The Issue The issue for consideration in this case is whether Respondent's certification as a fire fighter in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations herein, Petitioner, Department of Insurance and Treasurer, (Department), was the state Fire Marshal and the agency responsible for the certification of fire fighters in Florida. Respondent was either an applicant for certification or a certified fire fighter in this state. On or about January 22, 1991, Respondent, James M. Yingling, submitted an application for certification as a fire fighter to the Division of State Fire Marshal, Florida State Fire College, Bureau of Fire Standards and Training, on which he indicated he had not used tobacco or tobacco products for at least one (1) year immediately preceding the filing of the application. Along with the application, Mr. Yingling submitted certain documentation including his high school diploma, his driver's license, a personal inquiry waiver, fingerprints, a report of medical examination, and an affidavit of even date in which he affirmed he had not been a user of tobacco or tobacco products for at least one year immediately preceding his application for certification as a fire fighter. Provisions of Section 633.345, Florida Statutes, set out the requirements for certification as a fire fighter in Florida. One of these criteria calls for the applicant not to have used tobacco for one year prior to the filing of the application for certification. Had Respondent used tobacco or tobacco products within that year, he would not have been certified. John R. Scott, a full time employee of Grumman Aircraft in Ft.Pierce, was a part-time volunteer fire fighter at the Jensen Beach Volunteer Fire Department when the Respondent became a member in August, 1990. Mr. Scott saw Respondent at the station house on several occasions and they went out on calls together. Mr. Scott executed a sworn statement on April 11, 1991, indicating that since he has known Respondent, Respondent has been a smoker. Scott claims he has seen Respondent smoking at the station on several occasions and on one occasion at a test site in Orlando when both were there to take the test for Emergency Medical Technician, in January, 1991. He claims to have seen Respondent borrow cigarettes from several fire fighters at the station and return a pack later on. Mr. Scott is a smoker and claims to have been approached by Respondent frequently to give him cigarettes. In April, 1991, Mr. Scott requested that his daughter, Rebecca Brown, type several copies similar to that statement signed by him to be given to and signed by others who had agreed to do so. Only Mr. Schwarz and Ms. Brown actually signed such statements, however, and the others refused to do so. These signed statements, along with Mr. Scott's statement, were forwarded to the Fire Marshal's office. According to Mr. Scott, the others, who backed out, did so because they were afraid of repercussions, but none of these individuals were present to testify and the hearsay testimony of Mr. Scott on that point is insufficient to support a Finding of Fact to that effect. Both Mr. Schwarz and Ms. Brown also indicated they had seen Respondent smoking either at the station or elsewhere from the time he was hired in August, 1990, until the time he applied for certification in January, 1991. No other fire fighter from whom Respondent is supposed to have borrowed cigarettes presented evidence to that effect, however. Mr. Schwarz was recognized as a troublemaker at the fire department and was allowed to retire in lieu of disciplinary action. Ms. Brown is Mr. Scott's daughter and the wife of another fire fighter in the Department. The credibility of both is somewhat suspect. Evidence regarding Mr. Scott also detracts from his credibility. He was known in the department to be a practical joker whose pranks from time to time got out of hand or were excessive. His honesty and integrity were seriously suspect due to his tendency to bring items taken, with or without permission, from his employer, Grumman, to work projects at the department. These were not always minor items, either, and Scott frequently remarked that he had gotten them from "G-Mart" under such circumstances as to give rise to the suspicion they were stolen. On the other hand, Respondent, recognized as a hard driving, somewhat brash and bragging young man, is nonetheless well though of by the majority of his peers and superior in the Department. He categorically denies the allegations against him. Neither former Chief Yurillo nor Capt. Recta, both of whom worked with Respondent, recall having ever seen him smoke and neither was approached by Respondent for a cigarette. When the allegations involved here came up, an internal investigation was begun at the Department, a part of which included a voluntary urinalysis examination of the Respondent. The results of that test, done by an independent laboratory, reflected no evidence of the use of tobacco at the time the test was taken. Mr. Scott and Mr. Schwarz both indicate that subsequent to the filing of their affidavits, Respondent came to them and suggested that if they were not sure of the facts they had alleged, they could withdraw them. In fact, neither did so voluntarily. Scott, in April, 1991, after a meeting with Yurillo and Respondent, executed a statement typed for him by Mr. Recca in which he claims he was mistaken in his original allegations regarding Respondent's tobacco use. Scott claims he was pressured into recanting. Yurillo, Recca and Respondent claim Scott's action was voluntary. Whatever the facts regarding the withdrawal of Scott's original statement, analysis of the evidence of record indicates there is insufficient evidence to establish that Respondent used tobacco or tobacco products within a year immediately preceding his application for certification or that he falsified his application and the supporting affidavit, and it is so found.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be entered dismissing the Administrative Complaint in this matter which seeks to discipline Respondent, James M. Yingling's certification as a fire fighter. RECOMMENDED in Tallahassee, Florida this 9th day of April, 1992. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-4458 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: - 3. Accepted and incorporated herein. Accepted as the testimony of the witnesses. Not necessarily accepted as true. Rejected as testimony of Mr. Scott not considered credible. Accepted. For the Respondent: None received. COPIES FURNISHED: Elizabeth J. Gregovits, Esquire Office of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Michael J. Mortell, Esquire 2801 E. Ocean Blvd., Suite 2A Stuart, Florida 34996 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neill General Counsel Department of Insurance The Capitol, Plaza Level - 11 Tallahassee, Florida 32399-0300
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.
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.
Findings Of Fact In the fall of 1976, James McKnight was fire chief for respondent City of Lauderhill. At that time there was a vacancy in respondent's fire department for a fire lieutenant. Respondent's mayor gave Chief McKnight a list of three names which had been given to the mayor by the civil service board. The mayor told the fire chief to pick a person from the list for the fire lieutenant position and said "that he had been advised that the lieutenants were not eligible or allowable to belong to the union." (R17) The names on the list were those of Messrs. Scheiblich, Farmer and Schwartz, in that order, all of whom worked for respondent as firefighters. On September 30, 1976, Chief McKnight summoned Mr. Scheiblich to his office and discussed promoting him to fire lieutenant. The fire chief told Mr. Scheiblich that he could not be active in the union while service as a fire lieutenant and that he would have to resign from the union at the conclusion of his probationary period as a fire lieutenant. Mr. Scheiblich answered that he was under the impression that, although he would have to leave the bargaining unit, he could remain an active member of the union, but that, if a promotion would require his leaving the union, he would rather forego the promotion and remain a member of the union. Chief McKnight said he would consult the city attorney for his advice on whether Mr. Scheiblich's promotion would require his resignation from the union. Chief McKnight telephoned the city attorney, Mr. Titone, who told him that Mr. Scheiblich's serving in the rank of fire lieutenant would necessitate his resigning from the union. This advice was based in part on PERC's decision in its Case No. 8H-RC-756-1240. In that case, On June 23, 1976, PERC voted two to one to exclude fire lieutenants from the bargaining unit; because, as was subsequently explained, in the written order entered in Case No. 8H-RC-756-1240 on October 4, 1986, "the lieutenants manage the men on a day-to-day basis and will provide the basic input for promulgating and evaluating collective bargaining proposals submitted during negotiations." Although the record does not reflect that respondent had made a separate application for determination of the managerial or confidential status of fire lieutenants, respondent's attorney acted in good faith in advising Chief McKnight that Mr. Scheiblich would not be eligible for promotion to fire lieutenant if he was unwilling to resign from the union; and Chief McKnight acted in good faith in following Mr. Titone's advice. Acting on instructions from the mayor, whom he had apprised of the situation, Chief McKnight next interviewed Mr. Farmer. Among the questions he asked Mr. Farmer was one "about having to get out of the union in order to be able to accept lieutenant's promotion; and he said, it was all right with him" (R19) After this interview, Chief McKnight recommended Mr. Farmer's promotion, just as he had earlier recommended Mr. Scheiblich's promotion. The mayor was pleased with Mr. Farmer's selection. He nevertheless told the fire chief to interview the only other person listed, Mr. Schwartz, which Chief McKnight did even though he "couldn't see the necessity." (R29) The question of fire lieutenants' union membership came up in the Schwartz interview, too, and Chief McKnight indicated he was relying on what he had been told by the mayor and by the city attorney. At the time of these events, Mr. Scheiblich was union president and Mr. Schwartz was secretary-treasurer of the union. Chief McKnight and Mayor Cipolloni were aware of this because a letter from Mr. Schwartz, dated August 16, 1976, had so informed them. After Chief McKnight had interviewed Mr. Scheiblich for the fire lieutenant's job, he saw for the first time and read a petition signed by most of the firemen in respondent's employ, including all three persons listed as possibilities for promotion to fire lieutenant. This petition was critical of the management of the fire department, and "was a pretty strong petition. It was ultimately very successful. It got [Chief McKnight] fired." (R18) After reading the petition, Chief McKnight was unsure how long he would remain fire chief, and he told Mr. Scheiblich "to just sit tight [because Chief McKnight] wasn't going to do anything about promoting somebody to lieutenant until [he] was sure whether [he] was still working [for the fire department himself]." (R18-19) The firemen's petition upset Chief McKnight, but did not influence his recommendations for fire lieutenant. Chief McKnight withdrew his recommendation that Mr. Scheiblich be promoted to fire lieutenant, because Mr. Scheiblich would not agree to resign from the union, which respondent's mayor and city attorney had advised Chief McKnight would be necessary. Chief McKnight recommended that Mr. Farmer be promoted to fire lieutenant because his name was next on the list and because Mr. Farmer had no objection to resigning from the union at the end of a probationary period as fire lieutenant. Chief McKnight did not recommend that Mr. Schwartz be promoted to fire lieutenant because he had already recommended Mr. Farmer for the position, and Mayor Cipolloni had indicated he was going to accept the recommendation that Mr. Farmer be promoted. Mr. Farmer was in fact promoted to fire lieutenant, while Messers. Scheiblich and Schwartz were not. The case file reflects that the union filed unfair labor practice charges against respondent and mailed a copy to respondent's counsel on October 8, 1976. In addition to alleging that the circumstances surrounding the promotion of Mr. Farmer amounted to an unfair labor practice, the union alleged that respondent's mayor, Eugene Cipolloni, had sent two letters and made a public statement that constituted unfair labor practices. On or about October 13, 1976, Eugene Cipolloni, respondent's mayor, gave Chief McKnight a verbal directive to change the fire department's temporary shift exchange policy, effective November 1, 1976. Even though respondent's city council had adopted the policy on August 13, 1976, as its Resolution No. 572, the mayor felt a memorandum under the fire chief's signature should suffice to alter the policy. Before the change, the procedure was that a fireman who wanted another fireman to fill in for him made his request in writing and secured the signature of the proposed substitute. These requests then went up through the chain of command and were routinely granted. On one occasion, a fire lieutenant failed to report as a substitute, after agreeing to do so. Since the change in policy, temporary shift exchanges have only been allowed in cases of illness or in other emergencies. This change in policy was ordered by Mayor Cipolloni in retaliation for the filing of the unfair labor practice charges, although ensuring a full complement on each shift was the ostensible reason for the change in policy. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which appears as an appendix to the order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent restore and reestablish the temporary shift exchange policy which obtained before the memorandum posted on October 13, 1976, changed the policy, effective November 1, 1976. DONE and ENTERED this 29th day of July, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: William E. Powers, Jr., Esq. General Counsel Public Employees Relations Commission 2003 Apalachee Parkway Suite 300 Tallahassee, Florida 32301 Anthony J. Titone, Esq. City Attorney City of Lauderhill 6299 West Sunrise Boulevard Ft. Lauderdale, Florida 33313 Robert A. Sugarman, Esq. Post Office Drawer 520337 Miami, Florida 33121 APPENDIX The charging party's proposed findings of fact have been adopted, in substance, insofar as relevant, with these exceptions: There was only one opening for fire lieutenant. Chief McKnight had the authority to select the person for promotion only in the sense that he had authority to recommend somebody for promotion. Some of the details of the temporary shift exchange policy set forth in the last paragraph of page four of the charging party's proposed fact findings were recited by Mr. Schwartz in the course of examining witnesses but were not established as part of the evidence adduced at the hearing. Respondent's proposed fact findings Nos. 1, 3(b), 3(d), and 3(f)-(h), have been adopted, in substance. Respondent's proposed fact findings Nos. 2(a)-(e) have been rejected because the evidence as a whole persuaded the hearing officer that the change in temporary shift exchange policy was in retaliation for the filing of unfair labor practice charges. Both the mayor and the fire chief testified that the change was ordered by the mayor himself and that the fire chief merely carried the mayor's order out. The procedure by which the previous policy had been adopted was not followed in amending the policy. The change came at a time of upheaval, after a period of "rumors and commotion," (R19), and at a time when the mayor had just been accused of personally committing unfair labor practices. The mayor's demeanor at the hearing and the evasive manner in which he answered Mr. Schwartz's questions contributed significantly to the hearing officer's conclusion: In testifying, the mayor essentially took the tack that there had been change in the temporary shift exchange policy. The only credible testimony concerning shortcomings under the original policy concerned a single instance in which a fire lieutenant had failed to show up for a shift he had agreed to work, for which dereliction he had been disciplined. Respondent's proposed fact findings No. 3(a) and 3(c) have been rejected because the evidence showed that respondent failed to promote Mr. Scheiblich because he would not agree to resign from the union at the end of a probationary period as fire lieutenant. Respondent's proposed fact finding No. 3(e) has been rejected because Chief McKnight had also been advised by the mayor and the city attorney on the question of the fire lieutenants' managerial status.
The Issue Should Petitioner's application for Class 0701 and Class 0704 Fire Equipment Dealer license and Class 0901 and Class 0904 Fire Equipment permit be granted?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of issuing licenses and permits under Chapter 633, Florida Statutes, and enforcing the provisions of Chapter 633, Florida Statutes. By Final Order dated September 8, 1993, the Department revoked all licenses and permits previously issued to Petitioner under Chapter 633, Florida Statutes, for a period of five years. During this revocation period Petitioner was prohibited from engaging in any type of business requiring a license or permit under Chapter 633, Florida Statutes. After the revocation period expired, Petitioner filed an application with the Department for the issuance of a Class 0701 and Class 0704 Fire Equipment Dealer License and a Class 0901 and Class 0904 Fire Equipment Permit. By letter of denial dated December 30, 1998, the Department advised Petitioner that the Department was denying Petitioner's application for licensure on the basis that Petitioner had conducted business contrary to the provisions of the Department's Final Order dated September 8, 1999. Subsequently, the Department moved to amend its initial letter of denial dated December 30, 1998. The motion was granted and this matter proceeded forward on the amended letter of denial. The amended denial letter provided in pertinent part as follows: Investigation of your activities during the period of revocation resulted in a determination that you have conducted business contrary to the provisions of the Department's Final Order issued September 1993, therefore your request for licensure has been reviewed and must be denied. You continued to engage in the business of servicing, repairing and inspecting preengineered systems without being licensed by soliciting companies for the purposes of servicing their preengineered systems and by making arrangements with Rogers Fire Protection of Dade City, Florida for the performance of these services, and then by receiving a payment or "kickback" for the servicing of these extinguishers and systems. You also continued to engage in the business of servicing, repairing and inspecting fire extinguishers and preengineered systems without being licensed by supervising and training employees who service, repair, inspect and/or install fire extinguishers and/or preengineered systems. The amended denial letter also advised Petitioner that such activity was in violation of Section 633.061(1), Florida Statutes. At all times pertinent to this proceeding, Petitioner was co-owner of Canady CO2 Gas Co. and Canady Fire Equipment Co.(Canady Co.) located in Lakeland, Florida. Richard Dawley was co-owner of Canady Co. with Petitioner from October 1996 through 1997. During the years 1996 and 1997, Daniel Dawley, Billy Benton, and Todd Gardner were employed by Canady Co. During the years of 1996 and 1997, all of the employees of Canady Co. and Richard Dawley were licensed by the office of the State Fire Marshall pursuant to Chapter 633, Florida Statutes which allowed all of them to engage in the business of servicing portable fire extinguishers. During the years 1996 and 1997, neither the owners nor any of the employees of Canady Co. were licensed to service, test, inspect, repair, and install preengineered fire systems. During the years 1996 and 1997, Canady Co. sold and delivered C02 cartridges. Before Petitioner's licenses and permits were revoked by Final Order dated September 8, 1993, Petitioner engaged in the business of testing, servicing, inspecting, and repairing preengineered fire systems. During this period of time, Petitioner established customers with whom he maintained contact with after his licenses and permits were revoked. During the years 1996 and 1997, Canady Co. ran an advertisement in the yellow pages which advertised "Automatic Kitchen Hood Fire Systems, Kitchen Hoods Installed W/Exhaust Fans, Kitchen Hoods & Exhaust Ducts Cleaned, and Kitchen Hood Filters." Petitioner sold this type fire equipment but was not licensed to test, install, repair, service, or inspect such equipment. There is nothing in the advertisement to indicate that Petitioner was licensed to test, install, repair, service, or inspect such fire equipment. There was no evidence that any potential customer or former customer of Petitioner would assume, based on the language of the advertisement, that Petitioner was licensed to test, install, inspect, service, or repair such equipment. Likewise, during the period of revocation, Petitioner did not advise any former customer or potential customer that he was licensed to test, install, repair, service, or inspect fire systems. During 1997, Roy Rogers, owner of Rogers Fire Protection, was licensed to test, install, repair, service, and inspect fire systems. During 1997, Roy Rogers and Petitioner entered into an agreement whereby Petitioner would refer customers to Rogers whose fire systems needed testing, repairing, servicing, or inspection. Roy Rogers would perform this work under his license and bill Petitioner for his regular fee. Petitioner would then bill his customer for the amount charged by Roy Rogers plus a referral fee. The invoice submitted by Petitioner to the customer did not indicate that Roy Rogers had performed the work or that the customer was being charged a referral fee by Petitioner. Upon being paid by the customer. Petitioner would pay Roy Rogers and retain the referral fee. By invoice number 10288 dated May 22, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Range Guard 2.5 gallon Fire Suppression System for Dockside Lounge, Lakeland, Florida. By invoice number 00260 dated June 2, 1997, Canady Fire Equipment Co. billed Dockside Lounge, Lakeland, Florida $80.00 for services rendered by Rogers which included Petitioner's referral fee of $25.00. Petitioner's referral fee was not stated separately on the invoice. By invoice number 10286 dated May 22, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Kiddle HDR-25 Fire Suppression System for Lakeside Baptist Church, Lakeland, Florida. By invoice number 00258 dated June 2, 1997, Canady Fire Equipment Co. billed Lakeside Baptist Church, Lakeland, Florida $80.00 for services rendered by Rogers which included Petitioner's referral fee of $25.00. Petitioner's referral fee was not stated separately on the invoice. By invoice number 10287 dated May 22, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Safety First ARS-15C Fire Suppression System for Dove's Nest, Lakeland, Florida. By invoice number 10285 dated May 22, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Ansul R-102 3-gallon Suppression System for Brothers Bar-B-Q, Lakeland, Florida. On May 27, 1997, Petitioner issued a check in the amount of $220.00 to Rogers Fire Equipment. Although the check does not state which invoice(s) are being paid, the amount equals the total of invoices numbers 10285 through 10288. By invoice number 10294 dated May 27, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Ansul R-101 Fire Suppression System for Silver Ring Cafe, Lakeland, Florida. By invoice number 10319 dated June 13, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Range Guard 6-gallon Fire Suppression System for the Elks Lodge, Lakeland, Florida. By invoice number 10320 dated June 13, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Range Guard 2.5-gallon Fire Suppression System for the Plantation Café, Lakeland, Florida. By invoice number 10343 dated June 27, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Range Guard 2.5-gallon Fire Suppression System for Grace Lutheran Church, Lakeland, Florida. On June 2, 1997, Canady Fire Equipment issued a check to Rogers Fire Protection in the amount of $155.00. On June 17, 1997, Canady Fire Equipment issued a check to Rogers Fire Protection in the amount of $122.50. By invoice number 10327 dated June 20, 1997, Rogers Fire Protection billed Canady Fire Equipment $105.00 for inspecting and servicing a Range Guard 2.5-gallon Fire Suppression System and for labor and material for Jackie's Caribbean Cuisine, Auburndale, Florida. By invoice number 10328 dated June 21, 1997, Rogers Fire Protection billed Canady Fire Equipment $140.00 for inspecting and servicing a Range Guard 2.5-gallon Fire Suppression System and other labor for other worked performed for Citrus Woods Property Owner's Association, Lakeland, Florida. By invoice number 00400 dated June 21, 1997, Canady Fire Equipment billed Citrus Woods Property Owner's Association $359.90 for services rendered by Rogers Fire Protection which apparently included Petitioner's referral fee. By check dated June 24, 1997, Canady Fire Equipment paid Rogers Fire Protection $245.00 which covered invoice numbers 10327 and 10328. By Fax dated May 15, 1997, Petitioner advised Rogers Fire Protection that Star Foods, Winter Haven, Florida; Chings Place, Lakeland, Florida; Touchdown Eddie's, Lakeland, Florida; Silver Ring Café, Lakeland, Florida; Dove's Nest, Lakeland, Florida; Brothers Bar-B-Q. Lakeland, Florida; and Dockside Lounge, Lakeland, Florida were systems to be serviced and invoiced to Canady Fire Equipment Co. Additionally, Petitioner advised Rogers that each of the above customers had been advised that Petitioner was sending someone to service their systems and that Rogers was to remind the customer that he was doing the work for Petitioner. Petitioner also advised Rogers that Petitioner would invoice the customers for the work. There is insufficient evidence to show that Petitioner supervised or trained employees or Richard Dawley on the servicing or repair of portable fire extinguishers during the time that he was not licensed by the Department, notwithstanding the testimony of Richard Dawley and Daniel Dawley to the contrary of which I find lacks credibility. There is insufficient evidence to show that Petitioner allowed the unlicensed employees of Canady Co to tag fire extinguishers or used another company to certify fire extinguishers, notwithstanding the testimony of Richard Dawley and Daniel Dawley to the contrary of which I find lacks credibility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance enter a final order denying Petitioner's application for the issuance of Class 0701 and Class 0704 Fire Equipment Dealer license and Class 0901 and Class 0904 Fire Equipment permit. DONE AND ENTERED this 30th day of September, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1999. COPIES FURNISHED: Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-00300 Robert Paine, Esquire 914 South Florida Avenue Lakeland, Florida 33803 Mechele R. McBride, Esquire Department of Insurance and Treasurer 200 East Gaines Street Tallahassee, Florida 32399-0333
The Issue The central issue in this case is whether Respondents committed the violations alleged in the amended administrative complaint, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating fire extinguisher dealers. Respondent, Ricardo Cabrera, holds a fire extinguisher permit class 03 license (No. 109176000192) and is the qualifier for the company, B.C. & A.B.C. Fire Extinguisher Maintenance (license No. 702193000190 - Fire Extinguisher Dealer Class "C"). At all times material to the amended administrative complaint, Carlos Javier Gonzalez-Clavell was employed by Respondent but was not licensed or permitted to service fire extinguishers. In August, 1995, Respondents were placed on probation for a period of two (2) years. A special condition of Respondents' probation required Ricardo Cabrera to supervise all activities undertaken by the company to insure its employees complied with all regulations. In response to a complaint unrelated to the quality of Respondent's work performance, Ms. Barrow directed an investigation of the Respondent's business premises. Mr. Parks was assigned the investigation of whether Respondents were employing unlicensed workers to perform servicing or recharge of fire extinguishers. On January 29, 1996, Mr. Parks went to Respondent's place of business and observed someone loading a vehicle with fire extinguisher equipment and supplies. He also observed the male near a tank which he presumed was nitrogen. He assumed the person was recharging a fire extinguisher. During the described activity Respondent was not in sight. The person described in paragraph 7 later identified himself as Carlos Javier Gonzalez-Clavell. The vehicle being loaded belonged to Mr. Clavell. Respondent was on the business premises at all times noted above. He was out of view but supervising Mr. Clavell's activities. Mr. Clavell did not recharge fire extinguishers and was not permitted to perform license activities.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Insurance and Treasurer enter a final order dismissing the amended administrative complaint. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of February, 1997. JOYOUS D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1997. COPIES FURNISHED: Joe Demember, Esquire Division of Legal Services 512 Larson Building Tallahassee, Florida 32399-0300 Ricardo Cabrera 3340 South Lake Drive Miami, Florida 33155 Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Daniel Y. Sumner General Counsel Department of Insurance and Treasurer The Capitol, LL-26 Tallahassee, Florida 32399-0300
