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
Findings Of Fact On September 3, 1992, petitioner, James Cardova, filed an application for certification as a firefighter with respondent, Department of Insurance and Treasurer, Division of State Fire Marshal (Department). Such application included a report of medical examination which reflected that petitioner was without vision in his left eye. Indeed, the proof at hearing confirmed that due to a childhood injury, petitioner had lost the use of his left eye, and it had been replaced by a glass prosthesis. By letter of September 21, 1992, the Department notified petitioner that his application was denied because he did not meet the medical standards established by the National Fire Protection Association (NFPA) in its pamphlet NFPA No. 1001, adopted by reference in Rule 4A-37.037(4), Florida Administrative Code. Specifically, Section 2 of NFPA pamphlet No. 1001 provides: 2-2 Medical Requirements for Fire Department Candidates. The candidate shall be rejected when the medical examination reveals any of the following conditions: * * * 2-2.7.1.9 Miscellaneous Defects and Disease. The causes for rejection of appointment shall be: * * * (b) Absence of an eye. In response to the Department's letter of denial, petitioner filed a timely request for formal hearing to contest the Department's decision. Here, the gravamen of petitioner's case is his contention that, notwithstanding the absence of his left eye, he is qualified to perform the duties of a firefighter and, therefore, under the provisions of the Americans with Disabilities Act, 42 USC 12101, et seq., the Department is obligated to grant his request for certification. Regarding petitioner's abilities, the proof demonstrates that petitioner has reasonably compensated for the absence of his left eye such that its absence does not significantly limit any of his major life activities. Moreover, petitioner has satisfactorily completed all of the basic firefighting school requirements, as well as the written and practical state examination. Indeed, among the firefighting instructors who know of him, petitioner's ability to perform the skills required of a firefighter is not deemed to be adversely affected by his loss of vision in one eye.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered denying petitioner's application for certification as a firefighter. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of April 1993. WILLIAM J. KENDRICK 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 15th day of April 1993.
The Issue The issue for determination in this proceeding is whether the proposed amendment to Florida Administrative Code Rule 69A-39.005(1)(b)2.d. is an invalid exercise of legislatively granted authority in violation of section 120.52(8)(b), (c), (e), and (f), Florida Statutes (2020).
Findings Of Fact The Parties Respondent, Department of Financial Services, Division of State Fire Marshal, is headed by the Chief Financial Officer of the state, who serves as the Chief Fire Marshal pursuant to section 603.104(1), Florida Statutes. The State Fire Marshal is charged with the responsibility to minimize the loss of life and property in Florida due to fire, and to adopt rules, which must “be in substantial conformity with generally accepted standards of firesafety; must take into consideration the direct supervision of children in nonresidential child care facilities; and must balance and temper the need of the State Fire Marshal to protect all Floridians from fire hazards with the social and economic inconveniences that may be caused or created by the rules.” § 633.104(1), Fla. Stat. Petitioner is a Florida corporation authorized by the Department to offer fire certification training courses in both online and blended learning formats. A blended learning course is one that has both online and in-person components. The blended learning courses Petitioner currently offers have 37 hours of online learning and eight hours of in-person instruction to address those portions of the course that may need “hands on” instruction. Section 633.216, Florida Statutes, requires Respondent to certify fire safety inspectors, and to provide by rule for the development of a fire safety inspector training program of at least 200 hours. The program developed by Department rule must be administered by education or training providers approved by the Department for the purpose of providing basic certification training for fire safety inspectors. § 633.216(2), (8), Fla. Stat. Current Certification Requirements Section 633.406 identifies several certifications in the fire safety arena that may be awarded by the Division of State Fire Marshal: firefighter, for those meeting the requirements in section 633.408(4); fire safety inspector, for those meeting the requirements in section 633.216(2); special certification, for those meeting the requirements in section 633.408(6); forestry certification, for those meeting the requirements of section 590.02(1)(e); fire service instructor, for those who demonstrate general or specialized knowledge, skills, and abilities in firefighting and meet the qualifications established by rule; certificate of competency, for those meeting certain requirements with special qualifications for particular aspects of firefighting service; and volunteer fire fighter certifications. In order to become a fire safety officer, an applicant must take the courses outlined in rule 69A-39.005, and pass an examination with a score of 70% or higher. The five courses as listed in the current version of rule 69A- 39.005 are Fire Inspection Practices; Private Protection Systems; Blue Print Reading and Plans Examinations (also known as Construction Documents and Plans Review); Codes and Standards; and Characteristics of Building Construction. The Rulemaking Process On November 5, 2015, the Department held the first of a series of rule workshops and “listening sessions” as it began the process for making changes in the certification program for fire safety inspectors.1 These workshops and listening sessions were held on November 5, 2015; July 10, 2016; November 10, 2016; January 17, 2017; August 8, 2018; November 8, 2018; and October 29, 2019. As described by Mark Harper, who is now the assistant superintendent of the Bureau of Fire Standards and Training at the Florida State Fire College, the Bureau conducted the first few listening sessions to hear the industry’s view on what changes were needed, followed by drafting proposed rule language and conduct of rule workshops. 1 Curiously, neither party introduced the notices for any of these workshops or listening sessions, so how notice was provided to interested persons wanting to give input on possible changes cannot be determined. The first workshop/listening session was conducted on November 5, 2015, in Palm Beach Gardens, and was moderated by Mark Harper. At this workshop, a variety of comments were received regarding the quality of the existing program and the quality of the fire safety inspectors being certified. Those comments included the need for more field training and more hours of instruction; suggested use of a “task book” in training; the view that classes should be taught by more experienced inspectors, not just people who have passed the classes; and the need for more practical training. The view was expressed by at least one attendee that the quality and method of delivery needed to be examined, and that Codes and Standards and Construction Documents and Plans Review should not be taught online. In December 2015, Tony Apfelbeck, the Fire Marshal for Altamonte Springs, provided to Mr. Harper proposed draft revisions to chapter 69A-39, which included increasing the number of training hours to 315 hours (as opposed to the 200 hours required by section 633.216), and requiring use of a task book, as well as other changes. The draft did not include any language regarding course methodology in terms of classroom, online, or blended format classes. At the next workshop, held July 10, 2016, a draft proposal was provided to the audience, but it is not clear whether the draft provided is the one Mr. Apfelbeck suggested or something else. Concerns were expressed regarding the implementation of the use of a task book, and at least one speaker speaking against the suggested changes opined that the changes suggested in the draft would cost more money. Another commented that increasing the hours may not help the issue. Instead, there should be a greater emphasis on the quality of the educational delivery, and that instruction needed to be tied more closely to field work. Late in the workshop, comments were made regarding online and classroom delivery, and it was suggested that some classes should not be held online. While the drafts that were provided at the various workshops are not in the record, at some point, language was added that would require two of the five courses for fire safety certification, i.e., Codes and Standards and Construction Documents and Plans Review, be taught in a traditional classroom setting only. The subject of online classes was discussed more thoroughly at the next workshop held November 10, 2016. During this workshop, there were comments both in favor of and against the use of online classes. While the speakers cannot always be identified from the recordings of the workshops, some attendees stated that some of the online providers were doing a really good job, and the concern was raised that if online classes were eliminated, it might be an exchange of convenience for quality.2 At least one person expressed the opinion that the speaker was not a fan of online classes, and Mr. Harper suggested that blended learning might be a way to meet some of the concerns expressed, and that the method of delivery would be up to the institution. Others who participated in the workshop spoke highly of blended classes. The remaining workshops also had discussions regarding the online class change, as well as other changes in the proposed rule. Opinions were voiced on both sides of the issue. The primary source of comments seeking a traditional classroom setting only were fire marshals at various municipalities around the state concerned about the need for “hands-on” training and the current lack of preparation encountered with new staff. On July 10, 2019, the Department filed a Notice of Proposed Rules for rules 69A-39.003, 39.005, and 39.009. The proposed rule amendments included the following amendment to rule 69A-39.005(1)(b)2.d.: d. The courses “Codes and Standards” and “Construction Documents and Plans Review” 2 The identity of the speakers is not important, and the comments are not relayed for the truth of the statements made. They are listed simply to show that the Department heard several viewpoints during these listening sessions. required under this paragraph (1)(b) will only be approved by the Bureau when taught in a traditional classroom delivery method. No definition for “traditional classroom delivery method” is provided. On January 15, 2020, Respondent conducted a public hearing on the proposed rule. As was the case with the workshops, people voiced both support and opposition to the proposal to require a traditional classroom setting for the Codes and Standards and Construction Documents and Plans Review courses. Counsel for Petitioner appeared and spoke against the proposed language to eliminate online and blended learning for the two classes, and asked whether any type of data existed to support the change in the rule, or whether any type of study had been conducted to gauge the need for the change. Respondent’s representative stated that the proposed language was based upon “extensive testimony” from employers requesting the change. Counsel also asked that Respondent consider defining what is meant by traditional classroom delivery. No such definition has been added to the rule. The Notice of Proposed Rule does not include a Statement of Estimated Regulatory Costs. Instead, it states: The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency. The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The Department’s economic analysis of the potential impact of the proposed rule amendments determined that there will be no adverse economic impact or increased regulatory costs that would require legislative ratification. Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so within 21 days of this Notice. Petitioner addressed the increased costs under the proposed rule during at least one of the workshops. There is no evidence, however, that Petitioner submitted, in writing, a proposal for a lower cost regulatory alternative within 21 days of the Notice of Proposed Rule. On January 27, 2020, Petitioner filed its Petition to Challenge Specific Changes to Proposed Rule 69A-39.005(1)(b)2.d. The Petition is timely filed. Current Online Providers and Course Review Process As of April 10, 2020, there are approximately 20 organizations approved by the Bureau of Fire Standards and Training that offer distance learning delivery for courses in programs leading to a certification pursuant to rule 69A-37.605. Of those providers, two are approved to teach Codes and Standards and three are approved to teach Construction Documents and Plans Review. In addition, as of June 1, 2020, there are 13 state colleges and/or universities in Florida also approved to provide distance learning. Of those, ten are approved to offer Codes and Standards, and ten are approved to offer Construction Documents and Plans Review. Petitioner has been approved to teach these two courses in a blended format since at least 2015. It also has articulation agreements with some educational institutions, including Waldorf University in Iowa, and Columbia Southern University in Alabama. The Department previously sought to take action against Ricky Rescue related to the type of courses taught, although the statutory basis for taking action against Ricky Rescue is not part of the evidence presented in this proceeding. The Consent Order entered to resolve the prior proceeding expressly provides, “Respondents agree that they will not offer any on-line courses until such time as they obtain approval from the Bureau, which will not be unreasonably withheld.” In order to be approved to teach any of the courses for certification in an online or blended format, a provider is required to go through an extensive review process. Initially, Respondent used a Quality Matters Higher Education Rubric to evaluate the courses a provider sought to offer. Course approvals initially took anywhere from four months to a year and a half to meet the standards and be approved. Respondent no longer uses the Quality Matters rubric, because it has transitioned to the accreditation process used by the Southern Association of Colleges and Schools. With this change, the length of time for class approvals has shortened considerably. Susan Schell used to be the Department’s Training Programs Manager and was in charge of the review and approval of classes for online learning. She has since moved on to another position within the Department. Ms. Schell would take the submitted course herself, view the different videos and discussion boards, and work through some of the projects, as well as review some of the case discussions and questions. Ricky Rescue’s courses that she reviewed met all of the state requirements to be approved. According to Ms. Schell, classes taught in the traditional format did not go through the same review process. Ricky Rescue’s accreditation verification from AdvancED Southern Association of Colleges and Schools Council on Accreditation and School Improvement indicated that Ricky Rescue’s accreditation was confirmed on March 31, 2017, for a five-year term expiring June 30, 2022. There is no credible dispute regarding whether Ricky Rescue complies with the requirements for offering its courses in a blended format. The report of the external review team prepared by AdvancED Education, Inc., noted that the school’s website is exemplary and stated in its conclusions: Once a month, students attend a day on site blended learning instruction where students can collaborate and complete and present projects. Given that the owners are brother fire fighters, there is a genuine feeling of camaraderie and collegiality. It is apparent to the Team that the Ricky Rescue Training Academy is an ideal institutional opportunity to obtain classes for firefighter training and certification classes. … The school has embraced the continuous improvement model to insure that they continue to deliver high quality online educational programs with rigor, relevance, and fidelity. Two Different Views Petitioner and Respondent approached the proposed rule amendment, both at the workshops and public hearing conducted by the Department and at the hearing in this proceeding, from different perspectives. Ricky Rescue focused on the needs and opinions of students seeking to take the courses. Its witnesses testified that the blended courses had significant substantive content; that the in-person component gave the necessary opportunity for completion of group projects and hands-on instruction or field trips; and that the ability to complete the course at any time during a 30-day period was essential in terms of both costs and scheduling for the student, and completing the classes while managing job and family responsibilities. For example, Ryan Russell has worked for over ten years in the fire service and is a battalion chief for the Haines City Fire Department. He has a variety of certifications and oversaw the training division for his department. Mr. Ryan has taken five courses from Ricky Rescue, and speaks highly of them. Mr. Ryan agrees that there are some advantages to traditional classroom settings, because they provide more opportunities for engagement, but that ultimately, a class is only as good as the instructor. Similarly, Robert Morgan is also a battalion chief at another fire department, and took Documents and Plans Review from Ricky Rescue. Mr. Morgan believed that the online blended course is just as good as a traditional classroom setting, and believes that in the blended setting, a student has to work harder than just sitting at the back of the classroom. Both men spoke of the convenience and accessibility that online learning provides that a traditional classroom does not. Matthew Trent also testified in favor of the availability of online and blended courses. Mr. Trent has a master’s degree in public administration and is a Ph.D. student in public policy administration. He is also a certified state firefighter II; pump operator; Fire Officer I, II, III, and IV; fire inspector I and II; fire investigator I; and fire life safety educator I. About half of Mr. Trent’s certifications have been based on classes taken online, and all of his classes for his masters’ and doctoral degrees have been online. Mr. Trent felt both courses at issue could be taught in an online format, and stated that both as a student and as an instructor, it is up to the student to choose the delivery method by which they want to learn. If not for online learning, he would not have been able to accomplish nearly as much in his professional life, because distance learning gives the student the ability to work around other responsibilities. The Department, on the other hand, was influenced more heavily by (and sought information from) the fire safety officials across the state who employ fire safety inspectors. Many of those officials spoke at the public workshops and some testified at hearing. The major concern voiced by these officials was that new fire safety inspectors certified by the state were not really prepared to do their job. Although most acknowledged that some on the job training would always be necessary to deal with local codes and ordinances that are not part of the state curriculum, they felt that new inspectors did not have a good grasp of the concepts necessary to be effective, especially with respect to the skills taught in the classes at issue in this case. For example, Anthony Apfelbeck is the Director of the Building and Fire Safety Department for the City of Altamonte Springs. He has worked in that department for approximately 20 years and served as Fire Marshal for a significant portion of his tenure there, and served in other cities as well. Mr. Apfelbeck has an impressive array of certifications and currently supervises approximately eight fire safety inspectors. He attended almost all of the workshops and was an active participant. Mr. Apfelbeck testified that he concurred with the State Fire Marshal’s Association that both classes should be offered only in a traditional classroom environment. He stated that there is a limited period of time to get someone trained and certified as a fire safety inspector, and he has seen some of the deficiencies in the current training. In his view, requiring these two classes to be given in a traditional classroom environment allows the instructor to keep the student engaged, and to get into critical thinking with probing questions and real-life examples. Instructors can have interactions with students that address issues the students may be having in the students’ jurisdictions, and read the body language of the students to gauge involvement. He also spoke of the ability to develop relationships with other individuals in the class and develop a peer group within that body. Mr. Apfelback has used the virtual environment extensively during the COVID-19 pandemic, and does not feel that it has the spontaneity and free- flow of information that a traditional classroom affords. Mr. Apfelbeck has not taken any of Ricky Rescue’s classes, and does not know what it has done to make sure its students get 200 hours of education. Likewise, he is not aware of the review Ricky Rescue went through to get its courses approved. He stated, correctly, that the rule is not written specifically about Ricky Rescue’s programs. It is written for all educational programs that are provided pursuant to this rule. Michael Tucker is the assistant superintendent for the State Fire Marshal’s Office. His experience includes serving as battalion chief for the Reedy Creek Improvement District (i.e., Disney) for 13 years, and serving as the Chief of the Fire Department for the Villages for 13 years. He has taught fire safety classes both in the classroom setting and online. While at Reedy Creek, he was the training officer responsible for providing training to fire inspectors, firefighters, paramedics, and EMTs. Mr. Tucker believes that the two classes addressed in the proposed rule are very intricate classes with a lot of detail. He believes that the traditional environment gives more opportunity for students to get hands-on instruction and have more interaction with the instructor. He acknowledged that there is a possibility that fees could increase under the proposed rule, but thinks that the increased cost is outweighed by the value that employers would get when they hire people trained in a classroom setting. Cheryl Edwards is the Fire Marshal for the City of Lakeland, and her views regarding traditional versus online learning are similar to those already expressed. She believes that the traditional classroom environment promotes collaborative learning and enhances critical thinking skills, through live discussions, and the need to think on your feet. She also felt that in person, an instructor is better able to gauge students’ learning styles and provide activities and modalities for all to learn, regardless of learning style. Ms. Edwards believes that the traditional classroom setting allows for more “teachable moments,” and guided practice before a student has to put that knowledge into use. Finally, David Abernathy is the Fire Chief of the City of Satellite Beach and has worked with the City for 35 years. Mr. Abernathy has an impressive list of certifications and has taught all five of the courses necessary for fire safety inspector certification, but has never taught them in an online or blended learning format. Mr. Abernathy believes that for these two courses there is a benefit to the traditional classroom setting. He believes that both classes need a hands-on approach to be the most effective. Mr. Abernathy also believes that requiring these two courses to be taught in a traditional classroom setting will cost more, but as an employer is more willing to pay for it than for online classes. Mark Harper testified that during the workshops, the Department wanted to hear from everyone, because all would be impacted by the changes. However, he believes that there is a heavier weight of responsibility on employers as opposed to students, because they are the ones trying to fill positions, and they are the ones having to deal with additional costs occasioned by failures in training. As a practical matter, employers are more cognizant of the potential liability jurisdictions face when a fire safety inspector, who looks at everything from mom and pop businesses to industrial sites with large containers of hazardous materials, is not adequately trained. The decision to go forward with the proposed rule amendment requiring a traditional classroom delivery method with respect to Codes and Standards and Construction Documents and Plans Review is based on the feedback received through the workshop process. It is not based on data. The Department does not track how students who took certification classes online or in a blended format score on the certification examination as opposed to students who took the same classes in a traditional setting. It would be difficult to collect that type of data, because there is no requirement that a student take all five courses the same way. In preparation for the hearing in this case, the Department conducted a survey of employers regarding their views on traditional versus distance learning. The Florida Fire Marshals and Inspectors Association distributed the survey to its members, and of the 358 addressees, 114 responded. There was no evidence to indicate that the Department attempted to survey people taking the classes. The questions asked in the survey were quite limited, and frankly, provide no guidance because they provide only two alternatives, and do not address blended learning formats at all. There are three questions, and they are as follows, with the responses in parentheses: Is there is current need to increase the proficiency of newly certified Firesafety Inspectors in Florida? Yes (59.65%) No (16.67%) Neutral opinion (12.68%) When a prospective Firesafety Inspector attends a Codes and Standards class, which class setting would produce a more proficient inspector? Traditional classroom delivery method (71.17%) Online (distance learning ) delivery method (9.91%) Neutral opinion (18.92%) When a prospective Firesafety Inspector attends a Construction Documents and Plans Review Class, which class setting would produce a more proficient instructor? Traditional classroom (76.32%) Online (7.02%) Neutral opinion (16.67%) Questions two and three assume that one format must be better than the other, rather than allowing for the possibility of equivalency. Had there been some recognition of a blended learning format, the answers might be different. The survey was informative in terms of the comments that were provided by the respondents. Similar to the views expressed at the workshops, there were strong opinions both in favor of limiting the classes to the traditional setting, and strong opinions advocating for the option of online learning. Petitioner presented information related to the increased costs that will be incurred should the rule go in effect. Those costs include the need for space rental for five-day periods in order to teach in multiple locations; the costs related to conversion of the material to a classroom setting versus online; and the need to pay instructors for more days each time the course is taught. It does not appear from the evidence presented that Ricky Rescue would experience increased costs of $200,000 in one year. However, Ricky Rescue is just one provider, and section 120.54 speaks in terms of an increase in costs in the aggregate, meaning as a whole. It is not known whether the other approved providers who teach these two courses will continue to do so should the rule be amended to require a classroom setting. It is also unknown what types of costs would be borne by state colleges and universities in order to recast the courses for traditional classroom settings. Finally, the litigants to this proceeding were well aware that this rule was being developed and was noticed as a proposed rule before the world began to deal with the COVID-19 pandemic. It is open to speculation whether some of the impetus to require a traditional classroom setting would have changed in light of the changes society has had to make over the last six months. Department employees were questioned regarding the Fire College’s response to the pandemic, and both Mark Harper and Michael Tucker testified about the precautions being taken on the campus to insure safety, such as taking temperatures, having students complete a questionnaire regarding possible exposure, limiting the number of students per class, and spacing people six feet apart to maintain effective social distancing. Mr. Tucker testified that they would be ready to postpone some classes until they could be taught safely in person. When asked whether Respondent would consider postponing the effective date of the proposed rule, he indicated “that would be something we would have to take into consideration, and again, the feedback from our constituents, but if it became necessary, then we would consider it.”
Findings Of Fact At all times pertinent to this proceeding Respondent, Robert Hoffman, was a member of the Deltona Fire District Commission. He was elected to his office in the Deltona Fire District in November, 1992. At all times pertinent to this proceeding Theresa Cresswell was a dispatcher at the Deltona Fire District. She served as dispatcher for approximately eight years, leaving in January, 1995. On April 30, 1993, Ms. Cresswell filed Complaint No. 93-56 with the Florida Commission on Ethics, alleging that Mr. Hoffman had touched and kissed her on January 20, 1993, and on March 20, 1993. Ms. Cresswell also alleges that in March, 1993, after she had spilled water on her blouse while drinking from the water fountain that Mr. Hoffman said that he liked watching her brush the water off her blouse. JANUARY 20, 1993 INCIDENT In December, 1992, Ms. Cresswell organized a Santa Clause workshop for needy children. Mr. Hoffman had promised to provide candy canes and build the workshop for the event. He failed to keep his promise. As a result, Ms. Cresswell had to purchase the candy. On January 20, 1993, Ms. Cresswell came to the Deltona Fire Station around 9:30 p.m. to pick up some papers relating to her schoolwork. She was not on duty. Mr. Hoffman was at the fire station when she arrived. Ms. Cresswell was upset with Mr. Hoffman for his failure to provide the candy and build the workshop. She approached Mr. Hoffman in the reception area while he was talking to Robert Bell and told Hoffman that she was "pissed off at him." Mr. Hoffman acknowledged that he knew that she was upset and that he was sorry that he did not do what he had promised. Ms. Cresswell alleges that during the conversation Mr. Hoffman came to her, put his hand on her shoulder, leaned against her, kissed her on her cheek and whispered in her ear, "I'm sorry. Do your forgive me?" Ms. Cresswell's allegation that he whispered in her ear was made known for the first time at the formal hearing. Mr. Hoffman asserts that he never touched or kissed Ms. Cresswell on January 20, 1993. Robert Bell, the dispatcher who was on duty when the discussion between Ms. Cresswell and Mr. Hoffman took place, observed the discussion and described Ms. Cresswell as being upset. He did not see Mr. Hoffman kiss Ms. Cresswell on the evening of January 20, 1993. Ms. Cresswell did not tell Mr. Bell that Mr. Hoffman had kissed her. Ms. Cresswell did not make a complaint to anyone about the January 20 incident until March, 1993. Fire Chief Holland had been keeping notes about Mr. Hoffman's activities and he sent those notes to the attorney for the fire district. In those notes, he details a conversation that he had with Ms. Cresswell concerning the January 20, 1993 incident. There is no mention that Mr. Hoffman kissed Ms. Cresswell. Having observed the demeanor of the witnesses and having judged the credibility of the witnesses, I find that Mr. Hoffman did not touch or kiss Ms. Cresswell on January 20, 1993. THE WATER FOUNTAIN INCIDENT On March 20, 1993, Mr. Hoffman was attending an all day CPR class at the fire station. Ms. Cresswell was working dispatch on the 8:00 a.m. to 4 p.m. shift on that day. Ms. Cresswell alleges that she was drinking at the water fountain located in the hall of the fire station down from the room in which the CPR class was being conducted. She spilled water on her blouse and was brushing the water from her blouse when Mr. Hoffman came up to her and said, "Can I watch you do that? I like to watch you do that." Mr. Hoffman contends that the incident never occurred. There were no witnesses to the alleged incident. Timothy Brown was teaching the CPR class. He remembered Mr. Hoffman as being the only male student in the class on that day. Mr. Brown does not recall Mr. Hoffman leaving the classroom other than at the assigned breaks and at lunchtime. Mr. Brown was near the water fountain several times during the day while he used a nearby copy machine and when he drank from the fountain, but he did not see Mr. Hoffman and Ms. Cresswell together at the water fountain. When Ms. Cresswell complained to Assistant Chief Rogers on March 22, 1993 about the alleged incident of kissing which occurred either on the evening of March 20 or early morning of March 21, she did not mention the water fountain incident which allegedly occurred on March 20, 1993. When Ms. Cresswell's deposition was taken on April 12, 1993, three weeks after the alleged incident, Ms. Cresswell could not recall when the water fountain incident took place. Having observed the demeanor of the witnesses and having judged the credibility of the witnesses, I find that the water fountain incident did not occur and that Mr. Hoffman did not say, "Can I watch you do that? I like to watch you do that." THE MARCH 20-21, 1993 INCIDENT On the evening of March 20, 1993, Ms. Cresswell traded shifts with another dispatcher and reported to work at approximately 11:50 p.m. to work the midnight to 8:00 a.m. shift. Robert Bell was working the dispatch when she arrived. Mr. Hoffman was also at the fire station. Ms. Cresswell put away her purse and made coffee. As part of her duties on the midnight shift, she was responsible for erasing and rewinding the 911 dictaphone tapes. She went to the communications center, which is located adjacent to the reception area, and began to erase the tapes soon after her arrival at the fire station. While she was erasing the tapes, she, Mr. Bell, and Mr. Hoffman began talking about a storm that evening which caused a fire, destroying a local funeral home. During the discussion about the fire, they started to talk about cremation. Ms. Cresswell stated that she did not want to be cremated. Ms. Cresswell alleges that after she made the remark about cremation that Mr. Hoffman came over to her, put his hand on her shoulder, laughed, kissed her on the cheek, and said, "I hear you." At the formal hearing she could not recall whether Mr. Hoffman allegedly kissed her before or after midnight. According to Ms. Cresswell, Mr. Hoffman and Mr. Bell continued to talk about the funeral home after Mr. Hoffman kissed her. Additionally, Ms. Cresswell asserts that after Mr. Bell left the fire station that Mr. Hoffman stayed for approximately one and one half hours. Mr. Hoffman contends that he never touched or kissed Ms. Cresswell as she alleged and that he left the fire station the same time as Mr. Bell. During the conversation concerning the funeral home, Mr. Bell was in and out of the communications center. Mr. Bell did not see Mr. Hoffman kiss Ms. Cresswell as she alleged. Ms. Cresswell did not tell Mr. Bell that Mr. Hoffman had kissed her. Ms. Cresswell did not confront Mr. Hoffman concerning the alleged kiss. Donald Allen Helberg, a firefighter/EMT was present in the dispatch side of the fire station during the late evening and early morning hours of March 20 and 21, 1993, respectively. He saw Ms. Cresswell pull into the parking lot when she came to work the midnight shift. Mr. Helberg recalled Ms. Cresswell joining in the conversation that he, Mr. Hoffman and Mr. Bell were having. He also recalls seeing Mr. Bell head toward the double doors leading to the outside followed by Mr. Hoffman. Mr. Helberg was also leaving at that time to return to the firefighter section of the building. While he was present, Mr. Helberg did not see or hear anything unusual involving Mr. Hoffman and Ms. Cresswell. Sometime after March 21, 1993, Ms. Cresswell called Mr. Helberg and asked him if he remembered being present at the fire station on the night of the alleged incident. Mr. Bell left the fire station approximately ten minutes after midnight. Mr. Hoffman was walking behind Mr. Bell as he walked out the door. Mr. Hoffman was driving a red Jimmy vehicle that night. As Mr. Bell was driving out of the fire station parking lot, he observed a reddish vehicle behind him. The reddish vehicle left the parking lot after Mr. Bell, headed in the opposite direction. Mr. Hoffman lived approximately a mile and a half from the fire station. He arrived home at approximately fifteen minutes after midnight. His wife was up waiting for him when he got home. Having observed the demeanor of the witnesses and having judged the credibility of the witnesses, I find that Mr. Hoffman did not touch or kiss Ms. Cresswell either on the evening of March 20, 1993 or the morning of March 21, 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Complaint No. 93-56 against Robert Hoffman. DONE AND ENTERED this 12th day of September, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5835EC To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact. Stipulated Facts 1. Paragraphs 1-2: Accepted. Findings of Fact Paragraphs 1-3: Accepted in substance. Paragraph 4: The first two sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence. Paragraph 5: Accepted in substance. Paragraphs 6-7: Rejected as not supported by the evidence. Paragraph 8: Accepted in substance except as to the occurrence of the water fountain incident. Paragraph 9: Accepted in substance. Paragraph 10: The last sentence is rejected as not supported by credible evidence. The remainder is accepted in substance. Paragraph 11: Accepted that it is what Ms. Cresswell alleges but rejected as to that is what happened based on the credible evidence. Paragraph 12: The first part of the first sentence is accepted in substance. The last part of the first sentence is rejected as not supported by the evidence. Mr. Bell did not see Mr. Hoffman and Ms. Cresswell the entire time but that does not mean that he wasn't paying attention to them during the time that he did see them. The remainder is rejected as unnecessary. Paragraph 13: Rejected as not supported by credible evidence. Paragraphs 14-15: Rejected as subordinate to the facts found. Paragraph 16: Rejected as subordinate to the facts found as to what Ms. Cresswell believed. Rejected as not supported by the evidence as to what Mr. Hoffman believed. Paragraph 17: The first two sentences are rejected as subordinate to the facts found. The last sentence is rejected as not supported by the evidence. Respondent's Proposed Findings of Fact. Paragraphs 1-2: Accepted. Paragraphs 3-5: Rejected as unnecessary. Paragraphs 6-7: Accepted in substance. Paragraph 8: Accepted in substance as that is what Ms. Cresswell contended. Paragraphs 9-10: Rejected as unnecessary. Paragraph 11: Accepted in substance. Paragraph 12: Rejected as unnecessary. Paragraph 13: Accepted in substance. Paragraph 14: The first sentence is accepted in substance. The second sentence is rejected as unnecessary. Paragraphs 15-17: Accepted in substance. Paragraphs 18-19: Accepted that it was what Ms. Cresswell contended but rejected as not supported by credible evidence that it was what happened. Paragraph 20: Accepted in substance. Paragraph 21: Accepted to the extent that it is Ms. Cresswell's testimony. Paragraphs 22-25: Rejected as subordinate to the facts found. Paragraph 26: Accepted in substance. Paragraph 27: Rejected as unnecessary. Paragraphs 28-30: Accepted in substance. Paragraphs 31-33: Rejected as subordinate to the facts found. Paragraphs 34-37: Accepted in substance. Paragraph 38: The first sentence is rejected as unnecessary. The last sentence is accepted in substance. Paragraph 39: The first sentence is accepted in substance as that was what was alleged. The second sentence is accepted in substance. Paragraphs 40-43: Accepted in substance as that is what was alleged. Paragraph 44: Accepted in substance. Paragraph 45: Accepted in substance as that is what was alleged. Paragraphs 46-47: Accepted in substance. Paragraphs 48-49: Rejected as subordinate to the facts found. Paragraphs 50-51: Accepted in substance. Paragraph 52: Rejected as unnecessary. Paragraphs 53-56: Accepted in substance. Paragraph 57: Rejected as unnecessary. Paragraph 58-60: Accepted in substance. Paragraph 61: The first sentence is accepted in substance. The remainder is rejected as unnecessary. Paragraph 62: Rejected as unnecessary. Paragraph 63: Accepted in substance. Paragraph 64: Accepted in substance as that was what was alleged. Paragraph 65: Rejected as constituting argument. Paragraphs 66-67: Accepted in substance. Paragraph 68: Accepted in substance. Paragraphs 69-7O: Accepted in substance that the dictaphone equipment is located in the communications center. The remainder is rejected as unnecessary. Paragraph 71: Accepted in substance that she made those allegations. Paragraphs 72-74: Accepted in substance. Paragraphs 75-76: Rejected as not supported by credible evidence as that was what happened. Paragraph 77: Accepted in substance to the extent that Mr. Bell was not watching Mr. Hoffman and Ms. Cresswell the entire time of the conversation. Paragraphs 78-79: Rejected as unnecessary. Paragraphs 80-81: Accepted in substance. Paragraph 82: Accepted to the extent that she did not tell Mr. Bell of the kissing incident; otherwise rejected as not supported by the greater weight of the evidence or unnecessary. Paragraphs 83-84: Rejected as unnecessary. Paragraph 85: The first sentence is accepted to the extent that it is Ms. Cresswell's testimony. The last sentence is rejected as subordinate to the facts found. Paragraph 86: Accepted in substance that it was her testimony. Paragraph 87: Rejected as unnecessary. Paragraph 88: The first sentence is accepted in substance. The remainder is rejected as unnecessary. Paragraph 89: Accepted in substance. Paragraphs 90-99: Rejected as unnecessary. Paragraph 100: Accepted to the extent that he saw Bell heading toward the outside door, followed by Hoffman as Helberg was leaving to go to the firefighter side of the building. Paragraphs 101-104: Accepted in substance. Paragraph 105: Rejected as subordinate to the facts found. Paragraphs 106-107: Accepted in substance. Paragraph 108: Rejected as unnecessary. Paragraphs 109-111: Accepted in substance. Paragraphs 112-116: Rejected as unnecessary. Paragraph 117: Rejected as constituting argument. Paragraphs 118-125: Accepted in substance. Paragraphs 126-127: Rejected as unnecessary. Paragraphs 128-130: Rejected as constituting argument. Paragraphs 131-133: Rejected as unnecessary. Paragraph 134: Rejected as constituting argument. Paragraphs 135-137: Rejected as unnecessary. Paragraphs 138-155: Rejected as constituting argument. Paragraphs 156-262: Rejected as unnecessary. Paragraph 263: Rejected to the extent that it implies that there was a conspiracy. The evidence does not support a conclusion of conspiracy among Mr. Holland, Mr. Rogers, and Ms. Cresswell. Paragraphs 264-288: Rejected as unnecessary. Paragraphs 289-290: Rejected as not supported by the evidence. COPIES FURNISHED: Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Virlindia Doss, Esquire Advocate For the Florida Commission on Ethics Department of Legal Affairs PL-01, The Capitol Tallahassee, Florida 32399-1050 Stephen D. Milbrath, Esquire Alan, Dyer, Doppelt, Franjola & Milbrath Post Office Box 3791 Orlando, Florida 32802-3791 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The central issue in this case is whether Respondent is guilty of the violations alleged in the administrative complaint dated July 23, 1992; and, if so, what penalty should be imposed.
Findings Of Fact The Respondent filed an application for fire safety inspector certification on or about March 4, 1992. One of the questions on the application for fire safety inspector certification posed the following: Have you ever been convicted of a felony, or a misdemeanor involving moral turpitude? Respondent answered the foregoing question by marking the space before "NO." On or about March 8, 1989, Respondent was charged by information issued through the State Attorney's Office in Lake County, Florida, with aggravated assault. Aggravated assault is a felony. On or about June 2, 1989, the information referenced above was amended but continued to allege aggravated assault. On June 8, 1989, the Respondent entered a plea of nolo contendere to the offense of aggravated assault and was placed on probation for a period of three years. Adjudication of guilt was withheld at that time. Subsequently, the Respondent was discharged from probation and the proceedings in the criminal case were terminated. Respondent had completed his probation at the time his application for certification as a firesafety inspector was made. Respondent is currently certified as a firesafety inspector, certificate number FI-66318. Additionally, Respondent is employed as a firefighter with the Reedy Creek Fire Department. Subsequent to the receipt of Respondent's application for certification, the Department requested information from the Florida Department of Law Enforcement and the Federal Bureau of Investigation regarding Respondent's criminal record. The information received from those sources led to the discovery of the facts addressed in paragraphs 3, 4, 5, and 6 above and the initiation of these proceedings.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Insurance and Treasurer enter a final order revoking Respondent's certification as a firesafety inspector. DONE AND RECOMMENDED this 27th day of January, 1993, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 27th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4921 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 11 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: None submitted. COPIES FURNISHED: Joseph Egan, Jr. EGAN, LEV & SIWICA, P.A. Post Office Box 2231 Orlando, Florida 32802 Daniel T. Gross Division of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 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, PL-11 Tallahassee, Florida 32399-0300
