Findings Of Fact At all times pertinent to this proceeding Respondent, Robert Hoffman, was a member of the Deltona Fire District Commission. He was elected to his office in the Deltona Fire District in November, 1992. At all times pertinent to this proceeding Theresa Cresswell was a dispatcher at the Deltona Fire District. She served as dispatcher for approximately eight years, leaving in January, 1995. On April 30, 1993, Ms. Cresswell filed Complaint No. 93-56 with the Florida Commission on Ethics, alleging that Mr. Hoffman had touched and kissed her on January 20, 1993, and on March 20, 1993. Ms. Cresswell also alleges that in March, 1993, after she had spilled water on her blouse while drinking from the water fountain that Mr. Hoffman said that he liked watching her brush the water off her blouse. JANUARY 20, 1993 INCIDENT In December, 1992, Ms. Cresswell organized a Santa Clause workshop for needy children. Mr. Hoffman had promised to provide candy canes and build the workshop for the event. He failed to keep his promise. As a result, Ms. Cresswell had to purchase the candy. On January 20, 1993, Ms. Cresswell came to the Deltona Fire Station around 9:30 p.m. to pick up some papers relating to her schoolwork. She was not on duty. Mr. Hoffman was at the fire station when she arrived. Ms. Cresswell was upset with Mr. Hoffman for his failure to provide the candy and build the workshop. She approached Mr. Hoffman in the reception area while he was talking to Robert Bell and told Hoffman that she was "pissed off at him." Mr. Hoffman acknowledged that he knew that she was upset and that he was sorry that he did not do what he had promised. Ms. Cresswell alleges that during the conversation Mr. Hoffman came to her, put his hand on her shoulder, leaned against her, kissed her on her cheek and whispered in her ear, "I'm sorry. Do your forgive me?" Ms. Cresswell's allegation that he whispered in her ear was made known for the first time at the formal hearing. Mr. Hoffman asserts that he never touched or kissed Ms. Cresswell on January 20, 1993. Robert Bell, the dispatcher who was on duty when the discussion between Ms. Cresswell and Mr. Hoffman took place, observed the discussion and described Ms. Cresswell as being upset. He did not see Mr. Hoffman kiss Ms. Cresswell on the evening of January 20, 1993. Ms. Cresswell did not tell Mr. Bell that Mr. Hoffman had kissed her. Ms. Cresswell did not make a complaint to anyone about the January 20 incident until March, 1993. Fire Chief Holland had been keeping notes about Mr. Hoffman's activities and he sent those notes to the attorney for the fire district. In those notes, he details a conversation that he had with Ms. Cresswell concerning the January 20, 1993 incident. There is no mention that Mr. Hoffman kissed Ms. Cresswell. Having observed the demeanor of the witnesses and having judged the credibility of the witnesses, I find that Mr. Hoffman did not touch or kiss Ms. Cresswell on January 20, 1993. THE WATER FOUNTAIN INCIDENT On March 20, 1993, Mr. Hoffman was attending an all day CPR class at the fire station. Ms. Cresswell was working dispatch on the 8:00 a.m. to 4 p.m. shift on that day. Ms. Cresswell alleges that she was drinking at the water fountain located in the hall of the fire station down from the room in which the CPR class was being conducted. She spilled water on her blouse and was brushing the water from her blouse when Mr. Hoffman came up to her and said, "Can I watch you do that? I like to watch you do that." Mr. Hoffman contends that the incident never occurred. There were no witnesses to the alleged incident. Timothy Brown was teaching the CPR class. He remembered Mr. Hoffman as being the only male student in the class on that day. Mr. Brown does not recall Mr. Hoffman leaving the classroom other than at the assigned breaks and at lunchtime. Mr. Brown was near the water fountain several times during the day while he used a nearby copy machine and when he drank from the fountain, but he did not see Mr. Hoffman and Ms. Cresswell together at the water fountain. When Ms. Cresswell complained to Assistant Chief Rogers on March 22, 1993 about the alleged incident of kissing which occurred either on the evening of March 20 or early morning of March 21, she did not mention the water fountain incident which allegedly occurred on March 20, 1993. When Ms. Cresswell's deposition was taken on April 12, 1993, three weeks after the alleged incident, Ms. Cresswell could not recall when the water fountain incident took place. Having observed the demeanor of the witnesses and having judged the credibility of the witnesses, I find that the water fountain incident did not occur and that Mr. Hoffman did not say, "Can I watch you do that? I like to watch you do that." THE MARCH 20-21, 1993 INCIDENT On the evening of March 20, 1993, Ms. Cresswell traded shifts with another dispatcher and reported to work at approximately 11:50 p.m. to work the midnight to 8:00 a.m. shift. Robert Bell was working the dispatch when she arrived. Mr. Hoffman was also at the fire station. Ms. Cresswell put away her purse and made coffee. As part of her duties on the midnight shift, she was responsible for erasing and rewinding the 911 dictaphone tapes. She went to the communications center, which is located adjacent to the reception area, and began to erase the tapes soon after her arrival at the fire station. While she was erasing the tapes, she, Mr. Bell, and Mr. Hoffman began talking about a storm that evening which caused a fire, destroying a local funeral home. During the discussion about the fire, they started to talk about cremation. Ms. Cresswell stated that she did not want to be cremated. Ms. Cresswell alleges that after she made the remark about cremation that Mr. Hoffman came over to her, put his hand on her shoulder, laughed, kissed her on the cheek, and said, "I hear you." At the formal hearing she could not recall whether Mr. Hoffman allegedly kissed her before or after midnight. According to Ms. Cresswell, Mr. Hoffman and Mr. Bell continued to talk about the funeral home after Mr. Hoffman kissed her. Additionally, Ms. Cresswell asserts that after Mr. Bell left the fire station that Mr. Hoffman stayed for approximately one and one half hours. Mr. Hoffman contends that he never touched or kissed Ms. Cresswell as she alleged and that he left the fire station the same time as Mr. Bell. During the conversation concerning the funeral home, Mr. Bell was in and out of the communications center. Mr. Bell did not see Mr. Hoffman kiss Ms. Cresswell as she alleged. Ms. Cresswell did not tell Mr. Bell that Mr. Hoffman had kissed her. Ms. Cresswell did not confront Mr. Hoffman concerning the alleged kiss. Donald Allen Helberg, a firefighter/EMT was present in the dispatch side of the fire station during the late evening and early morning hours of March 20 and 21, 1993, respectively. He saw Ms. Cresswell pull into the parking lot when she came to work the midnight shift. Mr. Helberg recalled Ms. Cresswell joining in the conversation that he, Mr. Hoffman and Mr. Bell were having. He also recalls seeing Mr. Bell head toward the double doors leading to the outside followed by Mr. Hoffman. Mr. Helberg was also leaving at that time to return to the firefighter section of the building. While he was present, Mr. Helberg did not see or hear anything unusual involving Mr. Hoffman and Ms. Cresswell. Sometime after March 21, 1993, Ms. Cresswell called Mr. Helberg and asked him if he remembered being present at the fire station on the night of the alleged incident. Mr. Bell left the fire station approximately ten minutes after midnight. Mr. Hoffman was walking behind Mr. Bell as he walked out the door. Mr. Hoffman was driving a red Jimmy vehicle that night. As Mr. Bell was driving out of the fire station parking lot, he observed a reddish vehicle behind him. The reddish vehicle left the parking lot after Mr. Bell, headed in the opposite direction. Mr. Hoffman lived approximately a mile and a half from the fire station. He arrived home at approximately fifteen minutes after midnight. His wife was up waiting for him when he got home. Having observed the demeanor of the witnesses and having judged the credibility of the witnesses, I find that Mr. Hoffman did not touch or kiss Ms. Cresswell either on the evening of March 20, 1993 or the morning of March 21, 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Complaint No. 93-56 against Robert Hoffman. DONE AND ENTERED this 12th day of September, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5835EC To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact. Stipulated Facts 1. Paragraphs 1-2: Accepted. Findings of Fact Paragraphs 1-3: Accepted in substance. Paragraph 4: The first two sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence. Paragraph 5: Accepted in substance. Paragraphs 6-7: Rejected as not supported by the evidence. Paragraph 8: Accepted in substance except as to the occurrence of the water fountain incident. Paragraph 9: Accepted in substance. Paragraph 10: The last sentence is rejected as not supported by credible evidence. The remainder is accepted in substance. Paragraph 11: Accepted that it is what Ms. Cresswell alleges but rejected as to that is what happened based on the credible evidence. Paragraph 12: The first part of the first sentence is accepted in substance. The last part of the first sentence is rejected as not supported by the evidence. Mr. Bell did not see Mr. Hoffman and Ms. Cresswell the entire time but that does not mean that he wasn't paying attention to them during the time that he did see them. The remainder is rejected as unnecessary. Paragraph 13: Rejected as not supported by credible evidence. Paragraphs 14-15: Rejected as subordinate to the facts found. Paragraph 16: Rejected as subordinate to the facts found as to what Ms. Cresswell believed. Rejected as not supported by the evidence as to what Mr. Hoffman believed. Paragraph 17: The first two sentences are rejected as subordinate to the facts found. The last sentence is rejected as not supported by the evidence. Respondent's Proposed Findings of Fact. Paragraphs 1-2: Accepted. Paragraphs 3-5: Rejected as unnecessary. Paragraphs 6-7: Accepted in substance. Paragraph 8: Accepted in substance as that is what Ms. Cresswell contended. Paragraphs 9-10: Rejected as unnecessary. Paragraph 11: Accepted in substance. Paragraph 12: Rejected as unnecessary. Paragraph 13: Accepted in substance. Paragraph 14: The first sentence is accepted in substance. The second sentence is rejected as unnecessary. Paragraphs 15-17: Accepted in substance. Paragraphs 18-19: Accepted that it was what Ms. Cresswell contended but rejected as not supported by credible evidence that it was what happened. Paragraph 20: Accepted in substance. Paragraph 21: Accepted to the extent that it is Ms. Cresswell's testimony. Paragraphs 22-25: Rejected as subordinate to the facts found. Paragraph 26: Accepted in substance. Paragraph 27: Rejected as unnecessary. Paragraphs 28-30: Accepted in substance. Paragraphs 31-33: Rejected as subordinate to the facts found. Paragraphs 34-37: Accepted in substance. Paragraph 38: The first sentence is rejected as unnecessary. The last sentence is accepted in substance. Paragraph 39: The first sentence is accepted in substance as that was what was alleged. The second sentence is accepted in substance. Paragraphs 40-43: Accepted in substance as that is what was alleged. Paragraph 44: Accepted in substance. Paragraph 45: Accepted in substance as that is what was alleged. Paragraphs 46-47: Accepted in substance. Paragraphs 48-49: Rejected as subordinate to the facts found. Paragraphs 50-51: Accepted in substance. Paragraph 52: Rejected as unnecessary. Paragraphs 53-56: Accepted in substance. Paragraph 57: Rejected as unnecessary. Paragraph 58-60: Accepted in substance. Paragraph 61: The first sentence is accepted in substance. The remainder is rejected as unnecessary. Paragraph 62: Rejected as unnecessary. Paragraph 63: Accepted in substance. Paragraph 64: Accepted in substance as that was what was alleged. Paragraph 65: Rejected as constituting argument. Paragraphs 66-67: Accepted in substance. Paragraph 68: Accepted in substance. Paragraphs 69-7O: Accepted in substance that the dictaphone equipment is located in the communications center. The remainder is rejected as unnecessary. Paragraph 71: Accepted in substance that she made those allegations. Paragraphs 72-74: Accepted in substance. Paragraphs 75-76: Rejected as not supported by credible evidence as that was what happened. Paragraph 77: Accepted in substance to the extent that Mr. Bell was not watching Mr. Hoffman and Ms. Cresswell the entire time of the conversation. Paragraphs 78-79: Rejected as unnecessary. Paragraphs 80-81: Accepted in substance. Paragraph 82: Accepted to the extent that she did not tell Mr. Bell of the kissing incident; otherwise rejected as not supported by the greater weight of the evidence or unnecessary. Paragraphs 83-84: Rejected as unnecessary. Paragraph 85: The first sentence is accepted to the extent that it is Ms. Cresswell's testimony. The last sentence is rejected as subordinate to the facts found. Paragraph 86: Accepted in substance that it was her testimony. Paragraph 87: Rejected as unnecessary. Paragraph 88: The first sentence is accepted in substance. The remainder is rejected as unnecessary. Paragraph 89: Accepted in substance. Paragraphs 90-99: Rejected as unnecessary. Paragraph 100: Accepted to the extent that he saw Bell heading toward the outside door, followed by Hoffman as Helberg was leaving to go to the firefighter side of the building. Paragraphs 101-104: Accepted in substance. Paragraph 105: Rejected as subordinate to the facts found. Paragraphs 106-107: Accepted in substance. Paragraph 108: Rejected as unnecessary. Paragraphs 109-111: Accepted in substance. Paragraphs 112-116: Rejected as unnecessary. Paragraph 117: Rejected as constituting argument. Paragraphs 118-125: Accepted in substance. Paragraphs 126-127: Rejected as unnecessary. Paragraphs 128-130: Rejected as constituting argument. Paragraphs 131-133: Rejected as unnecessary. Paragraph 134: Rejected as constituting argument. Paragraphs 135-137: Rejected as unnecessary. Paragraphs 138-155: Rejected as constituting argument. Paragraphs 156-262: Rejected as unnecessary. Paragraph 263: Rejected to the extent that it implies that there was a conspiracy. The evidence does not support a conclusion of conspiracy among Mr. Holland, Mr. Rogers, and Ms. Cresswell. Paragraphs 264-288: Rejected as unnecessary. Paragraphs 289-290: Rejected as not supported by the evidence. COPIES FURNISHED: Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Virlindia Doss, Esquire Advocate For the Florida Commission on Ethics Department of Legal Affairs PL-01, The Capitol Tallahassee, Florida 32399-1050 Stephen D. Milbrath, Esquire Alan, Dyer, Doppelt, Franjola & Milbrath Post Office Box 3791 Orlando, Florida 32802-3791 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The central issue in this case is whether Respondent is guilty of the violations alleged in the administrative complaint dated July 23, 1992; and, if so, what penalty should be imposed.
Findings Of Fact The Respondent filed an application for fire safety inspector certification on or about March 4, 1992. One of the questions on the application for fire safety inspector certification posed the following: Have you ever been convicted of a felony, or a misdemeanor involving moral turpitude? Respondent answered the foregoing question by marking the space before "NO." On or about March 8, 1989, Respondent was charged by information issued through the State Attorney's Office in Lake County, Florida, with aggravated assault. Aggravated assault is a felony. On or about June 2, 1989, the information referenced above was amended but continued to allege aggravated assault. On June 8, 1989, the Respondent entered a plea of nolo contendere to the offense of aggravated assault and was placed on probation for a period of three years. Adjudication of guilt was withheld at that time. Subsequently, the Respondent was discharged from probation and the proceedings in the criminal case were terminated. Respondent had completed his probation at the time his application for certification as a firesafety inspector was made. Respondent is currently certified as a firesafety inspector, certificate number FI-66318. Additionally, Respondent is employed as a firefighter with the Reedy Creek Fire Department. Subsequent to the receipt of Respondent's application for certification, the Department requested information from the Florida Department of Law Enforcement and the Federal Bureau of Investigation regarding Respondent's criminal record. The information received from those sources led to the discovery of the facts addressed in paragraphs 3, 4, 5, and 6 above and the initiation of these proceedings.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Insurance and Treasurer enter a final order revoking Respondent's certification as a firesafety inspector. DONE AND RECOMMENDED this 27th day of January, 1993, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4921 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 11 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: None submitted. COPIES FURNISHED: Joseph Egan, Jr. EGAN, LEV & SIWICA, P.A. Post Office Box 2231 Orlando, Florida 32802 Daniel T. Gross Division of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Tom Gallagher, Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil, General Counsel Department of Insurance and Treasurer The Capitol, PL-11 Tallahassee, Florida 32399-0300
Findings Of Fact The parties agreed that the City of Winter Park or the City Commission was the Public Employer as defined by Chapter 477, Florida Statutes. The Public Employees Relations Commission's file contains the affidavit of Pat Hill attesting to the fact that the Winter Park Professional Fire Fighters Local #1598 was a duly registered employee organization as of the date of hearing. This affidavit was executed on May 2, 1975. The Petition recites that recognition of Petitioner was requested on January 16, 1975. The Public Employer has not responded to the request for recognition. The Winter Park Fire Department is composed of full-time and volunteer fire fighters. The Petitioner seeks to represent only full-time fire fighters, of which there are approximately 38, and would seek to represent all fire fighters in the Department except the chief. The Winter Park Fire Department is composed of the chief, fire inspector (fire marshall), three captains, three lieutenants, one mechanic, various engineers and fire fighters. There are two fire stations, Station 1 and Station 2, each station having three shifts. Station 1 is commanded by a captain and Station 2 is commanded by a lieutenant who reports to the captain who also is the shift commander. It should be noted, however, that the captain would not respond to a fire in Station 2's area, therefore, generally, a lieutenant would not work on a fire scene for the captain. Each shift has approximately eleven men, including the captain and lieutenant, assigned, and there are approximately 6-5 at Station 1 and 4-5 at Station 2. The Mechanic is a fully qualified fire fighter and the Chief feels that this dual capability makes him more valuable to the Department. The Fire Inspector (Fire Marshall) is a special staff officer who inspects building plans for compliance with fire safety codes, assist in operational planning, and directs the activities of fire safety inspectors assigned to him. The Deputy Chief acts as the second in command of the Department, assistant to the Fire Chief, and coordinates and directly supervises the shift captains. He would respond to any fire alarm in Area 1 or 2 which was other than a minor fire, and command the fire scene, except those to which the Chief responded. It was apparent that the Fire Chief was the major policy maker, but the Deputy Chief was the "detail man" charged with developing and executing major polices determined by the Chief. The Deputy Chief prepared the Standing Operating Procedures (SOP's), letters of change to the SOP's, and other letters of direction received from the Chief. Although the Chief would consult with the Deputy Chief on budgetary, personnel, and planning matters, the Chief retained the authority to determine policy. The Deputy Chief was authorized to exercise his discretion in implementing these polices particularly those related to personnel; assignments, transfers, and approval of leaves. The Mechanic is assigned to maintain and repair all the department's trucks and pumps. The Chief testified that the Mechanic had and needed knowledge of regular gasoline engines, diesel engines, and pumps. The Chief further testified that the Mechanic's position was held by a man who had been an engineer with the Department, who had the requisite skills, and the Chief had promoted him to provide him additional compensation in order that he would take the job. The Mechanic spends almost all of his 40-hour week in the performance of mechanic's duties, but as a qualified fire fighter he is qualified to perform fire fighting duties if necessary. In actuality the Mechanic does not fight fires, but has the capability if required. The Mechanic schedules his own work and reports to the Deputy Chief. He is on call when not on duty. He is assisted as required by other firemen if additional physical strength is necessary to perform a specific task. The status of the current mechanic is apparently in flux, and the Chief has referred to a study committee of firemen and officers the problem of to what rank and seniority the individual should revert. The Mechanic is not required to be a fire fighter. It was apparent from the Chief's testimony regarding various major policy decisions that he consulted with fire department personnel who would be effected by a proposed policy either by means of a group meeting, study committee or similar decision making process. Such input was obtained from personnel not so much on the basis of rank in the Department but rather on the issue involved and who it affected. The Chief was dependent upon his special staff members, i.e., the Deputy Chief and Fire Marshall, for special plans and operational advice, however, the pattern for decision making did not restrict input solely to officer personnel. The company officers provide budgetary information by preparing lists of their stations' and shifts' projected equipment, consumable, and capital outlay needs in the upcoming fiscal year. Based upon this data the Chief and Deputy Chief prepare the budget for submission to the City Manager. Items requested by company officers are reviewed by the Chief and Deputy Chief and are generally approved if they are not too expensive and appear to be justifiable. The Chief indicated that he gave careful consideration to such requests, pointing out an expensive hose dryer purchased at the request of Station 2's officers and a coffee maker needed and requested by Lt. Legarde, the latter being a direct authorization purchase from current funding. The company officers were responsible for the assignment of duties of subordinate personnel at their station on their shift both on equipment and station work details. Because of the limited numbers of personnel assigned at the stations, the company officers participated in clean up details including the handling of the light clean up duties. The company officers had only limited authority to grant leaves. Company officers would not have authority to suspend personnel except under those circumstances in which the individual would pose a hazard to himself and others such as an employee reporting to work drunk. Disciplinary cases would be referred through the Deputy Chief to the Chief for final action with appeal rights to the civil service board. The authority to grant regular leave similarly would necessitate approval by the Deputy Chief. The company officers forward the request to the Deputy Chief and explain the basis for the request. According to the testimony, officers would not generally present a recommendation regarding approval to the Deputy Chief. Company officers do have authority to grant temporary exchanges of duty although this would be reported as a courtesy to the Deputy Chief. Company officers do evaluate personnel and these evaluations would be a considerable but not determinative factor in promotion. It would be one of several things which a panel of fire officers from surrounding communities would consider in evaluating an employee's eligibility for promotion. The Chief indicated that although by law he could select from the several highest individuals recommended, he had established a policy that he would promote the highest recommended. Merit increases were authorized and dependent upon evaluations, however, because of nonavailability of funds, merit increases had not been paid for some time and no one could foresee their payment. The relationship of company officers on the table of organization would indicate that the Lieutenant at Station 2 was subordinate to the Captain at Station 1. However the Captain is more closely under the supervision of the Deputy Chief. The conduit for information is through the chain of command, however, any person who was not present or otherwise reasonably available would be skipped.
The Issue The issue for consideration in this case is whether Respondent's certification as a fire fighter in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations herein, Petitioner, Department of Insurance and Treasurer, (Department), was the state Fire Marshal and the agency responsible for the certification of fire fighters in Florida. Respondent was either an applicant for certification or a certified fire fighter in this state. On or about January 22, 1991, Respondent, James M. Yingling, submitted an application for certification as a fire fighter to the Division of State Fire Marshal, Florida State Fire College, Bureau of Fire Standards and Training, on which he indicated he had not used tobacco or tobacco products for at least one (1) year immediately preceding the filing of the application. Along with the application, Mr. Yingling submitted certain documentation including his high school diploma, his driver's license, a personal inquiry waiver, fingerprints, a report of medical examination, and an affidavit of even date in which he affirmed he had not been a user of tobacco or tobacco products for at least one year immediately preceding his application for certification as a fire fighter. Provisions of Section 633.345, Florida Statutes, set out the requirements for certification as a fire fighter in Florida. One of these criteria calls for the applicant not to have used tobacco for one year prior to the filing of the application for certification. Had Respondent used tobacco or tobacco products within that year, he would not have been certified. John R. Scott, a full time employee of Grumman Aircraft in Ft.Pierce, was a part-time volunteer fire fighter at the Jensen Beach Volunteer Fire Department when the Respondent became a member in August, 1990. Mr. Scott saw Respondent at the station house on several occasions and they went out on calls together. Mr. Scott executed a sworn statement on April 11, 1991, indicating that since he has known Respondent, Respondent has been a smoker. Scott claims he has seen Respondent smoking at the station on several occasions and on one occasion at a test site in Orlando when both were there to take the test for Emergency Medical Technician, in January, 1991. He claims to have seen Respondent borrow cigarettes from several fire fighters at the station and return a pack later on. Mr. Scott is a smoker and claims to have been approached by Respondent frequently to give him cigarettes. In April, 1991, Mr. Scott requested that his daughter, Rebecca Brown, type several copies similar to that statement signed by him to be given to and signed by others who had agreed to do so. Only Mr. Schwarz and Ms. Brown actually signed such statements, however, and the others refused to do so. These signed statements, along with Mr. Scott's statement, were forwarded to the Fire Marshal's office. According to Mr. Scott, the others, who backed out, did so because they were afraid of repercussions, but none of these individuals were present to testify and the hearsay testimony of Mr. Scott on that point is insufficient to support a Finding of Fact to that effect. Both Mr. Schwarz and Ms. Brown also indicated they had seen Respondent smoking either at the station or elsewhere from the time he was hired in August, 1990, until the time he applied for certification in January, 1991. No other fire fighter from whom Respondent is supposed to have borrowed cigarettes presented evidence to that effect, however. Mr. Schwarz was recognized as a troublemaker at the fire department and was allowed to retire in lieu of disciplinary action. Ms. Brown is Mr. Scott's daughter and the wife of another fire fighter in the Department. The credibility of both is somewhat suspect. Evidence regarding Mr. Scott also detracts from his credibility. He was known in the department to be a practical joker whose pranks from time to time got out of hand or were excessive. His honesty and integrity were seriously suspect due to his tendency to bring items taken, with or without permission, from his employer, Grumman, to work projects at the department. These were not always minor items, either, and Scott frequently remarked that he had gotten them from "G-Mart" under such circumstances as to give rise to the suspicion they were stolen. On the other hand, Respondent, recognized as a hard driving, somewhat brash and bragging young man, is nonetheless well though of by the majority of his peers and superior in the Department. He categorically denies the allegations against him. Neither former Chief Yurillo nor Capt. Recta, both of whom worked with Respondent, recall having ever seen him smoke and neither was approached by Respondent for a cigarette. When the allegations involved here came up, an internal investigation was begun at the Department, a part of which included a voluntary urinalysis examination of the Respondent. The results of that test, done by an independent laboratory, reflected no evidence of the use of tobacco at the time the test was taken. Mr. Scott and Mr. Schwarz both indicate that subsequent to the filing of their affidavits, Respondent came to them and suggested that if they were not sure of the facts they had alleged, they could withdraw them. In fact, neither did so voluntarily. Scott, in April, 1991, after a meeting with Yurillo and Respondent, executed a statement typed for him by Mr. Recca in which he claims he was mistaken in his original allegations regarding Respondent's tobacco use. Scott claims he was pressured into recanting. Yurillo, Recca and Respondent claim Scott's action was voluntary. Whatever the facts regarding the withdrawal of Scott's original statement, analysis of the evidence of record indicates there is insufficient evidence to establish that Respondent used tobacco or tobacco products within a year immediately preceding his application for certification or that he falsified his application and the supporting affidavit, and it is so found.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be entered dismissing the Administrative Complaint in this matter which seeks to discipline Respondent, James M. Yingling's certification as a fire fighter. RECOMMENDED in Tallahassee, Florida this 9th day of April, 1992. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-4458 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: - 3. Accepted and incorporated herein. Accepted as the testimony of the witnesses. Not necessarily accepted as true. Rejected as testimony of Mr. Scott not considered credible. Accepted. For the Respondent: None received. COPIES FURNISHED: Elizabeth J. Gregovits, Esquire Office of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Michael J. Mortell, Esquire 2801 E. Ocean Blvd., Suite 2A Stuart, Florida 34996 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neill General Counsel Department of Insurance The Capitol, Plaza Level - 11 Tallahassee, Florida 32399-0300
The Issue The issue presented is whether the Department committed an unlawful employment practice by terminating Petitioner's employment due to her age or her sex or by retaliating against Petitioner.
Findings Of Fact Fred Chaplin supervises the fire protection specialists (fire inspectors) for the southeast region of the Bureau of Fire Prevention, Division of State Fire Marshal, Department of Financial Services. The headquarters for the southeast region is in West Palm Beach, with a field office in Plantation. For approximately five months there had been a vacant fire inspector position in the southeast region, and Ashley Caron, a fire protection specialist, was covering all of the counties in the southeast region during that time. She worked out of the Plantation field office where Amy Peebles was the administrative assistant. Michael Long, another fire protection specialist, worked out of the West Palm Beach office. He, like Ashley Caron, was responsible for inspecting state-owned and state-leased buildings and new construction. He was also responsible for all fire alarms in the southeast region whether they were in new construction or in existing buildings. He investigated fire alarm systems when he received complaints from outside contractors or other fire inspectors. When Petitioner Andrea Spainhour interviewed for the vacant position in the southeast region, she was interviewed by Caron, Long, and Joe Furiatto from the Department's Tallahassee personnel office. Prior to her interview, Long had talked with Peebles about whether they should re-post the vacancy since there were only two candidates. He erroneously thought there had to be a minimum of three applicants for a vacancy in order to fill it. Long, Caron, and Furiatto were impressed with Petitioner during her interview. She had an excellent background and extensive experience. The three interviewers rated Petitioner, a 50-year-old female, as superior to the other applicant, a younger male, and recommended that she be hired. When Petitioner accepted the offer of employment, Long, Caron, Peebles, and Chaplin were all excited that Petitioner would be working with them. Petitioner's first day of work was May 7, 2001. She reported to the Plantation office where Chaplin spent time with her in orientation over the next several days. He advised Petitioner that Caron would train her during May and June and that Petitioner would become responsible for the inspections in Miami-Dade County. He further advised Petitioner, as he had before she began work, that she was a probationary employee and that the Legislature was considering "privatizing" fire protection specialists. He further advised Petitioner that hers was a job "out in the field," but that she was expected to come into the office to pick up phone messages and mail, turn in inspection reports, and sign documents. He told Petitioner the guideline was that it would take approximately eight hours a week to take care of duties in the office. Amy Peebles assisted Petitioner by answering her questions, showing her how to use her Nextel telephone and the computer, and creating forms on the computer so that Petitioner could fill them out and e-mail them to her when Petitioner was out of the office. Caron also assisted Petitioner by answering questions and showing her how to fill out forms. Long told Petitioner to call on him if she had any questions. Everyone tried to make Petitioner feel part of "the team." On May 10 Petitioner sent Chaplin an e-mail saying that Caron and Peebles had given her a plant for her office and that she already felt like part of the family. Although not mentioned in the e-mail, Caron also gave Petitioner some shirts like Caron and Long wore when they made inspections identifying Petitioner as a fire inspector so she would be recognized as a member of the fire inspectors team. Caron also gave Petitioner a mapping program of Miami-Dade County that Caron had purchased to assist Petitioner in becoming familiar with the locations of facilities she would be inspecting. When Chaplin advised Long and Caron by e-mail that they had been complimented for their professionalism by the construction administrator at the Department of Juvenile Justice (DJJ), Long immediately advised Chaplin by e-mail that Petitioner was also present at the referenced meeting and had acted professionally and been an asset to the inspection team. Chaplin forwarded those e-mails to Petitioner to let her know that Long had included her in the compliment. When Petitioner began making inspections, she did not always submit the proper forms to Peebles or fill them out properly so that Peebles could send the required letters to those responsible for the inspected facilities. Peebles reported this problem to Chaplin. Petitioner also made mistakes on her vehicle logs that Chaplin corrected for her before forwarding them to Tallahassee. On June 12, Caron and Long car-pooled down to Miami- Dade County to attend a meeting at Florida International University (FIU). After the meeting, Long, who was responsible for fire alarm systems in the region, took the opportunity of being in Miami-Dade to evaluate the fire alarm system at the DJJ, which was located close to FIU, in order to ascertain how long his final inspection of the system would take. Their visit to DJJ was not an official visit and did not include an inspection. When Petitioner learned that they had gone to one of "her buildings" without her, she thought they intentionally excluded her from official business. She concluded they did not want her in her position due to her experience. At about that same time, Caron asked Long for assistance at one of her facilities in Broward. Prior to Petitioner's employment, Caron had told Long she had some concerns regarding a fire alarm system at the Coconut Grove Playhouse. When they finished in Broward, Long reminded Caron he needed to look at the Playhouse; so, they car-pooled down to Miami-Dade. This was an informal visit, and no official inspection took place. Again, when Petitioner learned they had gone to the Playhouse without her, she assumed they were intentionally excluding her from official business meetings. On July 25, 2001, Petitioner asked Chaplin to come to the DJJ in Miami-Dade because she had some questions about the Code. After they went through the facility and were in the parking lot, Petitioner began making allegations that gave Chaplin concern. She said that Long and Caron were trying to make her quit because they did not like her. She said she resented their making courtesy visits without her. She told him that Long and Caron were intentionally excluding her from meetings. Chaplin told her that she was misinterpreting their behavior and that he was sure there was a reasonable explanation for their attending meetings without Petitioner. She also told Chaplin that she had had a problem in the past working with other females. The following morning Chaplin directed Long and Caron to cancel their appointments and come to his office. He told them what Petitioner had said. They told him that the courtesy visits were not scheduled meetings but spur-of-the-moment visits when Long was in Miami-Dade. They were shocked at Petitioner's accusations because they had selected her for her position and had thought their relationships with Petitioner were good. Chaplin directed them to make Petitioner feel part of the team. That same day Petitioner sent Chaplin an e-mail that included a reminder that she was concerned about the matters she had discussed with him the previous day. On the following day, Chaplin received a call from Caron, who advised him that Peebles was quite upset and he should call her. When Chaplin called, Peebles sounded distraught and on the verge of tears. She told him that Petitioner had been in the office and was really mad at Chaplin, Long, and Caron. Peebles told him the negative things Petitioner had said about her co-workers and her supervisor. Peebles said she was somewhat afraid for her safety due to Petitioner's behavior. Chaplin told her to write a report, and she did. Based upon the description of the incident between Petitioner and Peebles, his own concerns from his meeting with Petitioner two days earlier, and Petitioner's failure to consistently submit accurate and timely vehicle logs and inspection reports, Chaplin made the decision to terminate Petitioner. He was concerned that Petitioner was creating a hostile atmosphere among her co-workers and with him. Chaplin contacted his supervisor and then sent a memo regarding Petitioner's behavior. A few days later he sent a follow-up memo detailing other concerns he had regarding Petitioner's job performance: inspection reports turned in late or not at all, vehicle logs with errors, and failure to follow standard office procedures. Petitioner's age and her sex were not considered when Chaplin made his decision. Chaplin's recommendation that Petitioner be terminated was processed and approved through his chain of command. Petitioner's employment by the Department was terminated August 23. Since she was terminated during her probationary period, she did not have any career service appeal rights. Petitioner was replaced by a 50-year-old male who was even more qualified for the position than was Petitioner. Only administrative assistants had access to the TMIC computer program. Although Petitioner wanted access, no fire protection specialists could access that program. Petitioner was told several times that she did not need to access TMIC and that no inspector had access. The "red book" contains information about the various facilities in a geographic area that are inspected. It is only a guide for inspectors to track when they last inspected a facility. It is not a necessary tool for an inspector to perform his or her job duties and only contains information also available in the office files. Petitioner was not discriminated against by not being given an updated red book until the end of July since the information in it exists elsewhere in the office. Petitioner believes that Chaplin discriminated against her because he did not like her, did not want to hire her, and provided her with a faulty vehicle. Prior to assigning the car to Petitioner, he drove that vehicle for a few days, had it cleaned, and had it serviced and inspected. He knew of no problems with that vehicle. When Petitioner later questioned the condition of the tires, he told her to get the car checked and bring him something in writing. He never received anything in writing from her regarding the condition of the tires.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner failed in her burden of proof and dismissing the petition filed in this cause. DONE AND ENTERED this 15th day of December, 2004, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 15th day of December, 2004. COPIES FURNISHED: Andrea Spainhour 400 North Main Avenue Clermont, Florida 34712 Mechele R. McBride, Esquire Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 23201 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 23201
The Issue Whether the Department of Insurance, Division of State Fire Marshal, should revoke Respondent's Firefighter Certificate because of Respondent's conviction of a felony.
Findings Of Fact Respondent is currently certified as a firefighter in the State of Florida by the Department of Insurance, Division of State Fire Marshal. Respondent was initially certified as a firefighter in the State of Florida while employed by the Palatka Fire Department. On or about January 12, 1991, Respondent resigned from the Palatka Fire Department and went to work for the Gainesville, Florida Fire Department. On August 29, 2000, Respondent was convicted by a jury of the felony of aggravated fleeing and attempting to elude in violation of Section 316.193(5), Florida Statutes. Adjudication was withheld. The conviction occurred in the Circuit Court of the Eighth Judicial Circuit in and for Bradford County, Florida. Respondent was placed on community control for two years, to be followed by probation for a period of three years.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Insurance Commissioner and Treasurer enter a Final Order revoking Respondent's Certificate as a Firefighter until such time as his probation is completed. DONE AND ENTERED this 18th day of April, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 18th day of April, 2001. COPIES FURNISHED: Walter Gwiazda Route 1, Box 163 Florahome, Florida 32140 William Fred Whitson, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
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.
