Findings Of Fact By addition to Section 633.081(2), Florida Statutes, in 1981, the Florida Legislature required the State Fire Marshal to renew, on a triennial basis, the certification of fire inspectors in the State of Florida and to, by January 1, 1982, establish procedures to do so by rule. This statute and the 1979 edition thereof stipulated that all required fire inspections be conducted by a person certified as having met the inspection training requirements set by the State Fire Marshal and charged that individual with maintaining current files on all certified inspectors. Consistent with that mandate, on October 16, 1981, a representative of the Bureau of Fire Standards and Training of the State Fire Marshal, by memorandum to all "Incumbent Fire Safety Inspectors," forwarded the procedures established by the Bureau to initiate the required certification process. The memorandum clearly indicated the test to be given during December, 1981, at various locations throughout the state would be to any "qualified' inspector. The term "qualified" was defined in the attachment to the memo as being: ndividuals who are currently functioning as fire inspectors provided they meet the requirements specified below. Have a minimum of one year of experience as a full-time fire safety inspector as of January 1, 1982, and have successfully completed a 40 hour course of instruction in Codes and Standards; or Have a minimum of five years experience as a full-time fire safety inspector as of January 1, 1982. This incumbent test was an open-book examination in all sections, and was not to be used to test new inspectors who had not been serving in that job. The test for new inspectors is open book in only one of five sections. On November 9, 1981, Respondent, John M. McCarthy, then serving as Fire Chief for the Fort Myers Beach (Florida) Fire Control District (FMBFCD), submitted his request to take the Incumbent Fire Safety Inspector examination. The application form Respondent submitted, verifying he had served as a full- time fire inspector for four years beginning September 11, 1977, to the date the application was signed by Respondent, as fire chief, as the certifying agent. Respondent contends he was advised to do just that by a representative of Petitioner in a phone call to Petitioner's Ocala office prior to the application. Mr. Stark, currently the bureau chief, was not serving in that capacity at that time. The then-incumbent is no longer at that office and did not testify. On the basis of Respondent's application and the verification of status appearing thereon, he was permitted to take the incumbent exam, which he passed, and was subsequently certified as a fire safety inspector. In early April, 1983, John Dahlgren, Jr., Vice Chairman of the Board of Fire Commissioners, FMBFCD, in the company of Mr. Robert J. Weatherbee, then lieutenant in the Fort Myers Beach Fire Department, came to Mr. Frederick C. Stark, Bureau Chief, Bureau of Fire Standards and Training, Office of the State Fire Marshal, and presented a letter to him to the effect that it was the majority opinion of the members of the Board, FMBFCD, that Respondent was not qualified to take the incumbents' fire inspector examination when he did because he had not had the required one year experience as a full-time fire inspector and, therefore, his certification as such was in error. A letter to that effect, dated April 7, 1983, was also delivered. The following day, April 8, 1983, Mr. Stark wrote to Respondent, informing him of this allegation and offering him the opportunity to refute the allegation. Apparently, that same date, Mr. Stark sent a similar letter to Mr. Keith Hiatt, Chairman of the FMBFCD; and on April 12, 1983, Mr. Hiatt responded by letter, indicating that Respondent was, at the time of taking the exam, the full-time paid inspector, as well as full-time paid fire chief, citing the training that Respondent and another fire official gave to Mr. Weatherbee to qualify him for the position of fire marshal. Similar sentiments were contained in a letter, same date, from Mr. Frederick Bruchner, member of the Board, to Mr. Stark. Also on April 12, 1983, Respondent responded by letter to Mr. Stark, outlining his experience in fire prevention and detailing that his position as fire chief gives him final review and decision-making authority on the operation of the department's fire inspector, Mr. Weatherbee. Shortly thereafter, on April 29, 1983, Mr. Weatherbee and Charles Mulac, former Fire Marshal and acting Fire Chief, signed affidavits which subsequently got to Mr. Stark on May 2, 1983, which indicated that during their tenure in their respective offices, going back to June, 1979, Respondent had not served that department as a full-time inspector. Prior to signing his affidavit, Mr. Weatherbee personally went through all the inspection files, including approximately 180 residentials, 100 Businesses, 100 mercantiles, 5 schools, and some industrials. He recalls that Respondent was with him on some of his inspections, but does not recall any cases where Respondent did the inspection alone. During this period, Respondent called Mr. Stark and told him there were documents in the department files which showed he had done fire inspections, so on May 2, 1983, Mr. Stark wrote to Mr. Mulac, as acting Chief, and requested he search the department's fire inspection records for the period 1977-1980 for any documentation, such as inspection records, surveys, or the like, to indicate inspections done by Respondent. On May 5, Mulac responded in writing, indicating that a thorough search of the records in question disclosed no documentation on inspections by Respondent, nor did the records show Respondent was ever a part-time or full-time, paid or nonpaid, inspector during the period 1977-1980. In addition to the lack of full-time inspector employment, the Bureau also concluded that Respondent's training records did not reflect the required training in that it is felt he did not have training in: Blueprint reading and plan examination; Inspection procedures; (a) Private protection systems (sprinklers, alarms); and (d) Causes and origins of fires. Without this background, the Bureau concluded Respondent could not function as an inspector, as all are pertinent to that operation, especially in light of current building methods. Further, concerning the experience requirement, this was considered to be imperative because there are many aspects of fire safety which are learned only through experience. Without the experience, even the training would not, in Stark's opinion, make an individual a qualified inspector. Respondent's duties as fire chief, which required him to oversee inspections done by others, was not, in Stark's opinion, sufficiently connected to the inspection process to allow him to sit for the incumbents' examination. Therefore, on May 11, 1983, Mr. Stark, as Bureau Chief, voided Respondent's Municipal Fire Inspector certificate and advised him of that fact by letter. Respondent contends that Mr. Stark's action was taken without adequate investigation and was based on irrelevant matters. As to the latter issue, Mr. Stark admits that the discussion he had in his office with Dahlgren and Weatherbee related to the rules and procedures as they applied to Respondent. Mr. Stark assured these two gentlemen only that he would look into their allegations. Prior to this visit, he had no indication there was anything wrong with Respondent's certification or that of Mr. Taylor, also from the Fort Myers Beach Fire Department. About a week after this visit, Mr. Stark received a package in the mail that consisted mostly of newspaper clippings concerning Respondent and alleged improprieties in the District, but, he contends, he read only one, and none of this had any bearing on the decision to decertify Respondent as a fire inspector. He also received numerous phone calls from individuals in Fort Myers regarding Respondent's status, and he referred them all to the Fire Marshal's Office in Tallahassee. Without concluding at this point whether that decision was appropriate or not, it is clear there is no reason to disbelieve Mr. Stark in this regard or to conclude the decision was based on any improperly considered evidence. As to the adequacy of the investigation into the allegations, it is also clear that Mr. Stark could have improved little on what he did. He could have, himself, examined the department's records and, in light of the fact that at the time in question Respondent had been suspended as chief and was barred from the department offices (he could not, therefore, get to the files to secure copies of his inspection reports, if any existed), perhaps should have done so. However, at no time did Respondent contend he had done inspections himself, but instead, in his response to Mr. Stark's initial letter, relied solely on his supervisory position, the responsibility that went with it, and his efforts on behalf of the Interlocal Agreement. In light of the evidence presented to him, Mr. Stark had no requirement to go further, and it is clear his inquiry into the matter was adequate. At the time of the test, no rule had been promulgated for the certification process. The Fire Marshal's Office took the statutory language calling for "certification" of inspectors as the authority to give the test to incumbents to certify them. It is the opinion of Mr. Stark that some of the 400 to 500 individuals who took the incumbent test, out of the 23,000 inspectors working in this state, had very little fire inspection training or experience at all. However, since the Training Bureau has only two individuals to do the checking for the entire state, he had to rely on the integrity of the individual who verified the experience claimed on the application form. If, however, the Bureau received information that someone was not qualified, it decertified that individual, utilizing the same procedure as done in the instant case; that is, to decertify after investigation, but without hearing prior to the decertification action. In fact, to the best of Mr. Stark's knowledge, there were five other cases where certificates were looked into because of alleged irregularities such as here. Respondent applied for employment with the FMBFCD on May 15, 1976. Prior to coming to Florida, he worked as a fire fighter in New York since 1965 and while there took numerous fire fighting courses and officers' training. After coming to Florida, he enrolled in St. Petersburg Junior College and Edison Community College by which latter institution he was awarded the Associate of Science Degree in Fire Administration. During the course of study, he took courses in: Introduction to Fire Protection; Fire Protection Systems; (a) Fire Company Leadership; Fire Fighting I; Fire Company Management; Fire Codes; Protection Organizations; Fire Prevention Investigation; Hazard Material; Fire Fighting II; and graduated in the winter of 1983 from Edison Community College with an overall grade point average of 3.22 out of a possible 4. Respondent submitted extensive documentation in the form of memoranda, notations, calendar memos, and newspaper articles to show that he was actively engaged in fire inspection. However, careful review of these documents reveals that while he was frequently embroiled in controversy over the inspections of various commercial and residential establishments in Fort Myers Beach, and while he may, from time to time, have actually been personally involved in inspections, for the most part he was the upper echelon supervisor who was called upon to resolve disputes over inspections conducted by others, on the basis of policy or whatever other concern was pertinent to the issue. Whatever else he did, it is clear Respondent was not a full-time fire inspector. In fact, Respondent admits that though he has personally participated in many inspections in the field, assisting Mr. Weatherbee, who was, at the time, the Fire Inspector (Marshal) for the FMBFCD, and bringing to his attention various aspects of the fire codes, he did not do the actual inspection and has never done one by himself. However, because of the periodic friction between Weatherbee and Mulac, then the Assistant Fire Chief, he found himself going out into the field with both, frequently to do inspections. Respondent contends that the area of fire prevention and code enforcement, into which fire safety inspection falls, is the biggest part of his job, which also entails fire suppression and rescue. During the period in question, Fort Myers Beach did more building in general than the rest of the county. As a result, he was always out at the site looking at plans and consulting with the builder. In that regard, however, he has, by his own admission, taken no course work in blueprint reading or plans review that was certified by the State Fire Marshal. Finally, concerning this particular subject, when Respondent was temporarily suspended from his job as fire chief in April, 1983, he was contacted by a reporter from the local paper who read to him, over the phone, from the long list of charges laid against him, of which, prior to that moment, he had no knowledge and had not seen. In response to the reporter's question about inspections, 1/ Respondent is quoted as having denied participating in fire inspections and indicating he had nothing to do with fire codes.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED THAT: Respondent's certification as a fire safety inspector be rescinded. RECOMMENDED this 22nd day of May, 1984, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 22nd day of May, 1984.
The Issue The issue is whether Petitioners are entitled to Class A and D licenses as dealers of fire extinguishers and pre- engineered systems.
Findings Of Fact On June 5, 1997, Petitioners filed applications with Respondent for licensure as Class A and D dealers in fire extinguishers and pre-engineered systems, respectively. Petitioner Judson Schroyer (Schroyer) sought licenses as the qualifier for Petitioner Naples Fire & Safety Corp. (NFS). Respondent denied the applications on the ground that, from August 18-21, 1997, Petitioners had engaged in the regulated business at the Red Lobster restaurant in Naples without the required license. Except for this matter, and the additional basis cited below, Petitioners were otherwise entitled to licensure. On May 15, 1997, Respondent entered an emergency order of suspension of dealer licenses of National Fire & Safety Corporation and its qualifier, Todd Jacobs (Jacobs). Schroyer was and remains the general manager of National Fire & Safety Corporation, and Jacobs is Schroyer’s supervisor. As a result of the suspension of the licenses of National Fire & Safety Corporation and Jacobs, Schroyer’s permit to perform regulated work for his employer was automatically suspended. Several months after Respondent had suspended Petitioners’ licenses and permits, counsel for both parties negotiated a settlement agreement. Under the agreement, Respondent would immediately lift the suspension. Jacobs and Schroyer learned that Petitioners' counsel had received an unsigned, final draft settlement agreement on Monday, August 18, 1997. The settlement conditions were acceptable to Petitioners, and Jacobs and Schroyer knew that Petitioners' counsel had signed the agreement and faxed it back the same day to Respondent's counsel for execution by Respondent's representative. On August 18, the general manager of the Red Lobster called National Fire & Safety Corporation and spoke with Jacobs. The general manager described a job involving the installation of a new oven, which would necessitate the relocation of other kitchen equipment a few feet. Thinking that the settlement agreement would be fully executed by then, Jacobs agreed to visit the general manager at the site the following morning. The next morning, Jacobs and Schroyer met the general manager at the Red Lobster. Giving the general manager National Fire & Safety Corporation business cards with their names, Jacobs and Schroyer briefly looked at the pre- engineered system in the kitchen, as the three men walked through the kitchen, and assured the general manager that there would be no problem doing the work in the short timeframe that he required. The purpose of the visit was for marketing, not for preparation for the relatively simple job that the general manager envisioned. Shortly after leaving the Red Lobster, Schroyer realized that Petitioners might not have their licenses and permits reinstated in time to do the job. He conveyed this concern to Jacobs, who spoke with Petitioners' counsel on the evening of August 19 and learned that they could not do the job. Jacobs instructed Schroyer to call another company in Fort Myers, FireMaster, to which Petitioners had referred work during their suspension. Schroyer called a representative of FireMaster, and he agreed to perform the work. FireMaster assigned the job to Ward Read, who, as is authorized by Respondent, held a dual permit, which means that he was permitted to work for two licensed dealers. One was National Fire & Safety Corporation, and the other was FireMaster. Mr. Read reported to the Red Lobster in the predawn hours of August 21, as requested by the general manager of Red Lobster. Because his FireMaster truck had insufficient supplies, Mr. Read used an NFS truck, but the equipment tags, inspection report, and invoice on the Red Lobster job all bore the name of FireMaster. At all times, Jacobs alone dealt with the Red Lobster general manager. Jacobs spoke with him on the telephone and at the restaurant. Schroyer accompanied Jacobs on his trip to the restaurant solely at the convenience and evidently the direction of Jacobs. Schroyer’s only discretionary act was to warn his boss that Respondent might not reinstate the licenses in time for National Fire & Safety Corporation to perform the Red Lobster work. The brief observation of the pre-engineered system does not constitute an inspection under the National Fire Protection Association standards or the arguably broader statutory use of the same term. As Respondent suggests, an "inspection" means “to look over or to view closely in critical appraisal.” Schroyer's casual observation of the Red Lobster pre-engineered system did not rise to the level of a critical appraisal. The purpose of the visit was for Jacobs to market the services of National Fire & Safety Corporation, not for Jacobs or Schroyer to perform an inspection or service. National Fire & Safety Corporation and Jacobs engaged in the business of servicing a pre-engineered system, due to the solicitation of Red Lobster and arrangement with FireMaster, but these acts are not attributable to Schroyer. Jacobs dealt directly with the Red Lobster general manager, and Schroyer contacted the FireMaster representative at the direction of his supervisor, Jacobs. More importantly, this contact followed Schroyer’s laudatory urging to his supervisor that National Fire & Safety Corporation not do the Red Lobster job until its licenses had been reinstated. Respondent offered evidence of an attempt by National Fire & Safety Corporation to circumvent the suspension order by sending business to FireMaster in return for a payment. It is unlikely that the evidence was admissible on the grounds of hearsay. However, even if admitted, the FireMaster employee testifying to this arrangement denied that Schroyer was part of the arrangement. Respondent attempted to add another basis for the denial--namely, that National Fire & Safety Corporation and NFS are effectively the same organization. The Administrative Law Judge denied Respondent’s motion to amend its reasons for denial to add this issue on the ground that it was untimely. However, at the urging of Petitioners, the administrative law judge allowed the parties to present evidence on this issue. There is considerable overlapping among officers and shareholders between NFS, which was incorporated on June 2, 1997, and National Fire & Safety Corporation, which has been in business for a number of years. The officers of NFS are Denae Jacobs, Jacob’s sister, president; Schroyer, vice- president; Donald Jacobs, Jacobs’ father, secretary; and Jacobs, treasurer. The identified officers of National Fire & Safety Corporation are Donald Jacobs, president; and Jacobs, vice-president. Donald Jacobs is the owner of National Fire & Safety Corporation and the majority owner of NFS, with Jacobs and his sister. Schroyer owns five percent of NFS, but none of National Fire & Safety Corporation. NFS will use National Fire & Safety Corporation’s facility, office equipment, and some of its major equipment. The permittees formerly under National Fire & Safety Corporation will be transferred to NFS. Also, National Fire & Safety Corporation has used the initials, “NFS,” as part of its letterhead and insignia, and these initials will obviously be available to NFS, if unconditionally licensed.
Recommendation It is RECOMMENDED that the State Fire Marshal enter a final order granting the application of Schroyer and denying the application of Naples Fire & Safety Corp.; provided, however, the final order shall direct that if, within 60 days of the final order, Naples Fire & Safety Corp. changes its name so that its initials are not “NFS” and do not contain any two of the same initials as “NFS,” then the application of the newly named corporation shall be granted, subject to the condition that it never change its corporate name or adopt a fictitious name so, in either case, that its initials contain any two of the same initials as “NFS.” DONE AND ENTERED this 12th day of December, 1997, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1997. COPIES FURNISHED: Attorney Mechele R. McBride Attorney Richard Grumberg Department of Insurance and Treasurer 200 East Gaines Street Tallahassee, Florida 32399-0333 Mark H. Muller Quarles & Brady, P.A. 4501 North Tamiami Trail Naples, Florida 34103 Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300
Findings Of Fact At all times material hereto, Francis Edward Neuzil, Jr. (Respondent), was certified as a firefighter and firesafety inspector in the State of Florida, holding certificates 7360 and FI-39965, respectively. Respondent's firefighter certification was issued on or about February 22, 1979, and his firesafety inspector certification was issued on or about January 9, 1985. On or about December 20, 1991, Respondent was charged by Information with one count of grand theft in the Circuit Court, Seventeenth Judicial Circuit, Broward County, Florida, in Case No. 91-23492CF10. On or about May 11, 1992, Respondent plead nolo contendere to grand theft for violating Subsection 812.014(1)(a), Florida Statutes, a third degree felony. Adjudication was withheld, and Respondent was placed on 18 months probation with special conditions of 50 hours of community service and no consumption of drugs or alcohol. On or about January 14, 1993, the court terminated Respondent's probation, approximately 10 months prior to the scheduled time for his probation to end. The incident which led to Respondent's felony charge occurred on or about December 7 or 8, 1991, at a Sam's store in Broward County after 11:00 p.m. A sprinkler system was being installed and was sufficiently completed for inspection by a firesafety inspector. Respondent went to Sam's store acting in the capacity of a firesafety inspector. Originally, he had estimated that only 10 minutes would be needed to accomplish his task--check the water gauges--but the sprinkler installers were behind schedule and it took approximately an hour. Prior to arriving at Sam's, Respondent had consumed approximately 10 beers. While waiting to perform the inspection, Respondent, who was not in uniform, walked around in the store, consuming an unknown quantity of beers that he had brought into the store with him. Respondent was observed by an electrical worker and several of Sam's employees who either saw him drinking beer or smelled the alcohol on his person and who either knew who he was or were told by other workers or employees who he was. These same individuals witnessed Respondent take several items to the rear entrance--through which everyone working that night or morning was coming and going--and out of the store. Respondent did not attempt to conceal the items. None of the individuals questioned Respondent about the items or stopped him. However, one employee contacted a Sam's manager who was present. They discovered store items were missing, went to Respondent's vehicle which was parked at the rear entrance, as was everyone else's vehicle, and saw the items inside his vehicle. Law enforcement was called, and Respondent was arrested. All the people who saw Respondent at Sam's store believe that he was intoxicated. Respondent has little or no recollection of the incident, and what he does recall is vague. He does not recall taking the items, all of which were items that he had seen before in Sam's and wanted for the Boy Scouts with whom he volunteers. However, he does recall picking up a light bulb and an electrical cord with no ends to it. As a result of the incident, Respondent was suspended by the Fire Chief of the City of Miramar and has not acted in the capacity as a firesafety inspector since December 1991. Even though Respondent pled nolo contendere to the felony charge of grand theft, mitigating circumstances exist, both at the time of the incident and subsequent thereto. Medically, Respondent is diagnosed as an alcoholic, having the disease alcoholism. During the incident, he suffered an alcoholic blackout and, as a result, has little or no recollection of taking the items. Furthermore, Respondent was incapable of forming the requisite intent to steal the items. Additionally, immediately after the incident, he sought treatment and checked himself into a rehabilitation center. Respondent is now a recovering alcoholic. He regularly attends meetings of Alcoholics Anonymous and is monitored by a sponsor who is also a professional firefighter (10 years) and a recovering alcoholic (approximately six years). Further, since January 1992, Respondent has been receiving medical assistance with his alcoholism. Even though he needs to remain in a recovery program, he does not pose a threat to his profession. 1/ Moreover, during Respondent's career as a firefighter (almost 15 years) and firesafety inspector (almost nine years), his certifications have never been disciplined and he has been actively participating in his community. Through his community involvement, Respondent established the City of Miramar's Fire Prevention Bureau and raised money to fund the Bureau. Additionally, he has received many job-related commendations and service recognitions and he has volunteered extensively to work with service organizations, such as the Boy Scouts. Petitioner's consistent policy is to not consider mitigating factors in disciplinary action against a firesafety inspector's certification. In matters involving a plea of nolo contendere, the consistent policy is that an applicant for firesafety inspector will not be issued a certification and that, if the individual has been issued a certification, Petitioner will seek revocation of the certification, regardless of mitigating circumstances. Petitioner is not seeking to discipline Respondent's certification as a firefighter since his certification, by statute [Section 633.351(2), Florida Statutes], was revoked until termination of his probation which occurred on January 14, 1993.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order: Suspending Respondent's certification as a firesafety inspector for a period of two years, retroactive to May 11, 1992, the date of Respondent's plea of nolo contendere. Reinstating Respondent's certification at the conclusion of the suspension and thereafter, for a period of one year, placing Respondent's certification on probation under whatever terms and conditions that Petitioner deems just and appropriate. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of December 1993. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December 1993.
The Issue The issue in this case is whether Petitioner’s application for certification as a firesafety inspector should be granted.
Findings Of Fact The Department is the state agency responsible for the certification of firesafety inspectors in the State of Florida pursuant to Chapter 633, Florida Statutes (2009).1 In September 2008, Mr. Bates completed his coursework for certification as a firesafety inspector. In November 2008, Mr. Bates submitted an application for certification as a firesafety inspector. Sometime between November 19, 2008, and December 5, 2008, the Department notified Mr. Bates that the Department did not have a copy of his high school diploma and the certificate showing that course work for the building construction for the fire service had been completed. On December 5, 2008, the Department received documentation showing that Mr. Bates had graduated from high school and had completed the course work for the building construction for the fire service. Scheduling a time to take the firesafety inspector examination can be done online by going to the Pearson Vue testing center website and entering the ID and password provided by the Bureau. Mr. Bates attempted to schedule the examination by telephone and was unsuccessful, but he did not attempt to schedule the examination online. Sometime during January or February 2009, Mr. Bates was able to obtain a date for the examination. Mr. Bates took the examination for firesafety inspector certification for the first time on February 13, 2009. A passing score on the examination was 70 percent. The Bureau sent a notice to Mr. Bates that his score was 56 percent. The notice of the test results advised that he could retake the examination within six months of his test date of February 13, 2009, and that he could review his test questions by contacting the Promissor at www.promissor.com. On April 3, 2009, Mr. Bates contacted Charles Brush, who was the standards supervisor for the Bureau, to schedule a review of his examination taken in February. Mr. Brush was responsible for the testing for certifications and renewals issued by the Bureau. Due to miscommunications with the Bureau, Pearson Vue testing center, and Mr. Bates, Mr. Bates was not scheduled for a review of his examination until May 2009. Mr. Bates reviewed his examination in May 2009; however, after he had gone through the examination one time, he was not allowed to again review the examination. This restriction on the review process is designed to prevent applicants from memorizing questions from the examination. Many of the questions on the examination may be used again in another examination. Because of the communication issues concerning the test review, Mr. Brush gave Mr. Bates an open-ended time extension to retake the examination. Sometime between February 13, 2009, and June 27, 2009, Mr. Bates took a weekend course to practice for the examination. On June 27, 2009, Mr. Bates retook the firesafety inspector examination and again scored 56 percent, which was a failing score. The notice of the test results provided that “[s]hould you fail the retest or waive your right to a retest, the only way to obtain certification is retake the course(s) required, submit a new application for approval, and pass the certification examination.” Mr. Bates does not contest the scores that he received on the examinations. He contends that he should be entitled to be certified as a firesafety inspector due to the amount of time that passed between the completion of his coursework in September 2008 and the taking of the examinations in February and June 2009. He was not able to retain coursework information from September 2008, when he completed his courses, until February 2009, when he first took the test.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Mr. Bates’ request that he be certified as a firesafety inspector. DONE AND ENTERED this 20th day of April, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 2010.
The Issue The issues in this case are whether Respondent’s participation in the John M. McKay Scholarships for Students with Disabilities Program (McKay Scholarships) and the Corporate Income Tax Credit Scholarship Program (CTC Scholarships) should have been suspended, and whether Respondent’s eligibility to participate in the programs should be revoked.
Findings Of Fact CHC is a private school located in Merritt Island, Florida. Lara Nichilo is the owner and head administrator of CHC. Ms. Nichilo was also the owner and head administrator of another private school located in Cocoa, Florida. For the purposes of this proceeding, the school located in Cocoa, Florida, will be referred to as CHC 2.2 CHC and CHC 2 had participated in the McKay Scholarships and CTC Scholarships programs. Section 1002.39, Florida Statutes, authorizes the McKay Scholarships program, which affords a disabled student an opportunity to receive a scholarship to defray the cost of attending a private school of choice. Section 220.187, Florida Statutes, authorizes the CTC Scholarships program, which enables taxpayers to make private, voluntary contributions so that students who qualify for free or reduced-price school lunches under the National School Lunch Act may receive a scholarship to defray the cost of attending a private school of choice. The Department of Education has the responsibility to annually verify the eligibility of a private school to participate in these scholarship programs. Private schools participating in the McKay Scholarships and CTC Scholarships programs are required to comply with Section 1002.421, Florida Statutes, and must meet applicable state and local health, safety, and welfare laws, codes, and rules, including laws, codes, and rules relating to firesafety and building safety. If a private school participating in the McKay Scholarships and CTC Scholarships programs desires to renew its participation in the programs, the school must file a signed, notarized Form IEPC SCF-1 affidavit with the Department of Education by March 1 of each year for participation in the subsequent school year. The Form IEPC SCF-1 affidavit contains a list of requirements to which the private school must certify that it meets or does not meet. If the school certifies that it does not meet a requirement, such certification constitutes an outstanding compliance issue, which must be resolved by the school prior to May 1 of each year for the school to remain eligible to participate in the scholarship programs. Specifically, the signature page of the Form IEPC SCF-1 affidavit states in part: “I understand that in answering ‘No’ to any requirement in Section 9: School Facility, the provision of a reason for answering ‘No’ shall not make the school compliant with the reporting requirement and will be considered an outstanding compliance issue for resolution as described in State Board of Education Rules 6A-6.03315, 6A-6.0960, and 6A- 6.0970, Florida Administrative Code.” Florida Administrative Code Rule 6A-6.03315(2) requires that every third year a school applies for renewal of eligibility for the scholarship programs there must be a review of compliance documentation. This means that the school must submit documentation to support its eligibility along with the affidavit. For the renewal of eligibility for the 2009-2010 school year, CHC had to submit compliance documentation for review. On November 6, 2008, Ms. Nichilo executed and mailed the Form IEPC SCF-1 affidavit for CHC for renewal of CHC’s eligibility to participate in the McKay Scholarships and CTC Scholarships programs for the 2009-2010 school year. Subsection 1 of Section 9 of the Form IEPC SCF-1 affidavit requires the school to answer the following question: Does the school facility possess a current, violation free or satisfactory Fire Code Inspection and compliance report in accordance with Section 1002.421(2)(g)1., Florida Statutes, State Finance Services Rule 69A-58.004, Florida Administrative Code, and county and/or municipal ordinance? Ms. Nichilo answered “Yes” to the question. CHC submitted a fire inspection certificate for CHC with a date of February 22, 2008. At the time Ms. Nichilo executed and submitted the Form IEPC SCF-1 affidavit in November 2008, CHC did not have a current Fire Code Inspection and compliance report. The last fire inspection certificate was dated February 22, 2006, and had expired on February 22, 2007. Ms. Nichilo executed and submitted a Form IEPC SCF-1 affidavit for the 2007-2008 school year, certifying that CHC had a current, violation-free fire inspection report. The certificate affidavit which Ms. Nichilo signed stated: I have read the applicable scholarship program rules and understand that by signing this form I am certifying that the school is currently in compliance and agrees [sic] to remain in compliance with all scholarship program rules and reporting requirements. If at any point, the school is not in compliance with scholarship rules, or if there is a change in the status of any reporting requirement, the school will have 15 days to notify the Department of Education and will provide all information necessary to document its continued compliance with program rules and requirements. At the time the certification was submitted on January 11, 2007, CHC did have a current, violation-free fire inspection report; however, CHC did not have a current, violation-free fire inspection report that was valid for the entire 2007-2008 school year. CHC did not notify the Department of Education that it was not in compliance with the fire safety inspections during the 2007-2008 school year. On December 5, 2007, Ms. Nichilo executed and submitted a Form IEPC SCF-1 affidavit for the 2008-2009 school year, certifying that CHC had a current, violation-free fire inspection report. At the time of submission of the affidavit, CHC did not have a current, violation-free fire inspection report, and, from the beginning of the 2008-2009 school year until December 23, 2008, CHC did not maintain a current, violation-free fire inspection report nor did CHC notify the Department of Education as late as December 11, 2008, that CHC was not in compliance with the fire inspection requirement. On November 19, 2008, Assistant Fire Marshall Doug Carter of Brevard County Fire Rescue (BCFR) received a complaint concerning CHC and CHC 2 from an anonymous caller. It is the policy of BCFR to follow up on all complaints. On November 20, 2008, Lead Fire Inspector William Morissette, following up on the anonymous complaint, went to CHC for the purpose of performing a fire inspection. On November 20, 2008, Mr. Morissette performed a fire inspection on CHC and noted some violations. During the inspection on November 20, 2008, Mr. Morissette noticed that the fire inspection certificate that was posted at CHC was partially obscured, and he could not see the school’s address. On November 20, 2008, Mr. Morissette performed a fire inspection of CHC 2 and noted some violations. He observed the posted fire certificate at CHC 2 during his inspection. The fire certificate had an account number 23832 and was dated February 22, 2008. The font used in the printing of the certificate did not appear to be the same type as used by BCFR. While at CHC 2, Mr. Morrissette called Assistant Fire Marshall Carter and learned that account number 23832 was for CHC and not CHC 2 and that no fire certificate had been issued to CHC 2 on February 22, 2008. The last fire certificate that had been issued to CHC 2 was on December 15, 2005, and had expired on December 16, 2006. On November 6, 2008, CHC sent a copy of the fire inspection certificate dated February 22, 2008, to the Department of Education as part of the documentation supplied to verify CHC’s eligibility for renewal. The fire inspection certificate was a forgery. Ms. Nichilo testified that she did not send the forged certificate to the Department of Education and that some disgruntled former employee who had access to CHC’s files must have sent the certificate to the Department of Education or must have put the forged certificate in the envelope containing the renewal information that was sent to the Department of Education. Ms. Nichilo’s testimony is not credible. The certificate came in the same envelope as the other material which CHC submitted in November 2008. Ms. Nichilo signed and mailed the renewal information on November 6, 2008. Her testimony that the envelope must have been in the mail room a couple of days before it was mailed, thereby allowing the disgruntled employee an opportunity to slip the forged certificate in the envelope, is not credible. After the renewal package was sent to the Department of Education, Ms. Nichilo asked her secretary to contact BCFR to schedule a fire inspection. Ms. Nichilo knew that she needed a fire inspection because she knew that she did not have a current fire inspection certificate when she sent the renewal submittal to the Department of Education. Based on the clear and convincing evidence presented, it can only be concluded that Ms. Nichilo knew the fire inspection certificates, which she included with the renewal submittals, were forgeries. On or about December 5, 2008, Mr. Carter contacted the Department of Education and informed the Department of Education that he had concerns about CHC’s and CHC 2’s fire inspection certificates. Mr. Carter sent a memorandum dated December 9, 2008, to Riley Hyle with the Department of Education, explaining BCFR’s observations and concerns relating to the fire inspection certificates. After learning from Mr. Carter that CHC’s and CHC 2’s fire inspection certificates were in question, Mr. Hyle checked the Department of Education’s renewal files on CHC and CHC 2. Mr. Hyle found forged fire inspection certificates in both files. When CHC’s and CHC 2’s submittals arrived on November 10, 2008, in the same envelope, Mr. Hyle reviewed the submittals and verified that both submittals contained fire inspection certificates. He received no further documentation from CHC or CHC 2 from November 10, 2008, and the time he talked to Mr. Carter on December 5, 2008. On December 8, 2008, Mr. Morrissette returned to CHC 2 to do a follow-up inspection. CHC 2 had not corrected all its violations. Mr. Morrissette was advised by the principal at CHC 2 that CHC also had not corrected all of its violations. One of the violations CHC had was a broken lockbox. On December 7, 2008, CHC had called BCFR and requested an application for a lockbox. Thus, on December 8, 2008, CHC would still have not corrected its lockbox violation. On December 11, 2008, Ms. Nichilo signed a revised version of the Form IEPC SCF-1 affidavit3 for CHC for the 2009- 2010 school year. The question posed in the affidavit submitted in November 2008 concerning whether the facility had a current, violation-free fire code inspection remained the same in the revised affidavit. Again, CHC stated that it did have a current, violation-free Fire Code Inspection and compliance report. The revised affidavit also contained the same language as the November 2008 affidavit that answering a question in the negative in Section 9 would result in an out-of-compliance issue. Both the November affidavit and the revised affidavit contained the following language: I have read the applicable scholarship program rules and understand that by signing the form I am certifying that the school is currently in compliance and agrees [sic] to remain in compliance with all scholarship program rules and reporting requirements. If at any point, the school is not in compliance with the scholarship rules, or if there is a change in the status of any reporting requirement, the school shall have 15 days to notify the Department of Education and will provide all information necessary to document its continued compliance with program rules and requirements. The revised affidavit was submitted to the Department of Education, which received the affidavit on December 16, 2008. At the time CHC submitted the affidavit, it did not have a current, violation-free Fire Code Inspection and compliance report. On December 23, 2008, the BCFR re-inspected CHC and found that the violations had been corrected. After its inspection on December 23, 2008, BCFR issued a fire inspection certificate backdated to November 20, 2008, which was the date of the original inspection. On December 17, 2008, the Agency issued an Administrative Complaint, suspending CHC’s eligibility for the McKay Scholarships and CTC Scholarships programs for failure to have a current fire inspection report. By letter dated December 23, 2008, and received by the Department of Education on December 29, 2008, CHC advised that the school had been re- inspected and now had a current fire code inspection certificate. On January 2, 2009, CHC sent a 12-page facsimile transmission to the Department of Education. One of the pages of the transmission was a copy of a facsimile transmission coversheet dated December 31, 2008, with the BCFR letterhead concerning inspection reports. The comments section of the coversheet read “Please read letter.” The second page of the transmission was an unsigned to-whom-it-may-concern letter dated December 30, 2008. At the top of the letter, printed in large, bold type was the following: “Brevard County Fire Rescue.” The letter stated: To whom it may concern, In reviewing and trying to figure out what happen with the 2007 inspection reports this is the conclusion we have come to. If you review the two reports on both CHC-1 and CHC-2 the visiting inspection times over lap each other making it seem like a 2007 inspection was done when in reality it was not. CHC-1 inspection has a date on it February 22, 2006 to February 2007. CHC-2 inspection shows January 12, 2006 (re-inspection) January 2007. I believe that this was just an over site on both our parts due to the fact that the fire department does come in regularly every year even without an appointment. Lara Nichilo did notify us to come in ASAP when the reports could not be found. But as of November 20, 2008 all her inspections were done and her follow up correction reports have been completed putting her in good standing with the fire and inspections department. CHC-1 and CHC-2 (inspection reports provided to you with this letter) For more information you may contact us at 321-455-6383 Thank you for your time, The telephone number given in the letter was the telephone number for CHC. The original letter submitted at the final hearing by CHC was written on stationary bearing the CHC watermark. The letter received by the Department of Education had no visible watermark. The facsimile transmission coversheet that accompanied the letter was a coversheet which BCFR had sent to CHC on December 31, 2008. The statements in the comments section that BCFR sent had been deleted and replaced with “Please read letter.” The following are the comments which BCFR had written: There are no reports or certificates for 690 Range Road for 2006 or 2007. There are no inspection reports or certificates for 55 McLeod for 2007. Certificates will be issued upon receipt of payment. Laura Harrison, the director of the McKay Scholarships and CTC Scholarships programs at the Department of Education, transmitted a copy of the letter to BCFR and asked if the letter had originated from BCFR. Mr. Carter advised Ms. Harrison that the letter did not come from BCFR. Ms. Nichilo wrote the letter. A person reading the letter would be led to believe that the letter came from BCFR. The letter was accompanied by a facsimile transmission coversheet bearing the BCFR letterhead and the coversheet comments said “Please read letter.” The letter refers to Ms. Nichilo in the third person and uses first person plural pronouns to refer to BCFR. The letter purports to bear the letterhead of BCFR. It must be concluded that Ms. Nichilo intended the Department of Education to rely on the letter as a letter transmitted by BCFR to Ms. Nichilo to explain the situation. If Ms. Nichilo had intended the Department of Education to treat the letter as a letter written by her, she would have written the letter using CHC letterhead, signed the letter, not referred to herself in the third person, not referred to BCFR in the first person, and not used a transmission coversheet from BCFR in which the comments section had been altered. In a conversation on December 30, 2008, Ms. Nichilo advised Mr. Hyle that she was sending him a letter that would explain everything and would resolve the situation concerning the fire inspections. Ms. Nichilo testified that she told Mr. Hyle that she was writing the letter. Mr. Hyle did not recall whether Ms. Nichilo said that she was writing a letter. Jade Quinif, who was Ms. Nichilo’s administrative assistant on December 30, 2008, listened to the conversation between Mr. Hyle and Ms. Nichilo on speakerphone. She recalls Ms. Nichilo asking Mr. Hyle if he would like her to write a letter regarding Ms. Nichilo’s conversations with BCFR. Mr. Hyle said that would be fine. Ms. Nichilo typed a letter and asked Ms. Quinif to send it to the Department of Education. Ms. Quinif sent a letter to the Department of Education dated December 30, 2008. Based on the evidence presented, the letter that Ms. Quinif sent was a letter dated December 30, 2008, written on CHC letterhead and signed by Ms. Nichilo.4 It was not the letter dated December 30, 2008, which appeared to be from BCFR (purported BCFR letter). The only evidence of receipt of the purported BCFR letter by the Department of Education is in a 12-page facsimile transmittal, which was transmitted twice on January 2, 2009. Ms. Quinif credibly testified that she did not send a 12-page transmission and that she did not send the doctored transmission coversheet from BCFR. She also credibly testified that the letter that she sent was a few days after Christmas and was not more than a week after Christmas. Ms. Nichilo testified that Ms. Quinif did sent the transmittal coversheet from the BCFR on December 30, 2008; however, Ms. Nichilo’s testimony is not credible given that the transmittal coversheet from BCFR was dated December 31, 2008, and showed a transmission date of December 31, 2008, to CHC. The clear and convincing evidence is that Ms. Nichilo wrote and sent the purported letter from BCFR and the doctored transmittal coversheet from BCFR in an attempt to make it appear that BCFR was taking some of the blame for CHC not having maintained current fire inspection certificates. BCFR does not automatically do an annual inspection of schools. If a school desires to have a fire inspection, the school must notify BCFR and arrange for a fire inspection. The failure to have current, violation-free fire inspection reports rests with CHC and not with BCFR. The bogus letter was an effort by CHC to seek mitigation for its failure to adhere to the requirements for eligibility for the scholarships programs. After learning that the letter transmitted on January 2, 2009, was not from BCFR, the Agency issued an Amended Administrative Complaint on January 23, 2009, which superseded the December 17, 2008, Administrative Complaint. The Amended Administrative Complaint deleted the allegations concerning the failure to have a current, violation-free fire inspection report and added allegations involving fraud and failure to maintain current, violation-free fire inspection reports.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining the suspension of CHC’s eligibility for the McKay Scholarships and CTC Scholarships programs and revoking CHC’s eligibility for the McKay Scholarships and CTC Scholarships programs. DONE AND ENTERED this 4th day of May, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 2009.
