Findings Of Fact Petitioner James T. Steffens is currently employed as Chief of the Oneco-Tallevast Fire Control District located in Manatee County and has been so employed since June 1, 1982. The fire control district covers approximately 26 square miles southeast of Bradenton, and includes residential and commercial developments and some rural areas. The district employs six firefighters who, along with Petitioner, work a normal 3:00 A.M. to 5:00 P.M., Monday through Friday, work week. There are 28 volunteer firemen in the district who provide most of the firefighting services for the district. The career personnel are hired primarily to supplement the volunteer group during the ordinary work week. However, they and the Petitioner are also volunteer firefighters. During the period of his employment, Petitioner has taken charge of firefighting on six or seven instances, one of which occurred during his normal hours of employment. (Testimony of Steffens) Petitioner was hired as a result of a screening and interview process by the Board of Commissioners of the Oneco- Tallevast Fire Control District. They were interested in a person who could unify factions within the district and modernize district procedures. The Board of Commissioners was more interested in Petitioner's administrative skills rather than his qualifications as a firefighter. However, it was aware from prior communications with Respondent's personnel that either a certified firefighter should be hired, or if not, that the individual hired would have to be certified in Florida. Petitioner primarily performs administrative functions, such as personnel and budget matters, training and scheduling of personnel, procurement of supplies, and scheduling of fire inspection and prevention programs. Actual fire inspections are conducted by the district fire marshal. (Testimony of Petitioner, Skinner) Respondent's form FST-1 "Qualification of New Employee," was filed on behalf of Petitioner in June 1982 by Raymond F. Skinner, Jr., Secretary- Treasurer, Board of Commissioners, Oneco-Tallevast Fire Control District. The form reflected that Petitioner had completed the equivalency examination at the State Fire College, Ocala, Florida, on July 11, 1977, and the Report of Physical Examination that accompanied the form showed that he had no physical abnormalities. Upon inquiry by Respondent as to a discrepancy on the physical examination report that reflected Petitioner had adequate visual acuity, as compared to a prior medical report received by the Department showing that his uncorrected vision in the right eye was 20/200 and in the left eye, 20/400, the examining physician advised the Respondent that the earlier eye examination should be deemed correct. (Respondent's Exhibits 1-2) By letter of October 5, 1982, Mr. Skinner was advised by the Office of the State Fire Marshal that Petitioner could not be certified because he did not meet the requirements of pertinent law and regulations as to visual acuity, and also due to the fact that he had a "noticeable limp." Specifically, he was advised that Section 633.34(5), Florida Statutes, required that "Any person initially employed as a firefighter must be in good physical condition as determined by a medical examination as prescribed by the division," and that Rule 4A-37.37, Florida Administrative Code, implementing the statutory provision, provided in subsection (3) for adoption of the standards of NFPA 1001 (1974). The letter further stated that NFPA 1001, Chapter 2-2.7.2(b), provided that standard visual acuity, without correction, of less than 20/40 in one eye, and 20/100 in the other eye, was cause for rejection for appointment, and that Chapter 2-2.6.2.4(d) provided that shortening of a lower extremity resulting in any limp of noticeable degree was also cause for rejection. Subsequent to receipt of the letter from Respondent, Petitioner requested an administrative hearing. (Respondent's Exhibit 1) Petitioner does not meet the visual acuity standards set forth in the above-cited law and regulations in that his uncorrected eyesight is 20/200 in his right eye and 20/400 in his left eye. (Respondent's Exhibit 1-2, Stipulation) Respondent's ground for rejection of certification because Petitioner has a "noticeable limp" was based solely on observation of Petitioner by Mr. Raymond Schaffner, Program Coordinator for Fire Standards, Office of the State Fire Marshal. However, Mr. Schaffner has no knowledge of Petitioner having a shortening of either leg, nor is there any medical evidence in that regard. Although he is of the opinion that a person with a limp would have difficulty as a firefighter carrying heavy weights on stairs, or maintaining control on a ladder with his legs to free his hands, he is unaware of any actual limitations that Petitioner might have in this regard. (Testimony of Schaffner) Petitioner concedes that he has a slight limp, but can offer no medical explanation for it. He purchases trousers which have the same inseam for both legs. The problem becomes more pronounced if he becomes overweight. It has never hampered his sports activities in the past, or his prior activities as a volunteer firefighter since 1956. In 1977, he successfully completed the equivalency examination at the State Fire College in Ocala, which required that he perform field "evolutions" or practical exercises in firefighting. Although they do not necessarily test an individual's endurance, Petitioner participated in advancing heavy hoses and carried a man down from a ladder during his equivalency examination. He has performed "leg locks" on ladders "hundreds of times" in the past. (Testimony of Schaffner, Petitioner) Volunteer firefighters are not required to be certified by the state. However, Respondent's interpretation of applicable statutes is that the employed chief of a fire control district must be certified if he meets the definition of "firefighters" set forth in Section 633.31, Florida Statutes. (Testimony of Schaffner, Stark)
Recommendation That Petitioner James T. Steffens be determined unqualified for employment and certification as a firefighter pursuant to Chapter 633, Florida Statutes. DONE and ENTERED this 3 day of 1983, in Tallahassee, Florida. THOMAS C. OLDHAM 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 3rd day of May, 1983. COPIES FURNISHED: Richard W. Gross, Esquire Post Office Box 1302 Hialeah, Florida 33011 Susan E. Koch and Dennis Silverman, Esquires Department of Insurance 413-B Larson Building Tallahassee, Florida 32301 The Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol Tallahassee, Florida 32301
Findings Of Fact The pertinent provisions of Exhibit 4 establish that the Lighthouse Point Fire Department is a volunteer organization which may consist of a Chief and as many subordinate volunteer firemen and employees as may be necessary, all appointed in conformity with rules and regulations of the City of Lighthouse Point. The Chief who is appointed by the Mayor, subject to City Commission confirmation, is also the fire marshal and has executive supervision and control of all firemen and other officers and employees of the department. All officers and employees of the fire department shall be employed without compensation until the city commission deems it appropriate to compensate them. The Fire Department presently consists of a Chief, one Fire Captain, three Lieutenants, six Firefighters and six Driver-Engineers. The manning of the fire station is accomplished in three shifts, each consisting of one Lieutenant, two Firefighters, and two Driver-Engineers. After each shift of 24 hours, the shift personnel are off-duty for 48 hours. All of the personnel are full-time paid personnel. The Captain also is paid fees for reporting to fire calls and for attending training drills. He receives a mileage allowance for using his personal vehicle for official Fire Department business, such as reporting to the scene of a fire or other emergency, and a cleaning allowance for maintenance of uniforms. No other full-time personnel, except the Chief, receive supplemental payments. He is under the same sick leave and vacation criteria, and eight hour work day, as the Chief. Sick leave and vacation benefits for other personnel are determined in a different manner. If the Captain is on holiday, he remains subject to call, whereas when the other personnel are on duty on holidays, they receive another holiday to compensate therefor. The Captain is presently receiving state instruction to become a certified instructor. He assumes command of the department in the absence of the Chief. The Lieutenants are under his general supervision. Either the Chief or the Captain is present at all fires except those of a minor nature. Each Lieutenant, as above-mentioned is in immediate charge of a shift and supervises shift personnel. They are interchangeable with the Captain as far as capability to assume command at a fire when the Chief or the Captain is not present. The Chief holds infrequent, unscheduled staff meetings at which the Captain and Lieutenants normally are present to discuss such matters as assignment of shifts, grievances of subordinate personnel and other routine personnel matters. The budget for the department is prepared by the Chief, with input as to capital improvements submitted by the Captain and recommendations also by the Lieutenants as to required equipment. As to personnel matters, the Chief has no authority to hire, fire, or promote personnel but must make recommendations, through the Assistant City Administrator to the Mayor. Disciplinary matters, such as suspension, are handled similarly, although the Captain and Lieutenants have authority to send an intoxicated or incapacitated member home, normally after consultation with the Chief.
The Issue Whether Respondent, Walt Disney World, violated Section 760.08, Florida Statutes (2006), as alleged in the Petition for Relief in this matter.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner is a Caucasian male, born in Puerto Rico. He is an amateur photographer. He had visited Walt Disney World at least ten times prior to December 1, 2006. Respondent owns and operates a theme park in Orange and Osceola Counties, Florida. Respondent employs individuals with the job title, "security host," with the responsibility of maintaining security in the theme park. This category of employees is licensed by the State of Florida, and they receive training in "abnormal behavior of guests," threat analysis, surveillance, intelligence, and other job-related skills incidental to maintaining a safe environment within the theme park. Respondent has a specific protocol regarding theme park guests exhibiting "abnormal behavior." In the context of this case, taking photographs in the theme park is not an "abnormal behavior." In fact, guests are encouraged to photograph those accompanying them and various theme park characters, e.g., Mickey Mouse. However, excessive photographing of structures, "mapping or progression photography," is considered "abnormal behavior." "Mapping" consists of taking pictures in a progression, so as to familiarize someone who has never been to an area with the layout of that area and is considered very unusual behavior. Petitioner entered the Magic Kingdom, part of Respondent's theme park, on December 1, 2006. A security host observed Petitioner photographing the main entrance and security bag check. Petitioner was unaccompanied. The subject matter and manner of Petitioner's photography was considered to be "abnormal" by the security host. Once a security cast member identifies potentially abnormal behavior by a guest, the protocol requires the security host to contact a member of management (by radio) and continue to observe the guest. Petitioner moved further into the Magic Kingdom and took photographs of Main Street and City Hall. Because Petitioner was limiting his photography to structures, the security host's initial impression that Petitioner was doing something "abnormal" was reinforced and, in accordance with the established protocol, he again called management. As further dictated by Respondent's security protocol, the uniformed security host is then met by an "undercover" security host whose job-responsibility is "real-time threat analysis." The "threat-analysis" security host continued to observe Petitioner as he took what was interpreted by the security host to be "panoramic" photographs of Town Square and "mapping" photographs of the interior of the train station. He, too, assessed Petitioner's photographic activities as "abnormal." Because the "threat analysis" security host concurred with the initial determination of "abnormal," the security protocol dictates that a security manager make contact with the guest. This was done in a discreet and unobtrusive manner. The security manager identified himself as an employee of Respondent and asked Petitioner if "he could do anything to assist him." Petitioner did not respond, so the security manager repeated himself. Respondent responded that he "was not an Arab terrorist," or words to that effect. His response was louder than conversational, and he appeared to be agitated. Because Petitioner was uncooperative, the security manager called a uniformed law enforcement officer, an Orange County, Florida, deputy sheriff, as dictated by Respondent's security protocol. The deputy sheriff asked for, and received, Petitioner's driver license. After a license check revealed that Petitioner's address was valid, he was allowed to pursue his activities in the theme park. His interaction with the security manager and deputy sheriff lasted approximately 15 minutes. Petitioner then returned to his theme park photography without limitation and spent an additional two hours in the theme park, until his camera's battery pack ran down. He did not have any further interaction with Respondent's security personnel, nor was he kept under surveillance. Petitioner returned to Respondent's theme park on December 9, 27, 28, 29 and 30, 2006 (he had an annual pass), had access to all facilities without difficulty, and had no encounters with Respondent's security personnel. The incident that occurred on December 6, 2006, was a result of Petitioner's photography being identified as "abnormal." There is no evidence that it was precipitated by his national origin or that Respondent was not exercising reasonable diligence in an effort to protect theme park visitors and employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Jose M. Gandia, failed to present a prima facie case of discrimination based on national origin, and, therefore, this matter should be dismissed in its entirety and a determination be entered by the Florida Commission on Human Relations that Respondent, Walt Disney World, did not violate the provisions of Chapter 760, Florida Statutes, as alleged in the Petition for Relief. DONE AND ENTERED this 13th day of March, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 13th day of March, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jose M. Gandia 3054 Holland Drive Orlando, Florida 32825 Paul J. Scheck, Esquire Shutts & Bowen, LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802-4956
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
Findings Of Fact At all times pertinent to the issues involved herein, Petitioner, Gaylord L. Kinsey, was employed by the State of Florida, Department of Natural Resources, as a laborer at HRSP. Respondent, Department, is an employer within the meaning of the Human Rights Act. Petitioner's Complaint and subsequent Petition for Formal Hearing, are timely and the Division of Administrative Hearings, as well as the Commission, has jurisdiction over the matter at issue. Mr. Kinsey came to work with the Department as a laborer at HRSP on March 1, 1985. At that time, he was furnished with a copy of the Department's Employee Handbook which outlines all pertinent personnel rules regarding leave, time off, absenteeism, grievances, and other matters incident to the routine terms of employment. He was hired as a result of the application he filed in response to a Departmental vacancy announcement. On July 7, 1986, Petitioner was orally reprimanded by his supervisor, Stephen A. Yoczik, then Assistant Park Manager, for being absent without leave on July 6, 1986. At that time he was warned that any further failure to comply with the provisions of the Department's directive on absenteeism might result in further disciplinary action. The oral reprimand was confirmed in an interoffice memorandum dated July 12, 1986, a copy of which was placed in the Petitioner's master personnel file. On February 5, 1987, Mr. Kinsey was given an official written reprimand for loafing, defined as continued and deliberate idleness during work hours which results in the employee's failure to perform assigned tasks. Background information provided to the Petitioner at that time indicated that he was observed to be wasting time in idle talk with two other employees at the shop area for a 25 minute period past his lunch hour. Petitioner was advised again in writing that his lunch hour was to be taken between noon and 1 PM unless he received permission from a supervisor to do otherwise. This follows on the heels of another official reprimand which was imposed on Petitioner on January 16, 1987 for loafing the prior day when, at 7:30 PM he was observed watching television at the shop and not being out performing his job duties. Petitioner contends that while he may have taken his lunch hour at the inappropriate time, this was a practice approved by management which permitted employees to finish particular tasks in which they were engaged at the lunch hour and to eat thereafter. Petitioner also contends that in many cases, especially during the period of short days, he would prefer to get his work done early before it got dark by working straight through the duty day and taking his lunch hour at the end of the day. Regardless of how well intentioned or well reasoned Petitioner's approach may be, it is, nonetheless, inconsistent with and in violation of the directives he received which were applicable not only to him, but to other employees as well. Consequently, the reprimands for loafing, as identified, are neither in error nor inappropriate. Petitioner was interviewed by his supervisors about his disciplinary problems on both February 5 and 6, 1987 during which time he became extremely excited and angry and, on one occasion, broke a chair when he got up precipitously. Because of this demonstrated instability and hostility, he was, on February 19, 1987, directed by Mr. Johnson, the District Manager, to use accrued leave with pay during the period February 21 through March 10, 1987. Also on February 19, 1987, Mr. Johnson notified Petitioner by letter of the Department's intent to suspend him without pay for a period of three working days, (March 11 - 13, 1987), for the two incidents of belligerence and one unauthorized absence which took place on February 7 and 8, 1987. Petitioner responds to these allegations by contending at the hearing that he in no way threatened the supervisors either physically or verbally and was merely responding to the stress situation in which he found himself. The unauthorized absence took place when Petitioner experienced automobile difficulties and was unable to get to work on time. When he called in, he was advised it was necessary for him to talk to his supervisor about the problem. This was consistent with the long-standing Department procedure regarding requesting time off. Approximately one-half hour later, Petitioner again called the park office looking for his supervisor and was again advised to get in touch with his supervisor because the park manager, Mr. Smith, just the previous week, had stressed that coordination with a supervisor prior to absence was mandatory. Petitioner indicated he was at a pay phone calling long distance and, according to Ms. Garrison, to whom he spoke, asserted his opinion that the manager's policy was stupid and he did not agree with it. Approximately 45 minutes later, Mr. Smith came in to the park office and Ms. Garrison advised him of Petitioner's calls and auto troubles. At that point, Mr. Smith attempted to call Petitioner back but could not get him. The procedure for requesting leave is contained in a Department interoffice memorandum dated July 21, 1986 and was stressed at various personnel meetings which were attended by the Petitioner. Personnel were notified that either the park manager or his assistant were the only ones who could authorize leave. Memos memorializing the subjects covered at the meetings specifically emphasize that employees are not to call the office to leave work but to call the approval authorities at home if need be. It would appear, therefore, that while Petitioner's basis for his absence may well have been valid, he failed to conform to the publicized requirements regarding the method of obtaining the leave he needed and, therefore, the disciplinary action, the last in a series, was appropriate. During this period, officials became concerned over what appeared to be Petitioner's abnormal behavior. On one occasion, he threatened to put poison in his lunch sandwiches in an effort to punish those individuals responsible for stealing his lunch out of the refrigerator in the camp's work area. Petitioner alleges, and it is accepted, that on several occasions, his lunch was stolen. His response, however, was excessive and though he well may not have intended to follow through on his threat, the fact that it was made was inappropriate. In addition, on at least one occasion, while commenting about a series of news articles concerning a gunman who had shot and killed several people in a fast food restaurant, Petitioner stated that he had a gun and that, "While Gaylord Kinsey, the preacher, would not hurt anyone, Gaylord Kinsey, the man, might shoot someone" but that his friends would be safe. Mr. Kinsey denies having threatened to shoot anyone but admits having indicated he had a gun. This incident took place about the time Mr. Kinsey was having domestic difficulties involving suspected infidelity on the part of his wife and that stress, coupled with the disciplinary difficulties in which he found himself, created a pressure situation he was incapable of handling. When Mr. Kinsey was approached by park officials concerning the weapon, he permitted a search of his vehicle. No weapon was found. He voluntarily agreed to accompany a sheriff's deputy to the local crisis intervention center but declined to voluntarily admit himself and turned up at the Assistant Park Manager's house that evening. At that time, he advised the Assistant Manager he did not have a weapon and at no time, it might be added, did Mr. Kinsey either directly or indirectly threaten any park employee. His comments now appear to be no more than attempts to frighten his associates and there is no indication he would have committed any violence against any employee or park patron. In any event, park authorities requested he be evaluated by a psychiatrist at Department expense to which he agreed. The doctor concluded that though Petitioner is overly sensitive and appears to react to adversity in an hysterical fashion, he does not appear to have any abnormal thought processes and his judgement is not impaired. He suffers from a poor self concept and reacts to rejection in a violent fashion. He appears to have poor impulse control when under stress. The doctor concluded that Petitioner should continue to seek ongoing psychiatric help. An additional psychiatric evaluation rendered on Petitioner several months later by another psychiatrist was totally consistent with the former diagnosis. The second doctor indicated there was no suicidal or homicidal ideation but that Petitioner had a low ability to handle stress, rules, and regulations. After considering all the above information, Mr. Smith, the Park Manager, communicated with the District Manager, Mr. Johnson, regarding his concerns about Mr. Kinsey's stability and his further concerns for the safety of park employees and patrons. Mr. Johnson in turn communicated with Park Service officials in Tallahassee and a collective decision was made to reassign Mr. Kinsey from HRSP to another Park Service facility several miles away. Notwithstanding Petitioner's allegations, there is no evidence this action was taken in an attempt to discipline or in any way punish him. To the contrary, a thorough evaluation of all the communication relating to this decision, which appears in the Petitioner's personnel filed, clearly indicates that the action was taken in a sincere effort to rehabilitate Petitioner's situation and give him an opportunity for a fresh start at another installation where he was not known and from which his problems were somewhat removed. Recognizing, however, that Petitioner would most likely misconstrue the departmental actions and feeling that the best way to handle the situation would be to immediately remove the Petitioner from the park pending resolution, and in light of the fact that Petitioner had at that point failed to provide his supervisor with documentation confirming his continuing psychiatric care, Mr. Johnson, on February 19, 1987, placed Petitioner on the aforementioned administrative leave which required him to use accrued paid leave for a period of 18 days. Petitioner acknowledged receipt of this directive on February 20, 1987. This is an authorized and approved personnel action in an appropriate case. It was followed up by the three day suspension without pay also previously mentioned. On March 16, 1987, Petitioner was permanently reassigned to Honeymoon Island as a park attendant. Under Department rules a "reassignment" is considered to be a move from one location to another less than fifty miles away. A "transfer" is a move of over fifty miles. Under the rules of the Department and the collective bargaining agreement covering Park Service employees, reassignments cannot be the subject of a grievance procedure or appeal. Honeymoon Island is exactly forty-two miles, gate to gate, from HRSP, by the most direct route. Petitioner claims that all or most of the actions taken against him by park management in this case are the result of a pervasive prejudice against black people in general and against him in particular and that the actions were the result of racial prejudice and discrimination rather than sound management. There is evidence that the former Assistant Park Manager, Mr. Yoczik, made disparaging remarks about blacks in general and about Petitioner in particular. However, only the first disciplinary action taken against Petitioner involved that individual. Departmental policies regarding disciplinary punishment are designed to allow employees to correct a problem at an early stage. They are progressive in nature, and call for a reprimand for the first offense and successively more severe punishments leading up to dismissal as early as the third. It is clear that Petitioner was afforded more than ample opportunity to correct his performance. His first incident resulted in an oral reprimand. The second and third, which could have resulted in suspension without pay and dismissal respectively, resulted in written reprimands. It was only when his conduct gave cause for concern for employee and patron safety, that a suspension without pay was implemented and efforts undertaken to reassign him from the facility, not dismiss him as could have been done. Consequently, it is clear that by no reasonable characterization, could the Department's actions here be considered discriminatory based on his race.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Florida Commission on Human Relations enter a Final Order denying Gaylord L. Kinsey the relief sought and dismissing the Petition for Relief. RECOMMENDED this 10th day of January, 1989, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1989. COPIES FURNISHED: Gaylord L. Kinsey Ken Plante, General Counsel Post Office Box 222 Dept. of Natural Resources Dade City, FL 34279-0222 3900 Commonwealth Blvd. Tallahassee, FL 32399-3000 Laura S. Leve, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Blvd. Tallahassee, FL 32399-3000 Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Blvd. Tallahassee, FL 32399-3000
The Issue The issue in this case is whether the Petitioner's application for supplemental compensation pursuant to Section 633.382, Florida Statutes, should be granted or denied.
Findings Of Fact 1. The Petitioner holds a Bachelor of Arts degree from Michigan State University. The degree was earned in the College of Communication Arts and Science. The major on the Petitioner's degree is advertising. 2. The transcript of the courses taken by the Petitioner to earn his bachelor's degree does not list any courses that appear to come within the criteria listed at Rule 4A- 37.084(5) (b)1, Florida Administrative Code. 3. The transcript of the courses taken by the Petitioner to earn his bachelor's degree lists several courses that appear to come within the criteria listed at Rule 4A-37.084(5) (b)2, Florida Administrative Code. However, there are not enough of such courses to comprise a major. 4. The transcript of the courses taken by the Petitioner to earn his bachelor's degree lists one course that appears to come within the criteria listed at Rule 4A.37.084(5) (b)3, Florida Administrative Code. 5. The Petitioner is presently employed by the Miami Beach Fire Department as a Firefighter I. The Petitioner has been employed full-time in his present firefighter position at all times material to the pending application. 6. The Petitioner's fire department duties are described in a written position description for the Firefighter I position. It is clear from the description of those duties that a Firefighter I position with the Miami Beach Fire Department is not one of the "management positions within a fire department," nor is it a position that includes "arson investigators." Such a position is also not one of the "special positions" contemplated by Rule 4A-37.084(5) (b)4, Florida Administrative Code. 7. When the Petitioner submitted his present application, Floyd Jordan, the Fire Chief of the Miami Beach Fire Department, by letter dated November 15, 2000, advised the Bureau of Fire Standards and Training as follows: After review of the attached college transcript and the City of Miami Beach Job Description for Firefighter I, it is my conclusion that this request does not meet the requirements of the Firefighters Supplemental Compensation Program. As of the date of the final hearing, Chief Jordan continued to be of the same view of the matter. 8. The Petitioner was previously employed by the Boca Raton Fire-Rescue Services as a firefighter/paramedic. The Petitioner's job duties in the Boca Raton position were essentially the same as his job duties in his present position. While employed with the Boca Raton Fire-Rescue Services, the Petitioner applied for supplemental compensation on the basis of the same bachelor's degree on which he bases his present application. The Petitioner's prior application was approved and he received supplemental compensation while employed with the Boca Raton Fire-Rescue Services.
Conclusions For Petitioner: Chuck Pereny, pro se 259 Northwest 90th Avenue Coral Springs, Florida 33071 For Respondent: Elenita Gomez, Esquire James B. Morrison, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333
Recommendation On the basis of the foregoing, it is RECOMMENDED that the Department issue a final order denying the Petitioner's application and dismissing the petition in this case. Tallahassee, Leon County, Florida. = DONE AND ENTERED this CS “day of June, 2001, in CH heseu Loe € MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this Q — day of June, 2001.
Findings Of Fact Petitioner was employed as a firefighter with the Tallahassee Fire Department, Tallahassee, Florida, on September 23, 1963, and continued in employment until May 5, 1979. (The suggestion by Petitioner that he had 24 to 27 days of leave accrued upon the last day of his employment is not utilized in determining the official termination date of employment. Beyond May 5, 1979, Petitioner was entitled to be paid for leave time, but was no longer obligated to perform as a firefighter, having been terminated effective May 5, 1979.) During his service as a firefighter with the Tallahassee Fire Department, Petitioner received a certificate of tenure in 1974, pursuant to Section 633.41, Florida Statutes. This provision has been referred to as the savings clause or grandfather clause and allows firefighters who were employed upon the effective date of that section to be certified without the necessity of complying with provisions of law related to certification through training and examination. Section 633.41, Florida Statutes became effective in 1969, thus Petitioner was certified by the terms and conditions of that provision. Petitioner left his employment with the Tallahassee Fire Department to pursue private business and for reason of family obligations. Having terminated his employment with the Tallahassee Fire Department on a voluntary basis, there was no prohibition against reapplying for employment with the Tallahassee Fire Department at some future date. That eventuality occurred when the petitioner contacted the Fire Chief of the Tallahassee Fire Department in April, 1981 to discuss the possibility of reemployment. The Fire Chief of the Tallahassee Fire Department then and now is one Edwin C. Ragans. Shortly after this discussion with Chief Ragans, and in the same month, April, 1981, Ragans hired Petitioner with the effective date of Petitioner's reemployment being July 21, 1901. The delay between April and July was caused by the petitioner's need to conclude certain business undertakings before assuming his duties as a firefighter. The State of Florida, Bureau of Fire Standards and Training, had been informed of the date of original employment for the Petitioner, September 23, 1963, and the date of termination, May 5, 1979, based upon a notice of termination which was submitted by Chief Ragans in behalf of the Tallahassee Fire Department. A copy of that form may be found as Petitioner's exhibit number 1 admitted into evidence. Likewise, the Bureau of Fire Standards and Training was made aware of the reemployment of the Petitioner through the filing of a form known as Qualification of New Employee. A copy of that form may be found as Petitioner's exhibit number 2 admitted into evidence. That exhibit reflects the date of reemployment or rehiring as being July 21, 1981, and further notes that the initial employment was September 23, 1963. That form does not allude to the date of original termination of employment with the Tallahassee Fire Department which was May 5, 1979. When Petitioner returned to employment in July, 1981, Chief Ragans made mention of the "two year rule", which is a reference to Rule 4A-37.14, Florida Administrative Code, (1976), dealing with the idea that firefighters who had been employed with an employing agency, such as the Tallahassee Fire Department, would not have to reapply for certification in this same fashion as the person seeking initial employment as a firefighter, if that former individual resumed full time paid employment with the employing agency within a period of two years immediately subsequent to termination of the initial employment. In this connection Ragans told the Petitioner at the point of reemploying the Petitioner in 1981, that Petitioner had two options. First, he could challenge the examination related to firefighters and gain certification or if that choice was not made it would be necessary for the Petitioner to go through a minimum standards class before recertification. At the commencement of reemployment, Petitioner was mindful of the existence of the two year provision pertaining to continuing certification for those persons who had not been away from employment as a firefighter for more than two years. Furthermore, this topic had been discussed between Petitioner and some other individuals of the fire department on one occasion. Under these circumstances, Petitioner contacted an official within the training division of the Tallahassee Fire Department and obtained books necessary to study in preparation for standing the examination for certification as a firefighter. Petitioner had commenced preparation for the examination when he happened to see Bobby Presnell a lieutenant within the Tallahassee Fire Department and president of the local firefighters union. In the course of this conversation with Presnell, Petitioner mentioned that he was going to have to be examined through a test before receiving certification. Presnell indicated that he would check into the situation and find out exactly what would be necessary to obtain certification. A couple of weeks after that conversation, Presnell called the Petitioner and told him that he had spoken with Olin Greene the then Director of the Division of State Fire Marshal in the state of Florida. Presnell reported to the Petitioner that in the course of the conversation between Greene and Presnell, Greene had stated that the Petitioner was a certified fireman. These conversations between Petitioner and Presnell occurred some time in August or September, 1981. Presnell testified that the discussion between Presnell and Greene concerned the problem which Petitioner had with the two year requirement for continuing certification without the necessity of testing or schooling. In testimony, Presnell indicated that he told Greene that the Petitioner had been reemployed and everything was "supposed to be okay, and then a month or two or three later the problem arose", meaning a certification problem. Greene, according to Presnell, stated that he would get back in contact with Presnell on this subject. Again, per the testimony of Presnell, some ten days to two weeks later, beyond the initial discussion between Greene and Presnell, Greene called Presnell and told him that as far as he, Greene, was concerned, and the Fire Marshal's office was concerned, that "They didn't have any problem with Mr. Adams' recertification or certification." Greene has no recollection of any conversation with Presnell on the subject of the certification situation related to the Petitioner. Having considered the testimony of Presnell and Greene, the Presnell testimony is accepted as factually correct. Following the occurrence wherein Presnell related remarks attributed to Greene as described before, a few days after those events, Petitioner had a discussion with District Fire Chief Raymond Love of the Tallahassee Fire Department. In this conversation Love describes a discussion which he claims to have taken place between himself and Buddy Dewar, whose actual name is Dennis Dewar, in which Dewar is reported to have said that Petitioner was certified. At that time Dewar was the Bureau Chief of the Bureau of Fire Standards and Training. At present he is the Director of the Division of State Fire Marshal, having been promoted to that position in April 1982. In testimony, Love's account of the Dewar conversation concerning certification of the Petitioner, was that in the course of a fireman's convention in October 1981, Dewar asked Love if he knew Jimmy Adams, and Love replied in the affirmative. Given this opening, Love then related that he was impressed with Adams as a person and in terms of his capabilities as a firefighter. Love then recounts that he began to tell Dewar that there was a problem related to the Adams certification and if there was any help that Dewar could give, it would be most appreciated. To which, according to Love, Dewar replied that "he didn't see any problem with the recertification." Dewar, per Love's comments, did not state that he considered the Petitioner to be certified at the time of that conversation, nor was the two-year requirement pertaining to the return to the employment roles, to remain in a certified position without reapplication for certification mentioned in the Dewar conversation with Love, according to Love. Dewar, in his testimony, denied that the conversation between Love and Dewar concerned the Petitioner. His recollection is that Love asked Dewar how long the retention of certification would be valid for, to which he responded two years. Having considered the testimony and the demeanor of the witnesses, a decision cannot be reached on which of the witnesses Love or Dewar should be believed pertaining to the conversation which took place between them in October, 1981. Following discussion with Chief Love, and particularly on the next morning after that discussion, Petitioner talked to another fire chief within the Tallahassee Fire Department, whose name is Revel. This conversation was instituted by Revel in his inquiry of the petitioner on the subject of whether Petitioner was studying for the examination for certification. In response Petitioner stated that he had been but that he had found out the night before that he was certified. Revel in turn told Chief Ragans of this conversation and Ragans summoned the Petitioner to his office and the conversation between Love and Petitioner on the question of certification was recounted for the benefit of Chief Ragans. Petitioner and Love indicate that in the course of the meeting with Ragans, Ragans made a phone call and having concluded that phone call, stated that Petitioner did not have any problem with certification, or something to that effect, as Love recalls Ragans comments. Petitioner's recollection of the comment after the phone call was that Chief Ragans said, "You are a certified fireman." Ragans, in his testimony, does not relate having phoned someone on the topic of certification of the Petitioner in the presence of Petitioner and Love as previously described. His recollection is to the effect that some time prior to Love having stated in the fleeting between Ragans, Love and the Petitioner, that Dewar had confirmed Petitioner's status as a certified firefighter, he, Ragans, had talked to a Mr. Schaffner, Standards Coordinator, at the State of Florida, Fire College, and Schaffner had indicated that the time which Petitioner had been out of employment as a firefighter in a Florida department, was so close to being within the two years allowed, that Petitioner would not be required to go back through the certification process. At the time this case was placed at issue Schaffner had died. Having considered Ragans comments in the context of the other proof, it is determined that Ragans was sufficiently acquainted with Schaffner's voice to identify Schaffner in the course of the telephone conversation on the topic of the Petitioners certification. It is also concluded that this was the only conversation which Ragans had with officials within the State of Florida, Office of the State Fire Marshal, during 1981. Whether this conversation between Ragans and Schaffner occurred while Petitioner and Love were in Ragans office is uncertain. Benjamin E. Mclin, inspector with the Fire Department, speaks in terms of a conversation which he had with Olin Greene in October 1981, in the course of a seminar. Mclin introduced himself to Greene and, Greene is reputed, according to Mclin, to have asked Mclin if he knew Jimmy Adams, the Petitioner, and to have asked what kind of person Adams was. Mclin reports that he replied that he thought that Petitioner was an outstanding person as well as an impressive fireman, to which Mclin says that Greene stated, "Well, I know I did the right thing." Greene has no recollection of this conversation. Having considered the comment, even if it can be attributable to Greene, it is sufficiently ambiguous that it has no value in resolving the certification issue related to the Petitioner. After the conversation with Chief Ragans and Chief Love, which took place in Ragans office, Petitioner assumed that he was certified without the necessity of standing examination to receive certification. He had received no written indication from Respondent confirming or denying this understanding and had never personally spoken to anyone in the employ of the Respondent, on this subject. Petitioner continued his duties throughout 1981, into the beginning of 1984, serving in the capacity as a firefighter with the Tallahassee Fire Department. At that point, Petitioner had been promoted to Lieutenant within the Fire Department, and in the face of that action, a grievance was filed by another firefighter employed by the Tallahassee Fire Department indicating that Petitioner was not a certified firefighter. Ragans, in response to the grievance contacted Paul R. Steckle who was employed with the Office of the Bureau of Fire Standards and Training as a Field Representative Supervisor. Steckle had been asked by Dewar to check the Petitioner's file to determine the period of time between the termination of initial employment with the Tallahassee Fire Department and reemployment with that employer. Having made this check Steckle believed that the period was beyond the two years and reported this finding to Dewar. In conversation with Ragans, Steckle had asked Ragans when Petitioner had been employed and Ragans had indicated that Petitioner had been rehired in April but did not report to work until July, 1981. Steckle told Ragans that if Petitioner had been hired in April, 1981, and had been granted a leave of absence, allowing Petitioner to start work in July, 1981, that the reemployment would have been within the two year limit. Ragans indicated that the City of Tallahassee had no policy of allowing a leave of absence such as inquired about by Steckle. Nonetheless, Ragans got the impression that petitioner was duly certified based upon remarks made by Steckle. On January 30, 1984, Ragans wrote Steckle verifying that Petitioner had not returned to work in April, in view of commitments which would not allow him to be actually at work until July. (Mention is made of 1979, but it is determined that Ragans is referring to 1981.) This correspondence also mentions the conversation between Ragans and Schaffner. A copy of the correspondence is Respondent's exhibit number 3 admitted into evidence. On February 22, 1984, Steckle wrote to the Petitioner and advised the Petitioner that a review of the records of the Bureau of Fire Standards and Training revealed that the Petitioner had been out of fire service for over two years before reemployment. This correspondence refers to May 5, 1979, as the date of termination and July 21, 1981, as the date of reemployment. It alludes to the fact that Petitioner must regain certification through provisions of Rule 4A-37.52, Florida Administrative Code, (1981) 1/ related to an equivalency examination and encloses a copy of the package related to that examination process. It requests that the examination be taken in April, 1984. Otherwise, it is indicated in the correspondence, the Petitioner would be terminated from employment with the Tallahassee Fire Department upon request from the Bureau of Fire Standards and Training to the Tallahassee Fire Department. A copy of this correspondence may be found as Respondent's exhibit number 14, admitted into evidence. On April 10, 1984, through correspondence from counsel for the Respondent to counsel for the petitioner, the case is discussed and the Petitioner is requested to stand the equivalency examination and it alludes to the fact that in view of the error of the Respondent in failing to note at the time of reemployment that Petitioner had been away from fire fighting for more than two years, Petitioner is given until February 22, 1985, to undergo an equivalency examination for purposes of recertification. In lieu of this disposition, Petitioner is afforded the opportunity for a Section 120.57, Florida Statutes hearing, which he availed himself of, leading to the present Recommended Order. A copy of the April 10, 1984 correspondence may be found as Respondent's exhibit number 15 admitted into evidence. Luther Richter had been employed as a firefighter with the Tallahassee Fire Department and was dismissed from that employment after being arrested on a federal drug smuggling charge. He subsequently pleaded nolo contendere to the charge in the United States District Court for the Southern District of Georgia in 1976 and was given a three year probation. In April of 1979 he applied to the Tallahassee Fire Department to be reemployed. Through the reemployment paperwork, Chief Ragans recommended that Richter not be accepted based upon an alleged lack of good character. In response, Dewar, the then Bureau Chief of the Fire College, wrote Ragans on May 22, 1979 stating that Richter was not eligible for employment because of his drug conviction. Another letter was sent on June 15, 1979, from Dewar to Ragans to the same effect. On July 17, 1979, Dewar requested a legal interpretation of the Richter situation from the point of view of the Respondent's duties in considering the question of Richter's certification as a firefighter in Florida. On September 10, 1979, the City of Tallahassee and Richter entered into an agreement for Richter's reinstatement as an employee with the City of Tallahassee. In the face of the action of the City of Tallahassee, the Respondent accepted Richter for purposes of certification as if he had never been dismissed. As stated in the October 16, 1979 correspondence from Olin Greene to Daniel E. A. Kleman, City Manager of the City of Tallahassee, with Richter's reinstatement as an employee of the City of Tallahassee the Respondent would ". . . have no alternative but to accept the reinstatement order and allow his certification that was in effect prior to September 1, 1975, to come back into effect." The agreement for reinstatement can be found as part of the composite exhibit number 6 of the Petitioner, admitted into evidence. The October 16, 1979 correspondence may also be found within that document. Those items are copies of the originals. In furtherance of Greene's perception, Richter having been reinstated by the City of Tallahassee was deemed by the Respondent never to have left employment. Richter's certification continues from September 1, 1975, the dismissal date, and his initial certification remains valid to this date as established in the correspondence of Olin Greene to Kleman dated January 9, 1980, a copy of which is found in the Petitioner's composite exhibit number 6. In essence, Respondent felt that in view of the reinstatement it could not refuse to recognize Richter's certification as if it had never lapsed between the interim period of his dismissal in 1975 and the agreement for reinstatement in 1979. In early 1984 a minimum standards training course for firefighters in Florida was taught at Indian River Community College. An unusually high failure rate was experienced by those students who took that course and this led to an investigation by the State Fire College. Through the investigation it was learned that one of the instructors in the minimum standards course had not been properly certified. To resolve this problem, all students who attended that course were required to take further training with a certified instructor. Following that additional training session, another examination was given and those persons who passed the second examination, in addition to those persons who had passed the initial examination, were certified. Those who failed the second examination were not accepted for certification. On other occasions where tenured firefighters, as recognized by Section 633.41, Florida Statutes, have gone beyond the two year time period for reemployment and continuing certification without examination, those firefighters have had to stand the examination, without exception.
The Issue The issue in this case is whether Respondent discriminated against Petitioner on the basis of marital status in terminating his employment.
Findings Of Fact For several years, Petitioner was employed as the Fire Marshall and Fire Inspector for Respondent. He worked in Respondent's Fire Department where he had been employed for some time. His responsibilities included a variety of fire safety matters, including actual firefighting. In April, 1990, the Code Enforcement Officer became ill, and the then- City Manager asked Petitioner to assume these duties. This job required the inspection of properties in the City and issuance of warning and citations for unsafe conditions, such as dilapidated buildings, abandoned cars, and overgrown vegetation obstructing traffic visibility. Petitioner assumed the Code Enforcement duties and typically worked 60 hours per week in discharging all of his responsibilities. A promised raise never materialized, so when a new Fire Chief was hired, Petitioner asked him to try to obtain a raise for Petitioner. By this time, the City had also hired a new City Manager, George Von Drok. Petitioner performed his job duties in an outstanding manner. He got along well with the Fire Chief and Mr. Von Drok, although he may have created some opposition in the community through his vigorous, but fair, enforcement of the City Code. During 1990, Mr. Von Drok lost his administrative assistant due to budgetary pressures. Possibly in response to the Fire Chief's raising the issue of a salary increase for Petitioner, Mr. Von Drok discussed with Petitioner the possibility of a salary raise concurrent with the creation of a new Department of Code Enforcement. Mr. Von Drok was thinking about possibly having Petitioner serve part-time as Mr. Von Drok's administrative assistant. Petitioner agreed to head the new Code Enforcement Department, which was established by act of the City Council on February 24, 1991. Petitioner's typical workday now ran from 8:00 am to 6:00 or 7:00 pm, plus firefighting on weekday nights and weekends. Nothing unusual occurred during the first 60 days of the new department's existence. Although the City was facing budget problems, Mr. Von Drok discussed with Petitioner ideas about making his one-man department more efficient, but he never mentioned the possibility of eliminating the new department. On April 24, 1991, when Petitioner arrived at work, he received a notice of suspension. Petitioner had just discovered that he had been named as a defendant in a civil action alleging that his wife had embezzled $130,000 from a bank where she had worked and alleging that Petitioner knew or reasonably should have known about the embezzlement. Petitioner had learned from the authorities of the alleged embezzlement only a day or two earlier. In fact, Petitioner had no knowledge about any embezzlement committed by his wife, who had suddenly disappeared. His wife had embezzled the money, which Petitioner helped to find and return to the bank. Petitioner himself was never criminally prosecuted, but his wife was convicted of the charges. Mr. Von Drok suspended Petitioner because of the civil charges against him. The suspension was without pay. Mr. Von Drok assured Petitioner that, if the allegations against him were cleared up, he would be reinstated to his job with back pay. In the next few days, it became apparent that Petitioner had had no knowledge of his wife's activities and was entirely innocent. On the afternoon of May 9, 1991, Mr. Von Drok, the Fire Chief, and Petitioner met and discussed the duties of the Fire Marshall, Fire Inspector, and Code Enforcement Officer. Mr. Von Drok indicated that he wanted to move Petitioner back into the Fire Department and transfer the Code Enforcement duties elsewhere. Petitioner responded that that was fine with him. The suspension was lifted May 10, 1991. But when Petitioner returned to work on the morning of May 10, he found that his department had been eliminated and his employment with Respondent terminated. Pursuant to the latest directive of Mr. Von Drok, Petitioner received full pay through that date, so that the suspension was effectively with pay. Mr. Von Drok testified that Petitioner was terminated for budgetary reasons. Mr. Von Drok assigned the Code Enforcement responsibilities to the Police Department and the Fire Marshall and Fire Inspector duties to the Fire Department. The Fire Chief has had to assume the Fire Marshall and Fire Inspector duties because only the Fire Chief and Petitioner had the necessary training and certification to perform these duties. Mr. Von Drok's testimony concerning why he eliminated Petitioner's department is not credible. The department was only created in late February, 1991. Mr. Von Drok testified that another department head, the Superintendent of Parks and Recreation, was terminated due to fiscal pressures on March 7, 1991. If fiscal pressures were already dictating the termination of department heads by the first week of March, it is unrealistic that Mr. Von Drok would have been creating new departments just a couple of weeks earlier. Respondent offers no evidence of unexpected financial pressures suddenly appearing in the two weeks between the creation of Petitioner's new department and the termination of the Superintendent of Parks and Recreation or later March, when Mr. Von Drok testified that he first considered the elimination of Petitioner's new department. In fact, the Superintendent of Parks and Recreation was terminated because of unsatisfactory job performance. He had left keys to a City truck in the ignition. He had failed to open park restrooms before a major event. He had played basketball on City time. And he had never finished his two-year degree as he had promised when he took the job. Likewise, Mr. Von Drok terminated Petitioner for reasons having nothing to do with financial pressures. Respondent terminated Petitioner due to his marital status. If Respondent had not been married to an embezzler, he would not have been terminated. There was no legitimate business reason for the termination of Petitioner. Petitioner lost gross wages and benefits of $88,434.44 and received in other employment and unemployment compensation a total of $16,794.11 for a net loss of $71,640.33. However, these figures are somewhat overstated. The claim for $2500 per year for two years for the loss of the use of a City-supplied car is not allowable because the City-supplied car would have been available only for City business or commuting--neither of which affected Petitioner following his termination. The claim for $9225 in retirement benefits is not allowable because Respondent shall reinstate Petitioner with full credit, in terms of accrued benefits and vesting, under the City retirement plan for the time lost. The claim for $584.44--evidently in uncovered medical expenses--is not allowable because Petitioner has failed to show that these expenditures would have been covered under a medical policy or, if covered, would not have represented deductible amounts. The claims for $300 for school and $2225 in mileage expenses in searching for work are not allowable as they are not a component of back pay. Last, the claim for an additional $1500 in salary for the second year is not allowable given the absence of evidence of such an across-the-board salary hike during the time in question. The allowable claim for back pay is therefore $52,805.89. Petitioner also obligated himself to pay his attorney a reasonable hourly rate plus costs.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order determining that the City of Avon Park committed an unlawful employment practice against Petitioner, prohibiting the commission of such a practice, awarding back pay of $52,805.89, requiring that Petitioner be hired for the next available job in the Avon Park fire department with pay and responsibilities generally commensurate with either of the last two jobs that Petitioner held with the City of Avon Park (or such lesser-paying, less responsible job that becomes available until such higher-paying, more responsible job becomes available), and awarding attorneys' fees and costs in the prosecution of the above-styled case. ENTERED on April 26, 1993, in Tallahassee, Florida. ROBERT E. MEALE 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 on April 26, 1993. COPIES FURNISHED: Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Robert H. Grizzard, II P.O. Box 992 Lakeland, FL 33802-0992 Michael M. Disler Trombley, Lobozzo, et al. 329 South Commerce Ave. Sebring, FL 33870
The Issue The issue is whether Florida Administrative Code Rules 69A- 62.001, 69A-62.003, 69A-62.006, and 69A-62.007, constitute an invalid exercise of delegated legislative authority as defined in Sections 120.52(8)(d), 120.52(8)(e), and 120.52(8)(f), Florida Statutes (2004).
Findings Of Fact Petitioner is and, at all times material to this case, was a volunteer firefighter. The size of the volunteer firefighter population is dependent on the ability of volunteer fire departments to attract and keep volunteers. People are willing to volunteer as firefighters if the experience is rewarding, training is not excessive, and conflict is minimized. However, the greater weight of the evidence indicates that the subject rules do not detract from the volunteer experience, impose excessive training, or create between conflict between professional and volunteer firefighters. Petitioner testified that a reduction in volunteer population will result in increased hazards to volunteers and a reduction in the delivery of services to citizens. This testimony is not persuasive for two reasons. First, there is no persuasive testimony that the subject rules will result in a reduction of the number of volunteer firefighters. Second, the most persuasive evidence indicates that the subject rules will reduce hazards to volunteers without impairing the delivery of services to Floridians. Some labor unions that represent career firefighters discourage their members from volunteering their services with volunteer fire departments. The competition between the unions and the volunteer fire departments is commonly referred to as the "turf-war." There is no persuasive evidence that the subject rules contribute to the tension between the two groups of firefighters. The firefighter labor unions are usually very active in the political arena. It is undisputed that the unions support legislation that benefits their members. However, the subject rules were not promulgated to eliminate or place hardships on volunteer fire departments and volunteer firefighters. The safety needs and concerns of firefighters have evolved over time. Technology has improved firefighting equipment to such an extent that the greatest threat to firefighters is from heart attacks and transportation accidents. Nevertheless, the fact that the subject rules focus on safety enhancement at the scene of a fire instead of firefighter health and transportation safety does not render them invalid. Florida Administrative Code Rule 69A-62.003 provides as follows in pertinent part: (3) With respect to 29 C.F.R. Section 1910.134(g)(4), the two individuals located outside the immediately dangerous to life and health atmosphere may be assigned to an additional role, such as incident commander, pumper operator, engineer, or driver, so long as such individual is able to immediately perform assistance or rescue activities without jeopardizing the safety or health of any firefighter working at an incident. (a)1. Except as provided in subparagraphs 2., 3., and 4., no firefighter or any other person under the authority of the firefighter employer at the scene of a fire is permitted to participate in any operation involving two-in, two-out as one of the two or more persons inside the IDLH atmosphere or as one of the two or more persons outside of the IDLH atmosphere unless such firefighter or other person at the scene of a fire is certified in this state by the division as a Firefighter I or a Firefighter II, as established in subsections (1) and (2) of Rule 69A-37.055, F.A.C. Such training shall consist of the training described in subsection (6) of Rule 69A-37.055, F.A.C. This requirement specifically applies to volunteer fire departments and volunteer firefighters but is also applicable to any other person working under the authority of the Firefighter Employer at the scene of a fire. 2.a. A volunteer firefighter who possesses the State Basic Volunteer certificate previously issued by the division is exempt from the Firefighter I and Firefighter II requirement in subparagraph 1. The training encompassed in the basic volunteer certificate in itself may not meet “trained commensurate to duty” as defined depending upon duties or tasks assigned or undertaken in the exclusionary zone. A volunteer firefighter who provides evidence of having completed curriculum equivalent to the Florida Firefighter I course of study as provided in subsection 69A-37.055(6), F.A.C., prior to January 1, 2004, is exempt from the Firefighter I and Firefighter II requirement in subparagraph 1., if The fire chief or other chief administrative officer of the fire department of which the firefighter is a member files with the State Fire Marshal form DFS-K4-1594, “Firefighter I Training Exemption Application,” which is hereby adopted and incorporated by reference, and The said form is accepted by the State Fire Marshal after confirmation of the evidence provided. Form DFS-K4-1594 may be obtained by writing the Bureau of Fire Standards and Training, 11655 Northwest Gainesville Road, Ocala, Florida 34482-1486. Any volunteer exempted by sub- subparagraph a.or b. is permitted to take the Florida Firefighter I examination until December 31, 2005, upon the completion and filing with the division of form DFS-K4- 1380, “Firefighter I Training Record,” Rev. 03/00, adopted in Rule 69A-37.039, F.A.C., by a Florida certified instructor that verifies equivalent training and demonstration of competency. The above-referenced rule sets forth ways that a firefighter, trained prior to the current regulations, may keep his or her interior-firefighter status without becoming certified as a Firefighter I or Firefighter II. The rule will not disqualify all previously qualified firefighters as long as they are "trained commensurate to duty" for any type of work they are requested to perform. There is no persuasive evidence that Florida Administrative Code Rule 69A-62.003(3)(a) will cause a reduction in the number of volunteer firefighters due to newly created administrative hurtles. The rule, which has its basis in safety enhancement, clearly is not arbitrary or damaging to the safety of volunteers. Florida Administrative Code Rule 69A-62.003(3)(a)4. states as follows: 4. Volunteer firefighters having NWCG S- 130, S-190, and Standards for Survival certification by the Florida Division of Forestry are permitted to participate in wild land fire suppression without the Firefighter I certification. The above-referenced rule allows a volunteer to fight wild-land fires without earning Firefighter I certification. The rule sets forth an exception to the Firefighter I certification requirement; it does not mandate that the NWCG courses are the exclusive means to qualify as a wild-land firefighter. Florida Administrative Code Rule 69A-62.003(3)4. is not invalid or arbitrary because it requires volunteers to pass training courses that are accepted as setting national standards or because the training courses teach firefighting techniques that are applicable across the nation as well as Florida. Petitioner presented no persuasive evidence to the contrary. Florida Administrative Code Rule 69A-62.006 states as follows: 69A-62.006 Requirements for Recognition as a Fire Department. To be recognized as an organized fire department by the division, compliance with the following must be documented: Capability of providing fire protection 24 hours a day, seven days a week; Responsibility for response in an area capable of being depicted on a map; and Staffing with a sufficient number of qualified firefighters who are employed full-time or part-time or serve as volunteers and who shall have successfully completed an approved basic firefighting course recognized by the Bureau of Fire Standards and Training. (2)(a) A fire department shall meet the requirements of the Insurance Services Office (ISO) for Class 9 Protection, the 2003 edition, the Fire Suppression Rating Schedule, effective February, 2003, which is hereby adopted and incorporated by reference and which may be obtained from Insurance Services Office (ISO), 545 Washington Blvd., Jersey City, NJ 07310-1686 or at www.iso.com. If the fire department does not meet the requirements of this section, the fire department shall submit a plan of compliance which provides for meeting these requirements within 90 days of the date of submission of the plan. ISO measures the major elements of a community’s fire-suppression system and develops a numerical grade ranging from 1 to 10. Class 1 represents the best public protection rating and Class 10 indicates no recognized protection. The requirements for ISO 9 may be obtained at the ISO website located at www.iso.com, or it may be obtained by writing to the Division of State Fire Marshal, Bureau of Fire Standards and Training, 11655 Northwest Gainesville Road, Ocala, Florida 34482-1486. Florida Administrative Code Rule 69A-62.006(1)(a) is not invalid because it requires fire departments to document their capability of providing fire protection 24 hours a day/seven days a week. The requirement for full-time availability will provide significant safety enhancement for the communities being served. This is true because some voluntary fire departments in rural communities historically have provided only part-time service. There is no persuasive evidence that requiring full- time fire protection will result in the following: (a) the creation of a fire-suppression performance standard that is unauthorized by law; (b) the closing of some volunteer fire departments; (c) a reduction in services to the public; and (d) uncorrectable rule-violations; an increase in conflict between professional and volunteer firefighters. Florida Administrative Code Rule 69A-62.006(1)(c) requires that each fire department be staffed with a sufficient number of qualified firefighters. The rule is not vague because it uses the word "sufficient" to determine the number of firefighters that are required. One must read the applicable rules in their entirety and consider the needs of each community to determine adequate staffing. There is no persuasive evidence that the staffing requirement fails to establish adequate standards for determining compliance. Florida Administrative Code Rule 69A-62.006(2) requires fire departments to meet certain requirements of the Insurance Services Office (ISO) for Class 9 protection. This requirement determines the minimum equipment that is necessary to safely fight a structure fire. There is no persuasive evidence that requiring a fire department to provide Class 9 protection will make it impossible to start a new voluntary fire department. The rule clearly is not arbitrary in setting this minimum standard. Florida Administrative Code Rule 69A-62.007(1) states as follows in pertinent part: 69A-62.007 Minimum Requirements for Class 9 Protection. To be considered for Class 9 protection, the following minimum facilities must be available: Organization: The fire department shall be organized on a permanent basis under applicable state or local laws. The organization shall include one person responsible for operation of the department, usually with the title of chief. The fire department must serve an area with definite boundaries. If a municipality is not served by a fire department solely operated by or for the governing body of that city, the fire department providing such service shall do so under a contract or resolution. When a fire department’s service area involves one or more jurisdictions, a contract shall be executed with each jurisdiction served. Membership: The department shall have a sufficient number of firefighters/members to assure the response of at least 4 firefighters/members that can assemble at the scene of a fire as contemplated by subsection (1) of Rule 69A-62.003, F.A.C., to be compliant with Rule 69A-62.003, F.A.C., the two-in, two-out rule. The fire chief may be one of the 4 responding firefighters/members. The above-referenced rule does require fire departments to have four "interior-qualified" firefighters at the scene of a structure fire. The requirement is necessary to comply with the longstanding "two-in, two-out" rule. However, the rule does not preclude a fire department from relying on mutual-aid from other fire departments in order to comply with the rule. The rule clearly is not vague. Florida Administrative Code Rule 69A-62.007(4)(a) states as follows in relevant part: (4)(a) The chief of any fire department that includes volunteer firefighters shall annually submit a Roster of Volunteer Firefighters to the State Fire Marshal utilizing form DFS-K4-1581, effective 05/04, which is hereby adopted and incorporated by reference, no later than June 30 of each year. Form DFS-K4-1581 may be obtained by contacting the Division of State Fire Marshal, Bureau of Fire Standards and Training, 11655 Northwest Gainesville Road, Ocala, Florida 34482-1486 or at the division’s website located at http://www.fldfs.com/SFM/. The roster shall include: The fire department name, The fire department identification number (FDID), The complete fire department address, The fire department contact person, telephone number and the fire department fax number, if any, The certification level for each firefighter reported and, if any equivalency exemption has been issued, the number of persons for whom such exemption has been issued, and The firefighter certification number, the issue date of the certification, the status of the certification, i.e., volunteer or career, and the status of each firefighter who has been issued an equivalency exemption, i.e., volunteer or career, if any. The above-referenced rule requires the chief of a fire department to submit an annual roster of volunteer firefighters. Petitioner objects to the rule because some career firefighters volunteer their off-duty hours with the local volunteer fire department. Career firefighters who also perform volunteer work may do so contrary to their union rules. Publication of the roster might keep some professional firefighters from volunteering their services. Nevertheless, there is no persuasive evidence that losing some speculative number of career/volunteer firefighters will undermine the safety of firefighters or the public. The information that the roster contains is a public record. The information is necessary so that Respondent can perform statutorily-mandated studies involving injuries to firefighters. The rule clearly is not arbitrary.
