The Issue Whether Petitioner achieved a passing score on the Practical Examination for Retention of Firefighter Retest.
Findings Of Fact The Department is the state agency responsible for the certification of firefighters in the State of Florida, pursuant to chapter 633, Florida Statutes. In or around 2008, Petitioner achieved his Firefighter Minimum Standards Training Certification, which was valid for three years. To maintain his certification, it was necessary for Petitioner to either: maintain employment as a firefighter (or serve as a volunteer firefighter) for at least six consecutive months during the three-year period subsequent to his certification; or successfully complete the retention examination, which is identical to the practical examination given to new applicants.1/ Petitioner could not satisfy the first option, and was therefore required to take the retention examination. Petitioner's first attempt to successfully complete the retention examination occurred on September 26, 2011, and included four practical components: self-contained breathing apparatus ("SCBA"), hose operation, ladder operation, and fireground skills.2/ To pass the retention examination, an examinee must earn a score of at least 70 on all sections. Each portion of the retention examination has certain evaluative components that are graded. For instance, the ladder operation consists of 15 skills——e.g., maintaining contact with the ladder, lifting and securing the ladder properly, using proper hand position——that the examinee must complete within the maximum time of four minutes and 30 seconds. The ladder operation also requires the examinee to fulfill ten mandatory components, which include, among other things, maintaining control of the ladder at all times and securing the "dogs"3/ properly. Pertinent to the instant case, noncompliance with respect to any of the mandatory elements results in automatic failure, irrespective of the examinee's performance in connection with the 15 evaluative components. It is undisputed that Petitioner achieved passing scores on the fireground skills, SCBA, and hose components of the retention examination; Petitioner was unable, however, to complete the ladder evaluation within the prescribed time limit, which resulted in an automatic failure. Petitioner, like all candidates who fail the retention examination on the first attempt, was offered one retest opportunity.4/ Petitioner's retest was administered on November 15, 2011, at the Ocala Fire College, during which he passed the SCBA and hose portions of the examination. (For reasons not explained during the final hearing, Petitioner was not required to re-take the fireground skills component.) Once again, however, Petitioner failed the ladder evaluation, as established by the final hearing testimony of Tuffy Dixon, the field examiner on that occasion.5/ Mr. Dixon explained, credibly, that Petitioner scored an automatic failure because he neglected to lock one of the ladder's "dogs"——one of the ladder evaluation's ten mandatory components.6/ Accordingly, the evidence demonstrates that Petitioner failed the November 15, 2011, retention examination retest.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services enter an order denying Petitioner's application to retain his certification as a firefighter in the State of Florida. DONE AND ENTERED this 25th day of July, 2012, in Tallahassee, Leon County, Florida. S Edward T. Bauer 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 25th day of July, 2012.
The Issue Whether the Petitioner is entitled to a certificate of compliance as a fire fighter under the provisions of Rule 4A-37.0515, Florida Administrative Code.
Findings Of Fact Petitioner completed 240 hours of firefighter minimum standards training at the Orlando/Orange County Fire Training Academy in 1982 and was issued a certificate of completion at the end of the course. Between 1982 and 1985, Petitioner served as a reserve firefighter with the Winter Park Fire Department. From 1985 to June 1989, Petitioner was on inactive status. From June 1989 until March 1990, Petitioner completed technical training in American Sign Language. From 1990 through 1993, Petitioner completed a Bachelor of Science degree, with a double major in business and marketing. Between 1996 and February 1997, Petitioner was re-certified and also became a fire inspector. In February 1997, Petitioner was awarded an Associate of Science degree in Fire Science. Petitioner has served as a contract fire inspector with the Orange County Fire Department and has been a principal in a private arson investigation company for the past thirteen or fourteen years in Orange County, Florida. Florida law was amended in 1989 to require that a person pass an examination as prescribed by the Department, in addition to completing the firefighter minimum standards training program and being qualified for employment to be issued a certificate of compliance. Promulgated in 1991 and amended in 1995, a Florida administrative rule granted those persons that had been issued a certificate of completion by the opportunity to upgrade their certificate of completion to a certificate of compliance by June 30, 1995, without having to comply with the current requirements of the law. Petitioner did not upgrade her certificate of completion to a certificate of compliance by June 30, 1995. During the years 1991 through 1995, Petitioner made no effort to keep informed about the current requirements of becoming certified as a firefighter. Petitioner had a total of four years in which to upgrade her certificate of completion into a certificate of compliance. More than 11,000 certificates of completion were upgraded to certificates of compliance by June 30, 1995; 2,900 were not. Eighty percent of those certificates of completion that had been issued by the State, since certificates of completion were first issued in 1969, were upgraded to certificates of compliance by June 30, 1995. Petitioner's first inquiry into the status of her certificate of completion and request for a certificate of compliance was made by letter dated August 12, 1997, to the Fire Marshall's office. Respondent responded to Petitioner's August 12, 1997, letter with a letter dated October 3, 1997, which informed Petitioner that any certificate of completion not upgraded by June 30, 1995, was revoked. Respondent's October 3, 1997, letter also informed Petitioner that failure to follow the procedures outlined in Rule 4A-37.0515, Florida Administrative Code, for upgrading certificates of completion would require the individual to meet the current requirements of the law, which include having to complete 360 hours of firefighter minimum standards training, passing the Minimum Standards Certification Examination, and being qualified for employment according to Section 633.34, Florida Statutes, in order to be issued a certificate of compliance. There are no provisions in the rule for an extension after the cutoff date of June 30, 1995. There is no firefighter minimum standards training program consisting of 120 hours of instruction for the Petitioner to take which would enable Petitioner to meet the current requirements of Section 633.35, Florida Statutes, which require a total of 360 hours of firefighter minimum standards training, as Petitioner had completed only 240 hours of firefighter minimum standards training in 1982. Prior to 1984, a person needed both a certificate of completion and a certificate of compliance to become a firefighter. At that time, to be qualified for a certificate of compliance, a person had to successfully complete firefighter minimum standards training and satisfy the qualifications for employment found in Section 633.34, Florida Statutes. Section 633.35, Florida Statutes, was amended in 1984 with the result that the Respondent no longer issued certificates of completion, which had been issued since 1969, for the successful fulfillment of the firefighter minimum standards training program. Rule 4A-37.56 Florida Administrative Code, was amended in order to implement the amendments made in 1989 to Section 633.35, Florida Statutes. Rule 4A-37.056, Florida Administrative Code, was amended to establish the Minimum Standards Certification Examination, as required by the 1989 amendments to Section 633.35, Florida Statutes. Rule 4A-37.0515, Florida Administrative Code, was promulgated in order to implement the amendments made in 1989 to Section 633.35, Florida Statutes. In order to upgrade a certificate of completion to a certificate of compliance, Rule 4A-37.0515, Florida Administrative Code, provided that a person who had been issued a certificate of completion was required to make application to the Respondent for certification as a firefighter. Rule 4A-37.0515, Florida Administrative Code, as initially promulgated in 1991, stated that certificates of completion had to be upgraded to certificates of compliance by June 30, 1993. Respondent published a Notice of Changes to Rule Chapter 4A-37, Florida Administrative Code, including the promulgation of Rule 4A-37.0515, in the Florida Administrative Weekly on March 15, 1991. Respondent keeps a mailing list, which includes every fire department and training center in the State of Florida, to facilitate mailing out notices of anything that effects the fire service, including changes in the statutes and rules governing the fire service. Respondent sent a copy of the Notice of Changes to Rule Chapter, 4A-37, Florida Administrative Code, including the promulgation of Rule 4A-37.0515, to every fire department and training center in the State of Florida on July 26, 1991. Respondent sent a copy of the Notice of Changes to Rule Chapter 4A-37, Florida Administrative Code, including the promulgation of Rule 4A-37.0515, to every fire department and training center in Orange County, Florida appearing on the Department's mailing list. Petitioner has lived and worked in Orange County, Florida, all of her life. Individual notices were not sent to certificate holders. Rule 4A-37.0515, Florida Administrative Code, became effective on June 30, 1991. Petitioner did not upgrade her certificate of completion to a certificate of compliance by June 30, 1993. Section 633.35, Florida Statutes, was amended in 1993 to require that firefighter minimum standards training would be composed of at least 360 hours of instruction. Respondent published a Notice of Changes to Rule Chapter, 4A-37, Florida Administrative Code, including the Rule 4A-37.0515, in the Florida Administrative Law Weekly on December 2, 1994. Respondent also sent a copy of the Notice of Changes to Rule Chapter, 4A-37, Florida Administrative Code, including the amendment of Rule 4A-37.0515, to every fire department and training center in the State of Florida on April 24, 1995. Respondent sent a copy of the Notice of Changes to Rule Chapter, 4A-37, Florida Administrative Code, including the amendment of Rule 4A-37.0515, to every fire department and training center in Orange County, Florida appearing on the Department's mailing list on April 24, 1995. Notice of Changes to the rule were not sent to individuals who held certificates. On March 20, 1995, Rule 4A-37.0515, Florida Administrative Code, was amended, extending the deadline by which certificates of completion could be upgraded to certificates of compliance from June 30, 1993, to June 30, 1995. Rule 4A-37.0515, Florida Administrative Code, was further amended to state that those individuals who held certificates of completion but did not upgrade them by June 30, 1995, would be required to meet the current requirements of Section 633.35, Florida Statutes, which included having to complete 360 hours of firefighter minimum standards training, passing the Minimum Standards Certification Examination, and being qualified for employment according to Section 633.34, Florida Statutes, in order to be issued a certificate of compliance. Certificates of completion which were not upgraded to certificates of compliance by June 30, 1995, were revoked that same day.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered denying the Petitioner's request for a certificate of compliance by the Department's Bureau of Fire Standards and Training of the Division of the State Fire Marshal. DONE AND ENTERED this 13th day of July, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1998. COPIES FURNISHED: Kathleen Mohr 4702 Abaca Street Orlando, Florida 32808 M. Joel Prather, Esquire Department of Insurance 200 East Gaines Street Tallahassee, Florida 32399 Daniel Y. Sumner, Esquire Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Bill Nelson, Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issue for determination in this proceeding is whether the proposed amendment to Florida Administrative Code Rule 69A-39.005(1)(b)2.d. is an invalid exercise of legislatively granted authority in violation of section 120.52(8)(b), (c), (e), and (f), Florida Statutes (2020).
Findings Of Fact The Parties Respondent, Department of Financial Services, Division of State Fire Marshal, is headed by the Chief Financial Officer of the state, who serves as the Chief Fire Marshal pursuant to section 603.104(1), Florida Statutes. The State Fire Marshal is charged with the responsibility to minimize the loss of life and property in Florida due to fire, and to adopt rules, which must “be in substantial conformity with generally accepted standards of firesafety; must take into consideration the direct supervision of children in nonresidential child care facilities; and must balance and temper the need of the State Fire Marshal to protect all Floridians from fire hazards with the social and economic inconveniences that may be caused or created by the rules.” § 633.104(1), Fla. Stat. Petitioner is a Florida corporation authorized by the Department to offer fire certification training courses in both online and blended learning formats. A blended learning course is one that has both online and in-person components. The blended learning courses Petitioner currently offers have 37 hours of online learning and eight hours of in-person instruction to address those portions of the course that may need “hands on” instruction. Section 633.216, Florida Statutes, requires Respondent to certify fire safety inspectors, and to provide by rule for the development of a fire safety inspector training program of at least 200 hours. The program developed by Department rule must be administered by education or training providers approved by the Department for the purpose of providing basic certification training for fire safety inspectors. § 633.216(2), (8), Fla. Stat. Current Certification Requirements Section 633.406 identifies several certifications in the fire safety arena that may be awarded by the Division of State Fire Marshal: firefighter, for those meeting the requirements in section 633.408(4); fire safety inspector, for those meeting the requirements in section 633.216(2); special certification, for those meeting the requirements in section 633.408(6); forestry certification, for those meeting the requirements of section 590.02(1)(e); fire service instructor, for those who demonstrate general or specialized knowledge, skills, and abilities in firefighting and meet the qualifications established by rule; certificate of competency, for those meeting certain requirements with special qualifications for particular aspects of firefighting service; and volunteer fire fighter certifications. In order to become a fire safety officer, an applicant must take the courses outlined in rule 69A-39.005, and pass an examination with a score of 70% or higher. The five courses as listed in the current version of rule 69A- 39.005 are Fire Inspection Practices; Private Protection Systems; Blue Print Reading and Plans Examinations (also known as Construction Documents and Plans Review); Codes and Standards; and Characteristics of Building Construction. The Rulemaking Process On November 5, 2015, the Department held the first of a series of rule workshops and “listening sessions” as it began the process for making changes in the certification program for fire safety inspectors.1 These workshops and listening sessions were held on November 5, 2015; July 10, 2016; November 10, 2016; January 17, 2017; August 8, 2018; November 8, 2018; and October 29, 2019. As described by Mark Harper, who is now the assistant superintendent of the Bureau of Fire Standards and Training at the Florida State Fire College, the Bureau conducted the first few listening sessions to hear the industry’s view on what changes were needed, followed by drafting proposed rule language and conduct of rule workshops. 1 Curiously, neither party introduced the notices for any of these workshops or listening sessions, so how notice was provided to interested persons wanting to give input on possible changes cannot be determined. The first workshop/listening session was conducted on November 5, 2015, in Palm Beach Gardens, and was moderated by Mark Harper. At this workshop, a variety of comments were received regarding the quality of the existing program and the quality of the fire safety inspectors being certified. Those comments included the need for more field training and more hours of instruction; suggested use of a “task book” in training; the view that classes should be taught by more experienced inspectors, not just people who have passed the classes; and the need for more practical training. The view was expressed by at least one attendee that the quality and method of delivery needed to be examined, and that Codes and Standards and Construction Documents and Plans Review should not be taught online. In December 2015, Tony Apfelbeck, the Fire Marshal for Altamonte Springs, provided to Mr. Harper proposed draft revisions to chapter 69A-39, which included increasing the number of training hours to 315 hours (as opposed to the 200 hours required by section 633.216), and requiring use of a task book, as well as other changes. The draft did not include any language regarding course methodology in terms of classroom, online, or blended format classes. At the next workshop, held July 10, 2016, a draft proposal was provided to the audience, but it is not clear whether the draft provided is the one Mr. Apfelbeck suggested or something else. Concerns were expressed regarding the implementation of the use of a task book, and at least one speaker speaking against the suggested changes opined that the changes suggested in the draft would cost more money. Another commented that increasing the hours may not help the issue. Instead, there should be a greater emphasis on the quality of the educational delivery, and that instruction needed to be tied more closely to field work. Late in the workshop, comments were made regarding online and classroom delivery, and it was suggested that some classes should not be held online. While the drafts that were provided at the various workshops are not in the record, at some point, language was added that would require two of the five courses for fire safety certification, i.e., Codes and Standards and Construction Documents and Plans Review, be taught in a traditional classroom setting only. The subject of online classes was discussed more thoroughly at the next workshop held November 10, 2016. During this workshop, there were comments both in favor of and against the use of online classes. While the speakers cannot always be identified from the recordings of the workshops, some attendees stated that some of the online providers were doing a really good job, and the concern was raised that if online classes were eliminated, it might be an exchange of convenience for quality.2 At least one person expressed the opinion that the speaker was not a fan of online classes, and Mr. Harper suggested that blended learning might be a way to meet some of the concerns expressed, and that the method of delivery would be up to the institution. Others who participated in the workshop spoke highly of blended classes. The remaining workshops also had discussions regarding the online class change, as well as other changes in the proposed rule. Opinions were voiced on both sides of the issue. The primary source of comments seeking a traditional classroom setting only were fire marshals at various municipalities around the state concerned about the need for “hands-on” training and the current lack of preparation encountered with new staff. On July 10, 2019, the Department filed a Notice of Proposed Rules for rules 69A-39.003, 39.005, and 39.009. The proposed rule amendments included the following amendment to rule 69A-39.005(1)(b)2.d.: d. The courses “Codes and Standards” and “Construction Documents and Plans Review” 2 The identity of the speakers is not important, and the comments are not relayed for the truth of the statements made. They are listed simply to show that the Department heard several viewpoints during these listening sessions. required under this paragraph (1)(b) will only be approved by the Bureau when taught in a traditional classroom delivery method. No definition for “traditional classroom delivery method” is provided. On January 15, 2020, Respondent conducted a public hearing on the proposed rule. As was the case with the workshops, people voiced both support and opposition to the proposal to require a traditional classroom setting for the Codes and Standards and Construction Documents and Plans Review courses. Counsel for Petitioner appeared and spoke against the proposed language to eliminate online and blended learning for the two classes, and asked whether any type of data existed to support the change in the rule, or whether any type of study had been conducted to gauge the need for the change. Respondent’s representative stated that the proposed language was based upon “extensive testimony” from employers requesting the change. Counsel also asked that Respondent consider defining what is meant by traditional classroom delivery. No such definition has been added to the rule. The Notice of Proposed Rule does not include a Statement of Estimated Regulatory Costs. Instead, it states: The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency. The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The Department’s economic analysis of the potential impact of the proposed rule amendments determined that there will be no adverse economic impact or increased regulatory costs that would require legislative ratification. Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so within 21 days of this Notice. Petitioner addressed the increased costs under the proposed rule during at least one of the workshops. There is no evidence, however, that Petitioner submitted, in writing, a proposal for a lower cost regulatory alternative within 21 days of the Notice of Proposed Rule. On January 27, 2020, Petitioner filed its Petition to Challenge Specific Changes to Proposed Rule 69A-39.005(1)(b)2.d. The Petition is timely filed. Current Online Providers and Course Review Process As of April 10, 2020, there are approximately 20 organizations approved by the Bureau of Fire Standards and Training that offer distance learning delivery for courses in programs leading to a certification pursuant to rule 69A-37.605. Of those providers, two are approved to teach Codes and Standards and three are approved to teach Construction Documents and Plans Review. In addition, as of June 1, 2020, there are 13 state colleges and/or universities in Florida also approved to provide distance learning. Of those, ten are approved to offer Codes and Standards, and ten are approved to offer Construction Documents and Plans Review. Petitioner has been approved to teach these two courses in a blended format since at least 2015. It also has articulation agreements with some educational institutions, including Waldorf University in Iowa, and Columbia Southern University in Alabama. The Department previously sought to take action against Ricky Rescue related to the type of courses taught, although the statutory basis for taking action against Ricky Rescue is not part of the evidence presented in this proceeding. The Consent Order entered to resolve the prior proceeding expressly provides, “Respondents agree that they will not offer any on-line courses until such time as they obtain approval from the Bureau, which will not be unreasonably withheld.” In order to be approved to teach any of the courses for certification in an online or blended format, a provider is required to go through an extensive review process. Initially, Respondent used a Quality Matters Higher Education Rubric to evaluate the courses a provider sought to offer. Course approvals initially took anywhere from four months to a year and a half to meet the standards and be approved. Respondent no longer uses the Quality Matters rubric, because it has transitioned to the accreditation process used by the Southern Association of Colleges and Schools. With this change, the length of time for class approvals has shortened considerably. Susan Schell used to be the Department’s Training Programs Manager and was in charge of the review and approval of classes for online learning. She has since moved on to another position within the Department. Ms. Schell would take the submitted course herself, view the different videos and discussion boards, and work through some of the projects, as well as review some of the case discussions and questions. Ricky Rescue’s courses that she reviewed met all of the state requirements to be approved. According to Ms. Schell, classes taught in the traditional format did not go through the same review process. Ricky Rescue’s accreditation verification from AdvancED Southern Association of Colleges and Schools Council on Accreditation and School Improvement indicated that Ricky Rescue’s accreditation was confirmed on March 31, 2017, for a five-year term expiring June 30, 2022. There is no credible dispute regarding whether Ricky Rescue complies with the requirements for offering its courses in a blended format. The report of the external review team prepared by AdvancED Education, Inc., noted that the school’s website is exemplary and stated in its conclusions: Once a month, students attend a day on site blended learning instruction where students can collaborate and complete and present projects. Given that the owners are brother fire fighters, there is a genuine feeling of camaraderie and collegiality. It is apparent to the Team that the Ricky Rescue Training Academy is an ideal institutional opportunity to obtain classes for firefighter training and certification classes. … The school has embraced the continuous improvement model to insure that they continue to deliver high quality online educational programs with rigor, relevance, and fidelity. Two Different Views Petitioner and Respondent approached the proposed rule amendment, both at the workshops and public hearing conducted by the Department and at the hearing in this proceeding, from different perspectives. Ricky Rescue focused on the needs and opinions of students seeking to take the courses. Its witnesses testified that the blended courses had significant substantive content; that the in-person component gave the necessary opportunity for completion of group projects and hands-on instruction or field trips; and that the ability to complete the course at any time during a 30-day period was essential in terms of both costs and scheduling for the student, and completing the classes while managing job and family responsibilities. For example, Ryan Russell has worked for over ten years in the fire service and is a battalion chief for the Haines City Fire Department. He has a variety of certifications and oversaw the training division for his department. Mr. Ryan has taken five courses from Ricky Rescue, and speaks highly of them. Mr. Ryan agrees that there are some advantages to traditional classroom settings, because they provide more opportunities for engagement, but that ultimately, a class is only as good as the instructor. Similarly, Robert Morgan is also a battalion chief at another fire department, and took Documents and Plans Review from Ricky Rescue. Mr. Morgan believed that the online blended course is just as good as a traditional classroom setting, and believes that in the blended setting, a student has to work harder than just sitting at the back of the classroom. Both men spoke of the convenience and accessibility that online learning provides that a traditional classroom does not. Matthew Trent also testified in favor of the availability of online and blended courses. Mr. Trent has a master’s degree in public administration and is a Ph.D. student in public policy administration. He is also a certified state firefighter II; pump operator; Fire Officer I, II, III, and IV; fire inspector I and II; fire investigator I; and fire life safety educator I. About half of Mr. Trent’s certifications have been based on classes taken online, and all of his classes for his masters’ and doctoral degrees have been online. Mr. Trent felt both courses at issue could be taught in an online format, and stated that both as a student and as an instructor, it is up to the student to choose the delivery method by which they want to learn. If not for online learning, he would not have been able to accomplish nearly as much in his professional life, because distance learning gives the student the ability to work around other responsibilities. The Department, on the other hand, was influenced more heavily by (and sought information from) the fire safety officials across the state who employ fire safety inspectors. Many of those officials spoke at the public workshops and some testified at hearing. The major concern voiced by these officials was that new fire safety inspectors certified by the state were not really prepared to do their job. Although most acknowledged that some on the job training would always be necessary to deal with local codes and ordinances that are not part of the state curriculum, they felt that new inspectors did not have a good grasp of the concepts necessary to be effective, especially with respect to the skills taught in the classes at issue in this case. For example, Anthony Apfelbeck is the Director of the Building and Fire Safety Department for the City of Altamonte Springs. He has worked in that department for approximately 20 years and served as Fire Marshal for a significant portion of his tenure there, and served in other cities as well. Mr. Apfelbeck has an impressive array of certifications and currently supervises approximately eight fire safety inspectors. He attended almost all of the workshops and was an active participant. Mr. Apfelbeck testified that he concurred with the State Fire Marshal’s Association that both classes should be offered only in a traditional classroom environment. He stated that there is a limited period of time to get someone trained and certified as a fire safety inspector, and he has seen some of the deficiencies in the current training. In his view, requiring these two classes to be given in a traditional classroom environment allows the instructor to keep the student engaged, and to get into critical thinking with probing questions and real-life examples. Instructors can have interactions with students that address issues the students may be having in the students’ jurisdictions, and read the body language of the students to gauge involvement. He also spoke of the ability to develop relationships with other individuals in the class and develop a peer group within that body. Mr. Apfelback has used the virtual environment extensively during the COVID-19 pandemic, and does not feel that it has the spontaneity and free- flow of information that a traditional classroom affords. Mr. Apfelbeck has not taken any of Ricky Rescue’s classes, and does not know what it has done to make sure its students get 200 hours of education. Likewise, he is not aware of the review Ricky Rescue went through to get its courses approved. He stated, correctly, that the rule is not written specifically about Ricky Rescue’s programs. It is written for all educational programs that are provided pursuant to this rule. Michael Tucker is the assistant superintendent for the State Fire Marshal’s Office. His experience includes serving as battalion chief for the Reedy Creek Improvement District (i.e., Disney) for 13 years, and serving as the Chief of the Fire Department for the Villages for 13 years. He has taught fire safety classes both in the classroom setting and online. While at Reedy Creek, he was the training officer responsible for providing training to fire inspectors, firefighters, paramedics, and EMTs. Mr. Tucker believes that the two classes addressed in the proposed rule are very intricate classes with a lot of detail. He believes that the traditional environment gives more opportunity for students to get hands-on instruction and have more interaction with the instructor. He acknowledged that there is a possibility that fees could increase under the proposed rule, but thinks that the increased cost is outweighed by the value that employers would get when they hire people trained in a classroom setting. Cheryl Edwards is the Fire Marshal for the City of Lakeland, and her views regarding traditional versus online learning are similar to those already expressed. She believes that the traditional classroom environment promotes collaborative learning and enhances critical thinking skills, through live discussions, and the need to think on your feet. She also felt that in person, an instructor is better able to gauge students’ learning styles and provide activities and modalities for all to learn, regardless of learning style. Ms. Edwards believes that the traditional classroom setting allows for more “teachable moments,” and guided practice before a student has to put that knowledge into use. Finally, David Abernathy is the Fire Chief of the City of Satellite Beach and has worked with the City for 35 years. Mr. Abernathy has an impressive list of certifications and has taught all five of the courses necessary for fire safety inspector certification, but has never taught them in an online or blended learning format. Mr. Abernathy believes that for these two courses there is a benefit to the traditional classroom setting. He believes that both classes need a hands-on approach to be the most effective. Mr. Abernathy also believes that requiring these two courses to be taught in a traditional classroom setting will cost more, but as an employer is more willing to pay for it than for online classes. Mark Harper testified that during the workshops, the Department wanted to hear from everyone, because all would be impacted by the changes. However, he believes that there is a heavier weight of responsibility on employers as opposed to students, because they are the ones trying to fill positions, and they are the ones having to deal with additional costs occasioned by failures in training. As a practical matter, employers are more cognizant of the potential liability jurisdictions face when a fire safety inspector, who looks at everything from mom and pop businesses to industrial sites with large containers of hazardous materials, is not adequately trained. The decision to go forward with the proposed rule amendment requiring a traditional classroom delivery method with respect to Codes and Standards and Construction Documents and Plans Review is based on the feedback received through the workshop process. It is not based on data. The Department does not track how students who took certification classes online or in a blended format score on the certification examination as opposed to students who took the same classes in a traditional setting. It would be difficult to collect that type of data, because there is no requirement that a student take all five courses the same way. In preparation for the hearing in this case, the Department conducted a survey of employers regarding their views on traditional versus distance learning. The Florida Fire Marshals and Inspectors Association distributed the survey to its members, and of the 358 addressees, 114 responded. There was no evidence to indicate that the Department attempted to survey people taking the classes. The questions asked in the survey were quite limited, and frankly, provide no guidance because they provide only two alternatives, and do not address blended learning formats at all. There are three questions, and they are as follows, with the responses in parentheses: Is there is current need to increase the proficiency of newly certified Firesafety Inspectors in Florida? Yes (59.65%) No (16.67%) Neutral opinion (12.68%) When a prospective Firesafety Inspector attends a Codes and Standards class, which class setting would produce a more proficient inspector? Traditional classroom delivery method (71.17%) Online (distance learning ) delivery method (9.91%) Neutral opinion (18.92%) When a prospective Firesafety Inspector attends a Construction Documents and Plans Review Class, which class setting would produce a more proficient instructor? Traditional classroom (76.32%) Online (7.02%) Neutral opinion (16.67%) Questions two and three assume that one format must be better than the other, rather than allowing for the possibility of equivalency. Had there been some recognition of a blended learning format, the answers might be different. The survey was informative in terms of the comments that were provided by the respondents. Similar to the views expressed at the workshops, there were strong opinions both in favor of limiting the classes to the traditional setting, and strong opinions advocating for the option of online learning. Petitioner presented information related to the increased costs that will be incurred should the rule go in effect. Those costs include the need for space rental for five-day periods in order to teach in multiple locations; the costs related to conversion of the material to a classroom setting versus online; and the need to pay instructors for more days each time the course is taught. It does not appear from the evidence presented that Ricky Rescue would experience increased costs of $200,000 in one year. However, Ricky Rescue is just one provider, and section 120.54 speaks in terms of an increase in costs in the aggregate, meaning as a whole. It is not known whether the other approved providers who teach these two courses will continue to do so should the rule be amended to require a classroom setting. It is also unknown what types of costs would be borne by state colleges and universities in order to recast the courses for traditional classroom settings. Finally, the litigants to this proceeding were well aware that this rule was being developed and was noticed as a proposed rule before the world began to deal with the COVID-19 pandemic. It is open to speculation whether some of the impetus to require a traditional classroom setting would have changed in light of the changes society has had to make over the last six months. Department employees were questioned regarding the Fire College’s response to the pandemic, and both Mark Harper and Michael Tucker testified about the precautions being taken on the campus to insure safety, such as taking temperatures, having students complete a questionnaire regarding possible exposure, limiting the number of students per class, and spacing people six feet apart to maintain effective social distancing. Mr. Tucker testified that they would be ready to postpone some classes until they could be taught safely in person. When asked whether Respondent would consider postponing the effective date of the proposed rule, he indicated “that would be something we would have to take into consideration, and again, the feedback from our constituents, but if it became necessary, then we would consider it.”
The Issue Whether Respondent's renewal facilities licensure application for a group home contained a falsified fire inspection report, as alleged in the Administrative Complaint; and, if so, what is the appropriate penalty?
Findings Of Fact APD is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, residential habitation centers, and comprehensive transitional education programs pursuant to sections 20.197 and 393.067, Florida Statutes. Rivero is an applicant for renewed licensure of a group home facility in Dania Beach, Florida. At all times material to the Administrative Complaint, Yitzhak Rivero was a corporate officer of Rivero. Mr. Rivero, was a psychiatrist in Cuba treating patients with mental and intellectual disabilities before he moved to the United States and became a citizen. He became a licensed mental health counselor, and for the past ten years has operated group homes in an effort to serve disabled persons, owning as many as seven group homes, employing 30 people at one time, and currently owning and operating three licensed group homes. On June 20, 2019, Sally Vazquez, then administrator for Rivero, submitted a license renewal application on behalf of Rivero’s Dania Beach group home to APD by hand delivering it to APD employee Patricia White, who was on the premises. On that same day, fire inspectors were also at the Dania Beach property to conduct an inspection. Prior to submitting the renewal application and supporting documents to APD on June 20, 2019, Ms. Vazquez prepared the application and compiled or prepared the supporting documents in the renewal application. The handwriting on pages 1 through 11 of the renewal application is that of Ms. Vazquez. Ms. Vazquez is listed as backup manager supervisor for Rivero on page 7 of the renewal application. After Ms. Vazquez prepared the renewal application and compiled the supporting documents, Mr. Rivero, as the group home owner, did a brief review of the application and supporting documents before he signed it. Before he signed it, Mr. Rivero identified nothing unusual in the application packet. When Mr. Rivero signed the attestation on the renewal application, which read, “Under penalty of perjury…all information contained in and submitted with application is true and accurate to the best of my knowledge,” he believed that the information in the application and supporting documents was true and correct. Unbeknownst to Mr. Rivero, the renewal application contained a document purporting to be a fire inspection report dated May 1, 2019, that was falsified. Mr. Rivero did not know the fire inspection was false when he reviewed the renewal application and signed it on June 7, 2019, or when Ms. Vazquez submitted it to APD on behalf of Rivero on June 20, 2019. In fact, the only email or communication Mr. Rivero received about the Dania Beach group home in regard to fire safety was a June 20, 2019, email sent by Fire Inspector Braun at 12:49 p.m., stating it was “From: Broward Sheriff’s Office Fire Rescue,” identified by the subject, “Inspection Report,” which contained an attachment related to the Dania Beach home from “Broward Sheriff’s Office Fire Rescue” bearing the agency’s logo that stated: “An annual fire inspection of your occupancy revealed no violations at the time of this inspection. Thank you for your commitment to maintaining a fire safe occupancy.” On August 21, 2019, when asked in an email from APD representative Kimberly Carty to provide the fire inspection report for Rivero, Mr. Rivero forwarded the email he had received from the Broward Sheriff’s Office Fire Rescue indicating no violations, the only fire inspection report for this home he had ever received, and the only fire inspection report regarding this property of which he was aware. On August 23, 2019, Ms. Carty sent Mr. Rivero a fire inspection report showing violations noted from the June 20, 2019, fire safety inspection of the Dania Beach group home. The report notes six, of what fire safety inspector Craig Braun described as less serious, non “critical-life” violations. Rivero was given 30 days to correct the violations.1 The day after he was sent the full fire inspection report for the Rivero Dania Beach group home, Mr. Rivero corrected the “easily corrected,” relatively minor violations in approximately three hours. Mr. Rivero then contacted the fire department to re-inspect the facility. When no fire inspector came to re-inspect for over a month, on September 30, 2019, Mr. Rivero sent an email to Mr. Zipoli, the fire inspector who had signed the inspection report showing the minor violations. Nevertheless, the fire department has never re-inspected the facility. Fire Prevention Officers Braun and Zipoli testified unequivocally and without contradiction that the document Mr. Rivero forwarded to APD’s Kimberly Carty on August 23, 2019 (the document indicating, “An annual fire inspection of your occupancy revealed no violations at the time of this inspection”), was a genuine and authentic document. Further, Officer Braun indicated that on June 20, 2019, he was Officer Zipoli’s supervisor, and that on that date Officer Braun and Zipoli “went together to inspect the Rivero Group Home.” “[U]sually…just [one] fire safety inspector goes,” and it was “not the norm” for two fire safety inspectors to go together. In this unusual situation, Fire Safety Inspector Zipoli wrote the report of the June 20, 2019, inspection, and Fire Safety Inspector Braun “wrote a report,” a separate report, indicating that he “assisted him [Zipoli] on another 1 These violations included: front and rear door of the group home (two doors) had a key lock instead of a “simple thumb turn or something that does not require special knowledge”; a fire alarm needed to be updated with its annual fire inspection from a private contractor; a fire extinguisher needed to be mounted on its mounting on the wall instead of placed on the ground beneath the mounting; the fire extinguisher needed to have its annual certification updated for 2019; the smoke detector located in the kitchen needed to be moved to a different location. form.” It was this other form that Officer Braun completed--this fire safety “Inspection Assist” for--that was emailed to Mr. Rivero on June 20, 2019. It was this form that stated, “[a]n annual fire inspection of your occupancy revealed no violations at the time of this inspection.” Officers Braun and Zipoli confirmed that the Broward Sheriff’s electronic streamline system “had a ‘glitch,’” “a default problem at that time,” the period including June 20, 2019, that caused the “template of an assist” ( i.e., an Inspection Assist form) to generate the statement indicating, “[a]n annual fire inspection of your occupancy revealed no violations at the time of this inspection,” and the system gave fire safety inspectors no option or ability to remove this statement. When APD’s Kimberly Carty requested that Mr. Rivero send the most recent fire inspection report for the Rivero Dania Beach group home, Mr. Rivero forwarded to Ms. Carty the document he received on June 20, 2019, from Broward Sheriff’s Office Fire Rescue without altering or changing the document in any way. The first time Mr. Rivero was notified that the fire inspection report submitted with the renewal application at issue here was false was when he received the Administrative Complaint in this case on October 23, 2019. In addition to the June 20, 2019, document Mr. Rivero received from Broward Sheriff’s Office Fire Rescue that indicated “no violations,” and the fire inspection report indicating six violations that was sent to Mr. Rivero by APD on August 23, 2019, this case involves a document dated May 1, 2019, purporting to be a Broward Sheriff’s Office Fire Rescue fire inspection that was fabricated (“the false fire inspection report”). The false fire inspection report was submitted to APD by Ms. Vazquez during APD’s June 20, 2019, inspection of the Rivero’s Dania Beach group home. At the time she submitted the application with the false fire inspection report, Ms. Vazquez had worked for Rivero for at least six years, and for at least two years as an administrator for between four and seven group homes. At the time she submitted the application at issue in this case to APD, Ms. Vazquez had prepared more than 20 APD renewal applications for Mr. Rivero’s group homes. In short, Ms. Vazquez was a “trusted employee,” whom Mr. Rivero relied on to accurately prepare applications and the documents submitted with the applications, and to handle the inspections conducted by APD. After Mr. Rivero learned, by receiving the Administrative Complaint in this case on October 23, 2019, that an altered or falsified document had been submitted as a fire inspection report with Rivero’s Dania Beach group home’s annual renewal application to APD, he conducted an investigation to determine how it had happened. When Mr. Rivero determined Ms. Vazquez was to blame for the false fire inspection report being submitted with the application, he fired her. The evidence presented indicates Ms. Vazquez created and submitted the falsified fire inspection report in violation of her job duties and professional obligations, and without the knowledge or consent of Mr. Rivero or Rivero.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons With Disabilities enter a final order dismissing the Administrative Complaint filed against Respondent. DONE AND ENTERED this 17th day of April, 2020, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 17th day of April, 2020. COPIES FURNISHED: Sean Michael Ellsworth, Esquire Ellsworth Law Firm, P.A. 1000 5th Street, Suite 223 Miami Beach, Florida 33139 (eServed) Trevor S. Suter, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Anthony Vitale, Esquire The Health Law Offices of Anthony C. Vitale, P.A. 2333 Brickell Avenue, Suite A-1 Miami, Florida 33129 (eServed) Daniel Ferrante, Esquire Health Law Offices Of Anthony C. Vitale, P.A. 2333 Brickell Avenue, Suite A-1 Miami, Florida 33129 (eServed) Danielle Thompson Senior Attorney/Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 309 Tallahassee, Florida 32399-0950 (eServed) Francis Carbone, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue The issue in this case is whether Petitioner, Brandon Michael Post (Petitioner or Mr. Post), achieved a passing score on the practical exam for firefighter certification.
Findings Of Fact The Department is the state agency responsible for the regulatory process governing firefighters, including the process by which candidates apply for certification as firefighters in the State of Florida. In addition to meeting certain background and training requirements, candidates must take and attain passing scores on the Firefighter Minimum Standards Written and Practical Examination (firefighter examination) administered by the Department. Mr. Post applied to the Department for firefighter certification. There is no dispute that Mr. Post met the background and training qualifications for certification in all respects. In addition, Mr. Post took and passed the written portion of the firefighter examination. At issue is whether Mr. Post attained a passing score on the practical portion of the firefighter examination (practical exam). The practical exam has four components covering the following subjects: self-contained breathing apparatus (SCBA); hose operations; ladder operations; and fireground scenarios. In order to pass the practical exam, a candidate must obtain a score of at least 70 percent on each component. If a candidate does not pass the practical exam, the candidate is offered the opportunity for a retest. The practical exams are conducted by Bureau field representatives. A field representative evaluates each candidate's performance and records the candidate's scores on a form called "minimum standards exam field notes" (field notes). There is a separate field notes form for each component of the practical exam. The field notes form identifies each of the separate skills or activities tested. Certain items are scored on a pass-fail basis, because they are considered mandatory skills. Thus, the failure to achieve an acceptable result in a mandatory item results in automatic failure for the component. Other tested items are considered evaluative, and the candidate's performance is given a point score. A total of 100 points is possible for all of the evaluative items; a candidate must attain a score of at least 70 to pass the component. Mr. Post took the firefighter examination on June 13, 2012. In the practical exam, Mr. Post received passing scores of 100 percent for the SCBA component; 100 percent for the hose operation component; and 70 percent for the fireground scenarios component. However, Mr. Post failed the ladder operations component. Mr. Harper was the field representative who administered Mr. Post's practical exam on June 13, 2012, and who completed the field notes reflecting how he scored Mr. Post's performance. Mr. Harper has been a Bureau field representative for more than five years, and in that time, he has administered thousands of practical exams. Mr. Harper gave Mr. Post a failing score for not donning and securing all personal protective equipment (PPE) properly. Donning and securing PPE properly is considered a mandatory item that has to be achieved, because of the importance of this skill to a firefighter's safety. To emphasize the safety concern associated with failing to don and secure all PPE properly, Mr. Harper also gave Mr. Post a failing score for committing an unsafe act that could result in serious injury or death. The "unsafe act" scoring category is separate on the field notes form from the mandatory item "donning and securing all PPE properly." However, a failing score in either one of these categories alone required an automatic failure for the ladder operations component. Thus, giving Mr. Post a failing score for an "unsafe act" had no effect on his score; Mr. Post's failing score for not donning and securing his PPE properly required an automatic failure for the ladder operations component. Mr. Harper credibly explained why he judged Mr. Post's donning and securing of his PPE to be improper. He recalled in precise detail how Mr. Post's mask had a five-point harness mechanism that is designed to hold the face piece tight to the face, creating an air-tight seal that will keep out dangerous smoke and fumes. There were two straps at the temple, two straps at the jaw, and one at the top center. To secure the mask, the two jaw straps are supposed to be pulled tight at the same time, then the two temple straps are pulled tight at the same time, then the top strap is pulled last to pull the mask up evenly on the face. Mr. Post did not secure his mask this way. Instead of pulling the two jaw and temple straps at the same time, he held the face piece with one hand, and pulled the straps on one side of his face with his other hand. This pulled the mask to the side, instead of centering it. Mr. Post testified that his face piece was on good enough for him to achieve an air-tight seal, which was maintained throughout the exercise. Therefore, he took issue with the opinion that the way he put on his PPE was unsafe. Mr. Post's statements were inconsistent regarding whether the mask was askew, pulled to one side. At the final hearing, Mr. Post testified at first that Mr. Harper's field notes comment was incorrect when it said that the "face piece was pulled to left side." Mr. Post testified that he disagreed with the field notes comment that his face piece was "pulled to one side." But then Mr. Post acknowledged that "it could have been maybe a little bit to the left, but there was no poor seal at all times." This latter statement was closer to Mr. Post's statement in his hearing request: "I had a seal of my face piece but was failed because the harness wasn't quite centered on my head." Mr. Post essentially admitted that he did not "properly" don and secure all of his PPE; his argument is with the extent to which it was improper, and whether his failure to properly secure the harness actually caused harm. Mr. Harper's testimony that Mr. Post improperly donned and secured his PPE and that this failure was an unsafe act that could result in serious injury or death is accepted. Mr. Harper credibly explained the danger of a mask not being harnessed securely with a centered face piece. Even though it is possible to initially attain a proper seal with an off-centered face piece, as Mr. Post did, the fact that it is not properly secured to be centered on the face means that it is easier to dislodge than a centered, properly-harnessed mask. Anything jarring the head gear, or even an abrupt head movement, could cause the mask to move further off-center and break the critical seal that protects the firefighter from toxic gases and smoke. These serious risks cannot be brushed aside simply because Mr. Post managed to make it through a short simulated exercise without dislodging his off-centered mask. The Bureau notified Mr. Post that he did not achieve a passing score on his practical exam because of his failed score on the ladder operations component. As provided by statute, Mr. Post was advised that he was allowed one opportunity to retake the practical exam. Mr. Post took the practical exam retest on September 18, 2012. Once again, Mr. Harper was the field representative who administered the practical exam to Mr. Post. Mr. Post admitted that his retest "was pretty sloppy." On the hose operations component, once again, Mr. Post had problems donning and securing all of his PPE. This time, the problems were with the gear that was supposed to protect his torso. As Mr. Post acknowledged, "my shoulder strap was twisted and . . . my high-pressure hose [was] under [the] strap. That is true. I remember that." His jacket was pulled up in the back, and his shirt was exposed. Based on these problems, Mr. Post received an automatic failure under the mandatory category for failing to don and secure all PPE properly. Mr. Post admitted that he failed to don and secure all of his protective equipment properly. The protective jacket is not supposed to be pulled up in the back, exposing one's shirt. Shoulder straps are not supposed to be twisted, with the high-pressure hose caught under a strap. Mr. Post testified that he did not think he should have been failed for these admitted problems with putting on his protective gear, because no skin was exposed. However, he offered no legitimate challenge to the reasonableness of the exam itself, which makes the proper donning and securing of all of one's PPE a mandatory step. As described, it was entirely reasonable to give Mr. Post an automatic failure on this retest component for his improper donning and securing of his protective gear. Mr. Post also received an automatic failure in the ladder operations component. There were two separate problems with this exercise. One problem was Mr. Post's failure to fully secure the ladder's "dogs" or locking devices that secure the separate sections of a multi-section ladder. The dogs are like clamps that are activated by a spring mechanism; when employed properly, they clamp around a rung at the joinder point of the ladder's separate sections. In Mr. Post's ladder exercise, he failed to properly employ the dogs; they were not fully secured in place around the rung. Instead, they were balanced on the tips, sitting on top of the rung, instead of locked around the rung. Mr. Post attempted to argue that it was not possible for him to have failed to properly employ the dogs in this manner because if the dogs were not locked, the ladder would have fallen down and his stayed upright. However, as Mr. Harper credibly explained, the dogs were sitting on top of the rung (instead of clamped around it). As such, the ladder could remain upright, albeit, in a precarious state that depended on the dogs keeping their balance on top of a rung, instead of in a secure state with the dogs locked in place around the rung. Mr. Harper's testimony is credited; Mr. Post did not effectively rebut the testimony regarding his improper employment of the dogs. The second problem Mr. Post had in the ladder operations component of his retest came in the part of the exercise in which Mr. Post was supposed to exit the building carrying the "victim" and retreat to safety. According to the field notes, Mr. Post received an automatic failure for committing an unsafe act that could result in serious injury or death, because he was running backwards with the victim. Mr. Post did not take issue with this aspect of his retest scoring, admitting that the field notes were accurate: "When you're carrying the victim out of a building, that's the only time you're allowed to go backwards, but I guess I was running where I should have been walking. But I don't really--I don't really testify against that." Mr. Post expressed some generalized concern with the fact that the same field representative--Mr. Harper--administered Mr. Post's initial examination and the retest. However, no evidence was offered to suggest that Mr. Harper's administration of the practical exam or the retest was improper or unfair to Mr. Post in any respect. Indeed, Mr. Post essentially conceded that Mr. Harper fairly and reasonably assessed Mr. Post's admittedly sloppy performance on the retest. Mr. Post's concession in this regard puts to rest any implication that Mr. Post might not have failed the retest if a different field representative had been assigned. Instead, the evidence established that Mr. Post's performance in the practical exam retest earned three different automatic failures, any one of which would have resulted in an overall failing grade on the retest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Financial Services, denying the application of Petitioner, Brandon Michael Post, for certification as a firefighter in the State of Florida. DONE AND ENTERED this 9th day of April, 2013, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 9th day of April, 2013.
Findings Of Fact On April 17, 1987, petitioner, Gary L. Waldron, filed an application for a certificate of competency with respondent, Department of Insurance and Treasurer (Department). If granted, Waldron would be authorized to take an examination for a certificate of competency as a fire protection system contractor II. After reviewing the application the Department issued a letter on May 5, 1987 advising Waldron that his application had been denied on the ground he lacked the necessary "four years proven experience in the employment of a contractor, or educational equivalent thereto, or a combination thereof." The letter of denial prompted this proceeding. The Department has regulatory jurisdiction over contractors who install fire protection systems. Before engaging in such activities, a person must obtain a certificate of competency from the Department. For regulatory purposes, and depending on the nature of the work, there are four classes of contractors, those being Contractors I, II, III and IV. In this case, Waldron desires certification as a Contractor II. This would authorize him to "lay out, fabricate, install, inspect, alter, repair and service" certain types of fire protection systems, except those that are preengineered. To be eligible for licensure, Waldron must possess "four years proven experience in the employment of a contractor or educational equivalent thereto or a combination thereof." By rule, the agency has provided that such experience may be gained only with a contractor certified as a Contractor I, II, III or IV. This is consistent with its interpretation of the statute as explicated by the chief of the bureau of explosives and fire equipment. Waldron owns a contracting firm, Waldron's, Incorporated, in Fort Lauderdale, and is licensed as a mechanical contractor. Over the last ten years or so, he has installed a number of non-preengineered fire protection systems for various major oil companies at Port Everglades (in Broward County). The Port is one of the largest petroleum storage areas in the Southeast. It is undisputed that the systems installed by Waldron are the types that would ordinarily be installed by a Contractor II. Such systems met the fire safety standards at Port Everglades, which equalled or exceeded relevant state standards adopted by the Department. This was confirmed by the chief of fire and security at Port Everglades and corroborated by petitioner's composite exhibit 1, which documents a variety of jobs completed by Waldron in recent years. In early 1987 Waldron learned that a certificate of competency was required to do the work he had previously been performing. This resulted in Waldron filing his application. Although the application and other evidence of record establish that Waldron has had many years of experience in installing the type of system typically installed by a Contractor II, none was obtained "in the employment of a (licensed) contractor." Further, he does not possess the alternative educational equivalent prescribed by Department rules. Therefore, he is not eligible at this time to take examination for licensure as a Contractor II.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's application to take the examination for licensure as a Contractor II be DENIED. DONE AND ORDERED this 13th day of October, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1987.
The Issue The issue in this case is whether Orange County Fire Rescue (Respondent) committed an act of unlawful employment discrimination against Marlene Serrano (Petitioner) in violation of the Florida Civil Rights Act of 1992.
Findings Of Fact The Petitioner is a Puerto Rican-born Hispanic female. At all times material to this case, the Petitioner was employed by the Orange County Fire Rescue Department (FRD), a unit of the Orange County government. In order to increase the number of firefighters available to the Respondent, the FRD posted a job advertisement in July 2008 ("Job Req. #007931"), seeking to hire state- certified paramedics who were capable of becoming state-certified firefighters. The advertisement clearly indicated that applicants should be state-certified paramedics who were "[c]apable of successfully completing and maintaining the Florida State Firefighter certification after three (3) years of being hired." Employees hired into the new paramedic-firefighter positions were identified as "paramedics." Employees hired as paramedics only were identified as "PMOs." On September 8, 2008, the FRD officially hired four paramedics for the positions advertised by Job Req. #007931. The group included the Petitioner, two Caucasian females (Sarah Wilson and Jennifer Massey) and a Caucasian male (Shane Doolittle). It was commonly understood by those hired, including the Petitioner, that they were required to obtain state certification as firefighters by September 18, 2011, the third anniversary of their employment. Pursuant to the advertised job requirements, the paramedics were required to pass a physical ability test (referred to as the "CPAT") and complete the Orange County firefighter orientation program. The Petitioner passed the CPAT on her second attempt and completed the orientation program. Candidates seeking to be certified by the State of Florida as firefighters are required to complete a 450-hour firefighter training course (commonly referred to as Firefighter I and II Minimum Standards classes) and to pass a firefighter certification exam. The Petitioner had completed the Firefighter I and II Minimum Standards classes as of December 17, 2010. On December 22, 2010, the Petitioner took the firefighter certification exam at the Central Florida Firefighter Academy and failed the hose and ladder components of the exam. When the Petitioner failed to pass the exam, the Respondent placed her in a fire station with a ladder truck company so that she could improve her ladder skills. On February 22, 2011, the Petitioner retook the firefighter certification exam at a training facility in Ocala, Florida, where she successfully completed the hose component of the exam, but again failed the ladder component. A candidate for firefighter certification is permitted to take the exam twice. A candidate who twice fails the exam is required to retake the Firefighter II Minimum Standards class before being permitted to retake the certification exam. On March 8, 2011, the Petitioner met with FRD officials to assess her progress towards obtaining the firefighter certification. The Petitioner had received notice of the meeting on March 1, 2011, from Assistant Fire Chief Brian Morrow. Similar meetings occurred with the other paramedics employed by the Respondent. During the meeting, the Petitioner advised the FRD officials that she intended to dispute the results of her second test. The Petitioner was aware that she could not retake the certification exam without retaking the Firefighter II Minimum Standards class. Although the Petitioner contacted a training facility to inquire about course schedules, she did not attempt to retake the training course. The March 8 meeting and discussion was memorialized in a letter to the Petitioner dated March 14, 2011. The letter contained an assessment of her progress towards certification. The letter also noted that she was required to obtain her state certification prior to September 18, 2011, and that failure to obtain certification by that date could result in termination of her employment. The Petitioner received the letter on March 16, 2011. In an email dated March 22, 2011, to FRD Lieutenant John Benton, the Petitioner advised that she was trying to determine how she would be able to go to class and maintain her work schedule. Lt. Benton forwarded the email to Assistant Fire Chief Morrow. Assistant Fire Chief Morrow replied to the Petitioner's email on March 29, 2011, wherein he advised her that the FRD had met its obligation to fund the certification training. He asked the Petitioner to advise him of the status of her appeal, to identify the class she was planning to take, and to outline her schedule and specify the hours she would use as vacation time and as "time trades." He asked for a response "as soon as possible" and invited the Petitioner to contact him directly to resolve any questions. The Petitioner received Assistant Fire Chief Morrow's March 29 email, but did not respond to it. Assistant Fire Chief Morrow subsequently contacted the Petitioner by telephone to inquire as to the issues noted in the email, but received little additional information from the Petitioner regarding her plans. After receiving the official notice that she had failed her second attempt at the certification exam, the Petitioner filed an administrative appeal (DOAH Case No 11-1556) to dispute the scoring of the exam. A hearing was conducted before an Administrative Law Judge (ALJ) on May 24, 2011. On July 7, 2011, the ALJ issued a Recommended Order finding that the Respondent failed the exam and recommending that the appeal be denied. By Final Order dated August 20, 2011, the State of Florida, Department of Financial Services, Division of State Fire Marshall, adopted the findings and recommendation of the ALJ and denied the Petitioner's appeal of the exam grading. The Final Order specifically noted that the Petitioner's certification was denied until she obtained a passing score on the exam. The Petitioner made no further efforts to become a state-certified firefighter. She did not register to retake the Firefighter II Minimum Standards class. As of September 17, 2011, the Petitioner was not a certified firefighter and was not actively engaged in seeking certification. Because the Petitioner did not meet the published job requirements and was making no effort to meet them, the Respondent terminated the Petitioner from employment on September 17, 2011. The Respondent offered to permit the Petitioner to resign from her employment rather than be terminated, but she declined the offer. At the hearing, the Petitioner testified that, after she twice failed to pass the certification exam and was unsuccessful in challenging the scoring of the second attempt, she had no further interest in obtaining the certification. There is no evidence that the Petitioner requested an extension of the applicable three-year certification deadline. Nonetheless, the Petitioner has asserted that the Respondent provided deadline extensions to other paramedics and that the Respondent's actions, in not providing an extension to her and in terminating her employment, were based on her race or national origin. There is no evidence to support the assertion. The March 14, 2011, letter specifically referenced the published job requirements set forth in Job Req. #007931, as well as the applicable provisions of the Collective Bargaining Agreement (CBA) governing the Petitioner's employment by the Respondent. The Petitioner was a member of the Orange County Professional Fire Fighters Association. Her employment by the Respondent was subject to a CBA dated December 14, 2010, between the Respondent and the Orange County Professional Fire Fighters Association, Local 2057, International Association of Fire Fighters. Section IV, Article 60, of the CBA provided as follows: ARTICLE 60 - PARAMEDIC PROMOTIONS/STATUS CHANGE Employees in the Paramedic classification agree to, upon reaching three (3) years of employment [sic] to meet the requirements of the Firefighter classification. Either upon reaching three (3) years of employment, or upon the desire of the department, the employee shall be moved from the Paramedic pay plan to Step 1 of the Firefighter pay step plan or to the higher nearest step to the employee's Paramedic current rate of pay. Nothing in this Agreement shall prohibit the Orange County Fire/Rescue Department from terminating the employment of a Paramedic when upon reaching three (3) years employment the minimum requirements for the position of Firefighter have not been met. Employees not meeting the minimum qualifications by the three (3) year employment anniversary may be separated from county employment without a predetermination hearing (PDH) and without access to Article 17 - Grievance and Arbitration Procedure of this contract. It is the sole discretion of Fire Rescue Management to extend the three (3) year time frame limitation due to case-by-case circumstances and/or operational need. The evidence establishes that certification deadlines have rarely been extended by FRD officials. The evidence fails to establish that FRD officials have considered race or national origin in making decisions related to deadline extensions. Sarah Wilson, a Caucasian female, was hired at the same time as the Petitioner and the deadline by which she was required to have obtained firefighter certification was September 18, 2011. Ms. Wilson completed the training course on September 15, 2011. She was scheduled to sit for the certification exam on October 4 and 5, 2011. The scheduling of the exam was the responsibility of the training facility. Neither Ms. Wilson nor the Respondent had any control over the testing date or the scheduling of the exam. The Respondent permitted Ms. Wilson to remain employed beyond the certification deadline and through the dates of the exam, an extension of 17 days. The extension granted to Ms. Wilson was the only time that the Respondent has allowed a paramedic more than 36 months of employment in which to obtain the required certification. Ms. Wilson passed the firefighter exam on October 4 and 5, 2011, and became a state-certified firefighter. Had Ms. Wilson not passed the exam on October 4 and 5, 2011, her employment would have been terminated by the Respondent. At the time of the hearing, Ms. Wilson retained all required certifications and remained employed as a firefighter paramedic with the FRD. In contrast to Ms. Wilson, the Petitioner was making no effort to obtain the required certification when the certification deadline passed. There was no evidence that the Respondent's extension of Ms. Wilson's certification deadline was based upon race or national origin. Jennifer Massey, a Caucasian female who was hired at the same time as the Petitioner, left her employment with the Respondent prior to the certification deadline. Shane Doolittle, a Caucasian male, was hired at the same time as the Petitioner, and the deadline by which he was required to have obtained firefighter certification was originally September 18, 2011. However, Mr. Doolittle was called to active military duty for three months during the three-year certification period. In order to provide Mr. Doolittle with the full 36 months of employment prior to the certification deadline, the Respondent extended Mr. Doolittle's certification deadline by three months, to December 18, 2011. In contrast to Mr. Doolittle, the Petitioner was employed and present with the FRD throughout the three-year period and had a full 36 consecutive months in which to obtain the required certification. There was no evidence that the Respondent's extension of Mr. Doolittle's certification deadline was based upon race or national origin. Mr. Doolittle did not become certified by the extended deadline, and the Respondent terminated his employment on December 18, 2011. There is no evidence that the Respondent was not invested in each paramedic successfully completing their training and meeting the requirements set forth in Job Req. #007931. The Respondent hired 12 paramedics in 2008. The Respondent paid the tuition and equipment costs for each paramedic who sought state certification as a firefighter. Additionally, the Respondent paid the salaries and benefits for the paramedics while in classes or exams, as well as the costs of the employees who covered the shifts of such paramedics. The Petitioner received the same training and benefits as all other employees seeking certification. The Respondent anticipated that the Petitioner would ultimately complete the training and exam requirements for certification, and she participated in the recruit training graduation ceremony with her colleagues. The 2008 hires included a Puerto Rican-born Hispanic male who obtained his firefighter certification prior to the deadline, and a Caucasian male who resigned from employment in lieu of termination because he had not obtained the firefighter certification by the deadline and was making no progress towards doing so. During the termination meeting with the Petitioner, FRD Chief Michael Howe advised the Petitioner that she was eligible for re-employment with the FRD if she obtained the firefighter certification. About a week after the termination meeting, Chief Howe called the Petitioner and left a voice message, offering to loan equipment to the Petitioner and to sponsor her for a discount on tuition costs, should she choose to retake the required course and become re-eligible for the certification exam. Chief Howe received no response from the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the complaint filed by the Petitioner against the Respondent in this case. DONE AND ENTERED this 8th day of February, 2013, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 8th day of February, 2013. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Susan T. Spradley, Esquire Gray Robinson, P.A. Post Office Box 3068 Orlando, Florida 32802 Scott Christopher Adams, Esquire LaBar and Adams, P.A. 1527 East Concord Street Orlando, Florida 32803 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Florida Administrative Code Rules 69A- 62.001, 69A-62.003, 69A-62.006, and 69A-62.007, constitute an invalid exercise of delegated legislative authority as defined in Sections 120.52(8)(d), 120.52(8)(e), and 120.52(8)(f), Florida Statutes (2004).
Findings Of Fact Petitioner is and, at all times material to this case, was a volunteer firefighter. The size of the volunteer firefighter population is dependent on the ability of volunteer fire departments to attract and keep volunteers. People are willing to volunteer as firefighters if the experience is rewarding, training is not excessive, and conflict is minimized. However, the greater weight of the evidence indicates that the subject rules do not detract from the volunteer experience, impose excessive training, or create between conflict between professional and volunteer firefighters. Petitioner testified that a reduction in volunteer population will result in increased hazards to volunteers and a reduction in the delivery of services to citizens. This testimony is not persuasive for two reasons. First, there is no persuasive testimony that the subject rules will result in a reduction of the number of volunteer firefighters. Second, the most persuasive evidence indicates that the subject rules will reduce hazards to volunteers without impairing the delivery of services to Floridians. Some labor unions that represent career firefighters discourage their members from volunteering their services with volunteer fire departments. The competition between the unions and the volunteer fire departments is commonly referred to as the "turf-war." There is no persuasive evidence that the subject rules contribute to the tension between the two groups of firefighters. The firefighter labor unions are usually very active in the political arena. It is undisputed that the unions support legislation that benefits their members. However, the subject rules were not promulgated to eliminate or place hardships on volunteer fire departments and volunteer firefighters. The safety needs and concerns of firefighters have evolved over time. Technology has improved firefighting equipment to such an extent that the greatest threat to firefighters is from heart attacks and transportation accidents. Nevertheless, the fact that the subject rules focus on safety enhancement at the scene of a fire instead of firefighter health and transportation safety does not render them invalid. Florida Administrative Code Rule 69A-62.003 provides as follows in pertinent part: (3) With respect to 29 C.F.R. Section 1910.134(g)(4), the two individuals located outside the immediately dangerous to life and health atmosphere may be assigned to an additional role, such as incident commander, pumper operator, engineer, or driver, so long as such individual is able to immediately perform assistance or rescue activities without jeopardizing the safety or health of any firefighter working at an incident. (a)1. Except as provided in subparagraphs 2., 3., and 4., no firefighter or any other person under the authority of the firefighter employer at the scene of a fire is permitted to participate in any operation involving two-in, two-out as one of the two or more persons inside the IDLH atmosphere or as one of the two or more persons outside of the IDLH atmosphere unless such firefighter or other person at the scene of a fire is certified in this state by the division as a Firefighter I or a Firefighter II, as established in subsections (1) and (2) of Rule 69A-37.055, F.A.C. Such training shall consist of the training described in subsection (6) of Rule 69A-37.055, F.A.C. This requirement specifically applies to volunteer fire departments and volunteer firefighters but is also applicable to any other person working under the authority of the Firefighter Employer at the scene of a fire. 2.a. A volunteer firefighter who possesses the State Basic Volunteer certificate previously issued by the division is exempt from the Firefighter I and Firefighter II requirement in subparagraph 1. The training encompassed in the basic volunteer certificate in itself may not meet “trained commensurate to duty” as defined depending upon duties or tasks assigned or undertaken in the exclusionary zone. A volunteer firefighter who provides evidence of having completed curriculum equivalent to the Florida Firefighter I course of study as provided in subsection 69A-37.055(6), F.A.C., prior to January 1, 2004, is exempt from the Firefighter I and Firefighter II requirement in subparagraph 1., if The fire chief or other chief administrative officer of the fire department of which the firefighter is a member files with the State Fire Marshal form DFS-K4-1594, “Firefighter I Training Exemption Application,” which is hereby adopted and incorporated by reference, and The said form is accepted by the State Fire Marshal after confirmation of the evidence provided. Form DFS-K4-1594 may be obtained by writing the Bureau of Fire Standards and Training, 11655 Northwest Gainesville Road, Ocala, Florida 34482-1486. Any volunteer exempted by sub- subparagraph a.or b. is permitted to take the Florida Firefighter I examination until December 31, 2005, upon the completion and filing with the division of form DFS-K4- 1380, “Firefighter I Training Record,” Rev. 03/00, adopted in Rule 69A-37.039, F.A.C., by a Florida certified instructor that verifies equivalent training and demonstration of competency. The above-referenced rule sets forth ways that a firefighter, trained prior to the current regulations, may keep his or her interior-firefighter status without becoming certified as a Firefighter I or Firefighter II. The rule will not disqualify all previously qualified firefighters as long as they are "trained commensurate to duty" for any type of work they are requested to perform. There is no persuasive evidence that Florida Administrative Code Rule 69A-62.003(3)(a) will cause a reduction in the number of volunteer firefighters due to newly created administrative hurtles. The rule, which has its basis in safety enhancement, clearly is not arbitrary or damaging to the safety of volunteers. Florida Administrative Code Rule 69A-62.003(3)(a)4. states as follows: 4. Volunteer firefighters having NWCG S- 130, S-190, and Standards for Survival certification by the Florida Division of Forestry are permitted to participate in wild land fire suppression without the Firefighter I certification. The above-referenced rule allows a volunteer to fight wild-land fires without earning Firefighter I certification. The rule sets forth an exception to the Firefighter I certification requirement; it does not mandate that the NWCG courses are the exclusive means to qualify as a wild-land firefighter. Florida Administrative Code Rule 69A-62.003(3)4. is not invalid or arbitrary because it requires volunteers to pass training courses that are accepted as setting national standards or because the training courses teach firefighting techniques that are applicable across the nation as well as Florida. Petitioner presented no persuasive evidence to the contrary. Florida Administrative Code Rule 69A-62.006 states as follows: 69A-62.006 Requirements for Recognition as a Fire Department. To be recognized as an organized fire department by the division, compliance with the following must be documented: Capability of providing fire protection 24 hours a day, seven days a week; Responsibility for response in an area capable of being depicted on a map; and Staffing with a sufficient number of qualified firefighters who are employed full-time or part-time or serve as volunteers and who shall have successfully completed an approved basic firefighting course recognized by the Bureau of Fire Standards and Training. (2)(a) A fire department shall meet the requirements of the Insurance Services Office (ISO) for Class 9 Protection, the 2003 edition, the Fire Suppression Rating Schedule, effective February, 2003, which is hereby adopted and incorporated by reference and which may be obtained from Insurance Services Office (ISO), 545 Washington Blvd., Jersey City, NJ 07310-1686 or at www.iso.com. If the fire department does not meet the requirements of this section, the fire department shall submit a plan of compliance which provides for meeting these requirements within 90 days of the date of submission of the plan. ISO measures the major elements of a community’s fire-suppression system and develops a numerical grade ranging from 1 to 10. Class 1 represents the best public protection rating and Class 10 indicates no recognized protection. The requirements for ISO 9 may be obtained at the ISO website located at www.iso.com, or it may be obtained by writing to the Division of State Fire Marshal, Bureau of Fire Standards and Training, 11655 Northwest Gainesville Road, Ocala, Florida 34482-1486. Florida Administrative Code Rule 69A-62.006(1)(a) is not invalid because it requires fire departments to document their capability of providing fire protection 24 hours a day/seven days a week. The requirement for full-time availability will provide significant safety enhancement for the communities being served. This is true because some voluntary fire departments in rural communities historically have provided only part-time service. There is no persuasive evidence that requiring full- time fire protection will result in the following: (a) the creation of a fire-suppression performance standard that is unauthorized by law; (b) the closing of some volunteer fire departments; (c) a reduction in services to the public; and (d) uncorrectable rule-violations; an increase in conflict between professional and volunteer firefighters. Florida Administrative Code Rule 69A-62.006(1)(c) requires that each fire department be staffed with a sufficient number of qualified firefighters. The rule is not vague because it uses the word "sufficient" to determine the number of firefighters that are required. One must read the applicable rules in their entirety and consider the needs of each community to determine adequate staffing. There is no persuasive evidence that the staffing requirement fails to establish adequate standards for determining compliance. Florida Administrative Code Rule 69A-62.006(2) requires fire departments to meet certain requirements of the Insurance Services Office (ISO) for Class 9 protection. This requirement determines the minimum equipment that is necessary to safely fight a structure fire. There is no persuasive evidence that requiring a fire department to provide Class 9 protection will make it impossible to start a new voluntary fire department. The rule clearly is not arbitrary in setting this minimum standard. Florida Administrative Code Rule 69A-62.007(1) states as follows in pertinent part: 69A-62.007 Minimum Requirements for Class 9 Protection. To be considered for Class 9 protection, the following minimum facilities must be available: Organization: The fire department shall be organized on a permanent basis under applicable state or local laws. The organization shall include one person responsible for operation of the department, usually with the title of chief. The fire department must serve an area with definite boundaries. If a municipality is not served by a fire department solely operated by or for the governing body of that city, the fire department providing such service shall do so under a contract or resolution. When a fire department’s service area involves one or more jurisdictions, a contract shall be executed with each jurisdiction served. Membership: The department shall have a sufficient number of firefighters/members to assure the response of at least 4 firefighters/members that can assemble at the scene of a fire as contemplated by subsection (1) of Rule 69A-62.003, F.A.C., to be compliant with Rule 69A-62.003, F.A.C., the two-in, two-out rule. The fire chief may be one of the 4 responding firefighters/members. The above-referenced rule does require fire departments to have four "interior-qualified" firefighters at the scene of a structure fire. The requirement is necessary to comply with the longstanding "two-in, two-out" rule. However, the rule does not preclude a fire department from relying on mutual-aid from other fire departments in order to comply with the rule. The rule clearly is not vague. Florida Administrative Code Rule 69A-62.007(4)(a) states as follows in relevant part: (4)(a) The chief of any fire department that includes volunteer firefighters shall annually submit a Roster of Volunteer Firefighters to the State Fire Marshal utilizing form DFS-K4-1581, effective 05/04, which is hereby adopted and incorporated by reference, no later than June 30 of each year. Form DFS-K4-1581 may be obtained by contacting the Division of State Fire Marshal, Bureau of Fire Standards and Training, 11655 Northwest Gainesville Road, Ocala, Florida 34482-1486 or at the division’s website located at http://www.fldfs.com/SFM/. The roster shall include: The fire department name, The fire department identification number (FDID), The complete fire department address, The fire department contact person, telephone number and the fire department fax number, if any, The certification level for each firefighter reported and, if any equivalency exemption has been issued, the number of persons for whom such exemption has been issued, and The firefighter certification number, the issue date of the certification, the status of the certification, i.e., volunteer or career, and the status of each firefighter who has been issued an equivalency exemption, i.e., volunteer or career, if any. The above-referenced rule requires the chief of a fire department to submit an annual roster of volunteer firefighters. Petitioner objects to the rule because some career firefighters volunteer their off-duty hours with the local volunteer fire department. Career firefighters who also perform volunteer work may do so contrary to their union rules. Publication of the roster might keep some professional firefighters from volunteering their services. Nevertheless, there is no persuasive evidence that losing some speculative number of career/volunteer firefighters will undermine the safety of firefighters or the public. The information that the roster contains is a public record. The information is necessary so that Respondent can perform statutorily-mandated studies involving injuries to firefighters. The rule clearly is not arbitrary.
The Issue The issue is whether Respondent should deny an application for certification as a Firefighter II on the alleged grounds that Petitioner failed the Firefighter Minimum Standards Equivalency Examination.
Findings Of Fact Respondent is the state agency responsible for the certification of firefighters in the State of Florida, pursuant to Chapter 633, Florida Statutes (2009).1 At a date not disclosed in the record, Petitioner applied for a certification as a Firefighter II. On September 21, 2009, Petitioner took the Firefighter Minimum Standards Equivalency Examination (“initial examination”). Petitioner failed to pass the Ladder, Hose, and Self Contained Breathing Apparatus (SCBA) components of the practical portion of the initial examination. On November 17, 2009, Petitioner took the Firefighter Minimum Standards Equivalency Examination Re-test (“examination re-test”) for the Ladder, Hose, and SCBA components. Petitioner failed to pass the Ladder component of the examination re-test. By Notice of Denial dated November 20, 2009, Respondent notified Petitioner that Petitioner had failed the Firefighter Minimum Standards Equivalency Examination. Petitioner requested an administrative hearing. Petitioner alleges that, during her initial examination on September 21, 2009, there was an equipment malfunction during the Ladder component of the practical portion of the examination. Petitioner bases her allegations on the Ladder component score sheet for the initial examination (“score sheet”) that was received by Petitioner after she completed the initial examination and examination re-test. The score sheet for the initial examination states that Petitioner failed the Ladder component of the initial examination because Petitioner exceeded the time period to complete the ladder evolution and failed to fully extend the ladder with the dogs locked. In the “Comments Required for Failure” section, the score sheet listed, “Safety latch on dawgs [sic] stuck in top of rung. Unsafe act. Over time.” Petitioner alleges that the statement that a piece of equipment was "stuck" is proof of an equipment malfunction. Two experts testified during the hearing that the "stuck" equipment was caused by operator error rather than an equipment malfunction. The testimony of the two experts was credible and persuasive. Petitioner, as the examinee, could have remedied the "stuck" equipment by raising the ladder to release the finger and then lowering the ladder to allow the dogs to lock onto the rung. The failure to do so was an "unsafe act” that created a safety hazard in which the fly section of the ladder could have fallen down to the ground. A preponderance of the evidence does not show that Petitioner failed the Ladder component of the initial examination because of an equipment malfunction. Rather, the preponderance of evidence shows that Petitioner failed to have the dogs locked, which is required by the examination. A preponderance of the evidence also shows that Petitioner did not complete the ladder evolution within the required time during the re-take examination. The excessive time resulted in an automatic failure of the re-take examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order denying Kim Lashawn Edmonds’ application for certification as a Firefighter II. DONE AND ENTERED this 16th day of April, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 16th day of April, 2010.
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated October 22, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Office of the State Fire Marshall is the governmental entity responsible for regulating fire safety in Florida, including the installation, maintenance, and inspection of fire protection systems. Section 633.01, Florida Statutes (2000). Mr. Cabrera is currently licensed by the State Fire Marshall as a Class C and D fire equipment dealer (Class 0703 and 0704) and as a fire extinguisher and preengineered systems permittee (Class 0903 and 0904).2 At the times material to this proceeding, Mr. Cabrera was issued preengineered systems permit number 435249000198. At the times material to this proceeding, Mr. Cabrera was the qualifier for A Fire Prevention Company, was authorized to act for the business organization in all matters connected with the business, and was required to supervise all activities undertaken by A Fire Prevention Company. A Fire Prevention Company has been in business since 1998. Prior to this time, a company referred to as "South Florida Fire" employed Mr. Cabrera. Mr. Cabrera currently holds, and, at the times material to this proceeding, held jointly with A Fire Prevention Company, a certificate qualifying A Fire Prevention Company to engage in business as a fire equipment dealer. At the times material to this proceeding, A Fire Prevention Company and Mr. Cabrera engaged in the business of servicing, repairing, recharging, testing, inspecting, and installing fire extinguishers and preengineered fire suppression systems. At the times material to this proceeding, Banner Beef and Seafood operated an industrial food processing facility in Miami, Florida. In the facility, meat and seafood moved through an industrial deep fat fryer on a conveyor belt and were then frozen, packaged, and sold for resale. An oil-heating unit, located in an alcove off the room containing the deep fryer, was attached to but separate from the deep fryer, and hot oil moved from the oil-heating unit through a filter into the deep fryer. The oil-heating unit held 200 gallons of oil, which was heated to 460 degrees Fahrenheit before flowing into the deep fryer. The oil-heating unit was made of stainless steel, with a stainless steel lid. The oil-heating unit was protected by a Kidde Sentinel HDR 25DC, DOT E-7042-360-K, Serial #33996, ("Kidde HDR 25DC") preengineered dry chemical fire protection system. On June 19, 2000, approximately three months after Mr. Cabrera performed a semi-annual inspection and maintenance of the Kidde HDR 25DC system, a fire originating in the oil- heating unit destroyed much of the Banner Beef facility. The Kidde HDR 25DC system was probably installed at Banner Beef in or around 1981. Mr. Cabrera was not involved in the installation of the system, but he began inspecting and maintaining the system approximately ten years before the fire. He occasionally performed the semi-annual inspection and maintenance of the Banner Beef system when he was employed by South Florida Fire, and he performed all of the semi-annual inspections and maintenance subsequent to March or July 1998, after he left South Florida Fire and established A Fire Prevention Company. Mr. Cabrera completed an inspection report and an invoice each time he inspected the Kidde HDR 25DC system. Mr. Cabrera was, however, able to produce to the State Fire Marshall only an invoice for a semi-annual inspection on October 5, 1998; an invoice and "Range Hood Inspection Report" for a semi-annual inspection on April 12, 1999; an invoice and "Range Hood Inspection Report" for a semi-annual inspection on September 27, 1999; and an invoice for a "semi-annual inspection and maintenance" on March 15, 2000. The Kidde HDR 25DC is a preengineered system, which means that components manufactured by Kidde were put together into a system designed to protect against a particular hazard. Kidde publishes a manual, bulletins, and memoranda that specify how the Kidde HDR 25DC system is to be installed, serviced, repaired, maintained, tested, and inspected. The Kidde HDR 25DC system was submitted to the Underwriters Laboratory ("UL") for testing. The system was found to be effective and to operate as specified, and the system and the manual for the system received UL approval. Once the system and manual received UL approval, the components of the system could not be changed except in accordance with the UL listing and the approved manufacturer's specifications. The Kidde HDR 25DC system uses a dry chemical as a fire suppressant. The NFPA Standard 17 contains requirements for the installation, maintenance, operation, and care of dry chemical fire suppression systems. The Kidde HDR 25DC system is approved by the UL to protect commercial cooking installations, specifically hoods, ducts, and cooking appliances. Cooking appliances are classified into two categories in the manufacturer's specifications, surface appliances and broilers; deep fryers are considered surface appliances. Commercial cooking installations are used in food preparation areas of restaurants. The oil-heating unit and deep fryer used by Banner Beef are considered industrial appliances because they were designed to process a high volume of food to be sold for resale rather than to be consumed on the premises. The Kidde HDR 25DC system was composed of several components, including a cylinder containing dry chemical fire suppressant under 360 pounds of pressure; a valve assembly attached to the cylinder; a manual release mechanism; an elbow mounting bracket that connected the cylinder to discharge piping; a nozzle attached to the discharge piping through which the dry chemical fire suppressant would be discharged on the hazard protected by the system; a fusible link designed to melt at a specified temperature; a control head, with a control head cover, that was attached to the cylinder valve assembly; cables running from the fusible link to the control head; electrical metal tubing protecting the cables; and corner pulleys that allowed the cables to change direction at a 90-degree angle. The Kidde HDR 25DC system was designed so that, when the fusible link melted, the cables would release, causing the system to actuate and discharge the dry chemical fire suppressant. Banner Beef's 200-gallon oil-heating unit protected by the Kidde HDR 25DC system was located in an alcove opening off of a larger room that housed the deep fryer. The cylinder containing the dry chemical fire suppressant was mounted on the outside wall of oil-heating unit, at the far end of the alcove, only a few inches away from oil that was maintained at 460 degrees Fahrenheit when the oil-heating unit was in operation. The oil-heating unit was turned off at the end of each workday, and the cylinder was regularly exposed to a cycle of high temperatures when the unit was in operation and cooler temperatures when it was not. Because it was attached to the hazard it was intended to protect, the cylinder would be exposed to any fire that originated in the oil-heating unit, and, in fact, the exterior of the cylinder at Banner Beef was damaged by the fire and covered in grease when it was inspected after the fire. NFPA Standard 17-8, Section 3-8.3, 1994 edition,3 specifies that "[t]he dry chemical container and expellant gas shall be located near the hazard or hazards protected, but not where they will be exposed to a fire or explosion in those areas." NFPA Standard 17-8, Section 3-8.3.1, provides that "[t]he dry chemical container and expellant gas assemblies shall be located so as not to be subjected to severe weather conditions or to mechanical, chemical, or other damage." The location of the cylinder at Banner Beef was not consistent with these NFPA requirements. A manual release handle, or manual pull station, is used to manually actuate the Kidde HDR 25DC system. At Banner Beef, the manual release handle was located on the far end of the oil-heating unit, at the top of the dry chemical cylinder and next to the controls used to operate the oil-heating unit. The means of exiting the alcove containing the oil-heating unit was through the room containing the deep fryer, although Banner Beef advised Mr. Cabrera that someone was always standing at the controls of the oil-heating unit whenever the unit was in operation. NFPA Standard 17-8 provides in pertinent part: 3-7 Operation and Control of Systems 3-7.1 Methods of Actuation. Systems shall be provided with both automatic and manual means of operation. 3-7.1.1 Operation of any manual actuator shall be all that is required to bring about the full operation of the system. At least one manual actuator shall be provided for each system. * * * 3-7.1.3 At least one manual actuator shall be located no more than 5 ft (1.5 m) above the floor and shall be convenient and easily accessible at all times, including the time of fire. Although only one manual actuator was required, the location of the manual release handle was not consistent with NFPA Standard 17-8, Section 3-7.1.3. The date of manufacture was stamped into the metal of the cylinder containing the dry chemical fire suppressant. The system's serial number and a United States Department of Transportation exemption code, DOT-7042, were also stamped into the metal of the cylinder. The Kidde Guidelines for Hydrostatic Retest & Qualification of Kidde Models HDR, IND, WHDR, and DRS- 700 System Cylinders provides that "[d]ry chemical and wet chemical agents, when super-pressurized with nitrogen, are classified as hazardous materials and must be shipped in DOT approved cylinders (containers). The United States Department of Transportation has jurisdiction during cylinder manufacturer, testing, marking, retest and shipment." According to the information contained in the Guidelines, Kidde cylinders manufactured under the DOT E-7042 exemption must be hydrostatically tested, using "the water jacket volumetric expansion method or the direct expansion method," at least every 12 years by a retester authorized by the United States Department of Transportation. According to the Guidelines, after the hydrostatic retest, the federal Department of Transportation requires that the cylinder must be stamped, "'plainly and permanently,'" with a marking that includes the date of the retest and the designation "3AL"; such a stamp is usually imprinted into the metal of the cylinder. The Guidelines include a warning, identified as such and set off from the rest of the text, that provides: "Use of pressure sensitive hydrostatic test labels, in lieu of stamping the cylinder, DOES NOT comply with the DOT requirements." (Emphasis in original.) Because the cylinder installed with the Kidde HDR 25DC system at Banner Beef was manufactured in 1981, the cylinder should have been hydrostatically tested in 1993. The cylinder did not, however, bear a permanent stamp with the "3AL" designation and the date of a hydrostatic test. Mr. Cabrera nonetheless reported on the Range Hood System Report dated April 12, 1999, that the system had been hydrostatically tested in April 1998, and he reported on the Range Hood System Report dated September 27, 1999, that the system had been hydrostatically tested and recharged in 1998. Mr. Cabrera obtained this information from labels carrying the name of South Florida Fire that were affixed to the outside of the cylinder; a few remnants of the labels remained on the outside of the cylinder after the fire. Pursuant to the federal DOT requirements and the manufacturer's specifications, Mr. Cabrera could not rely on these labels as proof that the cylinder had been subjected to hydrostatic testing. An examination of the cylinder after the fire revealed that the outlet valve on the cylinder and the elbow mounting bracket attached to the valve were completely blocked by a caked, rock-hard white substance, and the area around the cylinder's relief valve was also coated with white powder. In addition, there were chunks of hardened white powder loose in the discharge piping that connected the cylinder to the nozzle inside the oil-heating unit, although the discharge piping was not blocked. The white powder was identified as dry chemical fire suppressant, which had discharged from the cylinder but had not been discharged through the nozzle into the oil-heating unit because of the complete blockage of the valve outlet and elbow mounting bracket. Finally, there was a residue of what appeared to be grease in the discharge piping connected to the elbow mounting bracket. The manufacturer's specifications require that, at the semi-annual inspection of the Kidde HDR 25DC system, the person providing the maintenance should "[c]heck the discharge piping for obstructions. Remove cylinder and valve. Blow out piping with clean dry air or nitrogen." Mr. Cabrera blew out the piping with nitrogen to clear obstructions each time he performed a semi-annual inspection of the Banner Beef system. The discharge piping was clear when he completed the semi-annual inspection and maintenance on March 15, 2000. In the Banner Beef system, approximately six inches of discharge piping ran from the elbow mounting bracket through the exterior wall of the oil-heating unit, where it emerged just above the level of the oil when the oil-heating unit was full. The discharge nozzle for the system was attached to a portion of the pipe that extended a few inches into the oil-heating unit, where it would be exposed to grease splatter. The male coupling on the discharge nozzle should have threaded into a female coupling in the pipe. However, the inside of the pipe was not threaded to receive the nozzle, and it appeared that the person installing the system had "screwed" the nozzle into a smooth pipe. Because the seal was not tight, grease had accumulated on the threads of the nozzle, and the nozzle might have blown off if the system had actually discharged. There are four nozzle configurations available for the Kidde HDR 25DC system, two of which are relevant to this proceeding: The SP-2 nozzle is designed to protect the plenum4 and exhaust duct of a commercial cooking installation; the SW-2 nozzle is designed to protect surface cooking appliances. One SP-2 nozzle was used with the Kidde HDR 25DC system at Banner Beef, which was inconsistent with NFPA Standard 17-6, Section 2- 3.1, which requires that "[d]ischarge nozzles shall be listed for their intended use," and with the manufacturer's specifications for the system. First, there is no recognized nozzle configuration for the system using only one SP-2 nozzle. Second, the SP-2 nozzle was not appropriate for the Banner Beef system: Deep fryers are classified in the manufacturer's specifications as surface appliances, and the proper nozzle was the SW-2 nozzle. The discharge pattern of the SP-2 nozzle is horizontal, and, had the dry chemical fire suppressant actually been discharged through the nozzle into the oil-heating unit, the dry chemical would have blown across the surface of the hot grease; the SW-2 nozzle is designed to be installed above the appliance, so that its discharge pattern is vertical, with the spray distributed over the surface of the oil. Protective grease covers are required by the manufacturer's specifications and by NFPA Standard 17-6, Section 2-3.1.4, which provides: "Discharge nozzles shall be provided with blowoff caps or other suitable devices or material to prevent the entrance of moisture or other environmental materials into the piping. The protective device shall blow off, open, or blow out upon agent discharge." When Mr. Cabrera inspected the Banner Beef system in March 2000, a grease cover protected the discharge nozzle, but, after the fire, no grease cover for the nozzle could be located. In addition, an examination of the nozzle and discharge piping after the fire revealed grease build-up on the inside of the nozzle and in the discharge piping. Protective nozzle covers are easily lost; Mr. Cabrera had advised Banner Beef to call him if they needed a replacement cover, but he was never asked for a replacement cover. To the best of Mr. Cabrera's recollection, there was always a grease cover on the nozzle whenever he conducted his inspections of the system. A fusible link is designed to melt at a specific temperature, releasing cables that run from the fusible link to a control head attached to the dry chemical cylinder; this is the means by which the system is actuated. The fusible link of the Kidde HDR 25DC system at Banner Beef was located in the duct venting the oil-heating unit to the roof. The invoice for the September 27, 1999, semi-annual inspection at Banner Beef reflects that Mr. Cabrera replaced the 500-degree fusible link in the Kidde HDR 25DC system. He used the 500-degree link because the oil-heating unit heated the oil to 460 degrees Fahrenheit. The manufacturer's specifications provide that "[t]he fusible link assembly . . . is used to detect excessive temperatures in the area above cooking appliances and in the duct. The actuation temperature is 360ºF (182ºC). For higher temperatures use a 500ºF quartzoid bulb, or fusible link." The manufacturer's specifications also provide: The exposure temperature is the maximum temperature to which a fusible link may be exposed for any period of time, no matter how short. After reaching the exposure temperature, the link will eventually release even though it may never reach the rating temperature. WARNING: To avoid accidental system discharge, a temperature survey must be made of all locations where the fusible link will be installed. Links must have an exposure temperature rating above the maximum peak survey temperature. The maximum exposure temperature for any fusible link is 300ºF. If the peak survey temperature is above 300º F, use a quartzoid bulb link. (Emphasis in original.) Only two fusible links were available for the Kidde HDR 25DC system, a fusible link with a rating temperature of 350 degrees Fahrenheit and a maximum exposure temperature of 300 degrees Fahrenheit and a quartzoid bulb, also referred to as a fusible link, with a rating temperature of 500 degrees Fahrenheit and a maximum exposure temperature of 475 degrees Fahrenheit. The exposure temperature at the location of the fusible link is not known, but the convected heat in the duct over the oil-heating unit, where the fusible link was installed, would not have reached the 460-degree temperature of the oil. However, the fusible link was installed only six inches above the maximum level of the oil in the oil-heating unit, and, had the 350-degree fusible link been used, it would have continually actuated the system. Pursuant to the manufacturer's specifications, the fusible link on the system should have been mounted using Kidde fusible-link brackets. The fusible link installed on the Banner Beef system was housed in a welded metal bracket fabricated by whoever installed the system. The fusible link is connected to the system's control head by a system of cables. The manufacturer's specifications require that the fusible link be attached to the cables using Kidde cable crimps crimped with a Kidde crimping tool. Mr. Cabrera did not use either a Kidde cable crimp or a Kidde crimping tool when he installed the new fusible link on the Banner Beef system during the September 27, 1999, inspection. The manufacturer's specifications require that the cables connecting the control head to the fusible link be "housed and protected by 1/2-inch electrical metal tubing." The portion of the cable running on the outside of the oil-heating unit, from the control head mounted near the cylinder into the exterior wall of the oil-heating unit was housed in electrical metal tubing; that portion of the cable running inside the oil- heating unit, from the fusible link to the exterior wall of the oil-heating unit, was not housed in electrical metal tubing but was left bare. According to the manufacturer's specification, all cable in the Kidde HDR 25DC system must run either horizontally or vertically. Consequently, corner pulleys are used to make 90-degree changes in direction. Three corner pulleys were used in the Banner Beef system; one was manufactured by Kidde, but two were manufactured by Pyro-Chem. In addition, the first corner pulley was clogged with grease, indicating that the system was not properly maintained. The cables leading from the fusible link are attached to a control head, and the system actuates when the fusible link melts and the cables are released. A cover plate protects the control head, and is attached to the control head with five screws. Kidde Field Memo #84-8, provides as follows: When installing the cover plate on any preengineered system control head, remember to install all five cover screws. The fifth screw that attaches to the hex post just above the local manual release handle is important for the stability of the cover plate when operating the handle. Leaving out the fifth screw could cause movement of the cover plate and render the local manual release handle inoperative. . . . Three of the five screw holes on the control head cover plate recovered from Banner Beef were covered with grease; only two of the five screw holes were clean. This indicates that the cover plate was attached to the control head by only two screws at the time of the fire. Mr. Cabrera did not note any discrepancies or deficiencies in the Kidde HDR 25DC system installed at Banner Beef in the inspection reports that he completed after his April 12, 1999, and September 27, 1999, inspections, which were the only reports provided to the State Fire Marshall and introduced into evidence at the final hearing. In these two reports, Mr. Cabrera checked the "Yes" boxes for the following items, among others: All appliances properly covered w/ correct nozzles System installed in accordance w/ MFG UL listing Inspect cylinder and mount Clean nozzles Check fuse links and clean Piping and conduit securely bracketed System operational & seals in place Clean cylinder and mount Mr. Cabrera signed the two reports, thereby certifying that "[o]n this date, the above system was tested and inspected in accordance with procedures of the presently adopted editions of NFPA Standard 17, 17A, 96 and the manufacturer's manual and was operated according to these procedures with results indicated above." The licensure files maintained by the State Fire Marshall for A Fire Prevention Company indicated that the company's insurance policy with Frontier Insurance Company expired on March 25, 2000. Mr. Cabrera testified, however, that the company did have insurance at the time of the fire, and this testimony is unrefuted. Summary The State Fire Marshall's expert witnesses disagreed as to whether the system could have controlled the fire had it functioned properly. They each conceded, however, that all components of the system functioned perfectly and actuated the system. They attributed the sole cause of the system's failure to the blockage in the valve outlet and elbow mounting bracket that prevented the dry chemical fire suppressant from discharging out of the cylinder. The State Fire Marshall's experts and Mr. Cabrera agreed that the cause of the blockage was dry chemical in the cylinder valve assembly and elbow mounting bracket that had hardened into a rock-hard substance. All of the State Fire Marshall's experts and Mr. Cabrera agreed that the chemical hardened as a result of its coming into contact with a significant amount of moisture and/or grease. No one, however, provided a satisfactory explanation of the time within which the chemical would have hardened after it came into contact with the moisture and/or grease. In Mr. Cabrera's opinion, the blockage was caused when grease and/or moisture entered the system at the time of the fire and caused the dry chemical to immediately harden. On the other hand, the State Fire Marshall's expert witnesses opined that the moisture and/or grease causing the blockage of the cylinder valve outlet and elbow mounting bracket did not necessarily accumulate in the system over an extended period of time but, rather, could have been introduced into the system all at once. They also agreed that the dry chemical would harden gradually over time and that the blockage was probably present at the time Mr. Cabrera performed the March 2000 inspection. However, none of the State Fire Marshall's experts provided a persuasive basis to support a finding that the blockage had been present in the system at the time Mr. Cabrera inspected the system in March 2000, and the evidence is, therefore, insufficient to establish with the requisite degree of certainty that Mr. Cabrera should have discovered the blockage when he performed the inspection and maintenance in March 2000. The evidence presented by the State Fire Marshall is likewise not sufficient to establish that Mr. Cabrera deviated from the requirements of the manufacturer's specifications by installing a 500-degree fusible link in the system in September 1999. The evidence presented by the State Fire Marshall is, however, sufficient to establish clearly and convincingly that the Kidde HDR 25DC preengineered fire protection system installed at Banner Beef was not designed to protect an industrial oil-heating unit containing approximately 200 gallons of hot oil, that the system was not installed in accordance with the manufacturer's specifications, that the system contained parts that were not manufactured by Kidde, that the system was not properly maintained with respect to the build-up of grease in and around the discharge nozzle and in the corner pulleys, and that Mr. Cabrera did not use the appropriate crimp and crimping tool when he replaced the fusible link in September 1997. The evidence presented by the State Fire Marshall is also sufficient to establish clearly and convincingly that Mr. Cabrera did not provide the State Fire Marshall with proof of insurance subsequent to March 25, 2000, although the evidence is insufficient to establish that he did not, in fact, have insurance coverage subsequent to that time. Finally, the evidence presented by the State Fire Marshall is sufficient to establish with the requisite degree of certainty that the reports Mr. Cabrera prepared following his semi-annual inspections in April and September 1999 did not accurately reflect the condition of the system and did not include a statement of the system's deficiencies. In addition, Mr. Cabrera's failure to provide the State Fire Marshall with copies of the inspection reports for the semi-annual inspections he performed on the Kidde HDR 25DC system at Banner Beef for the three years prior to the fire supports the inference that he failed to retain copies of the inspection reports in his records. However, Mr. Cabrera's testimony that he always prepared the necessary reports is uncontroverted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Fire Marshall enter a final order: Finding Hector Cabrera and A Fire Prevention Company guilty of having violated Sections 633.061(9), 633.065(1)(c), 633.065(2), 633.071(1), and 633.162(4)(c) and (e), Florida Statutes (2000), as well as Rules 4A-21.302 and 4A-21.304(1) and (2), Florida Administrative Code; and Suspending the licenses and permits of Hector Cabrera and A Fire Prevention Company for a period of two years, pursuant to Section 633.162(1) and (4), Florida Statutes (2000). DONE AND ENTERED this 25th day of June, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 25th day of June, 2002.
