Findings Of Fact At all times material hereto, Francis Edward Neuzil, Jr. (Respondent), was certified as a firefighter and firesafety inspector in the State of Florida, holding certificates 7360 and FI-39965, respectively. Respondent's firefighter certification was issued on or about February 22, 1979, and his firesafety inspector certification was issued on or about January 9, 1985. On or about December 20, 1991, Respondent was charged by Information with one count of grand theft in the Circuit Court, Seventeenth Judicial Circuit, Broward County, Florida, in Case No. 91-23492CF10. On or about May 11, 1992, Respondent plead nolo contendere to grand theft for violating Subsection 812.014(1)(a), Florida Statutes, a third degree felony. Adjudication was withheld, and Respondent was placed on 18 months probation with special conditions of 50 hours of community service and no consumption of drugs or alcohol. On or about January 14, 1993, the court terminated Respondent's probation, approximately 10 months prior to the scheduled time for his probation to end. The incident which led to Respondent's felony charge occurred on or about December 7 or 8, 1991, at a Sam's store in Broward County after 11:00 p.m. A sprinkler system was being installed and was sufficiently completed for inspection by a firesafety inspector. Respondent went to Sam's store acting in the capacity of a firesafety inspector. Originally, he had estimated that only 10 minutes would be needed to accomplish his task--check the water gauges--but the sprinkler installers were behind schedule and it took approximately an hour. Prior to arriving at Sam's, Respondent had consumed approximately 10 beers. While waiting to perform the inspection, Respondent, who was not in uniform, walked around in the store, consuming an unknown quantity of beers that he had brought into the store with him. Respondent was observed by an electrical worker and several of Sam's employees who either saw him drinking beer or smelled the alcohol on his person and who either knew who he was or were told by other workers or employees who he was. These same individuals witnessed Respondent take several items to the rear entrance--through which everyone working that night or morning was coming and going--and out of the store. Respondent did not attempt to conceal the items. None of the individuals questioned Respondent about the items or stopped him. However, one employee contacted a Sam's manager who was present. They discovered store items were missing, went to Respondent's vehicle which was parked at the rear entrance, as was everyone else's vehicle, and saw the items inside his vehicle. Law enforcement was called, and Respondent was arrested. All the people who saw Respondent at Sam's store believe that he was intoxicated. Respondent has little or no recollection of the incident, and what he does recall is vague. He does not recall taking the items, all of which were items that he had seen before in Sam's and wanted for the Boy Scouts with whom he volunteers. However, he does recall picking up a light bulb and an electrical cord with no ends to it. As a result of the incident, Respondent was suspended by the Fire Chief of the City of Miramar and has not acted in the capacity as a firesafety inspector since December 1991. Even though Respondent pled nolo contendere to the felony charge of grand theft, mitigating circumstances exist, both at the time of the incident and subsequent thereto. Medically, Respondent is diagnosed as an alcoholic, having the disease alcoholism. During the incident, he suffered an alcoholic blackout and, as a result, has little or no recollection of taking the items. Furthermore, Respondent was incapable of forming the requisite intent to steal the items. Additionally, immediately after the incident, he sought treatment and checked himself into a rehabilitation center. Respondent is now a recovering alcoholic. He regularly attends meetings of Alcoholics Anonymous and is monitored by a sponsor who is also a professional firefighter (10 years) and a recovering alcoholic (approximately six years). Further, since January 1992, Respondent has been receiving medical assistance with his alcoholism. Even though he needs to remain in a recovery program, he does not pose a threat to his profession. 1/ Moreover, during Respondent's career as a firefighter (almost 15 years) and firesafety inspector (almost nine years), his certifications have never been disciplined and he has been actively participating in his community. Through his community involvement, Respondent established the City of Miramar's Fire Prevention Bureau and raised money to fund the Bureau. Additionally, he has received many job-related commendations and service recognitions and he has volunteered extensively to work with service organizations, such as the Boy Scouts. Petitioner's consistent policy is to not consider mitigating factors in disciplinary action against a firesafety inspector's certification. In matters involving a plea of nolo contendere, the consistent policy is that an applicant for firesafety inspector will not be issued a certification and that, if the individual has been issued a certification, Petitioner will seek revocation of the certification, regardless of mitigating circumstances. Petitioner is not seeking to discipline Respondent's certification as a firefighter since his certification, by statute [Section 633.351(2), Florida Statutes], was revoked until termination of his probation which occurred on January 14, 1993.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order: Suspending Respondent's certification as a firesafety inspector for a period of two years, retroactive to May 11, 1992, the date of Respondent's plea of nolo contendere. Reinstating Respondent's certification at the conclusion of the suspension and thereafter, for a period of one year, placing Respondent's certification on probation under whatever terms and conditions that Petitioner deems just and appropriate. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of December 1993. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December 1993.
The Issue The central issue in this case is whether Respondents committed the violations alleged in the amended administrative complaint, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating fire extinguisher dealers. Respondent, Ricardo Cabrera, holds a fire extinguisher permit class 03 license (No. 109176000192) and is the qualifier for the company, B.C. & A.B.C. Fire Extinguisher Maintenance (license No. 702193000190 - Fire Extinguisher Dealer Class "C"). At all times material to the amended administrative complaint, Carlos Javier Gonzalez-Clavell was employed by Respondent but was not licensed or permitted to service fire extinguishers. In August, 1995, Respondents were placed on probation for a period of two (2) years. A special condition of Respondents' probation required Ricardo Cabrera to supervise all activities undertaken by the company to insure its employees complied with all regulations. In response to a complaint unrelated to the quality of Respondent's work performance, Ms. Barrow directed an investigation of the Respondent's business premises. Mr. Parks was assigned the investigation of whether Respondents were employing unlicensed workers to perform servicing or recharge of fire extinguishers. On January 29, 1996, Mr. Parks went to Respondent's place of business and observed someone loading a vehicle with fire extinguisher equipment and supplies. He also observed the male near a tank which he presumed was nitrogen. He assumed the person was recharging a fire extinguisher. During the described activity Respondent was not in sight. The person described in paragraph 7 later identified himself as Carlos Javier Gonzalez-Clavell. The vehicle being loaded belonged to Mr. Clavell. Respondent was on the business premises at all times noted above. He was out of view but supervising Mr. Clavell's activities. Mr. Clavell did not recharge fire extinguishers and was not permitted to perform license activities.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Insurance and Treasurer enter a final order dismissing the amended administrative complaint. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of February, 1997. JOYOUS D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1997. COPIES FURNISHED: Joe Demember, Esquire Division of Legal Services 512 Larson Building Tallahassee, Florida 32399-0300 Ricardo Cabrera 3340 South Lake Drive Miami, Florida 33155 Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Daniel Y. Sumner General Counsel Department of Insurance and Treasurer The Capitol, LL-26 Tallahassee, Florida 32399-0300
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.
The Issue The issues in this case are whether Respondent’s participation in the John M. McKay Scholarships for Students with Disabilities Program (McKay Scholarships) and the Corporate Income Tax Credit Scholarship Program (CTC Scholarships) should have been suspended, and whether Respondent’s eligibility to participate in the programs should be revoked.
Findings Of Fact CHC is a private school located in Merritt Island, Florida. Lara Nichilo is the owner and head administrator of CHC. Ms. Nichilo was also the owner and head administrator of another private school located in Cocoa, Florida. For the purposes of this proceeding, the school located in Cocoa, Florida, will be referred to as CHC 2.2 CHC and CHC 2 had participated in the McKay Scholarships and CTC Scholarships programs. Section 1002.39, Florida Statutes, authorizes the McKay Scholarships program, which affords a disabled student an opportunity to receive a scholarship to defray the cost of attending a private school of choice. Section 220.187, Florida Statutes, authorizes the CTC Scholarships program, which enables taxpayers to make private, voluntary contributions so that students who qualify for free or reduced-price school lunches under the National School Lunch Act may receive a scholarship to defray the cost of attending a private school of choice. The Department of Education has the responsibility to annually verify the eligibility of a private school to participate in these scholarship programs. Private schools participating in the McKay Scholarships and CTC Scholarships programs are required to comply with Section 1002.421, Florida Statutes, and must meet applicable state and local health, safety, and welfare laws, codes, and rules, including laws, codes, and rules relating to firesafety and building safety. If a private school participating in the McKay Scholarships and CTC Scholarships programs desires to renew its participation in the programs, the school must file a signed, notarized Form IEPC SCF-1 affidavit with the Department of Education by March 1 of each year for participation in the subsequent school year. The Form IEPC SCF-1 affidavit contains a list of requirements to which the private school must certify that it meets or does not meet. If the school certifies that it does not meet a requirement, such certification constitutes an outstanding compliance issue, which must be resolved by the school prior to May 1 of each year for the school to remain eligible to participate in the scholarship programs. Specifically, the signature page of the Form IEPC SCF-1 affidavit states in part: “I understand that in answering ‘No’ to any requirement in Section 9: School Facility, the provision of a reason for answering ‘No’ shall not make the school compliant with the reporting requirement and will be considered an outstanding compliance issue for resolution as described in State Board of Education Rules 6A-6.03315, 6A-6.0960, and 6A- 6.0970, Florida Administrative Code.” Florida Administrative Code Rule 6A-6.03315(2) requires that every third year a school applies for renewal of eligibility for the scholarship programs there must be a review of compliance documentation. This means that the school must submit documentation to support its eligibility along with the affidavit. For the renewal of eligibility for the 2009-2010 school year, CHC had to submit compliance documentation for review. On November 6, 2008, Ms. Nichilo executed and mailed the Form IEPC SCF-1 affidavit for CHC for renewal of CHC’s eligibility to participate in the McKay Scholarships and CTC Scholarships programs for the 2009-2010 school year. Subsection 1 of Section 9 of the Form IEPC SCF-1 affidavit requires the school to answer the following question: Does the school facility possess a current, violation free or satisfactory Fire Code Inspection and compliance report in accordance with Section 1002.421(2)(g)1., Florida Statutes, State Finance Services Rule 69A-58.004, Florida Administrative Code, and county and/or municipal ordinance? Ms. Nichilo answered “Yes” to the question. CHC submitted a fire inspection certificate for CHC with a date of February 22, 2008. At the time Ms. Nichilo executed and submitted the Form IEPC SCF-1 affidavit in November 2008, CHC did not have a current Fire Code Inspection and compliance report. The last fire inspection certificate was dated February 22, 2006, and had expired on February 22, 2007. Ms. Nichilo executed and submitted a Form IEPC SCF-1 affidavit for the 2007-2008 school year, certifying that CHC had a current, violation-free fire inspection report. The certificate affidavit which Ms. Nichilo signed stated: I have read the applicable scholarship program rules and understand that by signing this form I am certifying that the school is currently in compliance and agrees [sic] to remain in compliance with all scholarship program rules and reporting requirements. If at any point, the school is not in compliance with scholarship rules, or if there is a change in the status of any reporting requirement, the school will have 15 days to notify the Department of Education and will provide all information necessary to document its continued compliance with program rules and requirements. At the time the certification was submitted on January 11, 2007, CHC did have a current, violation-free fire inspection report; however, CHC did not have a current, violation-free fire inspection report that was valid for the entire 2007-2008 school year. CHC did not notify the Department of Education that it was not in compliance with the fire safety inspections during the 2007-2008 school year. On December 5, 2007, Ms. Nichilo executed and submitted a Form IEPC SCF-1 affidavit for the 2008-2009 school year, certifying that CHC had a current, violation-free fire inspection report. At the time of submission of the affidavit, CHC did not have a current, violation-free fire inspection report, and, from the beginning of the 2008-2009 school year until December 23, 2008, CHC did not maintain a current, violation-free fire inspection report nor did CHC notify the Department of Education as late as December 11, 2008, that CHC was not in compliance with the fire inspection requirement. On November 19, 2008, Assistant Fire Marshall Doug Carter of Brevard County Fire Rescue (BCFR) received a complaint concerning CHC and CHC 2 from an anonymous caller. It is the policy of BCFR to follow up on all complaints. On November 20, 2008, Lead Fire Inspector William Morissette, following up on the anonymous complaint, went to CHC for the purpose of performing a fire inspection. On November 20, 2008, Mr. Morissette performed a fire inspection on CHC and noted some violations. During the inspection on November 20, 2008, Mr. Morissette noticed that the fire inspection certificate that was posted at CHC was partially obscured, and he could not see the school’s address. On November 20, 2008, Mr. Morissette performed a fire inspection of CHC 2 and noted some violations. He observed the posted fire certificate at CHC 2 during his inspection. The fire certificate had an account number 23832 and was dated February 22, 2008. The font used in the printing of the certificate did not appear to be the same type as used by BCFR. While at CHC 2, Mr. Morrissette called Assistant Fire Marshall Carter and learned that account number 23832 was for CHC and not CHC 2 and that no fire certificate had been issued to CHC 2 on February 22, 2008. The last fire certificate that had been issued to CHC 2 was on December 15, 2005, and had expired on December 16, 2006. On November 6, 2008, CHC sent a copy of the fire inspection certificate dated February 22, 2008, to the Department of Education as part of the documentation supplied to verify CHC’s eligibility for renewal. The fire inspection certificate was a forgery. Ms. Nichilo testified that she did not send the forged certificate to the Department of Education and that some disgruntled former employee who had access to CHC’s files must have sent the certificate to the Department of Education or must have put the forged certificate in the envelope containing the renewal information that was sent to the Department of Education. Ms. Nichilo’s testimony is not credible. The certificate came in the same envelope as the other material which CHC submitted in November 2008. Ms. Nichilo signed and mailed the renewal information on November 6, 2008. Her testimony that the envelope must have been in the mail room a couple of days before it was mailed, thereby allowing the disgruntled employee an opportunity to slip the forged certificate in the envelope, is not credible. After the renewal package was sent to the Department of Education, Ms. Nichilo asked her secretary to contact BCFR to schedule a fire inspection. Ms. Nichilo knew that she needed a fire inspection because she knew that she did not have a current fire inspection certificate when she sent the renewal submittal to the Department of Education. Based on the clear and convincing evidence presented, it can only be concluded that Ms. Nichilo knew the fire inspection certificates, which she included with the renewal submittals, were forgeries. On or about December 5, 2008, Mr. Carter contacted the Department of Education and informed the Department of Education that he had concerns about CHC’s and CHC 2’s fire inspection certificates. Mr. Carter sent a memorandum dated December 9, 2008, to Riley Hyle with the Department of Education, explaining BCFR’s observations and concerns relating to the fire inspection certificates. After learning from Mr. Carter that CHC’s and CHC 2’s fire inspection certificates were in question, Mr. Hyle checked the Department of Education’s renewal files on CHC and CHC 2. Mr. Hyle found forged fire inspection certificates in both files. When CHC’s and CHC 2’s submittals arrived on November 10, 2008, in the same envelope, Mr. Hyle reviewed the submittals and verified that both submittals contained fire inspection certificates. He received no further documentation from CHC or CHC 2 from November 10, 2008, and the time he talked to Mr. Carter on December 5, 2008. On December 8, 2008, Mr. Morrissette returned to CHC 2 to do a follow-up inspection. CHC 2 had not corrected all its violations. Mr. Morrissette was advised by the principal at CHC 2 that CHC also had not corrected all of its violations. One of the violations CHC had was a broken lockbox. On December 7, 2008, CHC had called BCFR and requested an application for a lockbox. Thus, on December 8, 2008, CHC would still have not corrected its lockbox violation. On December 11, 2008, Ms. Nichilo signed a revised version of the Form IEPC SCF-1 affidavit3 for CHC for the 2009- 2010 school year. The question posed in the affidavit submitted in November 2008 concerning whether the facility had a current, violation-free fire code inspection remained the same in the revised affidavit. Again, CHC stated that it did have a current, violation-free Fire Code Inspection and compliance report. The revised affidavit also contained the same language as the November 2008 affidavit that answering a question in the negative in Section 9 would result in an out-of-compliance issue. Both the November affidavit and the revised affidavit contained the following language: I have read the applicable scholarship program rules and understand that by signing the form I am certifying that the school is currently in compliance and agrees [sic] to remain in compliance with all scholarship program rules and reporting requirements. If at any point, the school is not in compliance with the scholarship rules, or if there is a change in the status of any reporting requirement, the school shall have 15 days to notify the Department of Education and will provide all information necessary to document its continued compliance with program rules and requirements. The revised affidavit was submitted to the Department of Education, which received the affidavit on December 16, 2008. At the time CHC submitted the affidavit, it did not have a current, violation-free Fire Code Inspection and compliance report. On December 23, 2008, the BCFR re-inspected CHC and found that the violations had been corrected. After its inspection on December 23, 2008, BCFR issued a fire inspection certificate backdated to November 20, 2008, which was the date of the original inspection. On December 17, 2008, the Agency issued an Administrative Complaint, suspending CHC’s eligibility for the McKay Scholarships and CTC Scholarships programs for failure to have a current fire inspection report. By letter dated December 23, 2008, and received by the Department of Education on December 29, 2008, CHC advised that the school had been re- inspected and now had a current fire code inspection certificate. On January 2, 2009, CHC sent a 12-page facsimile transmission to the Department of Education. One of the pages of the transmission was a copy of a facsimile transmission coversheet dated December 31, 2008, with the BCFR letterhead concerning inspection reports. The comments section of the coversheet read “Please read letter.” The second page of the transmission was an unsigned to-whom-it-may-concern letter dated December 30, 2008. At the top of the letter, printed in large, bold type was the following: “Brevard County Fire Rescue.” The letter stated: To whom it may concern, In reviewing and trying to figure out what happen with the 2007 inspection reports this is the conclusion we have come to. If you review the two reports on both CHC-1 and CHC-2 the visiting inspection times over lap each other making it seem like a 2007 inspection was done when in reality it was not. CHC-1 inspection has a date on it February 22, 2006 to February 2007. CHC-2 inspection shows January 12, 2006 (re-inspection) January 2007. I believe that this was just an over site on both our parts due to the fact that the fire department does come in regularly every year even without an appointment. Lara Nichilo did notify us to come in ASAP when the reports could not be found. But as of November 20, 2008 all her inspections were done and her follow up correction reports have been completed putting her in good standing with the fire and inspections department. CHC-1 and CHC-2 (inspection reports provided to you with this letter) For more information you may contact us at 321-455-6383 Thank you for your time, The telephone number given in the letter was the telephone number for CHC. The original letter submitted at the final hearing by CHC was written on stationary bearing the CHC watermark. The letter received by the Department of Education had no visible watermark. The facsimile transmission coversheet that accompanied the letter was a coversheet which BCFR had sent to CHC on December 31, 2008. The statements in the comments section that BCFR sent had been deleted and replaced with “Please read letter.” The following are the comments which BCFR had written: There are no reports or certificates for 690 Range Road for 2006 or 2007. There are no inspection reports or certificates for 55 McLeod for 2007. Certificates will be issued upon receipt of payment. Laura Harrison, the director of the McKay Scholarships and CTC Scholarships programs at the Department of Education, transmitted a copy of the letter to BCFR and asked if the letter had originated from BCFR. Mr. Carter advised Ms. Harrison that the letter did not come from BCFR. Ms. Nichilo wrote the letter. A person reading the letter would be led to believe that the letter came from BCFR. The letter was accompanied by a facsimile transmission coversheet bearing the BCFR letterhead and the coversheet comments said “Please read letter.” The letter refers to Ms. Nichilo in the third person and uses first person plural pronouns to refer to BCFR. The letter purports to bear the letterhead of BCFR. It must be concluded that Ms. Nichilo intended the Department of Education to rely on the letter as a letter transmitted by BCFR to Ms. Nichilo to explain the situation. If Ms. Nichilo had intended the Department of Education to treat the letter as a letter written by her, she would have written the letter using CHC letterhead, signed the letter, not referred to herself in the third person, not referred to BCFR in the first person, and not used a transmission coversheet from BCFR in which the comments section had been altered. In a conversation on December 30, 2008, Ms. Nichilo advised Mr. Hyle that she was sending him a letter that would explain everything and would resolve the situation concerning the fire inspections. Ms. Nichilo testified that she told Mr. Hyle that she was writing the letter. Mr. Hyle did not recall whether Ms. Nichilo said that she was writing a letter. Jade Quinif, who was Ms. Nichilo’s administrative assistant on December 30, 2008, listened to the conversation between Mr. Hyle and Ms. Nichilo on speakerphone. She recalls Ms. Nichilo asking Mr. Hyle if he would like her to write a letter regarding Ms. Nichilo’s conversations with BCFR. Mr. Hyle said that would be fine. Ms. Nichilo typed a letter and asked Ms. Quinif to send it to the Department of Education. Ms. Quinif sent a letter to the Department of Education dated December 30, 2008. Based on the evidence presented, the letter that Ms. Quinif sent was a letter dated December 30, 2008, written on CHC letterhead and signed by Ms. Nichilo.4 It was not the letter dated December 30, 2008, which appeared to be from BCFR (purported BCFR letter). The only evidence of receipt of the purported BCFR letter by the Department of Education is in a 12-page facsimile transmittal, which was transmitted twice on January 2, 2009. Ms. Quinif credibly testified that she did not send a 12-page transmission and that she did not send the doctored transmission coversheet from BCFR. She also credibly testified that the letter that she sent was a few days after Christmas and was not more than a week after Christmas. Ms. Nichilo testified that Ms. Quinif did sent the transmittal coversheet from the BCFR on December 30, 2008; however, Ms. Nichilo’s testimony is not credible given that the transmittal coversheet from BCFR was dated December 31, 2008, and showed a transmission date of December 31, 2008, to CHC. The clear and convincing evidence is that Ms. Nichilo wrote and sent the purported letter from BCFR and the doctored transmittal coversheet from BCFR in an attempt to make it appear that BCFR was taking some of the blame for CHC not having maintained current fire inspection certificates. BCFR does not automatically do an annual inspection of schools. If a school desires to have a fire inspection, the school must notify BCFR and arrange for a fire inspection. The failure to have current, violation-free fire inspection reports rests with CHC and not with BCFR. The bogus letter was an effort by CHC to seek mitigation for its failure to adhere to the requirements for eligibility for the scholarships programs. After learning that the letter transmitted on January 2, 2009, was not from BCFR, the Agency issued an Amended Administrative Complaint on January 23, 2009, which superseded the December 17, 2008, Administrative Complaint. The Amended Administrative Complaint deleted the allegations concerning the failure to have a current, violation-free fire inspection report and added allegations involving fraud and failure to maintain current, violation-free fire inspection reports.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining the suspension of CHC’s eligibility for the McKay Scholarships and CTC Scholarships programs and revoking CHC’s eligibility for the McKay Scholarships and CTC Scholarships programs. DONE AND ENTERED this 4th day of May, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 2009.
The Issue Whether Petitioner is eligible for firefighters' supplemental compensation.
Findings Of Fact Petitioner, John T. White (White), is certified as a firefighter and is currently employed by the Pembroke Pines Fire Department. White has a Bachelor of Arts Degree from Barry University. His college transcript lists his major as communication arts. White applied to the Respondent, Department of Insurance (Department), for Firefighters' Supplemental Compensation. At the time he applied, White was employed by the Pembroke Pines Fire Department as a firefighter/EMT. He submitted a job description to the Department as part of his application. The job description provided that the characteristics of the position of a firefighter/EMT were the following: Under the general supervision of the Fire Lieutenant, is responsible for extinguishing fires, rescuing persons and property from danger and performing salvage and related follow-up work. Incumbents are also required to perform life-saving rescue techniques as part of a fire rescue operation or as part (sic) as of other emergency operations. While emergency responses constitute the primary focus of a firefighter's responsibility, considerable time is spent in study, training, inspecting and maintaining equipment and apparatus, and in cleaning and maintaining quarters. Duties involve functioning as an integral part of a work unit in order to ensure the safe and efficient performance of duties. Work is performed in accordance with direct instructions and well defined routines and under the immediate supervision of a superior officer or paramedic. Work is reviewed through observation for adherence to established policies and procedures. The Department denied the application for supplemental compensation on the ground that White's major in communications arts was not a major study concentration area that is readily identifiable as applicable to fire department duties. The Department considers only those major study concentration areas which are listed in Rule 4A-37.084(5), Florida Administrative Code, to be areas which are readily identifiable as applicable to fire department duties. Communication arts is not a major study concentration area listed in Rule 4A- 37.084(5). After White submitted his application to the Department, he changed positions with the Pembroke Pines Fire Department and became a fire inspector/investigator. In that position, White is responsible for making building inspections, annual inspections, oral presentations on fire prevention and safety to school children and other community groups, and fire investigations. He has daily contact with the public. There is no official job description for Pembroke Pines Fire Department fire inspector/investigators. White advised the Department that he had changed positions after the Department denied his application for supplemental compensation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying John T. White's application for Firefighters' Supplemental Compensation. DONE AND ENTERED this 26th day of July, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-1380 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: It is accepted that the Department was informed after White's application had been denied that White had changed positions with the fire department. Paragraph 2: It is accepted that a degree in communications may be helpful in the position of fire inspector/investigator but reject that the major is readily identifiable as applicable to fire department duties. The rest is rejected as constituting argument. Paragraph 3: Rejected as constituting argument. Paragraph 4: Accepted in substance. Paragraphs 5-7: Rejected as constituting argument. Respondent's Proposed Findings of Fact. Paragraphs 1-3: Accepted in substance. Paragraph 4: Rejected as unnecessary. Paragraphs 5-12: Accepted in substance. Paragraphs 13-19: Rejected as subordinate to the facts found. COPIES FURNISHED: John T. White 731 Northwest 86th Terrace Pembroke Pines, Florida 33024 Joe W. Demember, Esquire Department of Insurance 200 East Gaines Street Tallahassee, Florida 32399-0333 Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Dan Sumner Acting General Counsel Department of Insurance The Capitol, Plaza Level-11 Tallahassee, Florida 32399
The Issue The issue in this case is whether Petitioner's application for licensure as a firesafety inspector should be denied based on Petitioner's criminal convictions, in the 1980s, on drug related charges.
Findings Of Fact The Denial of Petitioner's Application. On May 23, 2008, Petitioner Joseph Edgerton ("Edgerton") submitted an application to the Department of Financial Services (the "Department" or "DFS") seeking approval to sit for the state certification examination that must be passed to become licensed as a Firesafety Inspector. The next month, DFS verbally notified Edgerton that he would not be permitted to take the certification examination because of his criminal record, which includes two felony convictions, from the 1980s, for drug-related offenses. The Department took the position that each of the crimes of which Edgerton was convicted involved moral turpitude. Edgerton did not dispute the convictions, but he did object to the characterization of his criminal conduct as base and depraved, and he pressed the Department for a formal decision, in writing, on his application. By letter dated March 5, 2009, the Department denied Edgerton's application, "based upon the following factual allegations:"1 On May 22, 1980, you pled [guilty to] and were adjudicated guilty . . . [of] felony possession of cocaine with intent to sell, . . . a crime of moral turpitude, in the Fifteenth Judicial Circuit in and for Palm Beach County, Florida . . . . On April 29, 1988, you pled [guilty to] and were adjudicated guilty [of] felony conspiracy to distribute cocaine, . . . a crime of moral turpitude, in the United States District Court, Southern District of Florida, . . . were committed to the custody of the United States Bureau of Prisons for a term of forty-two (42) months, and upon release were placed on supervised release for a term of thirty-six (36) months. The foregoing allegations of historical fact concerning Edgerton's convictions are true and undisputed. (In contrast, the Department's characterization of the offenses as crimes involving moral turpitude is sharply contested, but that particular dispute is not outcome determinative and need not be decided, for reasons that follow.) The Circumstances Surrounding the Criminal Incidents. Edgerton's state court conviction followed his arrest in late 1979, when he was discovered in an airport to be in possession of five ounces of cocaine. Edgerton testified that the cocaine was for personal use, and that he did not intend to sell or distribute the drug. While Edgerton's testimony in this regard was credible as far as it went, the fact that he pleaded guilty, in 1980, to the charge of possession with intent to sell gives rise to a conflict in the evidence regarding his criminal intent. Even assuming the worst, however, what matters more at present is that Edgerton genuinely accepts responsibility for, and is remorseful about, his very old criminal misconduct, which he readily acknowledges was "stupid" and "wrong." Edgerton further insists (and the undersigned finds that) he "is a different person now," at age 50, than the "kid" who "partied too much" 30 years ago. With regard to the federal conviction for conspiracy to distribute cocaine, Edgerton testified that his role consisted of lending money to another person for use in a narcotics transaction. Edgerton denies having handled, carried, or delivered any drugs, and the undersigned accepts his testimony on this point, which was not contradicted by conflicting evidence. Consistent with his statements concerning the other matter, Edgerton accepts responsibility for this crime while maintaining, credibly, that he is "not the same guy" who committed it and declaring that he "wouldn't do it again." The History of the Applicant Since the Incident. Edgerton committed the subject crimes a long time ago—— nearly 30 years in the case of the trafficking charge and approximately 22 years in reference to the conspiracy charge. Edgerton thus has had ample time fully to restore his reputation and usefulness to society as a law abiding citizen following his felony convictions. There is persuasive evidence that he has done just that. In 1993, Edgerton became licensed by the Florida Department of Health as a paramedic. His license, numbered PMD 13086, was active as of the final hearing in this case. In October 1995, Edgerton received a Certificate of Compliance from the State Fire Marshal authorizing him to work as a firefighter in this state. As of the final hearing in this case, Edgerton continued to be a state-certified firefighter. For more than 15 years, Edgerton has worked without adverse incident as a first responder in the emergency medical and fire rescue fields. He has done so under the constant regulatory supervision of two separate state agencies. These facts demonstrate persuasively (and the undersigned finds) that Edgerton——who has not, as far as the evidence shows, harmed or endangered actual persons served in the past decade-and-a-half—— is, at this time, an honest man whom the public can safely trust, and who will not present a danger in the future, should he become licensed as a Firesafety Inspector. The Restoration of Edgerton's Civil Rights. By Executive Order dated July 2, 1987, the Governor and Cabinet, exercising the governor's constitutional authority to grant clemency, restored all of Edgerton's civil rights, with the exception of the specific authority to possess or own firearms, which were lost by reason of any prior felony convictions. By Executive Order dated September 1, 1993, the Governor and Cabinet restored all of Edgerton's civil rights, with the exception of the specific authority to possess or own firearms, which were lost by reason of his felony conviction in the U.S. District Court for the Southern District of Florida. Ultimate Factual Determinations. The undersigned has determined, based on the greater weight of the evidence, including the circumstances surrounding Edgerton's prior convictions and the persuasive evidence of his full and complete rehabilitation, that Edgerton currently conforms his behavior to societal norms, possesses good moral character, and is otherwise morally fit to serve as a Firesafety Inspector. Edgerton meets all of the requirements for certification as a Firesafety Inspector except one: a passing score on the state certification examination, which DCF has not yet permitted him to take.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a Final Order approving Joseph Edgerton to sit for the firesafety examination, which he must pass to satisfy the last remaining requirement for his certification as a Firesafety Inspector. DONE AND ENTERED this 19th day of June, 2009, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 19th day of June, 2009.
Findings Of Fact The Cocoa Fire Department consists of 32 employees including a Chief, 3 captains, 3 lieutenants, 24 firefighters, and a secretary to the chief. All personnel except the Chief and the secretary are on three shifts of 24 hours on duty and 48 hours off duty. During each shift, a captain is in charge and the second in command is a lieutenant. Ten employees are on each shift and are located at either Station 1 or Station 2. Normally, at Station 1 there is a captain and a maximum of 7 firefighters. At Station 2, there is normally a lieutenant and 1 firefighter. The bulk of the firefighting equipment is located at Station 1, which includes 2 pumpers, a rescue truck, and an aerial truck. Station 2 is a residential station at which two pumpers are located. The shift or duty-captain is in charge of both stations and normally goes to fires handled by Station 2 unless they are of a minor nature. The Department averages about 3 runs a day, either for fires or on rescue calls. The bulk of their activity is rescue operations which are attended normally by two firemen. However, these calls can be handled by an officer and one firefighter if the officer is an emergency medical technician. The employees of the fire department and the city of Cocoa entered into an agreement on March 12, 1974, concerning their relationship (Exhibit 11). The agreement states that it is to provide, where not otherwise mandated by statute or ordinance, for the salary structure, fringe benefits, and conditions of employment of the firemen covered by the agreement. This agreement in Article 1C is referred to as a collective bargaining agreement and deals with those matters that customarily would be included in such a document. Although it does not specifically mention specific classifications of fire department employees as being included thereunder except by the term "employees of the City of Cocoa Fire Department", in the first paragraph of the agreement, Article 16, dealing with wages, lists the titles of recruit firemen, fire lieutenant and fire captain and their pay plan with annual step increments. Accordingly, it is concluded that the intent of the agreement was to cover all employees of the fire department other than the Chief and his secretary. The agreement generally provides uniform provisions applicable to all members of the department concerning transfer rights, time off for jury duty, provision of counsel for defense of civil actions, overtime pay, education leave, bereavement leave, sick leave, holidays, vacations based on time with the department, uniform maintenance, terminations and wages. There is no distinction by rank other than by years of service drawn as to different classifications of personnel. Testimony presented at the hearing established that the majority of captains and lieutenants participated on the side of labor in discussions leading to the agreement and that they presently desire to be included in the proposed bargaining unit under consideration. It further established that the agreement was formulated because the employees wanted financial conditions applicable to them spelled out clearly rather than remain in the existing city pay plan which was not as specific as desired. The firemen viewed their situation as differing from that of other city employees because of the nature of their functions and the shift work involving extended hours on duty. In the agreement, they were provided certain benefits that other city employees do not enjoy, some of which were requested by the group and some of which were voluntarily offered by the city. The department is governed by rules and regulations proposed by the Chief and approved by the public employer which include provisions that the department operates in paramilitary fashion with a chain of command extending from the Chief through the duty captain, duty lieutenant and senior firemen to the remainder of the employees. It also indicates that insubordination will not be tolerated with penalties of verbal reprimand, permanent written reprimand, suspension, loss of pay and termination. They further provide that violations of the rules, regulations, directives, and memos, generally should be' handled by the captain or duty officer of the shift, but that if, in his opinion, the violation warrants further action he should give the Chief a written statement of the facts. It states that the captain or duty officer of the shift will be held accountable by the Chief to run the shift in accordance with the rules and regulations of the department, and that violations will consist of penalties including verbal reprimand by the captain or duty officer, permanent written reprimand by the captain or duty officer, written reprimand by the Chief, suspension without pay by the Chief, or termination by order of the Chief (Exhibit 12). In this connection, testimony at the hearing established that the hiring, firing and suspending of employees by the Chief must be approved by the city manager. As to discipline, minor infractions are taken by a lieutenant to the captain and, depending on the severity of the matter, the captain is authorized to handle it himself. This includes minor infractions, with sanctions of oral or written reprimands, or recommendations for suspension or other adverse actions. The budget of the department is submitted by the Chief to the city manager for approval. Ultimate approval is given by the city counsel. Although the Chief inquires of the captains as to the need for and condition of the department equipment, they are not consulted as to actual preparation of the proposed budget. The Chief holds staff meetings approximately monthly whenever he deems it necessary. Normally, these are attended by himself, the captains, and lieutenants. At the meetings, personnel problems, operations and training matters, and current programs are discussed with input from the officers. However, all major policy decisions are formulated by the Chief. The job descriptions and duties performed by the officers and men of the department are as follows: Captains - The official job description for this position (Exhibit 8) describes the major function of a fire captain as being responsible supervisory work in directing the activities in fire fighting and in the maintenance of fire department property and equipment. It provides that the first captain at the scene of a fire has complete charge of all operations until the arrival of an officer of superior rank. It further provides that under departmental general regulations, a captain may be assigned as a company officer and has direct responsibility for discipline and the proper maintenance of apparatus, equipment, and the station. His duties may include training functions or supervising a special activity or unit within the department. As illustrative duties, he assumes complete charge of the station and the fire company on route to alarms and at the scene of the fire until the arrival of a superior officer. He directs the work of the firefighters in house duties, testing and maintaining equipment, and inspecting the station house grounds and apparatus. He acts as the department training officer and may conduct company drills or instruction periods. He conducts roll call, inspects personnel and maintains discipline, and transmits order and information to the men. Testimony at the hearing established that each of the shift captains would assume command of the fire department in the absence of the Chief. When the Chief is present, the captain in charge of the shift acts as his assistant and has total command of both fire stations, subject to the approval of the Chief. Captains can set vacation schedules of the men and also change them. He can give time off in an emergency situation and makes effective recommendations concerning bereavement leave. To move a man from one shift to another, the captain would be obliged to consult the Chief. If an employee reported in sick, he notifies the captain who then, if the department is understaffed, calls in off-duty personnel for overtime work, using an established list which must be exhausted in fairness to all. A captain performs combat roles and responds on the department trucks or will proceed in a rescue vehicle or pickup truck to the scene of the fire or rescue operation. He works the same hours as the other men and receives the same sick leave, vacation, and overtime pay. Occasionally, he will perform maintenance and housekeeping duties voluntarily at the station. He normally goes to the suppression of fires handled by Station 2 unless they are of a minor nature. LIEUTENANTS - The job description for this position provides that a lieutenant has direct command over firemen in a fire company on an assigned shift, subject to general regulations of the department and the direction of a superior officer. In the absence of the captain, the lieutenant assumes his duties and responsibilities and is responsible for the discipline of the men on his shift and the maintenance of apparatus and equipment at a fire station. At a fire, he is responsible for the effective combatting of the fire until relieved of command by a superior fire officer. H enters burning buildings with his men to direct their work, and at major fires he is under the command of the superior officer. Illustrative duties are responding to fire alarms that are within an assigned district, driving apparatus or directing the route to be taken to the fire and determine what equipment and apparatus are necessary. He makes decisions as to the best methods of extinguishing fires and directs the use of equipment until relieved of command by a Superior officer. He supervises the laying of hose lines, directing of water streams, placing of ladders, ventilation of buildings, rescuing of persons and placing of salvage covers. He conducts company drills and instruction periods as directed by his superior officer. He sees that all station equipment is returned to the proper place after a fire has been extinguished and that the equipment is in good working order at all times. He supervises the cleaning of quarters, equipment and apparatus at the fire house, conducts roll call, inspects personnel and maintains discipline, and transmits orders and information to men (Exhibit 9). Testimony at the hearing establishes that the lieutenants are in charge of Station 2 during shift at which there is himself and one firefighter. A1though he is not required to perform maintenance and housekeeping duties, the lieutenants usually help to clean hoses and to keep the quarters clean because of limited manpower and because that has been the practice in the past. On unusual occasions, a lieutenant might exercise disciplinary power with respect to the one firefighter at Station 2, or under circumstances where he is in charge of a shift in the absence of a captain. If a man came in late for duty, the lieutenant could handle it himself or report to the Chief. He has little or no meaningful participation in personnel matters dealing with promotion, suspension, hiring or firing of employees. If he is on a rescue call, he is not necessarily in charge of the operation. The individual who is not driving is the one who is in charge, and rescue operations are a team endeavor. A lieutenant is interchangeable with a firefighter and his activities vary depending on the situation. Sometimes he serves as a hydrant man, sometimes on the truck, and overall performs essentially the same firefighting functions as that of the firefighters. FIREFIGHTER - The job description provides that this is general duty work in the prevention of fire damage and that, although the work involves combatting, extinguishing and preventing fires, and operation of equipment, a large part of the time is spent in study and in cleaning fire department equipment, apparatus, and quarters. Work is performed by a member of a team and a superior officer is usually available to assign definite duties. The standard firefighting duties are set forth in the job description (Exhibit 10). Testimony at the hearing established that the firefighter looks upon the captain as his primary supervisor, although he acknowledges the lieutenant to be his superior officer. The duties of officers and men of the department have not changed since the inception of the collective bargaining agreement.
