The Issue Whether Respondent Heath Currier committed the violations alleged in the Final Notice of Discipline, and if so, the appropriate discipline that should be imposed.
Findings Of Fact The fire chief, on behalf of the City of Cape Coral Fire Department, is responsible for terminating the employment of employees of the fire department. At all times relevant to the this proceeding, Respondent was employed by Petitioner as a firefighter. The employment position that Respondent occupies is included in the positions covered by the collective bargaining agreement between Petitioner and the Cape Coral Professional Fire Fighters Local 2424 of The International Association of Fire Fighters (Union). Petitioner has the authority to monitor and regulate its employees in accordance with the laws and rules of the State of Florida, the City of Cape Coral Charter, ordinances and rules promulgated thereunder, and the collective bargaining agreement between Petitioner and the Union. According to the Joint Pre-Hearing Statement, “Article 7(d)(2) of the union contract states that employees are entitled to Notice of Intended Discipline” and, according to Respondent, “Heath Currier wasn’t advised that his employment was being terminated until after the fire chief’s pre-disciplinary hearing.” The referenced article of the union contract was not offered into evidence. However, chapter 2, division 7 of the City of Cape Coral Ordinances (division 7), was received into evidence and this ordinance sets forth Respondent’s procedural disciplinary notice rights. Section 2-31.4(b) of division 7 provides in part that “[w]hen disciplinary action against an employee with regular status is contemplated by the city, the department head shall provide the employee with written notice of the intended action(s).” Section 2-31.4(c)(6) provides further that “[i]n no event shall the discipline imposed be greater than that specified in the notice of proposed disciplinary action.” On or about December 22, 2015, Respondent received a notice of proposed disciplinary action from Petitioner which informed him that the fire chief was considering disciplinary action including, but not limited to, “written reprimand, suspension, demotion, and/or termination of employment with the City.” Following the issuance of the notice of proposed disciplinary action, an investigation was conducted which resulted in the issuance of a final notice of disciplinary action which advised Respondent that his employment with the City of Cape Coral was being terminated “effectively immediately.” The notice of proposed disciplinary action provided Respondent with notice that termination of his employment with the City of Cape Coral was a possible consequence resulting from his alleged misconduct, and the notice was issued in accordance with the requirements of division 7. Respondent, at the time of the occurrences that provide the basis for the instant action, was a seven-year member of the Cape Coral Fire Department, and, during all times relevant hereto, worked primarily in the department’s division of operations. The fire department’s division of operations is divided into two battalions, “fire north” and “fire south.” Respondent was assigned to the fire south division. The division of professional standards is another division within the fire department, and, during all times relevant hereto, was under the supervision of then special operations battalion chief Timothy Clark. Housed within the fire department’s division of professional standards is the department’s special operations unit, which includes the department’s dive/rescue team. Mr. Clark, in his capacity as battalion chief for special operations, had the authority to direct fire department employees in matters related to dive/rescue operations. To become a member of the dive/rescue team, a firefighter must go through a competitive process that, if successfully completed, results in the firefighter receiving additional pay in the form of a wage supplement. Members of the dive/rescue team, according to Mr. Clark, must be proficient in the operation of dive-related equipment to the point of knowing the equipment “inside and out, upside down, sideways, backwards, eyes closed, [and] blindfolded.” Respondent is a member of the department’s dive/rescue team. At some point (the exact date is not clear in the record), Respondent was assigned to the fire station where the dive/rescue team is located. The dive/rescue team is under the direct supervision of Ryan Corlew. The dive/rescue team has regular training exercises which require members of the team to perform certain tasks so as to maintain operational efficiency. Mr. Corlew, when working with Respondent, determined that Respondent’s knowledge of the operational aspects of some of the dive/rescue equipment was deficient and in need of remediation. Special operations battalion chief Clark was informed of Respondent’s problems with the dive/rescue equipment, and armed with this information, met with Respondent to discuss the issue. Mr. Clark explained to Respondent that he was displeased that Respondent was not as proficient with the dive/rescue equipment as he should be, and that he was placing Respondent on a non-punitive three-week remedial training program. Mr. Clark “instructed [Respondent] at that time to work with the other guys in [his] station, the lieutenant, the engineer, the firefighters, all the divers there, to work with them and train with them and have them teach [you] so that when I come back in three weeks, [you will know] this stuff inside out . . . backwards . . . [and] blindfolded.” Respondent explained that after he was instructed by Mr. Clark to work with the other guys at his station, he repeatedly asked (“morning, noon, and evening”) his lieutenant, Mr. Corlew, for training, and each time he was refused. According to Mr. Corlew, Respondent, while at the dinner table one night, asked if Mr. Corlew could personally train him, and Mr. Corlew, as Respondent’s supervisor, told Respondent to first work with firefighters Stalions and Johnson, both of whom are extremely knowledgeable about the workings of the dive equipment. Mr. Corlew went on to advise Respondent that he would personally work with him once firefighters Stalions and Johnson raised Respondent’s proficiency with the equipment to an acceptable level. Firefighter Stalions testified that during this same discussion at the dinner table, he offered to train Respondent, but Respondent refused and said that he wanted to be trained instead by Mr. Corlew. Respondent testified that “[e]very single day [he] would take all of the dive equipment out of the compartments, disassemble it completely, reassemble it and do that at least twice a day.” In an attempt to corroborate this testimony, Respondent called Steven Jobe as a witness. Mr. Jobe testified that he “didn’t necessarily see [Respondent] putting [the dive equipment] together and taking it apart.” Although Mr. Clark told Respondent to be ready to demonstrate his proficiency three weeks from the time of their meeting, it was actually four weeks later when Mr. Clark again met with Respondent. During the follow-up meeting, Mr. Clark gave Respondent “a simple scenario that engine 2 had come back from a call, all the equipment was trashed and everything needed to be replaced.” According to Mr. Clark: I needed [Respondent] to go in the back room, get all the stuff together and assemble a dive setup, check it out and test it and make sure it was ready to go if a call came in. He fumbled through it. It took him a long time to put stuff together. He ultimately figured a couple things out throughout the process of elimination, but there was [sic] still some things that he had wrong. He had the weights, they weren’t properly in the BCs (undefined), which is a critical safety issue, because if you lose your weights on the call, it could cause you to bolt to the surface, which could cause injury to yourself or others. So by placing the weights improperly the way he did, to me was a huge [problem]. (Hearing transcript pg. 83). Mr. Clark went on to explain that “once we were all done, like I said, he had some issues and I knew--it was obvious that he hadn’t done what I instructed him to do[,] [s]o I asked him at the time who he had worked with over the course of that four weeks.” Mr. Clark explained that he asked Respondent who he had trained with during the four-week period because if the individuals that remediated Respondent were performing at or near the same level as Respondent, then Mr. Clark believed that he had a larger issue of operational preparedness that he needed to address by personally retraining all concerned. In response to Mr. Clark’s request for names, Respondent told Mr. Clark “the only people that I’ve had consistently with me are two firefighters that I’ve worked with,” named Johnson and Stalions. Soon after meeting with Mr. Clark, Respondent sent the following text message to firefighters Johnson and Stalions: Hey guys heads up, I just had my “non punative [sic] dive gear quiz” with [C]lark and I missed a few things. He asked who I had been working with and I reluctantly gave him your names after [C]orlew told him I never went to [M]edero for help. Not sure if there will be any fallout but I wanted to let you both know ahead of time. Mr. Johnson credibly testified that he was surprised to have received the referenced text message from Respondent given that he had never been asked to, nor had he ever provided any type of training to Respondent. Firefighter Stalions credibly testified that after receiving the text he spoke with Respondent and “told him I didn’t appreciate being pulled into it because training wise, I didn’t do any formal training with him and it kind of to me felt like he was looking for kind of some backup on it.” Firefighter Stalions went on to explain that he had never trained with Respondent, but certainly would have had he been asked. Because Respondent did not train with either firefighter Johnson or Stalions, Respondent lied to Mr. Clark when informing him that Respondent had trained with these individuals. Respondent’s poor performance on his remedial test, combined with the fact that not a single witness corroborated Respondent’s testimony of having disassembled and reassembled the dive equipment twice a day, every single day, makes incredible his testimony regarding self-directed remedial training. Respondent testified that he “did everything [he] thought [he] could do” to comply with Mr. Clark’s directions and recommendations. Respondent’s assertion is, however, belied by the evidence which demonstrates that Respondent did not train on the dive equipment with firefighters Madero and Johnson, and refused a direct offer from firefighter Stalions to assist Respondent with training. It was solely the fault of Respondent that he did not secure remedial training as directed by Mr. Clark.
The Issue Whether the Respondent, Al Paruas (Respondent), as a member of the town council for the Town of Golden Beach, Florida, improperly used his influence, as a public officer, to have his wife’s parking ticket voided in violation of Section 112.313(6), Florida Statutes (2002).
Findings Of Fact At all times material to the allegations of this case, the Respondent was an elected member of the Town council. As such, the Respondent is subject to the mandates of the Code of Ethics for public officers and employees found in Chapter 112, Florida Statutes (2002). On February 10, 2000, at approximately 5:25 p.m. within the Town of Golden Beach, Florida, Dagmarra Paruas (the Respondent’s wife) illegally parked her motor vehicle in a handicapped zone at the public beach pavilion. Mrs. Paruas exited her vehicle for a short amount of time (to see about some tables at the pavilion) and when she returned to the car, Officer Santinello was at her vehicle preparing a citation. Had Mrs. Paruas been respectful, remorseful or apologetic at the time, Officer Santinello would have written only a citation warning as it is his policy to warn persons before writing a citation. Instead, Mrs. Paruas was disrespectful toward the officer. Based upon Mrs. Paruas’ parking violation and the disrespectful manner in which she exited the beach parking area, Officer Santinello decided he would let the citation stand. Factors contributing to the officer’s decision were: the aggressive backing out of the parking space causing Officer Santinello to move quickly out of Mrs. Paruas’ vehicle’s path; Mrs. Paruas’ demand to speak to Hernan (Hernan Cardeno, the Town’s police chief); and the way Mrs. Paruas threw the ticket back at him after he attempted to hand the citation to her. Mrs. Paruas is a member of the Town’s beach committee. At or near the time of the citation, Mrs. Paruas was checking on arrangements at the beach pavilion for the beach committee. She did not believe the citation was fair because she was at the pavilion for a short time and was there in her capacity as a Town beach committee member. After Mrs. Paruas advised the Respondent that she had received a citation for parking at the pavilion, the Respondent telephoned the Town’s chief of police. During the conversation with the chief (Hernan Cardeno) the Respondent stated he was unhappy with the way the police department was being run and was unhappy his wife had received a parking citation. Mr. Paruas did not understand why his wife had received the citation. At a subsequent meeting with the police chief at the police department, the Respondent asked when the Town started giving councilmen’s wives tickets. The Respondent again reminded the police chief that he was unhappy with the police department. At the time, the Respondent was serving as vice mayor for the Town. The Respondent was not persuaded by the information provided to him regarding the ticket. He continued to complain regarding the citation to the police chief and to Officer Santinello. At some point during the meeting at the police office, Officer Santinello was told it would be in his best interests to take back the citation. When Officer Santinello asked whether his job was being threatened, he advised the Respondent and the police chief that he would contact the police union. The Respondent told Officer Santinello to take back the ticket and apologize to his wife. A short while later (after the Respondent had left the police office), the police chief suggested to Officer Santinello that he should void Mrs. Paruas’ ticket. The next day, Officer Santinello voided the citation by preparing a County Court Cancellation Form for the ticket. Mrs. Paruas was not required to pay the citation or appear in court or have any adverse entry on her driving record. Officer Santinello voided the citation because he was afraid of losing his job. He did not want additional conflict over the matter. Officer Santinello did not want to get on the Respondent’s bad side, given his position in the Town. Officer Santinello would like the entire incident to be forgotten. Officer Santinello expressed regret over the incident as it has potentially damaged his employment future with the Town. Mrs. Paruas and the Respondent benefited from the cancellation of the citation. Had the Respondent not challenged Officer Santinello as he did, and had he not been a member of the Town council, the citation would not have been voided. Neither Mrs. Paruas or the Respondent took responsibility for the fact that she had, in fact, parked illegally at the beach pavilion. Mrs. Paruas is not entitled to park in a handicapped zone. Members of the Town council and their spouses are not entitled to park illegally as an extra benefit of their public roles within the Town.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Ethics Commission enter a Final Order and Public Report concluding that the Respondent, Al Paruas, violated Section 112.313(6), Florida Statutes (2002). The Respondent should be subject to a public reprimand and the imposition of a civil penalty not to exceed $10,000. S DONE AND ENTERED this 29th day of July, 2005, in Tallahassee, Leon County, Florida. ___________________________________ J. D. 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 29th day of July, 2005. COPIES FURNISHED: Kaye Starling, Agency Clerk Commission on Ethics 3600 Macclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool, General Counsel Commission on Ethics 3600 Macclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32314-5709 James H. Peterson, III, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 James J. Birch, Esquire Law Office of Stuart R. Michelson 200 Southeast 13th Street Fort Lauderdale, Florida 33316
The Issue Whether DOT has improperly excluded Western Waste Industries, Inc. from bidding by combining two Volusia County sites in a single invitation to bid?
Findings Of Fact A three-man maintenance crew works out of DOT's Daytona Beach construction office, which is 16 miles distant from DOT's principal Volusia County facility, the Deland maintenance yard. In the summer, when both mowing operations and littering are at their peak, 72 DOT field people and 14 convicts set out from the Deland yard daily to sweep the roadways, police, grade and seed the shoulders, cut the grass and do other bridge, pipe and concrete maintenance. At one time, as the work day ended, crews dropped litter and mown grass at the county dump on their way back to the sites at which they assembled mornings in Deland and Daytona Beach. The Daytona Beach crew still does. But somebody calculated that DOT could save 100 man hours a month by arranging for "dumpsters" at both its Volusia County yards. That way all workers can return to their work stations directly, and no side trip is required in order to dispose of litter and cut grass. On April 1, 1988, petitioner Western Waste Industries, Inc. (WWII) installed two dumpsters, each with a capacity of eight cubic yards, at DOT's Deland yard. Under a month to month agreement, WWII empties both containers twice weekly in exchange for $273 monthly. DOT is satisfied with its decision to use dumpsters, but is obliged to invite bids, because DOT cannot procure the services it needs for less than $3000 a year. Among the specifications set out in DOT's invitation to bid is the form of the contract the successful bidder is to sign, which includes the following: 1.00 The Department does hereby retain the Contractor to furnish certain services in connection with Central Point Refuse Pickup and Disposal Originating at the Department's Maintenance Office Located at 1655 North Kepler Road, Deland, Florida, with an Option to Include Similar Services for the Department's Construction Office Located at 915 South Clyde Morris Boulevard, Daytona Beach, Florida. DOT's Exhibit No. 1 (emphasis in original) In Exhibit A to the form contract, entitled "SCOPE OF SERVICES," the specifications call for "trash containment and removal of litter ... from specific offices located in the Department's District Five." Id. Exhibit A specifies both the Daytona Beach and the Deland offices by name and address. Attachment B indicates that the successful bidder is to remove 40 cubic yards of refuse weekly from DOT's maintenance yard in Deland and, at DOT's option, additional refuse from the Deland yard, from the Daytona Beach office, or from both. If DOT exercised both options, the contractor would haul ten percent of DOT's refuse from the Daytona Beach office, on an annual basis. In its letter of protest, dated June 14, 1988, WWII complains that it "operate[s] on the West Side [of Volusia County] only." But the two companies who submitted bids in response to DOT's invitation to bid are willing to collect refuse at both sites. No exclusive franchise or other legal impediment precluded WWII from bidding on collection at both sites By soliciting bids for service at both sites, DOT avoids the administrative costs of inviting and evaluating two sets of bids.
Findings Of Fact When the events herein occurred, respondent, Shalom Manor, Inc. d/b/a King David Manor Retirement Home (King David), was licensed by petitioner, Department of Health and Rehabilitative Services (HRS), to operate an adult congregte living facility (ACLF) at 5800 N.W. 27th Court, Lauderhill, Florida. The corporate headquarters of Shalom Manor, Inc., were located at 901 South Federal Highway, Suite 200, Fort Lauderdale, Florida. On March 29, 1984 two HRS inspectors performed a routine annual survey of King David to determine whether King David was complying with all HRS requirements necessary for licensure. During the course of the survey, the inspectors noted that King David did not have an established fire and emergency plan. They accordingly charged respondent with having violated Section 3-8.a of HRS Manual 140-3. That manual is entitled "Fire Safety Standards for Adult Congregate Living Facilities." The manual is not a formal rule, but has been adopted and incorporated by reference in Rule 10A-5.23(15), Florida Administrative Code. The cited section (3-8.a) provides in relevant part that "a Fire and Emergency plan shall be established." It does not specifically require that the plan be in written form, or that it be posted in each resident's living area. According to the HRS inspectors, respondent was charged with a Class III statutory violation because it had no acceptable written plan, and the plan was not posted in each resident's room. When the survey was completed, the inspectors reviewed this deficiency with the facility's administrator, Graeme Burne, and advised him that the deficiency must be corrected within thirty days, or by April 29, 1984. They also described to him the type of plan necessary to comply with the HRS Manual, and told him it must be posted in each area where a resident resided. A thirty- day compliance period was used since the inspectors considered the deficiency to be a "paperwork" item that could be easily corrected within that time period. After returning to their office, the inspectors had a Form 1806 prepared. This form is entitled "ACLF Corrective Action Plan" and contains each deficiency noted during the survey, the class of violation, date for correction action, provider's plan of correction, when such correction is completed and the status of correction or follow-up. The form noted that the deficiency in question had to be corrected by April 29, 1984. The form was then signed by the HRS area supervisor and mailed to Burne on April 4, 1984. Burne received the form, inserted the comment "Being Prepared" in the column under the provider's plan of correction, signed it as respondent's administrator on April 27, 1984 and returned it to local HRS offices in Miami. On May 1, May 18, June 11, August 22 and October 31, 1984, the two inspectors made repeat surveys of King David's facility. They found no satisfactory fire and emergency plan had been established on any of those dates. On the August 22 visit Burne showed to the inspectors a diagram he had prepared, but was told it did not meet HRS requirements. On the March 29 visit, the inspectors also noted several other deficiencies besides the lack of a fire and emergency plan. All deficiencies, including the lack of a fire and emergency plan, were the subject of administrative complaints issued on July 12 and 26, 1984 in Case Nos. 85-0359 and 85-0360, respectively. 1/ By the issuance of these complaints, the corporate license received actual written notice of the surveys and cited deficiencies. Prior to that time, Burne had apparently neglected to tell the owners about the matter. On July 2, 1985, or approximately one year later, HRS issued the amended administrative complaint in this cause charging respondent with having failed to correct the deficiency by the August 22 visit. 2/ The complaint was served on Shalom Manor, Inc., at its Fort Lauderdale corporate address. After receiving the earlier complaints in July 1984 a representative of Shalom Manor contacted HRS offices in Miami and requested that all future correspondence regarding the matter be sent to the corporate owner's address in Fort Lauderdale. Respondent acknowledged that it had no fire and emergency plan posted on its premises. However, it established that the corporate licensee (Shalom Manor, Inc.) was never given any documentation regarding the alleged violation until the administrative complaints in Case Nos. 85-0359 and 85-0360 were filed. Moreover, neither the licensee or its administrator was given a document entitled "notice of deficiency" as required by Rule 10A-5.27, Florida Administrative Code. However, the corrective action plan sent to the administrator on April 4, 1984, contained all information referred to in the rule. Respondent also points out that after finally learning of the deficiency, it attempted to comply with HRS requirements, and through its administrator, presented a written plan to HRS inspectors on their August 22 visit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the amended administrative complaint filed on July 2, 1986, be DISMISSED, with prejudice. DONE and ORDERED this 19th day of August 1986, in Tallahassee, Florida. DONALD R. ALEXANDER 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 19th day of August 1986.
The Issue The issue is whether Florida Administrative Code Rules 69A- 62.001, 69A-62.003, 69A-62.006, and 69A-62.007, constitute an invalid exercise of delegated legislative authority as defined in Sections 120.52(8)(d), 120.52(8)(e), and 120.52(8)(f), Florida Statutes (2004).
Findings Of Fact Petitioner is and, at all times material to this case, was a volunteer firefighter. The size of the volunteer firefighter population is dependent on the ability of volunteer fire departments to attract and keep volunteers. People are willing to volunteer as firefighters if the experience is rewarding, training is not excessive, and conflict is minimized. However, the greater weight of the evidence indicates that the subject rules do not detract from the volunteer experience, impose excessive training, or create between conflict between professional and volunteer firefighters. Petitioner testified that a reduction in volunteer population will result in increased hazards to volunteers and a reduction in the delivery of services to citizens. This testimony is not persuasive for two reasons. First, there is no persuasive testimony that the subject rules will result in a reduction of the number of volunteer firefighters. Second, the most persuasive evidence indicates that the subject rules will reduce hazards to volunteers without impairing the delivery of services to Floridians. Some labor unions that represent career firefighters discourage their members from volunteering their services with volunteer fire departments. The competition between the unions and the volunteer fire departments is commonly referred to as the "turf-war." There is no persuasive evidence that the subject rules contribute to the tension between the two groups of firefighters. The firefighter labor unions are usually very active in the political arena. It is undisputed that the unions support legislation that benefits their members. However, the subject rules were not promulgated to eliminate or place hardships on volunteer fire departments and volunteer firefighters. The safety needs and concerns of firefighters have evolved over time. Technology has improved firefighting equipment to such an extent that the greatest threat to firefighters is from heart attacks and transportation accidents. Nevertheless, the fact that the subject rules focus on safety enhancement at the scene of a fire instead of firefighter health and transportation safety does not render them invalid. Florida Administrative Code Rule 69A-62.003 provides as follows in pertinent part: (3) With respect to 29 C.F.R. Section 1910.134(g)(4), the two individuals located outside the immediately dangerous to life and health atmosphere may be assigned to an additional role, such as incident commander, pumper operator, engineer, or driver, so long as such individual is able to immediately perform assistance or rescue activities without jeopardizing the safety or health of any firefighter working at an incident. (a)1. Except as provided in subparagraphs 2., 3., and 4., no firefighter or any other person under the authority of the firefighter employer at the scene of a fire is permitted to participate in any operation involving two-in, two-out as one of the two or more persons inside the IDLH atmosphere or as one of the two or more persons outside of the IDLH atmosphere unless such firefighter or other person at the scene of a fire is certified in this state by the division as a Firefighter I or a Firefighter II, as established in subsections (1) and (2) of Rule 69A-37.055, F.A.C. Such training shall consist of the training described in subsection (6) of Rule 69A-37.055, F.A.C. This requirement specifically applies to volunteer fire departments and volunteer firefighters but is also applicable to any other person working under the authority of the Firefighter Employer at the scene of a fire. 2.a. A volunteer firefighter who possesses the State Basic Volunteer certificate previously issued by the division is exempt from the Firefighter I and Firefighter II requirement in subparagraph 1. The training encompassed in the basic volunteer certificate in itself may not meet “trained commensurate to duty” as defined depending upon duties or tasks assigned or undertaken in the exclusionary zone. A volunteer firefighter who provides evidence of having completed curriculum equivalent to the Florida Firefighter I course of study as provided in subsection 69A-37.055(6), F.A.C., prior to January 1, 2004, is exempt from the Firefighter I and Firefighter II requirement in subparagraph 1., if The fire chief or other chief administrative officer of the fire department of which the firefighter is a member files with the State Fire Marshal form DFS-K4-1594, “Firefighter I Training Exemption Application,” which is hereby adopted and incorporated by reference, and The said form is accepted by the State Fire Marshal after confirmation of the evidence provided. Form DFS-K4-1594 may be obtained by writing the Bureau of Fire Standards and Training, 11655 Northwest Gainesville Road, Ocala, Florida 34482-1486. Any volunteer exempted by sub- subparagraph a.or b. is permitted to take the Florida Firefighter I examination until December 31, 2005, upon the completion and filing with the division of form DFS-K4- 1380, “Firefighter I Training Record,” Rev. 03/00, adopted in Rule 69A-37.039, F.A.C., by a Florida certified instructor that verifies equivalent training and demonstration of competency. The above-referenced rule sets forth ways that a firefighter, trained prior to the current regulations, may keep his or her interior-firefighter status without becoming certified as a Firefighter I or Firefighter II. The rule will not disqualify all previously qualified firefighters as long as they are "trained commensurate to duty" for any type of work they are requested to perform. There is no persuasive evidence that Florida Administrative Code Rule 69A-62.003(3)(a) will cause a reduction in the number of volunteer firefighters due to newly created administrative hurtles. The rule, which has its basis in safety enhancement, clearly is not arbitrary or damaging to the safety of volunteers. Florida Administrative Code Rule 69A-62.003(3)(a)4. states as follows: 4. Volunteer firefighters having NWCG S- 130, S-190, and Standards for Survival certification by the Florida Division of Forestry are permitted to participate in wild land fire suppression without the Firefighter I certification. The above-referenced rule allows a volunteer to fight wild-land fires without earning Firefighter I certification. The rule sets forth an exception to the Firefighter I certification requirement; it does not mandate that the NWCG courses are the exclusive means to qualify as a wild-land firefighter. Florida Administrative Code Rule 69A-62.003(3)4. is not invalid or arbitrary because it requires volunteers to pass training courses that are accepted as setting national standards or because the training courses teach firefighting techniques that are applicable across the nation as well as Florida. Petitioner presented no persuasive evidence to the contrary. Florida Administrative Code Rule 69A-62.006 states as follows: 69A-62.006 Requirements for Recognition as a Fire Department. To be recognized as an organized fire department by the division, compliance with the following must be documented: Capability of providing fire protection 24 hours a day, seven days a week; Responsibility for response in an area capable of being depicted on a map; and Staffing with a sufficient number of qualified firefighters who are employed full-time or part-time or serve as volunteers and who shall have successfully completed an approved basic firefighting course recognized by the Bureau of Fire Standards and Training. (2)(a) A fire department shall meet the requirements of the Insurance Services Office (ISO) for Class 9 Protection, the 2003 edition, the Fire Suppression Rating Schedule, effective February, 2003, which is hereby adopted and incorporated by reference and which may be obtained from Insurance Services Office (ISO), 545 Washington Blvd., Jersey City, NJ 07310-1686 or at www.iso.com. If the fire department does not meet the requirements of this section, the fire department shall submit a plan of compliance which provides for meeting these requirements within 90 days of the date of submission of the plan. ISO measures the major elements of a community’s fire-suppression system and develops a numerical grade ranging from 1 to 10. Class 1 represents the best public protection rating and Class 10 indicates no recognized protection. The requirements for ISO 9 may be obtained at the ISO website located at www.iso.com, or it may be obtained by writing to the Division of State Fire Marshal, Bureau of Fire Standards and Training, 11655 Northwest Gainesville Road, Ocala, Florida 34482-1486. Florida Administrative Code Rule 69A-62.006(1)(a) is not invalid because it requires fire departments to document their capability of providing fire protection 24 hours a day/seven days a week. The requirement for full-time availability will provide significant safety enhancement for the communities being served. This is true because some voluntary fire departments in rural communities historically have provided only part-time service. There is no persuasive evidence that requiring full- time fire protection will result in the following: (a) the creation of a fire-suppression performance standard that is unauthorized by law; (b) the closing of some volunteer fire departments; (c) a reduction in services to the public; and (d) uncorrectable rule-violations; an increase in conflict between professional and volunteer firefighters. Florida Administrative Code Rule 69A-62.006(1)(c) requires that each fire department be staffed with a sufficient number of qualified firefighters. The rule is not vague because it uses the word "sufficient" to determine the number of firefighters that are required. One must read the applicable rules in their entirety and consider the needs of each community to determine adequate staffing. There is no persuasive evidence that the staffing requirement fails to establish adequate standards for determining compliance. Florida Administrative Code Rule 69A-62.006(2) requires fire departments to meet certain requirements of the Insurance Services Office (ISO) for Class 9 protection. This requirement determines the minimum equipment that is necessary to safely fight a structure fire. There is no persuasive evidence that requiring a fire department to provide Class 9 protection will make it impossible to start a new voluntary fire department. The rule clearly is not arbitrary in setting this minimum standard. Florida Administrative Code Rule 69A-62.007(1) states as follows in pertinent part: 69A-62.007 Minimum Requirements for Class 9 Protection. To be considered for Class 9 protection, the following minimum facilities must be available: Organization: The fire department shall be organized on a permanent basis under applicable state or local laws. The organization shall include one person responsible for operation of the department, usually with the title of chief. The fire department must serve an area with definite boundaries. If a municipality is not served by a fire department solely operated by or for the governing body of that city, the fire department providing such service shall do so under a contract or resolution. When a fire department’s service area involves one or more jurisdictions, a contract shall be executed with each jurisdiction served. Membership: The department shall have a sufficient number of firefighters/members to assure the response of at least 4 firefighters/members that can assemble at the scene of a fire as contemplated by subsection (1) of Rule 69A-62.003, F.A.C., to be compliant with Rule 69A-62.003, F.A.C., the two-in, two-out rule. The fire chief may be one of the 4 responding firefighters/members. The above-referenced rule does require fire departments to have four "interior-qualified" firefighters at the scene of a structure fire. The requirement is necessary to comply with the longstanding "two-in, two-out" rule. However, the rule does not preclude a fire department from relying on mutual-aid from other fire departments in order to comply with the rule. The rule clearly is not vague. Florida Administrative Code Rule 69A-62.007(4)(a) states as follows in relevant part: (4)(a) The chief of any fire department that includes volunteer firefighters shall annually submit a Roster of Volunteer Firefighters to the State Fire Marshal utilizing form DFS-K4-1581, effective 05/04, which is hereby adopted and incorporated by reference, no later than June 30 of each year. Form DFS-K4-1581 may be obtained by contacting the Division of State Fire Marshal, Bureau of Fire Standards and Training, 11655 Northwest Gainesville Road, Ocala, Florida 34482-1486 or at the division’s website located at http://www.fldfs.com/SFM/. The roster shall include: The fire department name, The fire department identification number (FDID), The complete fire department address, The fire department contact person, telephone number and the fire department fax number, if any, The certification level for each firefighter reported and, if any equivalency exemption has been issued, the number of persons for whom such exemption has been issued, and The firefighter certification number, the issue date of the certification, the status of the certification, i.e., volunteer or career, and the status of each firefighter who has been issued an equivalency exemption, i.e., volunteer or career, if any. The above-referenced rule requires the chief of a fire department to submit an annual roster of volunteer firefighters. Petitioner objects to the rule because some career firefighters volunteer their off-duty hours with the local volunteer fire department. Career firefighters who also perform volunteer work may do so contrary to their union rules. Publication of the roster might keep some professional firefighters from volunteering their services. Nevertheless, there is no persuasive evidence that losing some speculative number of career/volunteer firefighters will undermine the safety of firefighters or the public. The information that the roster contains is a public record. The information is necessary so that Respondent can perform statutorily-mandated studies involving injuries to firefighters. The rule clearly is not arbitrary.
Findings Of Fact Respondent, Philip Lee Sullivan (Sullivan), has served as Chief of Police for the City of Panama City Beach, Florida since August 10, 1977. Sullivan's salary as Police Chief was $62,326.12 in 1994, and will total $63,211.20 in 1995. As Police Chief, Sullivan's duties include planning, organizing, and directing all activities of the Panama City Beach Police Department. He is also charged with supervision of all members of the police force, with particular attention to personnel at the administrative and supervisory level, and with the investigation and disposition of complaints against police officers. In his official capacity, Sullivan is also required to cooperate with state and federal officers in the apprehension and detention of wanted persons and with other agencies where activities of the police department are involved. Sullivan has the authority to take disciplinary action against an employee of the police department up to and including suspension without pay for 30 days, and can recommend termination to the City Manager. He also completes written performance evaluations on members of his command staff, which is comprised of the Patrol Division Commander, the Investigative Division Commander, the Assistant to the Chief, and the Reserve Division Commander. In 1987, Sullivan began a business as a loss prevention and security consultant, operating as a sole proprietorship. Sullivan's first client was Hilton, Inc. Charles Hilton is the Chief Executive Officer of Hilton, Inc. It was Mr. Hilton who made the initial decision to hire Sullivan. He considered one other person for the work, but rejected that individual based on the fee sought. Sullivan verbally sought approval from the City Manager to contract with Hilton, Inc. The City Manager verbally approved the arrangement. Hilton, Inc. owns and operates five hotels in Panama City Beach: The Holiday Inn Sun Spree, Ramada Inn, Days Inn, Best Western Del Coronado, and Best Western Casa Loma. All except Sun Spree, which was added in 1990, were owned by Hilton, Inc., when Sullivan began contracting with the corporation. Hilton, Inc. pays Sullivan $2,000 a month with an additional fee for background checks. Sullivan's next client was the Bay Point Improvement Association (Bay Point). Bay Point is outside the city limits of Panama City Beach. By letter dated February 2, 1989, Sullivan formally requested approval from the City Manager to accept the position of Director of Security for Bay Point. Approval was granted by letter dated February 15, 1989. Sullivan was initially hired in February, 1989, as Director of Security, but his employment status was subsequently changed to that of an independent contractor, similar to his position with his other private employers. Bay Point pays Sullivan $18,000 per year for his services. Sullivan's next client was the La Vela Beach Club ("La Vela") in March, 1993. He was hired by the club's owner, Alois Pfeffer. Sullivan no longer works for the La Vela Beach Club, but while he was working for the club he was paid $6,000 per year. Sullivan's next client was Boardwalk Beach Resorts, which hired him in September, 1993. Boardwalk Beach Resort is the fictitious name for a limited partnership, Resort Hospitality Enterprises, Ltd. ("Resort Hospitality"). The majority of the stock of Resort Hospitality is owned by People's First Properties, Inc. ("People's First"). Resort Hospitality owns and operates four hotel properties, totaling approximately 625 rooms, on Panama City Beach. Robert Henry, the chief financial officer for People's First, was the person who decided to contract with Sullivan after independently determining to the satisfaction of People's First that Sullivan did not have a conflict of interest. People's First pays Sullivan $18,000 per year with additional fees for background checks. In 1994 Sullivan was paid $6,450 for background checks and as of September 11, 1995, he was paid $4,720 for the background checks performed in 1995. Sullivan incorporated his business as Beach Security, Inc. on December 12, 1993. Sullivan's next client was the Miracle Strip Park/Shipwreck Island (Miracle Strip). He was hired in May, 1994 by the Miracle Strip's General Manager, Shelton Wilkes. Miracle Strip is located on Panama City Beach. Sullivan receives $7,200 per year from Miracle Strip. Sullivan's next client was Spinnakers, where he was hired in July, 1994, by W. B. Sparkman, III. Spinnakers paid Sullivan $6,000 per year. As of the date of the final hearing it was not known whether Spinnakers would continue its contract with Sullivan for the next season. Except for Bay Point, there are no written contracts between Sullivan and any of the businesses with which he contracts. Sullivan has no job description, no set work hours, and no regular meetings with his employers. As part of the services offered by Beach Security, Sullivan makes recommendations to his clients in developing their safety and security policies and procedures, particularly with respect to policies, procedures and training for the security staff. The ultimate decision whether to implement any of Sullivan's recommendations rests with Sullivan's clients. Sullivan is also expected to defend those policies and procedures in court as an expert witness in the event his employer adopts his recommendations and is sued. Sullivan neither sets nor manages security for his clients. He makes recommendations. Sullivan does not hire, fire, or make other employment decisions for the security personnel of his clients. He does not supervise or evaluate the performance of his clients' security staff on a daily basis, and does not evaluate the individual performance of any of his clients' employees. As part of Sullivan's services to Hilton, Inc., Boardwalk Beach Resort and La Vela, Sullivan did background checks for potential employees. Sullivan hired an employee of the police department to do the background checks for him. The background checks were performed at the Bay County Courthouse for local applicants. If the information needed was located in another county or state, Sullivan would contact the clerk of the court at the appropriate location for the information. Getting information from another county or state can be a slow process. The information which Sullivan uses in doing the background checks is information which is available to the general public. The Police Department of Panama City Beach (Police Department) has an agreement with the Florida Department of Law Enforcement to allow the Police Department access to criminal history record information. Access to the information is limited to police department business. If a police department employee desires to access the information, the employee must log in on the computer, which creates a computer-generated log at FDLE. Sullivan personally does not know how to access the information. Sullivan could request a police department employee to access the information for him. Panama City Beach is a popular resort area, which experiences a large influx of teenagers and young adults during spring break. Problems associated with alcohol consumption, including traffic violations and accidents, assaults, and disorderly conduct, are commonplace police concerns, particularly during spring break. Spinnakers and La Vela are clubs located on Panama City Beach which cater to the spring break crowd and serve alcohol. The La Vela has a capacity for about 6,000 people and Spinnakers about 4,000. The Hilton, Inc. hotels, the Boardwalk Beach Resort, and the Miracle Strip also do heavy spring break business. The Miracle Strip deals with more than 600,000 visitors over the course of its season. The police department investigates crimes and responds to calls and complaints made by citizens. The department also investigates accidents and is routinely called any time an ambulance is called. In the past two years the police department has received more than five thousand calls for service at businesses which are located in Panama City Beach and which contract with Sullivan. No evidence was presented that Sullivan has ever disregarded public duty in favor of private interests, or misused confidential police information for the benefit of his private employers. In February 1993, Spinnakers was sued for the wrongful death of one of its patrons. The Complaint alleged that the deceased, Robert Gaither, was involved in an altercation with one or more of the club's other patrons. Spinnaker security became involved, and the other patrons were ejected. When Mr. Gaither left, security allegedly saw these individuals in Spinnakers' parking lot, but took no action. After leaving the club, Mr. Gaither was beaten to unconsciousness by these same people, and was either left or passed out in the street, where he was run over by a drunk driver. The Complaint alleges that Spinnakers' security staff was negligent in its handling of the incident. Although the incident took place before Spinnakers hired Sullivan, Sullivan has given a deposition in the case as a potential expert witness. The Panama City Beach Police Department investigated the death of Mr. Gaither. Part of Sullivan's services to Le Vela has been to instruct its staff on how to handle fights. The owner of the club has complained to Sullivan about reaction from Panama City Beach police officers when fights have occurred at the club. It is the club owner's observation that the police, in protection of their own physical safety, often leave the burden of breaking up a fight to the security officers, or wait until the participants wear themselves out. Since the club's insurance will not pay for damages if the club's security officers get involved in the fight, the owner wants the police officers to intervene at an earlier stage in the fight and has so complained to the police department. At the June 23, 1994 meeting of the Panama City Beach City Council, Sullivan's outside employment as a consultant was thoroughly discussed. Sullivan gave a detailed account of his operation. At that meeting the City Council voted to continue the City's policy of encouraging outside employment of its police officers and allowing police officers to use the police vehicles during off-duty hours as long as the police officer is on call. On October 12, 1995, the City Council of the City of Panama City Beach enacted Ordinance No. 455, which codified the rules governing secondary or off- duty employment by employees of the City of Panama City Beach. Section 2-46 of the ordinance deals specifically with law enforcement officers, including the Chief of Police. Section 2-46(d)(1) of Ordinance 455 provides: The following types of off-duty employment do not, on their face, constitute a conflict of interest for law enforcement officers: Security guard duty protecting premises or property. Security consultant within or without the City. Providing dignitary or official's protection. Conducting pre-employment checks into the applicant's previous criminal history provided that only public records are accessed. Performing accident investigations or providing technical services as otherwise per- mitted by the Department. Ordinance 455 requires that police officers who desire to have outside employment must submit an "Off-Duty Employment Request" form. The forms were made available to the police officers sometime during the early part of December, 1995. Shortly after Sullivan received the forms, he submitted authorization requests for off-duty employment with Bay Point Resort, Miracle Strip Amusement Park, Boardwalk Beach Resort, and Hilton, Inc.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order and Public Report be entered finding that Philip Lee Sullivan's employment with businesses within the jurisdiction of the Panama City Beach Police Department and his employment in doing pre-employment application background checks is in violation of Section 112.313(7)(a), Florida Statutes, and recommending that Philip Lee Sullivan be dismissed from his employment as Police Chief of the Panama City Beach Police Department. DONE AND ENTERED this 21st day of February, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND, 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 21st day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4141EC To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact. Paragraphs 1-4: Accepted. Paragraph 5: Accepted to the extent that the computer database can be accessed from the Police Department but rejected to the extent that it implies that Sullivan, himself, can physically access the information based on his testimony that he does not know how to operate the computer to get the information. Paragraph 6: Rejected as subordinate to the facts found Paragraph 7: Accepted in substance. Paragraphs 8-12: Accepted. Paragraph 13: The first two sentences are accepted. The remainder is rejected as unnecessary. Paragraphs 14-21: Accepted. Paragraph 22: Rejected as unnecessary. Paragraph 23: The first sentence is rejected as constituting argument. The remainder is accepted. Paragraphs 24-28: Accepted. Paragraphs 29-32: Accepted in substance. Paragraphs 33-34: Accepted. Paragraph 35: Rejected as unnecessary. Paragraph 36: The first sentence is accepted in substance to the extent that the information is available at the Police Department and can be accessed by Police Department staff pursuant to an agreement with FDLE. The remainder is accepted in substance. Paragraph 37: Accepted in substance except for the employment outside the police department jurisdiction. Respondent's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraph 2: Accepted in substance that Sullivan requested approval for employment as Director of Security for Bay Point. Rejected to the extent that the request could be construed as a request for blanket approval for Sullivan to do security consulting services. It appears from Sullivan's letter that his employment at that time dealt with more than consulting services given that he had the authority to hire, fire, and direct the security force at Bay Point. Paragraph 3: Accepted to the extent that Beach Security Inc. was incorporated in December, 1993. Paragraph 4: Accepted in substance. Paragraph 5: Accepted to the extent that Sullivan has submitted the off-duty employment authorization requests. Paragraph 6: Accepted in substance. Paragraph 7: Rejected as constituting argument. Paragraph 8: Rejected as subordinate to the facts found Paragraph 9: Rejected as constituting argument. Paragraph 10: Rejected as constituting argument. Paragraphs 11-15: Accepted in substance. Paragraph 16: Accepted as not supported by the greater weight of the evidence. Paragraph 17: The last sentence is rejected as not supported by the greater weight of the evidence that such an arrangement could not tempt dishonor. The remainder is accepted in substance. Paragraph 18: The first sentence is rejected as not supported by the greater weight of the evidence. The first part of the second sentence is accepted in substance. The last part of the second sentence is rejected to the extent that although the businesses were anticipating that Sullivan would gather his information from public records, human nature being what it is, if Sullivan knew that an applicant was a suspect in a criminal investigation the employers would not want Sullivan to recommend that the applicant be hired. Paragraphs 19-22: Rejected as not supported by the greater weight of the evidence. COPIES FURNISHED: Virlindia Doss Advocate For the Florida Commission on Ethics Department of Legal Affairs PL-01, The Capitol Tallahassee, Florida 32399-1050 Mary Ellen Davis, Esquire Hilton, Hilton, Kolk, Penson & Roesch Post Office Box 1327 Tallahassee, Florida 32308 Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact By addition to Section 633.081(2), Florida Statutes, in 1981, the Florida Legislature required the State Fire Marshal to renew, on a triennial basis, the certification of fire inspectors in the State of Florida and to, by January 1, 1982, establish procedures to do so by rule. This statute and the 1979 edition thereof stipulated that all required fire inspections be conducted by a person certified as having met the inspection training requirements set by the State Fire Marshal and charged that individual with maintaining current files on all certified inspectors. Consistent with that mandate, on October 16, 1981, a representative of the Bureau of Fire Standards and Training of the State Fire Marshal, by memorandum to all "Incumbent Fire Safety Inspectors," forwarded the procedures established by the Bureau to initiate the required certification process. The memorandum clearly indicated the test to be given during December, 1981, at various locations throughout the state would be to any "qualified' inspector. The term "qualified" was defined in the attachment to the memo as being: ndividuals who are currently functioning as fire inspectors provided they meet the requirements specified below. Have a minimum of one year of experience as a full-time fire safety inspector as of January 1, 1982, and have successfully completed a 40 hour course of instruction in Codes and Standards; or Have a minimum of five years experience as a full-time fire safety inspector as of January 1, 1982. This incumbent test was an open-book examination in all sections, and was not to be used to test new inspectors who had not been serving in that job. The test for new inspectors is open book in only one of five sections. On November 9, 1981, Respondent, John M. McCarthy, then serving as Fire Chief for the Fort Myers Beach (Florida) Fire Control District (FMBFCD), submitted his request to take the Incumbent Fire Safety Inspector examination. The application form Respondent submitted, verifying he had served as a full- time fire inspector for four years beginning September 11, 1977, to the date the application was signed by Respondent, as fire chief, as the certifying agent. Respondent contends he was advised to do just that by a representative of Petitioner in a phone call to Petitioner's Ocala office prior to the application. Mr. Stark, currently the bureau chief, was not serving in that capacity at that time. The then-incumbent is no longer at that office and did not testify. On the basis of Respondent's application and the verification of status appearing thereon, he was permitted to take the incumbent exam, which he passed, and was subsequently certified as a fire safety inspector. In early April, 1983, John Dahlgren, Jr., Vice Chairman of the Board of Fire Commissioners, FMBFCD, in the company of Mr. Robert J. Weatherbee, then lieutenant in the Fort Myers Beach Fire Department, came to Mr. Frederick C. Stark, Bureau Chief, Bureau of Fire Standards and Training, Office of the State Fire Marshal, and presented a letter to him to the effect that it was the majority opinion of the members of the Board, FMBFCD, that Respondent was not qualified to take the incumbents' fire inspector examination when he did because he had not had the required one year experience as a full-time fire inspector and, therefore, his certification as such was in error. A letter to that effect, dated April 7, 1983, was also delivered. The following day, April 8, 1983, Mr. Stark wrote to Respondent, informing him of this allegation and offering him the opportunity to refute the allegation. Apparently, that same date, Mr. Stark sent a similar letter to Mr. Keith Hiatt, Chairman of the FMBFCD; and on April 12, 1983, Mr. Hiatt responded by letter, indicating that Respondent was, at the time of taking the exam, the full-time paid inspector, as well as full-time paid fire chief, citing the training that Respondent and another fire official gave to Mr. Weatherbee to qualify him for the position of fire marshal. Similar sentiments were contained in a letter, same date, from Mr. Frederick Bruchner, member of the Board, to Mr. Stark. Also on April 12, 1983, Respondent responded by letter to Mr. Stark, outlining his experience in fire prevention and detailing that his position as fire chief gives him final review and decision-making authority on the operation of the department's fire inspector, Mr. Weatherbee. Shortly thereafter, on April 29, 1983, Mr. Weatherbee and Charles Mulac, former Fire Marshal and acting Fire Chief, signed affidavits which subsequently got to Mr. Stark on May 2, 1983, which indicated that during their tenure in their respective offices, going back to June, 1979, Respondent had not served that department as a full-time inspector. Prior to signing his affidavit, Mr. Weatherbee personally went through all the inspection files, including approximately 180 residentials, 100 Businesses, 100 mercantiles, 5 schools, and some industrials. He recalls that Respondent was with him on some of his inspections, but does not recall any cases where Respondent did the inspection alone. During this period, Respondent called Mr. Stark and told him there were documents in the department files which showed he had done fire inspections, so on May 2, 1983, Mr. Stark wrote to Mr. Mulac, as acting Chief, and requested he search the department's fire inspection records for the period 1977-1980 for any documentation, such as inspection records, surveys, or the like, to indicate inspections done by Respondent. On May 5, Mulac responded in writing, indicating that a thorough search of the records in question disclosed no documentation on inspections by Respondent, nor did the records show Respondent was ever a part-time or full-time, paid or nonpaid, inspector during the period 1977-1980. In addition to the lack of full-time inspector employment, the Bureau also concluded that Respondent's training records did not reflect the required training in that it is felt he did not have training in: Blueprint reading and plan examination; Inspection procedures; (a) Private protection systems (sprinklers, alarms); and (d) Causes and origins of fires. Without this background, the Bureau concluded Respondent could not function as an inspector, as all are pertinent to that operation, especially in light of current building methods. Further, concerning the experience requirement, this was considered to be imperative because there are many aspects of fire safety which are learned only through experience. Without the experience, even the training would not, in Stark's opinion, make an individual a qualified inspector. Respondent's duties as fire chief, which required him to oversee inspections done by others, was not, in Stark's opinion, sufficiently connected to the inspection process to allow him to sit for the incumbents' examination. Therefore, on May 11, 1983, Mr. Stark, as Bureau Chief, voided Respondent's Municipal Fire Inspector certificate and advised him of that fact by letter. Respondent contends that Mr. Stark's action was taken without adequate investigation and was based on irrelevant matters. As to the latter issue, Mr. Stark admits that the discussion he had in his office with Dahlgren and Weatherbee related to the rules and procedures as they applied to Respondent. Mr. Stark assured these two gentlemen only that he would look into their allegations. Prior to this visit, he had no indication there was anything wrong with Respondent's certification or that of Mr. Taylor, also from the Fort Myers Beach Fire Department. About a week after this visit, Mr. Stark received a package in the mail that consisted mostly of newspaper clippings concerning Respondent and alleged improprieties in the District, but, he contends, he read only one, and none of this had any bearing on the decision to decertify Respondent as a fire inspector. He also received numerous phone calls from individuals in Fort Myers regarding Respondent's status, and he referred them all to the Fire Marshal's Office in Tallahassee. Without concluding at this point whether that decision was appropriate or not, it is clear there is no reason to disbelieve Mr. Stark in this regard or to conclude the decision was based on any improperly considered evidence. As to the adequacy of the investigation into the allegations, it is also clear that Mr. Stark could have improved little on what he did. He could have, himself, examined the department's records and, in light of the fact that at the time in question Respondent had been suspended as chief and was barred from the department offices (he could not, therefore, get to the files to secure copies of his inspection reports, if any existed), perhaps should have done so. However, at no time did Respondent contend he had done inspections himself, but instead, in his response to Mr. Stark's initial letter, relied solely on his supervisory position, the responsibility that went with it, and his efforts on behalf of the Interlocal Agreement. In light of the evidence presented to him, Mr. Stark had no requirement to go further, and it is clear his inquiry into the matter was adequate. At the time of the test, no rule had been promulgated for the certification process. The Fire Marshal's Office took the statutory language calling for "certification" of inspectors as the authority to give the test to incumbents to certify them. It is the opinion of Mr. Stark that some of the 400 to 500 individuals who took the incumbent test, out of the 23,000 inspectors working in this state, had very little fire inspection training or experience at all. However, since the Training Bureau has only two individuals to do the checking for the entire state, he had to rely on the integrity of the individual who verified the experience claimed on the application form. If, however, the Bureau received information that someone was not qualified, it decertified that individual, utilizing the same procedure as done in the instant case; that is, to decertify after investigation, but without hearing prior to the decertification action. In fact, to the best of Mr. Stark's knowledge, there were five other cases where certificates were looked into because of alleged irregularities such as here. Respondent applied for employment with the FMBFCD on May 15, 1976. Prior to coming to Florida, he worked as a fire fighter in New York since 1965 and while there took numerous fire fighting courses and officers' training. After coming to Florida, he enrolled in St. Petersburg Junior College and Edison Community College by which latter institution he was awarded the Associate of Science Degree in Fire Administration. During the course of study, he took courses in: Introduction to Fire Protection; Fire Protection Systems; (a) Fire Company Leadership; Fire Fighting I; Fire Company Management; Fire Codes; Protection Organizations; Fire Prevention Investigation; Hazard Material; Fire Fighting II; and graduated in the winter of 1983 from Edison Community College with an overall grade point average of 3.22 out of a possible 4. Respondent submitted extensive documentation in the form of memoranda, notations, calendar memos, and newspaper articles to show that he was actively engaged in fire inspection. However, careful review of these documents reveals that while he was frequently embroiled in controversy over the inspections of various commercial and residential establishments in Fort Myers Beach, and while he may, from time to time, have actually been personally involved in inspections, for the most part he was the upper echelon supervisor who was called upon to resolve disputes over inspections conducted by others, on the basis of policy or whatever other concern was pertinent to the issue. Whatever else he did, it is clear Respondent was not a full-time fire inspector. In fact, Respondent admits that though he has personally participated in many inspections in the field, assisting Mr. Weatherbee, who was, at the time, the Fire Inspector (Marshal) for the FMBFCD, and bringing to his attention various aspects of the fire codes, he did not do the actual inspection and has never done one by himself. However, because of the periodic friction between Weatherbee and Mulac, then the Assistant Fire Chief, he found himself going out into the field with both, frequently to do inspections. Respondent contends that the area of fire prevention and code enforcement, into which fire safety inspection falls, is the biggest part of his job, which also entails fire suppression and rescue. During the period in question, Fort Myers Beach did more building in general than the rest of the county. As a result, he was always out at the site looking at plans and consulting with the builder. In that regard, however, he has, by his own admission, taken no course work in blueprint reading or plans review that was certified by the State Fire Marshal. Finally, concerning this particular subject, when Respondent was temporarily suspended from his job as fire chief in April, 1983, he was contacted by a reporter from the local paper who read to him, over the phone, from the long list of charges laid against him, of which, prior to that moment, he had no knowledge and had not seen. In response to the reporter's question about inspections, 1/ Respondent is quoted as having denied participating in fire inspections and indicating he had nothing to do with fire codes.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED THAT: Respondent's certification as a fire safety inspector be rescinded. RECOMMENDED this 22nd day of May, 1984, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 22nd day of May, 1984.
