Findings Of Fact 1. By written application dated August 11, 1987, petitioner Clayton N. Proctor sought a career service position with respondent Department of Agriculture and Consumer Services (DACS), at the Pace Fire Tower in Chumuckla that DACS's Black Water River Forest Center operates. Petitioner's Exhibit No. Petitioner was one of four men who applied. Among twelve women who applied for work as a fire tower lookout were Denise Williams, who is black as well as female, and Tammy Griswold, who already worked for DACS as a fire tower lookout. Ms. Griswold worked under an other professional services contract, however, not as a career service employee. The day Mr. Proctor left his application at the Forest Center office, he spoke to a DACS forest area supervisor, James Furman, who told him that the job was not very well paid, and that women were more likely to stay with it longer. He gave petitioner the impression that he felt a woman would be more suitable than a man for the position. But petitioner was one of eight applicants who were eventually interviewed. In fact, only one male applicant was not interviewed, while six or seven of the women who applied were turned down without an interview. Mr. Furman, who conducted the interviews, recommended to Weldon Green, operations administrator, and John A. Webster, center manager, that Tammy Griswold be given the career service position, because of her demonstrated reliability. Messrs. Green and Webster responded that Ms. Williams lived closer than Ms. Griswold to the Pace Fire Tower. Sometimes fire tower lookouts "get called to come back . . . [after hours] to . . . go up and spot . . . fires . . . [and] give approximate readings and distances from the radio to the dispatcher so we can locate the fires." T. 59. Mr. Webster, who has the final say in the field, recommended to the Commissioner of Agriculture that Denise Williams be hired. DACS has "an Affirmative Action program, and [her race] did enter into it." T. 75. The recommendation was accepted and Ms. Williams was hired. When petitioner learned about the hiring decision, he telephoned Mr. Furman. In the ensuing conversation, Mr. Furman said that he could hire who he wanted to hire and again gave petitioner the impression that he felt women were better suited to work as fire tower lookouts. Later petitioner recounted his conversations with Mr. Furman to Mr. Webster. Mr. Webster assured him that DACS had no policy favoring women for fire tower lookout jobs. In fact, DACS has no such policy. Mr. Furman was subsequently disciplined for creating a misimpression about the Department's policy in this regard. Statewide, the ratio of fire tower lookouts who are men to those who are women is on the order of one to two or three. About 25 percent of all fire tower lookouts DACS employs are male. Mr. Proctor lived 30 miles further away from the Pace Fire Tower than Ms. Williams did, when DACS hired her. It takes fifty minutes or an hour to drive from Baker, where petitioner lived at the time, to the Pace Tower. Ms. Griswold, too, lived much closer to the fire tower than petitioner did.
Recommendation It is, accordingly, RECOMMENDED: That the Florida Commission on Human Relations deny the petition for relief. DONE and ENTERED this 13th day of November, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 5, 8. 10, 11, 13, and 15 through 21 have been adopted, in substance, insofar as material. With respect to petitioner's proposed findings of fact Nos. 3, 4 and 6, there was some confusion in the record about the precise number of applicants. With respect to petitioner's proposed finding of fact No. 7, the evidence showed that this was roughly true. With respect to petitioner's proposed findings of fact Nos. 9, 12 and 14, evidence that Mr. Proctor was eliminated because he liked outdoor sports was unconvincing. Copies furnished to: David G. Tucker, Esquire Department of Agriculture & Consumer Services Mayo Building, Room 306 Tallahassee, FL 32399-0800 Clayton Proctor 726 Winton Avenue Pensacola, FL 32507 The Honorable Doyle Conner Commissioner of Agriculture Department of Agriculture & Consumer Services The Capitol Tallahassee, FL 32399-0810 Mallory Horne, General Counsel Department of Agriculture & Consumer Services 515 Mayo Building Tallahassee, FL 32399-0800 Dana Baird, Acting Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570
The Issue Whether Petitioner was wrongfully denied certification as a fire fighter due to his visual problems.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Petitioner, Louis C. Decker, is currently employed as a paid fire fighter in the City of Palm Bay, Florida. Additionally, Petitioner serves as a volunteer fire fighter in the town of Micco, Florida. Petitioner has served as a fire fighter in both a paid and/or volunteer status for approximately two and one-half (2 1/2) years. By letter dated April 9, 1981, Respondent, Office of the State Fire Marshal, advised Petitioner that he would not be certified as a fire fighter in Florida based on "pre-employment paper work submitted to the Bureau of Fire Standards and Training [which] reflect that [Petitioner] does not meet the qualifications set forth in Section 633.34(5), Florida Statutes." That statute provides in pertinent part that "any person initially employed as a fire fighter must be in good physical condition as determined by a medical examination as prescribed by the Division." That letter added that a pre-employment medical examination of Petitioner indicates a condition other than normal which is outside the parameters of the visual acuity medical standards for fire fighters. Dr. Andrew Zorbis, an ophthalmologist, was received as an expert in ophthalmology herein. Dr. Zorbis examined Petitioner on July 15, 1981. The results thereof reveal that Petitioner's uncorrected visual acuity with the right eye was 20/50 minus 2 and the uncorrected visual acuity with Petitioner's left eye was 20/50 plus 1, with the total uncorrected visual acuity in both eyes being 20/50 plus 2. During the examination, Petitioner was "squinting" severely, which provided him with the best possible uncorrected visual acuity. That is, without squinting, Petitioner's visual acuity would have been much worse and most probably would have been within the range of 20/200 to 20/100. Dr. Zorbis concluded that Petitioner could not be certified based on the NFPA booklet which sets forth the State's Fire-Fighter Standards 2/ and provides that the cause for rejection for an appointment shall be standard visual acuity without correction less than 20/40 in one eye and 20/100 in the other eye. That rule also provides that the corrected vision must be less than 20/20 in one eye and 20/40 in the other eye. Dr. Zorbis also examined Petitioner with his current prescription glasses which reveal a visual acuity of 20/40 in the left eye and 20/30 in the right eye, with corrected vision in both eyes of 20/30 plus Based on the current standards of required visual acuity, Petitioner, therefore, failed to meet either the uncorrected or the corrected visual acuity standards. Dr. Zorbis added that Petitioner was examined under optimum circumstances under a variety of targets. Accordingly, the above test results of Petitioner's vision are the best that Dr. Zorbis could obtain. Dennis "Buddy" Dewar, Chief of the Bureau of Fire Standards and Training, was received as an expert in fire fighter certification standards and qualifications. The task of a fire fighter requires excellent visual acuity. Fire fighters perform a variety of arduous functions under stress, both mental and physical and in so-called "smoky" conditions. Fire fighters are called upon to safely drive vehicles despite glare from light, road moisture or wetness. Fire fighters usually work in smoke-filled rooms and buildings. The permissible visual acuity parameters are 20/40 in one eye and 20/100 in the other eye, uncorrected; correctable to 20/20 in one eye and 20/40 in the other eye. A fire fighter suffering from a visual acuity problem worse than 20/40 puts himself in a position whereby he would have difficulty seeing through smoke and thereby jeopardized his life, the safety of himself, his peers and the safety of the citizens that he is charged with protecting. Chief Dewar indicated that fire fighters often find themselves disoriented in darkened, smoke-filled rooms. With the normal emotional and psychological stresses involved in a fire fighting activity, a fire fighter suffering uncorrected vision outside the Prescribed parameters compounds the stressful duties under which a fire fighter must perform. Finally, Chief Dewar examined the breathing mask used by Petitioner which has an insert for a corrective lens. Chief Dewar credibly testified that the particular mask used by Petitioner, with the breathing apparatus and corrective lens insert intact, has not been approved by the National Institute of Safety and Occupational Health or the American National Standards Institute. Petitioner, Louis C. Decker, as previously stated herein, has been employed as a fire fighter for approximately two and one-half (2 1/2) years. During this period, Petitioner has worked approximately twenty (20) fires as a volunteer fire fighter. Petitioner was denied certification and was not permitted to enroll in the certification and standards school based on certain pre-enrollment documents submitted which indicated that he suffered from a visual acuity problem. Petitioner has had hose-line and ladder training. Additionally, Petitioner has undergone emergency medical services training, salvage training, and hydraulics training. Petitioner has also fought "fake" fires. Petitioner uses a device called a Scott air mask which is a device used to enter a burning structure. According to Petitioner, with his corrective lens inserted in the Scott air mask, his visual acuity is 20/20. 3/ It was noted that Petitioner was told to refrain from driving a vehicle due to a problem he was experiencing with his vision. Several of Petitioner's coworkers appeared and testified as to his satisfactory performance in fighting fires. (Testimony of Captain Green, Lieutenant Samuel Evans and Bryon Williams Varn.) 4/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That Petitioner's request for State certification as a fire fighter by the State Fire Marshal, be DENIED. RECOMMENDED this 11th day of September, 1981, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1981.
The Issue Whether Petitioner was legally justified in issuing a conditional license rating to Respondent.
Findings Of Fact AHCA is the state agency responsible for licensing and regulating nursing homes in Florida. Respondent Berkshire is a licensed nursing home located in North Miami, Florida. On April 2, 2002, AHCA conducted a survey of Berkshire and identified the violations which give rise to this proceeding. Specifically, at the time of the survey, several magnetic door locks--the record does not reveal precisely how many, although the parties agree that the number was no less than three and no more than seven out of a total of fifteen fire exit doors--did not immediately unlock upon activation of the fire alarm system. The purpose of the door locks is to prevent cognitively impaired residents from wandering away from the facility. When the magnetic lock system is working properly, the doors unlock immediately upon activation of the fire alarm. In response to the AHCA survey finding, Berkshire immediately summoned an alarm system repair person. On April 2, this individual was located somewhere in Florida's Panhandle. He left north Florida and proceeded immediately to Berkshire. The repairman determined that two wires and a circuit were reversed, most likely due to an error by Berkshire's on- site maintenance director. By the next day, April 3, the problem had been corrected and all door locks were deactivating simultaneously with the activation of the fire alarm system. Based upon the April 2 survey, AHCA issued a conditional license to Berkshire effective April 5, 2002, and imposed an administrative fine of $12,500. AHCA also placed the facility on a six-month survey cycle and assessed a survey fee of $6,000. These penalties, particularly the conditional license status, have a substantial adverse impact upon the reputation and the business interests of a nursing home. AHCA's decision to impose a conditional license status was predicated upon the opinion of its inspectors that the mechanical failure identified in the survey was, in fact, likely to cause serious injury, harm, impairment or death to a resident receiving care in the facility, and must therefore be deemed a Class I deficiency which warrants, as a matter of law, the penalties imposed. At the time of the survey, Berkshire had no history of fires, had passed its most recent annual inspection by the local fire marshal, and had a sprinkler system and fire extinguishers throughout the facility. The survey itself revealed no fire hazards. AHCA cites no statute, rule, or case which supports its view that the mechanical problem identified constitutes a Class I deficiency. Instead, it offers opinion testimony that as a result of this problem, residents were in danger on the date of the survey. That opinion testimony is based solely upon speculation. For example, AHCA's life safety inspector who participated in the survey said, ". . . we always look at, inspect the facilities under a worst case scenario type situation. In the event of a fire, we could have a situation we would have residents where the fire alarm system would activate and we would have residents attempting to exit the building. They would find that those doors, affected doors, would not be openable. They would not be able to exit the building. " In fact, the evidence established that the ability of residents to vacate the building in a safe and timely manner in the event of a fire, or fire drill, was not significantly impacted on April 2 by the mechanical problem identified. The automatic unlock feature which was not operating on less than half of Berkshire's fire exit doors is just one part of Berkshire's fire safety plan. State and federal law and Berkshire's own operating procedures provide that staff be given detailed training regarding what to do in the event of a fire; fire safety plans must be approved by the local fire marshal, and most include back up plans for system failures which can reasonably be anticipated. With reference to each of the door locks identified in the April 2 survey, the evidence established that each of these doors could be opened manually, and that there was an adequate number of able bodied staff members who could open each of the doors as may be necessary had a real fire or a fire drill occurred on April 2. Berkshire's fire safety procedures provide that when the fire alarm activates, an announcement is made over the public address system to inform all present of the fire's location. Depending upon the fire's location, staff members will respond in various appropriate ways. Within each department, various individuals are assigned to perform various functions, including, most importantly, assuring that each resident is safely escorted from the building and protected while outside. State law requires monthly tests of the fire alarm system, but Berkshire exceeds this standard with weekly tests. Fire drills are conducted for staff members who work on all three shifts, and staff are trained in evacuating residents in a manner appropriate to their individual circumstance. No matter where one is located in the building, there are multiple means of egress, and each exit door has multiple means by which it can be opened in a timely manner in the event of fire or other emergency. Monthly unannounced fire drills are conducted at Berkshire on all three shifts in an effort to ensure that staff can safely and quickly evacuate residents should the need arise. There is no evidence that staff could not have done so had a fire or fire drill occurred on April 2. Thus, AHCA's finding that the mechanical problem which existed on April 2 and which was remedied by April 3 posed a likelihood of serious injury, impairment, or death to residents in Berkshire's care is not supported by any competent evidence.
Recommendation Based upon the foregoing, it is hereby RECOMMENDED that AHCA issue a final order dismissing the Administrative Complaints in these cases. DONE AND ENTERED this 26th day of March, 2003, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 2003. COPIES FURNISHED: Nelson Rodney, Esquire Agency for Health Care Administration 8355 Northwest 53rd Street Miami, Florida 33166 R. Davis Thomas, Jr. Qualified Representative Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302-1300 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
The Issue The issue for consideration is whether the Petitioner qualifies for participation in the Firefighter's Supplemental Compensation Program at the Bachelor's level.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Jorge Du Quesne, was a fire fighter, (driver/engineer), employed by the City of Miami Fire Department. The Respondent, Department of Insurance and Treasurer, Bureau of Fire Standards and Training, was and is the state agency in Florida responsible for the management and certification of fire fighters in this state. It is also the agency charged by statute with the responsibility of determination of the eligibility of any fire fighter to receive supplemental compensation under the Program, and the decision of the Bureau is final subject to the provisions of Chapter 120, Florida Statutes. Petitioner was awarded a Bachelor of Civil Engineering degree in 1973 by Georgia Tech. The Bachelor of Civil Engineering degree is equivalent to a Bachelor of Science degree in Engineering. While a student, Mr. Du Quesne majored in structural engineering. In addition to his undergraduate degree, he has also taken several courses sponsored by the Miami Fire Department in hydraulics, structures, construction materials and the like. The questions on the examinations came from materials provided at the course presentation. While a student at Georgia Tech, Mr. Du Quesne took many courses which relate, to some degree, to fire fighting. Included in these are pump operation and efficiency in fluid functions lab, which dealt with a centrifugal pump similar to that which is used on the fire trucks he operates. Others included chemistry, physics, fluid mechanics, thermodynamics, applied electricity, constructions materials, structural analysis, metal structural components, concrete structural components, sanitary engineering, and timber and pre- stressed concrete. All of these subjects have a bearing on fire fighting and give him a background upon which fire training can be based. Petitioner's current position as a driver/engineer of a pumper truck does not require a college degree. By the same token, the fire fighting courses he has taken since becoming a member of the Department do not provide college credit. The Department sponsored courses were designed to make him a better fire fighter, and most attendees did not possess the civil engineering background he has. In his work he relies on both his fire training and that material he studied during his training as a civil engineer. Admittedly the formulae he learned while a student in college do not necessarily relate to the work he performs on a daily basis dealing with hoses pipes and the other functions of a fire fighter. On the other hand, however, much of the information and the formulae he has learned do relate. Petitioner feels his civil education helps him make better decisions while on the fire scene. He believes that the two careers, that of a civil engineer and that of a fire fighter, aredirectly related and he contends his civil engineering background qualifies him for participation in the program and the resultant award of additional compensation. His civil engineering background, for example, gives him a better understanding of the structure of a building, how it works, how it will come down, and how it will react to the pressures of the fire and the fire fighting efforts applied. It is his firm opinion that his understanding of those problems, based on the training as a civil engineer he received in college, makes him far better qualified than someone who does not have this training. The general thrust of Petitioner's argument is supported by the testimony of Fire Lieutenant Erdozain, himself a graduate in engineering from Florida International University. Lt. Erdozain is familiar with the duties of a fire fighter and those of a civil engineer. When he responds to a fire, the first thing he has to take into consideration are those factors dealing with the structure on fire. He needs to know if he can safely enter it or not and the information he learned in his engineering training helps him with that decision. The Miami Fire Department does not offer any courses in building structure. Most knowledge in that area possessed by fire fighters is gained from experience, but the information received as a result of an education in civil engineering would help in the resolution of those problems. Another example is service on the hazardous material team, (HAZMAT). In performing that service, a fire fighter has toknow the properties of the material he will be dealing with in responding to a fire involving them. In that regard, according to Lt. Erdozain, a thorough knowledge of chemistry, beyond that which is taught by the fire department, is helpful. Though Petitioner is not now serving on a HAZMAT team and has not ever served on one during his career, he has had the opportunity to work with hazardous materials, as has most every other fire fighter employed by the Department. It is a constant potential. All fire fighters are trained in the life safety code which relates to the interior construction of buildings. The books used by the Department in the courses it teaches on this subject do not go as far or as thoroughly into it as does the course material given in a civil engineering education, and in Lt. Erdozain's opinion the knowledge possessed by a civil engineer regarding materials and construction would be of great benefit to a fire fighter. Petitioner's application for enrollment in the Program was forwarded to the bureau chief of the Department of Insurance's Bureau of Fire Standards and Training which has the responsibility for determining eligibility. The application was reviewed by Mr. Stark, the Bureau chief, who has a background of 20 years experience as a fire fighter, and subsequent to retirement from that position, as an instructor, curriculum writer, and chief of the Bureau since 1982. He is thoroughly familiar with the Program and has dealt with it since its conception. Mr. Stark determined that the Petitioner was not qualified for entry into the program based on the fact that his bachelor's degree is in civil engineering and is not either a bachelor of science or a bachelor of arts degree. Civil engineering is not one of the concentrations which qualifies for entry into the program. Section 633.382(2)(a)2, Florida Statutes, lists as a qualification: ... a bachelor's degree which bachelor's degree curriculum includes a major study concentration area readily identifiable and applicable to fire related subjects. Rule 4A-37, F.A.C., outlines the qualifying areas of concentration and it is Mr. Stark's opinion that Petitioner's civil engineering degree did not contain the major concentration areas identified by the rule as qualifying for admittance into the program. There were no other reasons for denial. As Mr. Stark sees it, Petitioner is a driver/engineer. He has a responsibility to provide a water supply to hoses in the proper amount for fighting the fire to which he has responded. The particular course material to which Petitioner was exposed while in college constituted a curriculum which does not, in Mr. Stark's opinion, qualify as a fire science curriculum. He is has reviewed the comments furnished by the Petitioner in his letter of response to the Department's letter of denial, but determined that those explanatory comments were not a catalogue description of the courses taken. Petitioner's comments contain much which is not put there by the college. Under the provisions of Section 4A-37.084(3), F.A.C., a bachelor's degree is acceptable provided the major studyconcentration area is readily identifiable and applicable as fire related, and in the major study concentration area, at least 18 semester hours or 27 quarter hours must be so related. The major study concentration areas means a major in fire science, fire science technology, fire science administration, fire protection engineer, municipal management, public administration, emergency medical technology, paramedic technology, and fire science vocational education. Applicants whose major study concentration area does not fall within one of those categories may nonetheless petition the Division for entry into the program but the burden of proof is on the applicant to prove that his major is fire related. Mr. Stark determined that Petitioner's course background does not closely enough relate to his current job. His education background contains no fire science courses which would be more appropriately related to fire fighting than the general engineering courses he took. In short, the Petitioner's educational background, while of a related type, was not sufficiently related to fire science. The intent of the statute and the rule is to require fire fighters to qualify themselves for the performance of their duties by taking fire science courses, not general courses which might be somewhat generally related to the fire fighting career. For example, in the area of hydraulics, Mr. Stark contends that the formulae used by fire fighters in this area are somewhat different than those used by a general civil engineer and the fire fighting approach to this course is more specialized. However, he readily admits that a prior knowledge of basic hydraulics will give a fire fighter an advantage in learning those specifics of fire service related hydraulics. The same would apply to any course which bears some relationship to or has some application in fire fighting. Mr. Stark indicates that if Petitioner had been an officer with the Fire Department as opposed to a fire fighter, his review of the application might have been more detailed. In this comment he does not infer that officers are given preference over fire fighters in entry into the program. He means, instead, that the job of the officer, with its management responsibilities, is what controls - not the rank itself. In that regard, Lt. Erdozain, who is an officer, was denied entry into the program. He contends, as does Petitioner, that any fire fighter who is placed in charge may assume the function of an officer at any given time at the scene of a fire. The over-all additional responsibility of the officer is what controls, however.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT a Final Order be entered denying Petitioner qualification for entry into the Fire Fighter's Supplemental Compensation Program. DONE and ENTERED in Tallahassee, Florida this 23rd day of October, 1991. 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 23rd day of October, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida States, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Petitioner submitted no Proposed Findings of Fact. His three page letter, dated September 30, 1991, containing his observations, and the other materials therein have been carefully considered in the preparation of this Recommended Order. FOR THE RESPONDENT: Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Not a Finding of Fact. & 6. Accepted and incorporated herein. Accepted and incorporated herein except for last sentence which is contra to the evidence of record. Rejected as not necessarily consistent with the evidence. Petitioner indicated that depending upon the situation at the scene of a fire, he could be called upon to make almost any fire related decision. Accepted. Not a Finding of Fact but a comment on the evidence. Accepted. Accepted and incorporated herein. - 15. Accepted. Accepted. Petitioner is not on nor has he ever been on a HAZMAT team. However, the evidence, uncontradicted, indicated he could be called upon to work with them at any given time. Accepted. Not a true Finding of Fact but more a comment on the evidence. Accepted. COPIES FURNISHED: Jorge Du Quesne 2500 SW 79th Court Miami, Florida 33155 Andrew Kenneth Levine, Esquire Department of Insurance Division of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil General Counsel Department of Insurance The Capitol, Plaza Level Tallahassee, Florida 32399-0300
Findings Of Fact At all times material hereto, Respondent was employed as a fire inspector by the City of Clearwater with permanent status in the civil service system. Respondent has approximately nine years experience with the City of Clearwater as a fire inspector, and prior to this incident had never been the subject of disciplinary action. As a permanent civil service employee, Ordinance 1831 of the City of Clearwater, Guidelines of Disciplinary Action dated October 23, 1978, and Civil Service Rule 14 dealing with Suspensions, Demotions and Dismissals are applicable to the facts of this case and govern disciplinary action taken against Respondent. On September 17, 1985, Respondent was suspended for three (3) working days, without pay, and given forty (40) disciplinary points. In the Notice of Suspension the grounds for this action are stated as follows: Inspector Christopher Kingsley violated Rule 14, Section 1, Paragraph (k) of the Civil Service Rules and Regulations: "Has violated any lawful and reasonable official regulation or order or failed to obey any lawful and reasonable direction made and given to him by his superior officer when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in a lower morale in the department or to result in loss, inconvenience, or injury to the City or to the public. * * * On June 15, Captain Yaudes dispatched Inspector Kingsley to 1468 Belleair Road to observe and assist Inspector Mattheus with the fire investigation. When Inspector Kingsley arrived at the fire scene he more or less worked independently. He did not provide the assistance or opinion to Inspector Mattheus when requested. This is further violation of the Guidelines for Disciplinary Action, Level 4, #3 offense: "Insubordination by refusal to perform work assigned or by failure to comply with written or verbal instructions of the supervisory force." Based upon the testimony and documentary evidence presented, the following findings of fact are made about Respondent's actions relative to the fire at 1468 Belleair Road on June 15, 1985: Between approximately 7:30 a.m. and 7:40 a.m. on June 15, 1985 Respondent arrived at work, although his shift did not begin until 8:00 a.m. When Respondent arrived, Captain Gordan Yaudes was talking with Captain Coleman about a radio transmission they had just overheard indicating that Inspector Harry Mattheus had been dispatched to investigate the Belleair Road fire. Since neither Captain Yaudes or Captain Coleman knew Inspector Mattheus, Captain Yaudes called Respondent into the office to see if Respondent knew anything about Mattheus' qualifications or background. Although Respondent and Mattheus had been working out of the same office for two months at the time, Respondent had only a brief acquaintance with Mattheus. They had never been introduced after Mattheus had been hired, their shifts and assignments were different and Mattheus had not yet done a fire scene investigation in the City of Clearwater. Therefore, Respondent told Captain Yaudes he did not know about Mattheus' qualifications. Captain Yaudes ordered Respondent to go to the Belleair fire scene, find out what was going on, and assist Inspector Mattheus, if necessary. Captain Yaudes testified that he wanted Respondent to take command of the investigation if Respondent determined that Mattheus was not properly certified. He specifically denied that he ordered Respondent to do a joint investigation with Mattheus. This order was given prior to 8:00 a.m., and thus prior to either Respondent or Captain Yaudes being on duty. Captain Coleman, who was on duty at the time, concurred in the order. Mattheus had been on the scene for thirty minutes before Respondent arrived. When Respondent arrived he put on protective pants, boots and gloves and entered the premises, a small flower shop. The fire had already been extinguished. Fire damage was confined to a twelve foot by twelve foot area at the front of the store where the cash register had been. Mattheus was not wearing protective gear since he had not been issued any at the time, although he was wearing his own steel reinforced boots. Upon approaching Mattheus at the scene, Respondent asked why he was there and on whose authority. Mattheus indicated he had been placed on the "call list" the night before by Fire Marshal Nic Lewis, and he was responding to a call to investigate the scene he received that morning at home. In making this inquiry, Respondent was responsive to Captain Yaudes' order that he go to the scene, find out what was going on and assume command of the investigation if he determined Mattheus was not qualified. Inspector Mattheus had been employed as a life safety inspector approximately two months prior to this incident. He is a certified fire inspector and was therefore qualified to be on the "call list" and to investigate fires. This was his first investigation for the City of Clearwater. After determining what was going on at the scene and that Mattheus was qualified to do the investigation, Respondent proceeded to assist Mattheus in several ways, including: surveying and discussing the scene together examining electrical wire and sockets, as well as the floor at the scene for possible causes of the fire clearing the area where the cash register had been and suggesting initially that Mattheus keep an aerosol can that had been punctured by a nail as possible evidence. Later, when arson was ruled out, he concurred in Mattheus' decision to discard the can. Respondent also helped clean up the scene since he was wearing protective clothing and Mattheus was not, and discussed an early morning thunderstorm with Mattheus as a possible cause of the fire. In this manner Respondent was responsive to Captain Yaudes' order that he render assistance, if necessary. On several occasions during the approximately thirty minutes when Respondent was at the fire scene, Inspector Mattheus asked him his opinion on the cause of the fire. Respondent responded by saying he did not know, or by shrugging his shoulders. He told Mattheus to list the cause as "unknown" if Mattheus could not determine a cause. Respondent also said to Mattheus on several occasions, "This is your fire." When Mattheus asked if Respondent was going to write a report on this fire, Respondent replied in the negative since this was Mattheus' fire. It is standard operating procedure for the first inspector on the scene to be the primary investigator who writes the report, and for other inspectors to assist the primary investigator. Mattheus was the primary investigator in this fire, and was in charge of the investigation. The terminology, "It's your fire," is commonly understood among firefighters and inspectors to mean that "you are in charge and will write the report." Respondent's use of this phrase in responding to Mattheus was therefore accurate and in recognition of standard operating procedures, and does not indicate any lack of cooperation on his part. Respondent was not ordered to conduct a "joint investigation," according to Captain Yaudes. When the term "joint investigation" is used, it is understood by firefighters and inspectors to mean an investigation which involves another agency, such as the State Fire Marshal's Office or the Electrical Department, in which the other department assists the Fire Department in trying to determine the cause of a fire. On June 14, 1985, the day prior to the Belleair fire, Respondent had called Inspector Jeff Daniels and expressed concern that life safety inspectors would be used to investigate fires since he felt they were not qualified. He also expressed concern about Inspector Mattheus' qualifications. Despite this prior expression of concern, when Respondent was ordered to the fire scene the next day, he did determine that Mattheus was qualified and assisted him as ordered. The testimony of Lieutenant Frank Hill and Firefighters John Milano and Charles Daniels, who were all at the scene on June 15, 1985, specifically confirms that Respondent and Mattheus worked together on the investigation without discord.
Recommendation Based upon the foregoing, it is recommended that the disciplinary charge against Respondent be dismissed, and that Respondent receive three days back-pay and the removal of all disciplinary points in his record arising from this charge. DONE and ENTERED this 27th day of January, 1986, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1986. COPIES FURNISHED: Miles Lance, Esquire Assistant City Attorney Post Office Box 4748 Clearwater, Florida 33518 Stuart M. Rosenblum, Esquire, 220 South Garden Avenue.C3 Clearwater, Florida 33516 APPENDIX Rulings on Petitioner's Proposed Findings of Fact: Adopted in part in Finding of Fact 4(c) and rejected in part in Finding of Fact 4(g). Adopted in Finding of Fact 4(a). Adopted in Finding of Fact 4(f). 4-6 Adopted in part in Finding of Fact 8, but otherwise rejected as irrelevant, unnecessary and not based on competent substantial evidence. Rejected in Finding of Fact 4. Adopted in Findings of Fact 4(h) and 6. Rejected in Finding of Fact 4(g). 10,11 Adopted in part in Finding of Fact 4(h), but otherwise rejected as irrelevant. Adopted in Finding of Fact 4(i). Rejected in Finding of Fact 4. Respondent did cooperate and assist as necessary. Adopted in Finding of Fact 4(h) and 6, but otherwise rejected as erroneously stating Respondent failed to aid Inspector Mattheus. 15,16 Rejected as simply a summation of testimony rather than a proposed finding of fact. 17 Adopted in part in Finding of Fact 4(e), but otherwise rejected as irrelevant and unnecessary. 18,19 Rejected as irrelevant and unnecessary. Adopted in part in Finding of Fact 8 but otherwise rejected as irrelevant and unnecessary. Rejected as irrelevant and unnecessary. Rulings on Respondent's Proposed Findings of Fact, as contained in Sections A and B of Respondent's Memorandum, Proposed Findings and Conclusions of Law: Adopted in part in Finding of Fact 4 but otherwise rejected as irrelevant and unnecessary. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 3. 4,5 Rejected as irrelevant and unnecessary. Adopted in part in Findings of Fact 1 and 2. Rejected as irrelevant and unnecessary. 8-12 Adopted in Findings of Fact 4(a)-(e). Adopted in part in Finding of Fact 4(g), but otherwise rejected as unnecessary and cumulative. Adopted in Findings of Fact 4(h), (i). Adopted in Finding of Fact 6, but otherwise rejected as irrelevant. Adopted in Finding of Fact 3.
