Findings Of Fact The Cocoa Fire Department consists of 32 employees including a Chief, 3 captains, 3 lieutenants, 24 firefighters, and a secretary to the chief. All personnel except the Chief and the secretary are on three shifts of 24 hours on duty and 48 hours off duty. During each shift, a captain is in charge and the second in command is a lieutenant. Ten employees are on each shift and are located at either Station 1 or Station 2. Normally, at Station 1 there is a captain and a maximum of 7 firefighters. At Station 2, there is normally a lieutenant and 1 firefighter. The bulk of the firefighting equipment is located at Station 1, which includes 2 pumpers, a rescue truck, and an aerial truck. Station 2 is a residential station at which two pumpers are located. The shift or duty-captain is in charge of both stations and normally goes to fires handled by Station 2 unless they are of a minor nature. The Department averages about 3 runs a day, either for fires or on rescue calls. The bulk of their activity is rescue operations which are attended normally by two firemen. However, these calls can be handled by an officer and one firefighter if the officer is an emergency medical technician. The employees of the fire department and the city of Cocoa entered into an agreement on March 12, 1974, concerning their relationship (Exhibit 11). The agreement states that it is to provide, where not otherwise mandated by statute or ordinance, for the salary structure, fringe benefits, and conditions of employment of the firemen covered by the agreement. This agreement in Article 1C is referred to as a collective bargaining agreement and deals with those matters that customarily would be included in such a document. Although it does not specifically mention specific classifications of fire department employees as being included thereunder except by the term "employees of the City of Cocoa Fire Department", in the first paragraph of the agreement, Article 16, dealing with wages, lists the titles of recruit firemen, fire lieutenant and fire captain and their pay plan with annual step increments. Accordingly, it is concluded that the intent of the agreement was to cover all employees of the fire department other than the Chief and his secretary. The agreement generally provides uniform provisions applicable to all members of the department concerning transfer rights, time off for jury duty, provision of counsel for defense of civil actions, overtime pay, education leave, bereavement leave, sick leave, holidays, vacations based on time with the department, uniform maintenance, terminations and wages. There is no distinction by rank other than by years of service drawn as to different classifications of personnel. Testimony presented at the hearing established that the majority of captains and lieutenants participated on the side of labor in discussions leading to the agreement and that they presently desire to be included in the proposed bargaining unit under consideration. It further established that the agreement was formulated because the employees wanted financial conditions applicable to them spelled out clearly rather than remain in the existing city pay plan which was not as specific as desired. The firemen viewed their situation as differing from that of other city employees because of the nature of their functions and the shift work involving extended hours on duty. In the agreement, they were provided certain benefits that other city employees do not enjoy, some of which were requested by the group and some of which were voluntarily offered by the city. The department is governed by rules and regulations proposed by the Chief and approved by the public employer which include provisions that the department operates in paramilitary fashion with a chain of command extending from the Chief through the duty captain, duty lieutenant and senior firemen to the remainder of the employees. It also indicates that insubordination will not be tolerated with penalties of verbal reprimand, permanent written reprimand, suspension, loss of pay and termination. They further provide that violations of the rules, regulations, directives, and memos, generally should be' handled by the captain or duty officer of the shift, but that if, in his opinion, the violation warrants further action he should give the Chief a written statement of the facts. It states that the captain or duty officer of the shift will be held accountable by the Chief to run the shift in accordance with the rules and regulations of the department, and that violations will consist of penalties including verbal reprimand by the captain or duty officer, permanent written reprimand by the captain or duty officer, written reprimand by the Chief, suspension without pay by the Chief, or termination by order of the Chief (Exhibit 12). In this connection, testimony at the hearing established that the hiring, firing and suspending of employees by the Chief must be approved by the city manager. As to discipline, minor infractions are taken by a lieutenant to the captain and, depending on the severity of the matter, the captain is authorized to handle it himself. This includes minor infractions, with sanctions of oral or written reprimands, or recommendations for suspension or other adverse actions. The budget of the department is submitted by the Chief to the city manager for approval. Ultimate approval is given by the city counsel. Although the Chief inquires of the captains as to the need for and condition of the department equipment, they are not consulted as to actual preparation of the proposed budget. The Chief holds staff meetings approximately monthly whenever he deems it necessary. Normally, these are attended by himself, the captains, and lieutenants. At the meetings, personnel problems, operations and training matters, and current programs are discussed with input from the officers. However, all major policy decisions are formulated by the Chief. The job descriptions and duties performed by the officers and men of the department are as follows: Captains - The official job description for this position (Exhibit 8) describes the major function of a fire captain as being responsible supervisory work in directing the activities in fire fighting and in the maintenance of fire department property and equipment. It provides that the first captain at the scene of a fire has complete charge of all operations until the arrival of an officer of superior rank. It further provides that under departmental general regulations, a captain may be assigned as a company officer and has direct responsibility for discipline and the proper maintenance of apparatus, equipment, and the station. His duties may include training functions or supervising a special activity or unit within the department. As illustrative duties, he assumes complete charge of the station and the fire company on route to alarms and at the scene of the fire until the arrival of a superior officer. He directs the work of the firefighters in house duties, testing and maintaining equipment, and inspecting the station house grounds and apparatus. He acts as the department training officer and may conduct company drills or instruction periods. He conducts roll call, inspects personnel and maintains discipline, and transmits order and information to the men. Testimony at the hearing established that each of the shift captains would assume command of the fire department in the absence of the Chief. When the Chief is present, the captain in charge of the shift acts as his assistant and has total command of both fire stations, subject to the approval of the Chief. Captains can set vacation schedules of the men and also change them. He can give time off in an emergency situation and makes effective recommendations concerning bereavement leave. To move a man from one shift to another, the captain would be obliged to consult the Chief. If an employee reported in sick, he notifies the captain who then, if the department is understaffed, calls in off-duty personnel for overtime work, using an established list which must be exhausted in fairness to all. A captain performs combat roles and responds on the department trucks or will proceed in a rescue vehicle or pickup truck to the scene of the fire or rescue operation. He works the same hours as the other men and receives the same sick leave, vacation, and overtime pay. Occasionally, he will perform maintenance and housekeeping duties voluntarily at the station. He normally goes to the suppression of fires handled by Station 2 unless they are of a minor nature. LIEUTENANTS - The job description for this position provides that a lieutenant has direct command over firemen in a fire company on an assigned shift, subject to general regulations of the department and the direction of a superior officer. In the absence of the captain, the lieutenant assumes his duties and responsibilities and is responsible for the discipline of the men on his shift and the maintenance of apparatus and equipment at a fire station. At a fire, he is responsible for the effective combatting of the fire until relieved of command by a superior fire officer. H enters burning buildings with his men to direct their work, and at major fires he is under the command of the superior officer. Illustrative duties are responding to fire alarms that are within an assigned district, driving apparatus or directing the route to be taken to the fire and determine what equipment and apparatus are necessary. He makes decisions as to the best methods of extinguishing fires and directs the use of equipment until relieved of command by a Superior officer. He supervises the laying of hose lines, directing of water streams, placing of ladders, ventilation of buildings, rescuing of persons and placing of salvage covers. He conducts company drills and instruction periods as directed by his superior officer. He sees that all station equipment is returned to the proper place after a fire has been extinguished and that the equipment is in good working order at all times. He supervises the cleaning of quarters, equipment and apparatus at the fire house, conducts roll call, inspects personnel and maintains discipline, and transmits orders and information to men (Exhibit 9). Testimony at the hearing establishes that the lieutenants are in charge of Station 2 during shift at which there is himself and one firefighter. A1though he is not required to perform maintenance and housekeeping duties, the lieutenants usually help to clean hoses and to keep the quarters clean because of limited manpower and because that has been the practice in the past. On unusual occasions, a lieutenant might exercise disciplinary power with respect to the one firefighter at Station 2, or under circumstances where he is in charge of a shift in the absence of a captain. If a man came in late for duty, the lieutenant could handle it himself or report to the Chief. He has little or no meaningful participation in personnel matters dealing with promotion, suspension, hiring or firing of employees. If he is on a rescue call, he is not necessarily in charge of the operation. The individual who is not driving is the one who is in charge, and rescue operations are a team endeavor. A lieutenant is interchangeable with a firefighter and his activities vary depending on the situation. Sometimes he serves as a hydrant man, sometimes on the truck, and overall performs essentially the same firefighting functions as that of the firefighters. FIREFIGHTER - The job description provides that this is general duty work in the prevention of fire damage and that, although the work involves combatting, extinguishing and preventing fires, and operation of equipment, a large part of the time is spent in study and in cleaning fire department equipment, apparatus, and quarters. Work is performed by a member of a team and a superior officer is usually available to assign definite duties. The standard firefighting duties are set forth in the job description (Exhibit 10). Testimony at the hearing established that the firefighter looks upon the captain as his primary supervisor, although he acknowledges the lieutenant to be his superior officer. The duties of officers and men of the department have not changed since the inception of the collective bargaining agreement.
Findings Of Fact The petition herein was dated January 9, 1975 by Petitioner, and was filed with PERC on January 17, 1975. (Hearing Officer's Exhibit 1). The hearing was properly scheduled by notice dated March 26, 1975, and was conducted on April 17, 1975, by agreement of the parties. (Hearing Officer's Exhibit 2, Tr. 10, 11). The Town of Palm Beach is a public employer within the meaning of Fla. Stat. Section 447.002(2). (Stipulation, Tr. 5, 6). The Town of Palm Beach Association of Firefighters, Local 1866, is an employee organization within the meaning of Fla. Stat. Section 447.002(10). (Stipulation, Tr. 6-8). During the course of the past five years, Petitioner has requested recognition, or has otherwise sought to engage in collective bargaining with the Public Employer on several occasions through written and oral communications. Most recently Petitioner sought recognition through letters dated December 28, 1974, and April 11, 1975. (Tr 85-240, Petitioner's Exhibits 1, 2). There is no contractual bar to holding an election in this case. (Stipulation, Tr. 9, 10). The parties have not engaged in collective bargaining under the auspices of the Public Employees Relations Act. The parties engaged in collective bargaining in a limited fashion prior to the passage of the Act. Efforts on Petitioner's part to engage in collective bargaining with the public employer began in 1969. (Tr. 85-240, Petitioner's Exhibits 1-23). Registration material delivered by Petitioner to PERC was dated January 7, 1975, and was received by PERC on January 13, 1975. Additional materials were received by PERC on February 10, 1975. PERC acknowledged receipt of the registration material on February 10, 1975. The Public Employer contended at the hearing that registration was not proper because the source of certain funds was not adequately revealed. PERC has previously concluded that registration was complete and proper. (PERC registration File No. 8G-OR-756-1044, TR 11-15, 22-27, 225-238; Hearing Officer's Exhibit 3; Petitioner's Exhibit 4). Petitioner filed the requisite showing of interest with its petition. The Public Employer has asserted that the showing of interest is not adequate, however, no evidence was presented to counter the administrative determination previously made by PERC. (Hearing Officer's Exhibit 4; Tr 16, 17; Public Employer's Motion to Dismiss). There are between forty-five and fifty-five persons in the unit proposed by Petitioner. All of the employees within the proposed unit are engaged in firefighting and/or paramedical rescue operations. The employees within the proposed unit work the same twenty-four hours on duty, forty-eight hours off duty shift. They eat and sleep in the same area while on duty, and wear the same or similar uniforms. There is a significant amount of interchange in duties among the employees. Wages and other terms of employment, job and salary classifications are determined for all of the employees within the proposed unit in the same manner. The bargaining history indicates a firm desire on the part of the employees to belong to a unit such as Petitioner proposes. (Tr 148-151,298-345, 369-372). The Public Employer contends that the only appropriate unit would include all public safety employees. No direct testimony was offered in support of this contention. Direct and cross-examination of Petitioner's witnesses indicate that the fire department and other public safety departments do not generally work together. Firefighters do not perform police functions or lifeguard functions. Police and lifeguards do not perform fire department functions. There is no interchange of employees between the departments, although there was evidence presented that transfers between the departments do occur. (Tr 148-151, 298-345, 369-372). Fire lieutenants are the senior officers in charge of each shift at two of the Town's three fire stations. Captains are in charge of shifts at the headquarters fire station. Fire lieutenants have four persons working under them. Fire lieutenants work the same shift as the other firefighters, wear the same uniform with no adornment of any kind, perform the same daily duties such as cleaning equipment, and teaching or participating in classes and training exercises. They perform the same firefighting duties. The fire lieutenant is charged with filling out a log book, checking the roster, answering the radio, preparing training schedules, and filling out fire reports, which duties the other firefighters do not generally perform. The fire lieutenants fill out evaluation reports on personnel who work on their shifts. The personnel are graded numerically from one to ten in approximately twenty categories, e.g., public contact and taking directions. These reports form a part of the procedure through which an employee is granted or denied a merit pay increase or is granted or denied a promotion. If an employee who works under a lieutenant has a grievance, the lieutenant is the person to whom the grievance is first carried. The lieutenant is the person in charge of maintaining order at the fire station and is in charge of any fire operations until a senior officer arrives on the scene. The fire lieutenants report directly to fire captains. The lieutenant takes no direct roll, other than making reports, in hiring, firing, promotion or transferring employees. The lieutenant is not responsible for personnel administration nor for collective bargaining. He takes no roll in formulating or administering the budget. Lieutenants and captains do not perform any functions as a group. Lieutenant Walker indicated that he has never attended a meeting at which lieutenants and captains met as a group. If a lieutenant or a captain is absent from work, other personnel fill the position. Val Williams, a pumper/operator, has served as a captain for as long a period as two months. (Tr 248-296, 302-319, 315-332; Petitioner's Exhibits 24, 25, 26). Fire captains perform generally the same duties and fulfill the same rolls as fire lieutenants. Captains head the shifts at the headquarters stations. In addition to duties performed by lieutenants, captains conduct fire inspections, and serve as the next step in the chain of command above lieutenants. Captains answer directly to the assistant fire chief. (Tr 259-61, 334; Petitioner's Exhibits 24, 25, 26). Assistant fire chiefs are in charge of each shift for all three fire stations. They oversee the operations of each station, and visit each station on at least one occasion during the course of each shift. Assistant fire chiefs answer to the deputy chief; the deputy chief answers to the chief; the chief answers to the town manager. (Tr 265-66, Petitioner's Exhibits 24, 25, 26). Mobile Intensive Care Unit (MICU) attendants and driver/operators, and paramedic specialists work the same shifts and wear the same uniforms as firefighters. Each is paid approximately five percent more than a firefighter who has been employed for the sane period of time. Driver/operators answer fire calls, drive to the fire with a firefighter, and occasionally fight fires. They answer directly to lieutenants. Paramedic specialists answer directly to the deputy fire chief. Paramedic specialists receive extensive training apart from firefighting training. Paramedic specialists answer fire calls, but the testimony was not clear as to whether they are permitted to fight fires. Paramedic specialists do not perform any personnel administration or policy making roll. (Tr 333, 334, 346-358, 373-386). There are one clerk and one mechanic who work with the fire department. They apparently answer to the fire chief. Each works an eight hour day, five days weekly. They do not work directly with firefighters. (Tr 330- 333).
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Galilee was licensed by the Department. Galilee's last known address is 4685 Haverhill Road, West Palm Beach, Florida. Galilee is a lodging establishment, consisting of rental apartments. It was originally constructed in 1995 as an assisted living facility but, as a business decision, the owner subsequently converted it to rental apartments. The Department's inspector inspected the outside of Galilee on December 18, 2002, and again on January 17, 2003. The inspector found deficiencies at the first inspection, and at the second inspection three deficiencies remained uncorrected. The uncorrected deficiencies were (1) the current report of the annual inspection for the fire sprinkler system was not available; (2) fire extinguishers failed to have state certification tags affixed; and (3) no backflow prevention device on the exterior hose connection to the apartment building. The failure to have available the current report of the annual inspection for the fire sprinkler system was a critical violation. The deficiency was classified as a critical violation because the annual report is the only way that an inspector can ascertain that the fire sprinkler system is operational. The inspector requested the current annual report at the first visit but it was not available. The failure of the fire extinguishers to have state certification tags affixed was a critical violation. The deficiency was classified as a critical violation because the state certified tag verifies that an extinguisher is in proper working order and is being properly maintained. The failure to have a backflow prevention device on the exterior hose connection to the apartment building was not a critical violation. The backflow prevention device stops negative water pressure. At the first inspection, the inspector explained the violations to the owner and gave him a 30-day warning to have the violations corrected, advising the owner that she would return on January 17, 2003, for a follow-up inspection. The violations were not corrected at the follow-up inspection 30 days later. The evidence shows that all the violations were corrected within a month to a month and a half after the second inspection. Galilee provided mitigating circumstances for the violations not being corrected at the time of the second inspection. As to the deficiency regarding availability of the current report of the annual inspection for the fire sprinkler system, Galilee has a current report dated February 27, 2003. Also, Galilee suggests that the inspector did not request the report. The undersigned finds the inspector's testimony credible that she requested the report. Further, the evidence shows that Galilee confused the requested report with the report of the fire department's inspection. The inspector testified, and her testimony is found credible, that the report of the annual inspection for the fire sprinkler system is generated by a private company, not the fire department, because the fire department does not perform the inspection required for the requested report. As to the deficiency regarding tagging of the fire extinguishers, Galilee's owner purchased fire extinguishers from Home Depot and was not aware that the extinguishers were required to be tagged at the time of the first inspection. Subsequent to the second inspection, the fire extinguishers were tagged by the AAC United Fire and Safety Department, with which Galilee has a contract to inspect the fire extinguishers. As to the deficiency regarding backflow prevention device, it too was corrected subsequent to the second inspection. Furthermore, even though the deficiencies were corrected subsequent to the second inspection, Galilee began the process to correct the deficiencies after the first inspection. Galilee was not ignoring the deficiencies. The deficiencies were not timely corrected because Galilee's owner was attempting to obtain, whom he considered, the proper people to perform the tasks involved and have the tasks performed at a reasonable expense. No evidence of prior disciplinary action being taken against Galilee by the Department was presented.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants enter a final order: Finding that Galilee violated NFPA Life Safety Code 25, 1-8.2 and Food Code Rule 5-204.12. Dismissing the violation of Florida Administrative Code Rule 61C-1.004(5). Imposing an administrative fine of $1,500.00, payable under terms and conditions deemed appropriate. S DONE AND ENTERED this 31st day of October, 2003, in Tallahassee, Leon County, Florida. ____ ERROL H. POWELL 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 31st day of October, 2003.
Findings Of Fact At all times, material to this case, Petitioner has been licensed by the Department to operate an adult congregate living facility (ACLF) which is located at 6200 West Fairfield Drive, Pensacola, Florida, and is known as the Warrington House. Francis Cooper is the sole shareholder and operator of the Warrington House. Prior to 1984, the Warrington House was known as the Heritage House and was owned by a Mr. Mitchell. Sometime in 1984, Mr. Mitchell was criminally charged with elderly abuse on his residents and the Heritage House went into receivership. Another branch of HRS who was represented by Esther Ward, asked Ms. Francis Cooper to take over the facility. HRS was apparently well satisfied with Ms. Cooper's qualifications in running an ACLF since she had another such facility. When Ms. Cooper took over the Heritage House the electrical power to the facility was about to be turned off. Only by Ms. Cooper's pleading with Gulf Power was that circumstance forestalled. There were only thirteen (13) patients at the facility out of the sixteen (16) that were supposed to have been there. Three (3) of the patients had been mysteriously removed during the night. The residents that were at the house could not identify themselves and very few resident records were at the facility. The building was infested with roaches, there was raw sewage in the yard and the sewage system was completely blocked to the extent that sewage came up through the showers when a toilet was flushed. There was urine in every carpet. None of the appliances in the house worked. There were no air conditioners, fans or plastic dishes. The floors were in bad shape. In fact, Ms. Cooper fell through two of the bathroom floors. When Ms. Cooper questioned HRS representatives about the appalling conditions of the facility, she received no responsive answer. After Ms. Cooper had taken over the facility, she discovered that Mr. Mitchell had absconded with three months advance rent from the residents. Ms. Cooper, therefore, had to operate the premises for three months without income from the residents that were there. She used her own money. Ms. Cooper started with the air conditioning, flooring and carpeting. All these items were replaced. The bathrooms were tiled and additional bathrooms were added. She put in a $6,000.00 sewage system, a lift station and paid $1,000.00 to hook the building onto city sewage. She also brought in an exterminator to get rid of the bugs. All of this took place over a period of two years wherein Ms. Cooper worked diligently to bring the building up to "snuff." In fact, in the time since she has had the facility she has accomplished wonders in improving conditions at the house. These conditions clearly did not appear overnight, but over several years and were apparently overlooked by Respondent until the crisis with Mr. Mitchell had occurred. Ms. Cooper went into the house with the understanding that the corporation would eventually build another facility and close what had become the Warrington House. The reason for the new construction was that the current building, regardless of the amount of repair, was still an old building not worth maintaining and which was allowed to deteriorate badly prior to her stewardship. However, due to a falling out with her brother, who was then a co- shareholder of the corporation, Ms. Cooper was unable to complete her plans for moving the residents of the Warrington House to a new facility. She continues to attempt to obtain financing to build a new facility. At least once a year, HRS does a full survey on a ACLF like the Warrington House. A full survey is simply an inspection of the property in order to determine the degree of compliance with HRS rules and regulations. Upon completing the inspection, the inspector goes through an exit briefing with the ACLF's management. During the exit briefing, the inspector will go over any deficiencies he or she has discovered and attempt to establish mutually agreeable correction dates. The inspector also explains that these time periods are the best estimates that they can come up with at that point to allow a reasonable amount of time for the required corrections to be made. If any problems should arise, the inspector requests that the manager communicate with his or her office and ask for an extension. Extensions are not always forthcoming. After the full survey inspection is done, a follow-up visit is normally scheduled to determine whether the earlier cited deficiencies have been corrected. If, after the follow-up survey there are items that are still not corrected, the inspector will explain to the person in charge that they are subject to administrative action and that he or she will report he facility's noncompliance to his or her office. Whether or not administrative action is taken is determined at a level above the inspector. However, it appears that the customary practice of the office is to pursue an administrative fine for any noncompliance after the correction date has been passed. After the first follow-up survey has been made it depends on the particular factual situation whether or not further follow-up surveys are made until compliance is achieved. If there are efforts being made to correct the problems further follow-up surveys will be made. If not, further follow-up surveys may not be made. In this case, James Temkin, an HRS Fire Protection Specialist, performed a full survey fire safety inspection on the Warrington House on September 24, 1986. During that survey, he cited 11 deficiencies. Various compliance dates were established for the deficiencies. A follow-up survey was conducted by Mr. Temkin on January 14, 1987. During that survey, he noted that 6 of the previously cited deficiencies had not been corrected. He recommended administrative action on all the uncorrected deficiencies. The six remaining uncorrected deficiencies were as follows: No up to date fire plan and the July 7th fire drills were not documented; No fire alarm test since July 1986 and fire alarm zones were not shown on the actuator panel; Smoke detectors not working in four (4) rooms; Exit sign lights burned out at the front and center exits, emergency lights not working at the front, rear and upstairs exit halls; Sleeping rooms had hollow core doors; and There was no documentation of fire safety on the wood paneling and tile ceilings on the first and second floors. All other deficiencies cited during the September 24, 1986 full survey were corrected. As to the alleged deficiencies contained in the latter half of (b) and (c)-(f) above, none appear at any point in HRS' rules governing ACLF's. Supposedly, these deficiencies are cited in the NFPA life safety code, which is incorporated by reference in the Fire Marshal's rule on ACLF's, Rule 4A-40, Florida Administrative Code. The 1984 version of Rule 4A-40, Florida Administrative Code is incorporated by reference in HRS' rule, Rule 10A-5, Florida Administrative Code. Both HRS' rule and the Fire Marshal's rule are contained in the Florida Administrative Code. However, the 1984 version of NFPA is nowhere to be found in the Administrative Code. The current Fire Marshal's rule adopts portions of the 1985 NFPA life safety code. However, the HRS' rule adopts the 1984 version of the Fire Marshal's rule. No showing was made by Respondent as to what the 1984 version of the NFPA code contained. The HRS inspector's testimony regarding a particular deficiency's inclusion in the NFPA cannot be relied on since both inspectors apparently used the 1985 version of the NFPA which is not the 1984 version included in HRS's rule. Without proof of the contents of the NFPA, HRS has failed to prove any deficiencies for which it may take administrative actions. As to the other deficiencies, attempts to comply were in fact made by the Warrington House. The facility's personnel in fact thought they had complied with HRS' desires based upon previous inspections. However, for one reason or another, these attempts were rejected by the HRS inspector and the deficiency was cited again, but because of another reason. The lack of an up- to-date fire plan (cited in (a) above) was met by the Warrington House when they obtained a fire plan prior to the established correction date from another arm of HRS responsible for devising such plans. However, upon the January 14th follow-up inspection, the plan obtained from HRS by Petitioner was considered insufficient in that it did not outline staff responsibilities during a fire. The same thing occurred with the lack of fire alarm tests, cited in the latter part of (a) and the first part of (b) above. The Warrington House obtained the testing document and test from another branch of HRS responsible for such testing. However, the inspector at the follow up survey did not deem his own agency's testing documents sufficient since it did not show a different type sending unit was being tested at least once a year. 1/ These are simply not repeat deficiencies since in each instance the earlier grievance had been met and it was another grievance which cropped up. On July 9, 1987, a second follow-up survey to the Temkin September 24, 1986, full survey was performed by O.B. Walton, an HRS fire safety inspector. The evidence was not clear as to any remaining uncorrected deficiencies, if any, he found. Therefore, Respondent failed to establish any repetitive deficiencies as a result of the July 9 follow-up survey. Apparently, however, Mr. Walton, did perform another full survey on July 9, 1987. Several additional deficiencies were cited by him. A follow-up visit was conducted by Mr. Walton on October 23, 1987. Four alleged deficiencies remained uncorrected as follows: Ceiling not repaired in hot water heater closet, i.e. not taped; Kitchen fire door latch was jammed open so it would not latch, but it would stay closed; Plug by hot water heater had no cover; No documentation that drapes were fire retardant. Again, none of the above alleged deficiencies appear in HRS' rules or in the fire marshal's rule and a reasonable person could not glean from any of the other provisions contained in HRS' rules that the above conditions might be included in these provisions. The lack of clarity or uniformity in interpretation of HRS' rules is especially born out in this case since two different inspectors while inspecting the same building cited different deficiencies under their respective interpretation of the rules. When the experts differ it is difficult to see how a reasonable lay person could even begin to know or understand the contents of HRS or the Fire Marshal's rules. This lack is especially true since the relevant contents of the 1984 NFPA life safety code are not contained in the Florida Administrative Code and were not demonstrated by HRS. HRS, therefore, failed to prove any repeat deficiencies from the October 23, 1987 follow-up survey. A third fire safety follow-up visit was conducted by Pat Reid, a human services program analyst, on January 21, 1988. She has no expertise or license to perform fire safety inspections. She found all of the earlier cited uncorrected deficiencies corrected except for the documentation on the drapes. That alleged deficiency was partially corrected since Petitioner was replacing the drapery with metal blinds. However, as indicated earlier the lack of documentation for fire retardant drapes was not proven to be a violation by Respondent. Ms. Reid had previously conducted a full survey of Petitioner on August 17 and 18, 1987 in her area of expertise operation and general maintenance of an ACLF. Several deficiencies were cited and correction dates were established. Ms. Reid conducted a follow-up survey to the August 17 and 18 full survey on October 23, 1987. The following alleged deficiencies had not been corrected: Facility staff do not have documentation of being free of communicable diseases; The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable disease; Broken or cracked window panes in windows of second floor exit door, both first floor bathrooms nearest kitchen, and resident rooms identified as C. W., W. S., and W. L.; Shower tile missing in second floor bathroom nearest exit door; Linoleum of first floor bathroom is loose as well as badly stained with cigarette burns; Hole in wall next to sink and toilet of second floor bathroom nearest exit door and square hole in wall of second floor blue bathroom; Faucet of first floor bathroom is loose; Carpeting in first floor resident room (#7) is badly stained; Three vinyl chairs in dining room have tears, exposing foam padding; Second floor bathroom faucet nearest exit does not clearly distinguish between hot and cold water taps. As to the alleged deficiency contained in (a) above, the regulations do not contain a requirement that any documentation be kept regarding staff members being free of communicable disease. The regulations only require that the facility administrator assure that staff is free of communicable disease. The evidence showed that Petitioner had in fact assured that the staff was free of communicable disease. Therefore, no violation occurred. The alleged deficiency cited in (b) above does constitute a violation of Rules 10-5.081(1)(b), (2)(a)4.d., and (2)(b), Florida Administrative Code. However, in this instance, there are several mitigating circumstances. Foremost is the fact that Petitioner attempted on several occasions to obtain this information from another arm of HRS who had M. B. under its care prior to his admission to Petitioner's facility and had actually failed to complete M. B.'s Health Assessment form properly. Petitioner received many assurances from HRS that it would obtain and forward the information. HRS failed to do so. Moreover, after several years of M. B. living at the Warrington House and after several years of HRS care prior to his admission, common sense would dictate that M. B. is free of communicable diseases. Petitioner has in fact received confirmation of that fact from an examining physician who certified M. B. free of communicable diseases. 2/ As to (c) above, the evidence showed that the windows were only cracked and not broken. No evidence was presented as to the severity of the cracks. Cracked windows are not included in Rule 10A-5.022(a), Florida Administrative Code, which only addresses broken window panes. Moreover, cracked windows without proof of the severity of the cracks is not sufficient evidence of the lack of good repair or other hazardous conditions similar to those listed in Rule 10A-5.022(a), Florida Administrative Code. The Rule requires proof of the hazardous nature of such a condition. Cracked windows are not hazardous in and of themselves and no showing was made that these cracked panes constituted a hazard. Nor do cracked window panes standing alone constitute a violation of Rule 10A-5.022(d). The rule requires evidence that such cracked panes are unreasonably unattractive and no showing was made that the cracks were unreasonably unattractive. Likewise, the missing shower tile in (d) above fails to constitute a violation of Rule 10A-5.022(a) since the deficiency is not listed, and no showing was made that the missing tile constituted a hazardous condition. Similarly, the missing tile, by itself, does not constitute a violation under Rule 10A-5.022(d) since no showing was made that the missing tile was unreasonably unattractive. The same failure of proof occurs with the alleged deficiencies listed in (e), (f), (g), (h) and (i). See Rules 10A-5.022(c), (e) and (i). The alleged deficiency cited in (j) above does constitute a violation of 10A-5.023(9)(e). However, the violation was not repeated after October 1, 1987, the effective date of Section 400.414(2)(d), Florida Statutes. Ms. Reid conducted a second follow-up survey to the August 17 and 18 full survey when she performed the fire safety follow-up on January 21, 1988. All previously cited deficiencies had been corrected except for: Facility staff do not have documentation of being free of communicable diseases. The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable diseases. The following maintenance problems exist: broken or cracked window panes in windows of second floor exit door, both first floor bathrooms and resident room identified as W. S. A third follow-up was conducted by Ms. Reid on April 15, 1988. All the previously cited deficiencies had been corrected except for: The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable disease. Broken or cracked window panes in windows of second floor exit door, both first floor bathrooms nearest kitchen, and resident rooms identified as C. W., W. S., and W. L.; Shower tile missing in second floor bathroom nearest exit door; Linoleum of first floor bathroom is loose as well as badly stained with cigarette burns; Hole in wall next to sink and toilet of second floor bathroom nearest exit door and square hole in wall of second floor blue bathroom. All of the alleged deficiencies cited in the January 21, 1988 follow- up and the April 15, 1988 follow-up survey were carried forward from the alleged deficiencies discussed above, cited in the October 23, 1987 follow-up survey. The same findings are made as to the alleged deficiencies which were carried forward. Only the physical health assessment of M. B. was cited by Respondent and shown to be a repeated deficiency since the information was not obtained by the established correction dates occurring after October 1, 1987. By the date of the hearing all the above alleged deficiencies had been corrected. Respondent notified Petitioner that it proposed to deny renewal of Petitioner's license to operate the Warrington House on December 23, 1987. The basis for the denial was Section 400.414(1) and (2)(d) which states: 400.414 Denial, revocation, or suspension of license; imposition of administrative fine; grounds. The department may deny, revoke or suspend a license or impose an administrative fine in the manner provided in chapter 120. Any of the following actions by a facility or its employee shall be grounds for action by the department against a licensee: * * * (d) Multiple and repeated violations of this part or of minimum standards or rules adopted pursuant to this part. The language of Subsection (d) was added to Section 400.414 F.S. on October 1, 1987. Prior to that date Respondent had no authority to take punitive action against the license of an ACLF licensee for multiple and repeated violations of Respondent's statutes and rules. The only action Respondent could take against a facility for such violations was in the form of a civil fine the amount of which could be raised if the violation was repetitive. Section 400.426, Florida Statutes. No multiple violations were shown by the evidence through the April 15, 1988 follow-up survey. More importantly, however, no multiple violations were shown by Respondent after October 1, 1987, the effective date of the statutory language at issue in this case. No showing was made by Respondent as to any legislative intent that the statute operate retrospectively. The statute operates only prospectively. Therefore, any alleged deficiencies cited prior to October 1, 1987 are irrelevant for purposes of imposing the punishment contemplated under Section 400.414, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services renew Petitioner's license. DONE and ENTERED this 9th day of November, 1988, in Tallahassee, Florida. DIANE CLEAVINGER 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 9th day of November, 1988.
Findings Of Fact At all times material hereto, Joe A. Cabrera (Petitioner) was, and is currently, a certified firefighter in the State of Florida and employed with the City of Miami. On or about November 1, 1993, Petitioner applied for entry into the Firefighters Supplemental Compensation Program (Program). He executed a transcript request form for the Program, requesting Miami-Dade Community College (Miami-Dade), Miami, Florida, to forward an official copy of his transcript to Respondent. Miami-Dade complied with Petitioner's request. Petitioner's transcript showed all courses completed and indicated that he was awarded an Associates of Arts degree from Ranger Junior College in Texas on May 7, 1982. It does not identify a major associated with his degree. Furthermore, Petitioner's transcript reflected that subsequent to the issuance of his Associates of Arts degree, he completed in excess of 30 hours of fire-related courses at Miami-Dade. By letter dated November 12, 1993, Respondent denied Petitioner's application for entry into the Firefighters Supplemental Compensation Program on the basis that he failed to possess an eligible associate degree in accordance with Section 633.382, Florida Statutes, and Rule 4A-37.085, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance and Treasurer enter a final order denying Joe A. Cabrera entry into the Firefighters Supplemental Compensation Program at the associate degree level. DONE AND ENTERED this 22nd day of June 1994 in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 22nd day of June 1994. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. (Petitioner's proposed findings are not numbered, so they are addressed paragraph by paragraph.) Paragraph 1. Partially accepted in Finding of Fact 5. Paragraph 2. Partially accepted in Findings of Fact 1, 3 and 4. Respondent's Proposed Findings of Fact. Partially accepted in Finding of Fact 1. Partially accepted in Finding of Fact 2. Partially accepted in Finding of Fact 5. 4 & 5. Partially accepted in Finding of Fact 3. 6. Partially accepted in Finding of Fact 4. NOTE: Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, cumulative, nor supported by the evidence, argument, or conclusion of law. COPIES FURNISHED: Kathleen M. Phillips, Esquire Kaplan & Bloom, P.A. Suite 214, Plaza Bank Building 3001 Ponce de Leon Boulevard Coral Gables, Florida 33134 Daniel T. Gross, Esquire Department of Insurance and Treasurer Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0333 Tom Gallagher, Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Kathleen M. Phillips, Esquire Kaplan & Bloom, P.A. Suite 214, Plaza Bank Building 3001 Ponce de Leon Boulevard Coral Gables, Florida 33134 Daniel T. Gross, Esquire Department of Insurance and Treasurer Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0333 Tom Gallagher, Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact Petitioner is employed as a full-time professional firefighter by the City of Tampa Fire Department. His primary responsibility is the prevention and extinguishment of fires, the protection and saving of life and property, and the enforcement of municipal, county and state fire prevention codes, as well as of any law pertaining to the prevention and control of fires. Petitioner received an associate in arts degree in Business Administration in May 1989 from Hillsborough Community College. In addition, he has earned 90 hours credit towards an associate in science degree from the same accredited post secondary institution. Petitioner's permanent academic record at Hillsborough Community College reveals he has successfully completed the following fire-related courses: SUMMER 1983 SEMESTER CREDITS ENS 1119 EMT AMBULANCE 5 EMS 1119 EMT AMBULANCE LAB 1 FALL 1986 SEMESTER CREDITS FFP 2601 FIRE APPARATUS PRA 3 FFP 1600 FIRE APPARATUS EQ 3 FALL 1990 SEMESTER CREDITS FFP 2420 F/F TACTICS & STRA 3 FFP 2660 RESCUE PRACTICES 3 FFP 2110 FIRE COMPANY MAN AG 3 Although Petitioner has 21 semester hours that the Department has agreed are fire related courses, 9 of these hours were credited to him after his associate in arts degree was conferred upon him in May of 1989. In order for a firefighter to be eligible for supplemental compensation related to an associate degree, he or she must have at least 18 semester hours that are fire related and are part of the firefighter's studies for the degree. Petitioner had only 12 semesters of fire related studies prior to the award of his degree. In order for Petitioner to receive eligibility credits for the full 21 semester hours in the Firefighter's Supplemental Compensation Program, he would have to acquire his second associate degree from Hillsborough Community College.
Recommendation Accordingly, it is RECOMMENDED: That Petitioner should be denied eligibility for the Firefighters Supplemental Compensation Program as he did not complete at least 18 semester hours of fire related courses prior to receiving his award of an associate of arts degree. DONE and ENTERED this 6th day of October, 1992, at Tallahassee, Florida. VERONICA E. DONNELLY 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 6th day of October, 1992. APPENDIX The Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2. Accepted. See Preliminary Statement. Accepted. See HO #4 and #5. COPIES FURNISHED: Mark B. Maxey 6909 N. Glen Avenue Tampa, FL 33614 William C. Childers, Esquire Division of Legal Services 412 Larson Building Tallahassee, FL 32399-0300 Bill O'Neil Deputy General Counsel Department of Legal Affairs The Capitol, Plaza Level Tallahassee, FL 32399-0300 Tom Gallagher State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300
The Issue The issue in this case is whether the Petitioner's application for supplemental compensation pursuant to Section 633.382, Florida Statutes, should be granted or denied.
Findings Of Fact 1. The Petitioner holds a Bachelor of Arts degree from Michigan State University. The degree was earned in the College of Communication Arts and Science. The major on the Petitioner's degree is advertising. 2. The transcript of the courses taken by the Petitioner to earn his bachelor's degree does not list any courses that appear to come within the criteria listed at Rule 4A- 37.084(5) (b)1, Florida Administrative Code. 3. The transcript of the courses taken by the Petitioner to earn his bachelor's degree lists several courses that appear to come within the criteria listed at Rule 4A-37.084(5) (b)2, Florida Administrative Code. However, there are not enough of such courses to comprise a major. 4. The transcript of the courses taken by the Petitioner to earn his bachelor's degree lists one course that appears to come within the criteria listed at Rule 4A.37.084(5) (b)3, Florida Administrative Code. 5. The Petitioner is presently employed by the Miami Beach Fire Department as a Firefighter I. The Petitioner has been employed full-time in his present firefighter position at all times material to the pending application. 6. The Petitioner's fire department duties are described in a written position description for the Firefighter I position. It is clear from the description of those duties that a Firefighter I position with the Miami Beach Fire Department is not one of the "management positions within a fire department," nor is it a position that includes "arson investigators." Such a position is also not one of the "special positions" contemplated by Rule 4A-37.084(5) (b)4, Florida Administrative Code. 7. When the Petitioner submitted his present application, Floyd Jordan, the Fire Chief of the Miami Beach Fire Department, by letter dated November 15, 2000, advised the Bureau of Fire Standards and Training as follows: After review of the attached college transcript and the City of Miami Beach Job Description for Firefighter I, it is my conclusion that this request does not meet the requirements of the Firefighters Supplemental Compensation Program. As of the date of the final hearing, Chief Jordan continued to be of the same view of the matter. 8. The Petitioner was previously employed by the Boca Raton Fire-Rescue Services as a firefighter/paramedic. The Petitioner's job duties in the Boca Raton position were essentially the same as his job duties in his present position. While employed with the Boca Raton Fire-Rescue Services, the Petitioner applied for supplemental compensation on the basis of the same bachelor's degree on which he bases his present application. The Petitioner's prior application was approved and he received supplemental compensation while employed with the Boca Raton Fire-Rescue Services.
Conclusions For Petitioner: Chuck Pereny, pro se 259 Northwest 90th Avenue Coral Springs, Florida 33071 For Respondent: Elenita Gomez, Esquire James B. Morrison, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333
Recommendation On the basis of the foregoing, it is RECOMMENDED that the Department issue a final order denying the Petitioner's application and dismissing the petition in this case. Tallahassee, Leon County, Florida. = DONE AND ENTERED this CS “day of June, 2001, in CH heseu Loe € 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 Q — day of June, 2001.
The Issue Whether the respondent discriminated against the petitioner on the basis of
Findings Of Fact In the summer of 1981, petitioner took emergency medical technician (EMT) training and in the fall of 1981, attended Orange-Orlando Fire Training Academy. She received her emergency medical technician certification from the State of Florida in the fall of 1981, and on November 13, 1981, received a certificate of completion from the fire training academy. Thereafter, petitioner submitted applications for employment with several fire departments throughout Central Florida. On December 16, 1981, petitioner submitted an application for employment with Orange County which reflected that petitioner was "studying paramedics." On January 6, 1982, petitioner supplemented her written application to the county with a Fire Fighter Data Questionnaire which indicated that she was "presently taking paramedics." On the questionnaire, the petitioner explained her reasons for wanting to become a fire fighter as follows: "I want to be a paramedic firefighter because I enjoy being trained to help people & save lives. I want to work emergency care in the streets rather than in the hospital." In June, 1982, petitioner's name came to the top of the eligibility list, and she was contacted by Mr. John Jung, Administrative Assistant, Orange County Fire Department (OCFD or Department). By that time, petitioner had moved from Orlando to Medeira Beach, Florida, and was enrolled in a paramedic course offered by St. Petersburg Junior College. Mr. Jung offered petitioner the fire fighter position that was open and explained that the position would have to be filled by the middle of July. Petitioner indicated to Mr. Jung that she was currently enrolled in paramedic school, and therefore could not accept the position. Mr. Jung was aware that there was a critical shortage of paramedics within the Orange County Fire Department 2/, and therefore he asked petitioner if she would be willing to accept the position if it were possible to hold the position open until she graduated from school. The petitioner asked Mr. Jung if the Department would be in a position to reimburse her for her paramedic schooling. Mr. Jung discussed the telephone call with his superior, Chief Cragan. Mr. Jung explained that he had an applicant that was completing paramedic training and asked if it would be possible to hold an opening for that candidate. Mr. Jung also asked if the Department could reimburse the candidate for her paramedic educational training. Mr. Jung was told that the Department could not legally reimburse a non-employee, but that it would be permissible to hold an opening for the candidate contingent upon the person practicing as a paramedic. Thereafter, Mr. Jung called petitioner and informed her that, although she could not be reimbursed for her paramedic training, a position would be held open for her until completion of her paramedic training if she would agree to function as a paramedic. Petitioner accepted the position, and Mr. Jung informed her that the OCFD would contact her at the time she was completing school and make arrangements for her processing. 3/ On August 20, 1982, after successfully completing her paramedic training, the petitioner moved to Orlando. The petitioner's employment with the Orlando County Fire Department began on September 13, 1982. Petitioner's first working assignment was Station 30 under Lieutenant Hurd. Chief Dryburgh was the Battalion Chief for Station 30, but during most of the time that petitioner was assigned to that station, Norman Scholar was Acting Battalion Chief. On or about October 11, 1982, petitioner was transferred to Station 66 where she worked under Lieutenant Robert Danks. Shortly after her transfer, Chief Dryburgh delivered petitioner's 30 day evaluation to her. On the evaluation form the category "quality of work" had been changed from "needs improvement" to "acceptable", and "physical condition" had been changed from "acceptable" to "needs improvement". The petitioner testified that the changes were made after she had signed the evaluation and that Chief Dryburgh stated to her that he had made the changes. Chief Dryburgh testified that he saw Lieutenant Hurd make the changes on the form and that he then delivered the employment evaluation to petitioner and she signed it at that time. The dates next to the signatures of Lieutenant Hurd and petitioner show that both signed the evaluation on October 17, 1982. Petitioner was not assigned to the same station as Lieutenant Hurd at that time, and the only reasonable conclusion that can be made is that Lieutenant Hurd signed the form, gave it to Chief Dryburgh for delivery to petitioner, and then petitioner signed the form. However, the questions of whether the alterations were made prior to petitioner's signature and who made them are irrelevant. The evaluation was not related to the decision to terminate petitioner's employment. Further, the changes were not negative, petitioner's overall evaluation was good and the form indicates that petitioner was meeting probationary requirements. While at Station 66, an unpleasant incident occurred between petitioner and Lieutenant Danks, her supervisor. When the incident occurred, the fire truck had just returned to the station. Petitioner, as the fire fighter in the jump seat, had the job of getting off the truck, going to the rear, and directing the driver in backing the truck into the garage. Petitioner did not get off the truck when she should have because she heard a radio call coming in and thought that the crew might be going out on another call. When Lieutenant Danks saw that the petitioner was still sitting on the truck, rather than being in position to direct the truck into the garage, he started yelling at her to get off the truck and back it in. He was shouting so loudly that the fire fighters inside the station could hear him. He then went into the station, and a few minutes later the petitioner approached him and asked if she could talk to him because she felt that he had reprimanded her in an inappropriate manner. Lieutenant Danks stated that he was busy at the moment and would talk to her later. About 15 minutes later Lieutenant Danks told petitioner that he was ready to talk to her and they went to the Chief's office. The focus of this conversation was petitioner's concern about the manner in which Lieutenant Danks reprimanded her rather than petitioner's failure to get off the truck as quickly as she should have. Again Lieutenant Danks raised his voice to the level where the other fire fighters could hear him even though the door to the Chief's office was closed. Lieutenant Danks had never before reprimanded a fire fighter under his command in the manner in which he reprimanded the petitioner. A few hours after the meeting in the Chief's office, Lieutenant Danks informed the petitioner that she was being suspended because she had taken sick leave on an earlier shift. The petitioner had taken sick leave because she had injured her hand while on a prior shift and had not had the time to go to the doctor and obtain a medical release. However, the suspension was cancel led due to the Intervention of Chief Moody. Although Lieutenant Danks' behavior on the day in question may have been inappropriate, there is nothing that would suggest that he reacted in the manner that he did due to petitioner's sex. The shouting incident was an isolated occurrence. Lieutenant Danks had never before reprimanded petitioner or any other fire fighter, male or female, in that manner. Further, petitioner's treatment at Station 66 was totally unrelated to the later events which led to petitioner's termination and is, therefore, irrelevant. Subsequently, and in accordance with petitioner's request, petitioner was transferred to Station 80 where she worked under the immediate supervision of Lieutenant Brus. Lieutenant Brus had an interview with petitioner, as he did with all new personnel assigned to his shift, to advise her as to what would be expected of her and as to what she should expect from him. During the course of the interview, petitioner told Lieutenant Brus that she had gone to school to get her paramedic certification and that she had been hired by the OCFD with the understanding that she would function as a paramedic as soon as she got notification from the state that she had passed the state examination. Petitioner was proud of the fact that when the OCFD had contacted her instructor to find out how she was performing in school, the instructor told them that she was expected to graduate in the top of her class. On December 4, 1982, while assigned to Station 80, petitioner received notification from the state that she had passed the paramedic exam and was state certified to practice. The next shift day Battalion Chief Brock asked petitioner if she had heard from the state regarding her exam, and she informed Chief Brock that she had passed. On December 7, 1982, Battalion Chief Hall, second-in- command of the Emergency Medical Services unit under Chief Montes de Oca, called petitioner to find out when she would get her Orange County paramedic card. 4/ Petitioner informed Chief Hall that she did not intend to get her Orange County card because she did not want to work for the Orange County Fire Department as a paramedic. Chief Hall agreed to meet with petitioner later that day to discuss the situation. On the afternoon of December 7, 1982, petitioner met with Chief Hall, Chief Montes de Oca, and Lieutenant Brus. Once again petitioner stated that she did not intend to get her Orange County card at anytime in the near future and stated that if she did obtain the card, it would not be to work as a paramedic for the OCFD but to work on her days off for a private ambulance service. She stated that since the OCFD had not paid for her paramedic education, she could not be required to function as a paramedic unless the OCFD reimbursed her for the cost of her schooling. She also stated that she did not want to work as a paramedic for the OCFD because she did not want to be transferred due to problems she had previously had. Chief Montes de Oca explained that the meeting was not to discuss a potential transfer but to discuss petitioner's obtaining an Orange County card. Chief Montes de Oca concluded the meeting by ordering the petitioner to obtain her county certification by Monday morning, December 13th, or face disciplinary action. Petitioner was told to show Lt. Brus proof of county certification on Friday, December 10th. After Chief Montes de Oca and Chief Hall left the meeting, Lt. Brus talked with petitioner about her attitude toward ranking officers of the OCFD. Throughout the meeting petitioner had been disrespectful, outspoken, and argumentative. Lt. Brus advised petitioner that she would have to get the card on the following two days, which she had off, because Friday, December 10th, she would be on duty; the bureau that handles the cards would be closed on Saturday and Sunday; and she had to have the card when she reported to work at 7:30 a.m., Monday morning. Petitioner again stated that the OCFD should reimburse her for her schooling if they expected her to work as a paramedic. Lt. Brus told her that she was given an order and was expected to carry it out. Petitioner stated that she would get the card. On December 10, 1982, petitioner reported to work without the Orange County card. She told Lt. Brus that she did not have the time to get the card because she was taking or studying for final exams in school on December 8th and 9th. Lt. Brus contacted Chief Hall and informed him that petitioner did not have her card and Chief Hall notified Chief Rivers, head of personnel, whose initial reaction was to suspend petitioner immediately. However, since petitioner was officially given until December 13th to get her card, it was decided that petitioner would be given time off from duty on December 10th in order to get the card. Chief Montes de Oca instructed Lieutenant Brus that petitioner could have time off, without pay, to get the card, and Lieutenant Brus relayed that information to petitioner. Later in the discussion with petitioner, Lieutenant Brus exercised his authority as petitioner's immediate supervisor and offered her time off with pay. Petitioner explained that she did not have transportation available because her boyfriend, now her husband, had driven her to work. Lieutenant Brus then offered petitioner the use of his personal car, which she refused. She was not offered transportation by the OCFD, which petitioner felt she was entitled to. Petitioner testified as to her demand for transportation from the Department as follows: I said to them, if it is that important and it really does have to do with my job and you want to transport me down there, I'll get my card, and I'll go down there. * * * So that's why I figured if it was really that important for them to have it, then they could certainly -- if they had to have it that day and couldn't wait and wanted to do it on my work day, then they could provide the trans- portation. (T-117, 118) Because the Department did not provide transportation, the petitioner did not get her card. 5/ On Monday morning petitioner attended a meeting with Chief Rivers, Chief Montes de Oca, Chief Hall, and Lieutenant Brus. The petitioner was asked if she had obtained her Orange County card as she had been ordered to do. She said she had not. She was asked if she intended to get it, and she said no. Chief Rivers then informed the petitioner that he had no alternative but to discharge her for failing to obey a direct order of a superior officer and for insubordination. The petitioner was notified of her termination by certified letter dated the same day. Evidence was presented that certain male fire fighter/paramedics had been allowed to stop functioning as paramedics. However, the evidence also showed that the reassignments of those fire fighters from paramedic duties to other duties were sound management decisions and were not unilateral decisions of the fire fighters. In two of the cases the individuals showed signs of stress which demonstrated itself in the form of inadequate decision making and inadequate skills. In one case the individual lost his certification due to incompetency. In another case the individual was promoted to inspector, and the last case involved a situation where all the engineer/paramedics had to commit to either paramedic or engineer so that the county could determine whether they had engineer slots open or paramedic slots. 6/ Obviously, not one of the situations involving the male fire fighter/paramedics is similar to petitioner's situation. 7/ Petitioner's termination from her employment had nothing to do with her sex. A position on the Orange County Fire Department was held open for the petitioner solely because of her paramedic training and her expressed desire to serve as a paramedic. The Orange County Fire Department had a desperate need for paramedics and had every reason to expect that the petitioner would take all the steps necessary to become certified to function as a paramedic in Orange County. Prior to her hiring, the petitioner was told that she could not be reimbursed for her paramedic training. Yet when her superior officers inquired about her county certification, the petitioner informed them that she would not obtain it without the county paying her $4,000 to reimburse her for her schooling. When, as a last resort, she was ordered to get her Orange County card, she refused to obey the order. Petitioner's continued insubordination and her refusal to comply with a direct order of her superior officer, justifiably caused her to be dismissed from her position with the Orange County Fire Department.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the petition for relief filed by the petitioner. DONE and ENTERED this 30th day of August, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1985.
