deficiencies have persisted despite notice of the deficiencies and of the requirement that they be corrected.
Findings Of Fact The Respondent, Willie Mae Johnson, d/b/a Leisure Living Retirement Home, is licensed to operate Leisure Living Retirement Home, 401 S.E. 9th Avenue, Mulberry, Florida, as an adult congregate living facility (ACLF) under Chapter 400, Part II, Florida Statutes, and Chapter 10A-5, Florida Administrative Code. On January 9, 1989, the day of an HRS survey of the Respondent's ACLF, the following Class III deficiencies, among others, were present: The facility did not have on its staff at all times at least one staff person with training in an approved first aid course, and there was no evidence that all staff were free of communicable disease. Daily records of supervised self- administered medications had not been kept for some residents since 1/3/89. Others showed the medications had been logged sporadically, while one medication, Inderol 10 mg, had never been logged. Because of this haphazard system, there was no way to be sure residents were receiving medications at the proper times and in the correct dosages. Of eight health assessments reviewed three did not indicate the residents to be free of communicable disease. One did not indicate whether the resident was capable of self-administering medications with supervision or assistance from staff. Appropriateness of admissions and continued residency was not based on the medical records. See subparagraph C, above. Medications were not given as prescribed. As the medications had not been logged or given according to the medication label, there is a potential for over- or under- medicating the residents, which could lead to serious health problems for the residents. All rooms where food or drink was prepared and served were not clean or in good repair as evidenced by: Live and dead cockroaches were observed on the kitchen and dining room floor and in the kitchen cabinets. There were spills inside the microwave oven. There was an accumulation of dust on top of the refrigerator and the freezer. The curtains in the dining room were torn. All potentially hazardous food was not held at safe temperatures. Liver had been left at room temperature to thaw. It could not be determined if the freezer was 0 degrees Fahrenheit or colder, as the thermometer had not been placed in the freezer until shortly before the surveyor exited the facility. The last annual inspection of the portable fire extinguisher in the main building was done December, 1987. Documentation of monthly fire drills and quality tests of smoke detectors and the fire alarm system was not available at time of survey. The facility needed to institute an effective insect control system. There were roaches crawling up the wall near the phone, creating an atmosphere ripe for the spread of disease. (These lettered subparagraphs correspond to the lettered subparagraphs in paragraph (3) of the Administrative Complaint in this case.) At the conclusions of the January 9, 1989, survey, the Respondent agreed to the following schedule for correcting each of the deficiencies listed in the subparagraphs of Finding 2, above (each lettered subparagraph below corresponds to the deficiency identified in the same lettered subparagraph of Finding 2, above): February 15, 1989 Immediate and ongoing. February 9, 1989. February 9, 1989. Immediate. January 20, 1989. January 9, 1989. January 16, 1989. February 9, 1989. Immediate. On April 27, 1989, HRS personnel returned to the Respondent's facility. They found that the deficiencies listed in the lettered subparagraphs of Finding 2, above, were not corrected, as the Respondent agreed to do. Instead, as to each deficiency, they found: Of the two staff, neither had first aid, and only one had a "no communicable disease" statement. Medications had not been logged since the morning of April 25, 1989. One of the three still did not indicate that the resident was free of communicable disease. See subparagraph C, above. One medication prescribed April 1, 1989, was never used, according to the logs. A live roach was seen crossing the kitchen counter. Breaded frozen fish was left on the counter. The stand-up freezer was 20 degrees Fahrenheit. The last documented quarterly smoke detector test was January 26, 1989, and the last documented fire drill was February 6, 1989. A live roach was seen on food left to defrost on the kitchen counter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Health and Rehabilitative Services, enter a final order finding the Respondent, Willie Mae Johnson, d/b/a Leisure Living Retirement Home, guilty as charged in the Administrative Complaint in this case and fining her $2500. RECOMMENDED this 31st day of May, 1990 in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 31st day of May, 1990.
The Issue The issue is whether Respondent should be terminated for just cause from his employment under a professional service contract pursuant to Section 231.36(6), Florida Statutes.
Findings Of Fact Petitioner hired Respondent as a school teacher under a Professional Service Contract for the 1997-1998 school year. Respondent's duties included teaching physical education and serving as head basketball coach at Dunnellon High School in Dunnellon, Florida. At all times material to this case, Bobby James was Respondent's principal. Sometime during the 1997-1998 school year, but prior to the incident at issue here, Mr. James had reason to counsel Respondent and the school's wrestling coach. Mr. James advised both teachers that they should not patronize a nightclub known as Party Central. 1/ Mr. James felt that such places were not appropriate for educators. 2/ On April 9, 1998, Mr. James performed an annual teacher assessment for Respondent. Mr. James found that Respondent met all acceptable standards. Mr. James concluded that Respondent did not have any professional areas that needed improvement. On the evening of May 9, 1998, around 11:00 p.m., Respondent and his then fiancée, Theresa Casko, went to Party Central/Shark Attack with one of their male friends, Mike MacGuymo. 3/ The purpose of the night out was to celebrate the 21st birthday of Ms. Casko's male cousin, Jason Tovine. During the evening, Ms. Casko began dancing with Tammy Burke and several of the club's male customers. Both Ms. Casko and Ms. Burke had been drinking alcoholic beverages. Respondent was drinking alcoholic beverages but he was not dancing. Respondent became upset with the manner in which a male customer was dancing behind Ms. Casko. Respondent repeatedly went on to the dance floor in an attempt to persuade his fiancée to leave the establishment. Shortly after midnight, on the morning of May 10, 1998, Respondent and Ms. Casko began arguing at the edge of the dance floor. Respondent took Ms. Casko by the arm and went outside with her. Ms. Casko's cousin followed them. The argument between Ms. Casko and Respondent continued in the parking lot of Party Central/Shark Attack because she did not want to leave the club. Respondent also became angry with Ms. Casko's cousin and grabbed him by the face. At that point, Ms. Casko stepped in between them and began hitting Respondent. During the altercation, Respondent struck Ms. Casko. There is no persuasive evidence that Respondent intentionally struck Ms. Casko. Ms. Casko gave Respondent his engagement ring and walked across the street in the area of a mobile home sales company. Respondent followed her. Ms. Casko told Respondent to get away from her and walked back across the street to the parking lot of Party Central/Shark Attack. Respondent remained in the vicinity of the parking lot of the mobile home sales company. The bouncer from the Party Central/Shark Attack observed the argument and the struggle between Respondent, Ms. Casko, and her cousin. The bouncer had seen Respondent hit Ms. Casko. He asked the club's manager to call the police. In the meantime, Officer Harold Compton was flagged downed by someone in the parking lot as he drove past the club. Soon thereafter, three other officers arrived in their patrol cars. The bouncer told Officer Compton that Respondent had hit Ms. Casko. Officer Compton then went across the highway and down the street in his patrol car to look for Respondent. Officer Wayne Sellers and Officer Tommy Ketner also drove across the street to look for Respondent. Officer Nick Viaggio stayed with Ms. Casko in the club's parking lot. Ms. Casko told Officer Viaggio and Tammy Burke that Respondent had hit her but that she did not want to press charges and that she did not need medical treatment. Calls made to the Ocala Fire Rescue Emergency Medical Service and the Munroe Regional Medical Center Ambulance Service to provide Ms. Casko with medical treatment were cancelled. Officer Compton eventually located Respondent and asked him to get in Officer Ketner's patrol car so that they could return to the Party Central/Shark Attack parking lot. Respondent was cooperative. When the police returned to the club's parking lot with Respondent, Officer Compton interviewed Ms. Casko and determined that he had probable cause to arrest Respondent for domestic violence. Upon learning that he was arrested and going to jail, Respondent became belligerent. As the officers attempted to handcuff Respondent, he backed away from them, tensed up his arms and shoulders, and began to utter profanity. The officers had to hold Respondent against the hood of a patrol car in order to put the cuffs on him. Ms. Casko began to plead with the officers to let Respondent go home with her. She told Respondent she wanted her ring back. The ring was in Respondent's pocket. Officer Compton and Officer Sellers walked Respondent over to Officer Compton's patrol car because he was the arresting officer. Ms. Casko followed trying to get the ring from Respondent. A crowd gathered as people began to leave the club. About the time that the officers and Respondent reached Officer Compton's vehicle, a call came through from a police officer in another location asking for assistance. Officer Viaggio got in his car and started to leave to respond to the emergency call. Respondent refused to get in the police car as directed by Officers Compton and Sellers. Instead, he turned to talk to Ms. Casko and to try to give her the ring. As Respondent turned to face Ms. Casko, he accidentally butted Officer Sellers in the head, leaving him stunned. Seeing that Officer Sellers was stunned and believing that Respondent might strike Officer Sellers again, Officer Compton sprayed Respondent's face with pepper spray. Respondent then began to struggle vigorously. Officer Viaggio rushed to assist in restraining Respondent. Eventually, the officers were able to subdue Respondent on the ground. They had to warn Ms. Casko and others to stand back out of the way. There was a large crowd in the club's parking lot. Consequently, the police officers took Respondent back across the road to await medical assistance to treat Respondent for injury due to pepper spray. The Ocala Fire Rescue Emergency Medical Service terminated its response because the Munroe Regional Medical Center Ambulance Service had arrived on the scene. The ambulance service medics irrigated Respondent's eyes with a saline solution. They also washed pepper spray from the hands of the officers. The medics wiped Respondent's face with a towel. They gave towels to the officers. Officer Compton then took Respondent to the jail. Respondent was released the next day. The State Attorney charged Respondent with resisting a law enforcement officer with violence, battery on a law enforcement officer, and domestic violence battery. On March 18, 1999, Respondent was tried on reduced charges of resisting arrest without violence and battery on a law enforcement officer. During the criminal trial, Respondent and his wife, formerly Ms. Casko, testified that Respondent did not strike her in the early morning hours of May 10, 1998. Respondent also testified that he received no medical attention whatsoever for his eyes before arriving at the jail. He stated that it was a "preposterous lie" that a rescue squad had irrigated his eyes across the street from the club. The jury acquitted Respondent of all charges. 4/ Petitioner suspended Respondent without pay on or about June 23, 1998. On or about July 21, 1998, before Respondent was acquitted, Mr. James made a public statement that was reported in the local newspaper. Mr. James indicated that he substituted another teacher in Respondent's coaching job because of the unresolved criminal case against him and not because of his professional performance. Specifically, Mr. James's comments included the following: Barry is to be commended for the tremendous job that he has done. No matter what happens, that is something you can't take away from anyone. He is an excellent coach and teacher. Mr. James's duties as principal include assessing the performance of teachers under his supervision. In making such assessments, Mr. James considers the teaching ability and classroom performance of teachers. He also considers the effectiveness of teachers in light of their presentation of themselves to their students, parents, and the community, i.e., as role models and counselors. Mr. James testified that he could not recommend retaining any teacher who was not "up front," trustworthy, and loyal. According to Mr. James, a teacher needs to maintain the highest standards and be able to give students the best possible advice. During the hearing, Mr. James testified that he would not recommend that Respondent be retained as a teacher. Mr. James based his decision on his reading of the criminal trial transcript, information in Joint Exhibit 2, 5/ Respondent's failure to heed the prior admonition not to patronize nightclubs like Party Central/Shark Attack, and the assumed impact of his performance if he were to be reinstated. Specifically, Mr. James stated as follows: The jury [in the criminal trial] that tried his [Respondent's] case had no bearing on my recommendation to the superintendent. The jury that tried his case is the jury of the young people that I have and the parents of those folks. Dr. John D. Smith, Superintendent of Marion County Schools, testified that he had: (a) read the criminal trial transcript; (b) considered information presented by his support staff; (c) considered Mr. James's recommendation to terminate Respondent's employment; (d) considered Joint Exhibit 2; (e) read newspaper articles relative to the May 10, 1998, incident; and (f) consulted with three members of the school advisory council of Dunnellon High School. Dr. Smith determined that Respondent should be terminated because of his questionable integrity. Dr. Smith did not believe that Respondent was trustworthy to be responsible for supervising, advising, and influencing students, especially in situations beyond the classroom or where he is the only adult present, such as field trips, athletic events, and club activities. Dr. Smith concluded that Respondent would no longer be effective as a teacher. He reached this conclusion in part based on his consultations with the three members of the student advisory council. Respondent did not present any evidence from students, parents, his colleagues, or community members regarding his continued ability to be an effective teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent be reinstated in a teaching position with back pay and benefits lost during his suspension. DONE AND ENTERED this 4th day of October, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 4th day of October, 1999.
Findings Of Fact Petitioner James T. Steffens is currently employed as Chief of the Oneco-Tallevast Fire Control District located in Manatee County and has been so employed since June 1, 1982. The fire control district covers approximately 26 square miles southeast of Bradenton, and includes residential and commercial developments and some rural areas. The district employs six firefighters who, along with Petitioner, work a normal 3:00 A.M. to 5:00 P.M., Monday through Friday, work week. There are 28 volunteer firemen in the district who provide most of the firefighting services for the district. The career personnel are hired primarily to supplement the volunteer group during the ordinary work week. However, they and the Petitioner are also volunteer firefighters. During the period of his employment, Petitioner has taken charge of firefighting on six or seven instances, one of which occurred during his normal hours of employment. (Testimony of Steffens) Petitioner was hired as a result of a screening and interview process by the Board of Commissioners of the Oneco- Tallevast Fire Control District. They were interested in a person who could unify factions within the district and modernize district procedures. The Board of Commissioners was more interested in Petitioner's administrative skills rather than his qualifications as a firefighter. However, it was aware from prior communications with Respondent's personnel that either a certified firefighter should be hired, or if not, that the individual hired would have to be certified in Florida. Petitioner primarily performs administrative functions, such as personnel and budget matters, training and scheduling of personnel, procurement of supplies, and scheduling of fire inspection and prevention programs. Actual fire inspections are conducted by the district fire marshal. (Testimony of Petitioner, Skinner) Respondent's form FST-1 "Qualification of New Employee," was filed on behalf of Petitioner in June 1982 by Raymond F. Skinner, Jr., Secretary- Treasurer, Board of Commissioners, Oneco-Tallevast Fire Control District. The form reflected that Petitioner had completed the equivalency examination at the State Fire College, Ocala, Florida, on July 11, 1977, and the Report of Physical Examination that accompanied the form showed that he had no physical abnormalities. Upon inquiry by Respondent as to a discrepancy on the physical examination report that reflected Petitioner had adequate visual acuity, as compared to a prior medical report received by the Department showing that his uncorrected vision in the right eye was 20/200 and in the left eye, 20/400, the examining physician advised the Respondent that the earlier eye examination should be deemed correct. (Respondent's Exhibits 1-2) By letter of October 5, 1982, Mr. Skinner was advised by the Office of the State Fire Marshal that Petitioner could not be certified because he did not meet the requirements of pertinent law and regulations as to visual acuity, and also due to the fact that he had a "noticeable limp." Specifically, he was advised that Section 633.34(5), Florida Statutes, required that "Any person initially employed as a firefighter must be in good physical condition as determined by a medical examination as prescribed by the division," and that Rule 4A-37.37, Florida Administrative Code, implementing the statutory provision, provided in subsection (3) for adoption of the standards of NFPA 1001 (1974). The letter further stated that NFPA 1001, Chapter 2-2.7.2(b), provided that standard visual acuity, without correction, of less than 20/40 in one eye, and 20/100 in the other eye, was cause for rejection for appointment, and that Chapter 2-2.6.2.4(d) provided that shortening of a lower extremity resulting in any limp of noticeable degree was also cause for rejection. Subsequent to receipt of the letter from Respondent, Petitioner requested an administrative hearing. (Respondent's Exhibit 1) Petitioner does not meet the visual acuity standards set forth in the above-cited law and regulations in that his uncorrected eyesight is 20/200 in his right eye and 20/400 in his left eye. (Respondent's Exhibit 1-2, Stipulation) Respondent's ground for rejection of certification because Petitioner has a "noticeable limp" was based solely on observation of Petitioner by Mr. Raymond Schaffner, Program Coordinator for Fire Standards, Office of the State Fire Marshal. However, Mr. Schaffner has no knowledge of Petitioner having a shortening of either leg, nor is there any medical evidence in that regard. Although he is of the opinion that a person with a limp would have difficulty as a firefighter carrying heavy weights on stairs, or maintaining control on a ladder with his legs to free his hands, he is unaware of any actual limitations that Petitioner might have in this regard. (Testimony of Schaffner) Petitioner concedes that he has a slight limp, but can offer no medical explanation for it. He purchases trousers which have the same inseam for both legs. The problem becomes more pronounced if he becomes overweight. It has never hampered his sports activities in the past, or his prior activities as a volunteer firefighter since 1956. In 1977, he successfully completed the equivalency examination at the State Fire College in Ocala, which required that he perform field "evolutions" or practical exercises in firefighting. Although they do not necessarily test an individual's endurance, Petitioner participated in advancing heavy hoses and carried a man down from a ladder during his equivalency examination. He has performed "leg locks" on ladders "hundreds of times" in the past. (Testimony of Schaffner, Petitioner) Volunteer firefighters are not required to be certified by the state. However, Respondent's interpretation of applicable statutes is that the employed chief of a fire control district must be certified if he meets the definition of "firefighters" set forth in Section 633.31, Florida Statutes. (Testimony of Schaffner, Stark)
Recommendation That Petitioner James T. Steffens be determined unqualified for employment and certification as a firefighter pursuant to Chapter 633, Florida Statutes. DONE and ENTERED this 3 day of 1983, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1983. COPIES FURNISHED: Richard W. Gross, Esquire Post Office Box 1302 Hialeah, Florida 33011 Susan E. Koch and Dennis Silverman, Esquires Department of Insurance 413-B Larson Building Tallahassee, Florida 32301 The Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol Tallahassee, Florida 32301
