The Issue Whether Petitioner is entitled to a passing grade on the practical portion of the Florida Minimum Standards Examination for firefighters taken May 22, 2002.
Findings Of Fact At times pertinent to this proceeding, Petitioner held certification as a firefighter (Firefighter Certificate of Completion #81191) issued by the State Fire Marshal. For at least three years prior to December 5, 2001, Petitioner had not been active as a firefighter or as a volunteer firefighter with an organized fire department. Pursuant to Section 633.352, Florida Statutes, Petitioner was required to successfully complete the practical portion of the Florida Minimum Standards Examination for firefighters to retain his certification. 1/ The practical examinations at issue in this proceeding consisted of four sections: the Self Contained Breathing Apparatus (SCBA) section, the Hose and Nozzle Operation section, the Ladder Operation section, and the Fireground Skills section. A candidate must pass each section to pass the practical examination. On November 16, 2001, Petitioner applied to sit for the practical examination scheduled for December 5, 2001. Petitioner sat for and failed all four sections of the practical examination administered December 5. Respondent's Rule 4A- 37.0527(6), Florida Administrative Code, permits a candidate to retake the practical examination once without further training. Petitioner thereafter applied to retake the examination, which was scheduled for May 22, 2002. Petitioner passed the Hose and Nozzle Operation and the Ladder Operation sections of the practical examination on May 22, and the scoring on those sections are not at issue in this proceeding. At issue in this proceeding is whether Petitioner failed the SCBA section and/or the Fireground Skills section of the practical examination administered May 22, 2002. The SCBA section of the practical examination consisted of questions for which a candidate was awarded credit and certain items that a candidate was required to successfully complete (fatal items). If a candidate missed a fatal item, the candidate failed the SCBA section of the examination and, consequently, the entire practical examination. The Firegrounds Skills section of the examination tests a candidate on a variety of skills a firefighter is expected to demonstrate while fighting a fire, and the candidate is awarded a score for his or her performance. To pass each part of the practical examination, including the SCBA and the Fireground Skills sections, a candidate must achieve a score of 70 points and must not miss a fatal item. The SCBA section of the practical examination requires the candidate to properly don certain protective gear in 1 minute and 45 seconds. The failure to complete the exercise in the allotted time is a fatal item. In addition, the candidate must activate and check a personal alarm system as part of the exercise. The failure of the candidate to properly wear and activate the alarm system is also a fatal item. The greater weight of the credible evidence established that Petitioner's performance on the SCBA section of the practical examination was appropriately and fairly graded. Petitioner failed to timely complete the exercise, which is a fatal item. Petitioner failed to properly activate the personal alarm system, which is also a fatal item. Petitioner was awarded no points for 5 of 10 items for which points could be awarded (each item was worth 10 points). Even if he had passed the fatal items noted above, Petitioner would have failed the SCBA section because he failed to achieve a passing score of 70 on that section of the examination. Petitioner failed to establish that he was entitled to additional credit for the SCBA section of the practical examination. Petitioner received a failing score on the Firegrounds Skills section of the practical examination administered May 22, 2002. The greater weight of the credible evidence established that Petitioner's performance on the Firegrounds Skills section of the practical examination administered May 22, 2002, was appropriately and fairly graded. Of the 100 points available for this section of the examination, Respondent established that Petitioner deserved no credit for the following: 20 points on the forcible entry part of the section; 12 points on the ladders and fire service tools part of the section; and 4 points on the hazardous materials part of the section. Consequently, Respondent established that Petitioner was entitled to a total of 64 points on the Firegrounds Skills section of the practical examination administered May 22 2002, which is a failing grade. Petitioner failed to establish that he was entitled to additional credit for the Firegrounds Skills section of the practical examination administered May 22, 2002. Respondent established that the administration and grading of the subject exams were consistent with the provisions of Chapter 4A-37, Florida Administrative Code, which set forth by rule applicable guidelines for the practical examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Facts and Conclusions of Law set forth herein. It is further RECOMMENDED that the final order deny Petitioner's application for re-certification as a firefighter. DONE AND ENTERED this 14th day of January, 2003, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 14th day of January, 2003.
Findings Of Fact At all times, material to this case, Petitioner has been licensed by the Department to operate an adult congregate living facility (ACLF) which is located at 6200 West Fairfield Drive, Pensacola, Florida, and is known as the Warrington House. Francis Cooper is the sole shareholder and operator of the Warrington House. Prior to 1984, the Warrington House was known as the Heritage House and was owned by a Mr. Mitchell. Sometime in 1984, Mr. Mitchell was criminally charged with elderly abuse on his residents and the Heritage House went into receivership. Another branch of HRS who was represented by Esther Ward, asked Ms. Francis Cooper to take over the facility. HRS was apparently well satisfied with Ms. Cooper's qualifications in running an ACLF since she had another such facility. When Ms. Cooper took over the Heritage House the electrical power to the facility was about to be turned off. Only by Ms. Cooper's pleading with Gulf Power was that circumstance forestalled. There were only thirteen (13) patients at the facility out of the sixteen (16) that were supposed to have been there. Three (3) of the patients had been mysteriously removed during the night. The residents that were at the house could not identify themselves and very few resident records were at the facility. The building was infested with roaches, there was raw sewage in the yard and the sewage system was completely blocked to the extent that sewage came up through the showers when a toilet was flushed. There was urine in every carpet. None of the appliances in the house worked. There were no air conditioners, fans or plastic dishes. The floors were in bad shape. In fact, Ms. Cooper fell through two of the bathroom floors. When Ms. Cooper questioned HRS representatives about the appalling conditions of the facility, she received no responsive answer. After Ms. Cooper had taken over the facility, she discovered that Mr. Mitchell had absconded with three months advance rent from the residents. Ms. Cooper, therefore, had to operate the premises for three months without income from the residents that were there. She used her own money. Ms. Cooper started with the air conditioning, flooring and carpeting. All these items were replaced. The bathrooms were tiled and additional bathrooms were added. She put in a $6,000.00 sewage system, a lift station and paid $1,000.00 to hook the building onto city sewage. She also brought in an exterminator to get rid of the bugs. All of this took place over a period of two years wherein Ms. Cooper worked diligently to bring the building up to "snuff." In fact, in the time since she has had the facility she has accomplished wonders in improving conditions at the house. These conditions clearly did not appear overnight, but over several years and were apparently overlooked by Respondent until the crisis with Mr. Mitchell had occurred. Ms. Cooper went into the house with the understanding that the corporation would eventually build another facility and close what had become the Warrington House. The reason for the new construction was that the current building, regardless of the amount of repair, was still an old building not worth maintaining and which was allowed to deteriorate badly prior to her stewardship. However, due to a falling out with her brother, who was then a co- shareholder of the corporation, Ms. Cooper was unable to complete her plans for moving the residents of the Warrington House to a new facility. She continues to attempt to obtain financing to build a new facility. At least once a year, HRS does a full survey on a ACLF like the Warrington House. A full survey is simply an inspection of the property in order to determine the degree of compliance with HRS rules and regulations. Upon completing the inspection, the inspector goes through an exit briefing with the ACLF's management. During the exit briefing, the inspector will go over any deficiencies he or she has discovered and attempt to establish mutually agreeable correction dates. The inspector also explains that these time periods are the best estimates that they can come up with at that point to allow a reasonable amount of time for the required corrections to be made. If any problems should arise, the inspector requests that the manager communicate with his or her office and ask for an extension. Extensions are not always forthcoming. After the full survey inspection is done, a follow-up visit is normally scheduled to determine whether the earlier cited deficiencies have been corrected. If, after the follow-up survey there are items that are still not corrected, the inspector will explain to the person in charge that they are subject to administrative action and that he or she will report he facility's noncompliance to his or her office. Whether or not administrative action is taken is determined at a level above the inspector. However, it appears that the customary practice of the office is to pursue an administrative fine for any noncompliance after the correction date has been passed. After the first follow-up survey has been made it depends on the particular factual situation whether or not further follow-up surveys are made until compliance is achieved. If there are efforts being made to correct the problems further follow-up surveys will be made. If not, further follow-up surveys may not be made. In this case, James Temkin, an HRS Fire Protection Specialist, performed a full survey fire safety inspection on the Warrington House on September 24, 1986. During that survey, he cited 11 deficiencies. Various compliance dates were established for the deficiencies. A follow-up survey was conducted by Mr. Temkin on January 14, 1987. During that survey, he noted that 6 of the previously cited deficiencies had not been corrected. He recommended administrative action on all the uncorrected deficiencies. The six remaining uncorrected deficiencies were as follows: No up to date fire plan and the July 7th fire drills were not documented; No fire alarm test since July 1986 and fire alarm zones were not shown on the actuator panel; Smoke detectors not working in four (4) rooms; Exit sign lights burned out at the front and center exits, emergency lights not working at the front, rear and upstairs exit halls; Sleeping rooms had hollow core doors; and There was no documentation of fire safety on the wood paneling and tile ceilings on the first and second floors. All other deficiencies cited during the September 24, 1986 full survey were corrected. As to the alleged deficiencies contained in the latter half of (b) and (c)-(f) above, none appear at any point in HRS' rules governing ACLF's. Supposedly, these deficiencies are cited in the NFPA life safety code, which is incorporated by reference in the Fire Marshal's rule on ACLF's, Rule 4A-40, Florida Administrative Code. The 1984 version of Rule 4A-40, Florida Administrative Code is incorporated by reference in HRS' rule, Rule 10A-5, Florida Administrative Code. Both HRS' rule and the Fire Marshal's rule are contained in the Florida Administrative Code. However, the 1984 version of NFPA is nowhere to be found in the Administrative Code. The current Fire Marshal's rule adopts portions of the 1985 NFPA life safety code. However, the HRS' rule adopts the 1984 version of the Fire Marshal's rule. No showing was made by Respondent as to what the 1984 version of the NFPA code contained. The HRS inspector's testimony regarding a particular deficiency's inclusion in the NFPA cannot be relied on since both inspectors apparently used the 1985 version of the NFPA which is not the 1984 version included in HRS's rule. Without proof of the contents of the NFPA, HRS has failed to prove any deficiencies for which it may take administrative actions. As to the other deficiencies, attempts to comply were in fact made by the Warrington House. The facility's personnel in fact thought they had complied with HRS' desires based upon previous inspections. However, for one reason or another, these attempts were rejected by the HRS inspector and the deficiency was cited again, but because of another reason. The lack of an up- to-date fire plan (cited in (a) above) was met by the Warrington House when they obtained a fire plan prior to the established correction date from another arm of HRS responsible for devising such plans. However, upon the January 14th follow-up inspection, the plan obtained from HRS by Petitioner was considered insufficient in that it did not outline staff responsibilities during a fire. The same thing occurred with the lack of fire alarm tests, cited in the latter part of (a) and the first part of (b) above. The Warrington House obtained the testing document and test from another branch of HRS responsible for such testing. However, the inspector at the follow up survey did not deem his own agency's testing documents sufficient since it did not show a different type sending unit was being tested at least once a year. 1/ These are simply not repeat deficiencies since in each instance the earlier grievance had been met and it was another grievance which cropped up. On July 9, 1987, a second follow-up survey to the Temkin September 24, 1986, full survey was performed by O.B. Walton, an HRS fire safety inspector. The evidence was not clear as to any remaining uncorrected deficiencies, if any, he found. Therefore, Respondent failed to establish any repetitive deficiencies as a result of the July 9 follow-up survey. Apparently, however, Mr. Walton, did perform another full survey on July 9, 1987. Several additional deficiencies were cited by him. A follow-up visit was conducted by Mr. Walton on October 23, 1987. Four alleged deficiencies remained uncorrected as follows: Ceiling not repaired in hot water heater closet, i.e. not taped; Kitchen fire door latch was jammed open so it would not latch, but it would stay closed; Plug by hot water heater had no cover; No documentation that drapes were fire retardant. Again, none of the above alleged deficiencies appear in HRS' rules or in the fire marshal's rule and a reasonable person could not glean from any of the other provisions contained in HRS' rules that the above conditions might be included in these provisions. The lack of clarity or uniformity in interpretation of HRS' rules is especially born out in this case since two different inspectors while inspecting the same building cited different deficiencies under their respective interpretation of the rules. When the experts differ it is difficult to see how a reasonable lay person could even begin to know or understand the contents of HRS or the Fire Marshal's rules. This lack is especially true since the relevant contents of the 1984 NFPA life safety code are not contained in the Florida Administrative Code and were not demonstrated by HRS. HRS, therefore, failed to prove any repeat deficiencies from the October 23, 1987 follow-up survey. A third fire safety follow-up visit was conducted by Pat Reid, a human services program analyst, on January 21, 1988. She has no expertise or license to perform fire safety inspections. She found all of the earlier cited uncorrected deficiencies corrected except for the documentation on the drapes. That alleged deficiency was partially corrected since Petitioner was replacing the drapery with metal blinds. However, as indicated earlier the lack of documentation for fire retardant drapes was not proven to be a violation by Respondent. Ms. Reid had previously conducted a full survey of Petitioner on August 17 and 18, 1987 in her area of expertise operation and general maintenance of an ACLF. Several deficiencies were cited and correction dates were established. Ms. Reid conducted a follow-up survey to the August 17 and 18 full survey on October 23, 1987. The following alleged deficiencies had not been corrected: Facility staff do not have documentation of being free of communicable diseases; The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable disease; Broken or cracked window panes in windows of second floor exit door, both first floor bathrooms nearest kitchen, and resident rooms identified as C. W., W. S., and W. L.; Shower tile missing in second floor bathroom nearest exit door; Linoleum of first floor bathroom is loose as well as badly stained with cigarette burns; Hole in wall next to sink and toilet of second floor bathroom nearest exit door and square hole in wall of second floor blue bathroom; Faucet of first floor bathroom is loose; Carpeting in first floor resident room (#7) is badly stained; Three vinyl chairs in dining room have tears, exposing foam padding; Second floor bathroom faucet nearest exit does not clearly distinguish between hot and cold water taps. As to the alleged deficiency contained in (a) above, the regulations do not contain a requirement that any documentation be kept regarding staff members being free of communicable disease. The regulations only require that the facility administrator assure that staff is free of communicable disease. The evidence showed that Petitioner had in fact assured that the staff was free of communicable disease. Therefore, no violation occurred. The alleged deficiency cited in (b) above does constitute a violation of Rules 10-5.081(1)(b), (2)(a)4.d., and (2)(b), Florida Administrative Code. However, in this instance, there are several mitigating circumstances. Foremost is the fact that Petitioner attempted on several occasions to obtain this information from another arm of HRS who had M. B. under its care prior to his admission to Petitioner's facility and had actually failed to complete M. B.'s Health Assessment form properly. Petitioner received many assurances from HRS that it would obtain and forward the information. HRS failed to do so. Moreover, after several years of M. B. living at the Warrington House and after several years of HRS care prior to his admission, common sense would dictate that M. B. is free of communicable diseases. Petitioner has in fact received confirmation of that fact from an examining physician who certified M. B. free of communicable diseases. 2/ As to (c) above, the evidence showed that the windows were only cracked and not broken. No evidence was presented as to the severity of the cracks. Cracked windows are not included in Rule 10A-5.022(a), Florida Administrative Code, which only addresses broken window panes. Moreover, cracked windows without proof of the severity of the cracks is not sufficient evidence of the lack of good repair or other hazardous conditions similar to those listed in Rule 10A-5.022(a), Florida Administrative Code. The Rule requires proof of the hazardous nature of such a condition. Cracked windows are not hazardous in and of themselves and no showing was made that these cracked panes constituted a hazard. Nor do cracked window panes standing alone constitute a violation of Rule 10A-5.022(d). The rule requires evidence that such cracked panes are unreasonably unattractive and no showing was made that the cracks were unreasonably unattractive. Likewise, the missing shower tile in (d) above fails to constitute a violation of Rule 10A-5.022(a) since the deficiency is not listed, and no showing was made that the missing tile constituted a hazardous condition. Similarly, the missing tile, by itself, does not constitute a violation under Rule 10A-5.022(d) since no showing was made that the missing tile was unreasonably unattractive. The same failure of proof occurs with the alleged deficiencies listed in (e), (f), (g), (h) and (i). See Rules 10A-5.022(c), (e) and (i). The alleged deficiency cited in (j) above does constitute a violation of 10A-5.023(9)(e). However, the violation was not repeated after October 1, 1987, the effective date of Section 400.414(2)(d), Florida Statutes. Ms. Reid conducted a second follow-up survey to the August 17 and 18 full survey when she performed the fire safety follow-up on January 21, 1988. All previously cited deficiencies had been corrected except for: Facility staff do not have documentation of being free of communicable diseases. The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable diseases. The following maintenance problems exist: broken or cracked window panes in windows of second floor exit door, both first floor bathrooms and resident room identified as W. S. A third follow-up was conducted by Ms. Reid on April 15, 1988. All the previously cited deficiencies had been corrected except for: The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable disease. Broken or cracked window panes in windows of second floor exit door, both first floor bathrooms nearest kitchen, and resident rooms identified as C. W., W. S., and W. L.; Shower tile missing in second floor bathroom nearest exit door; Linoleum of first floor bathroom is loose as well as badly stained with cigarette burns; Hole in wall next to sink and toilet of second floor bathroom nearest exit door and square hole in wall of second floor blue bathroom. All of the alleged deficiencies cited in the January 21, 1988 follow- up and the April 15, 1988 follow-up survey were carried forward from the alleged deficiencies discussed above, cited in the October 23, 1987 follow-up survey. The same findings are made as to the alleged deficiencies which were carried forward. Only the physical health assessment of M. B. was cited by Respondent and shown to be a repeated deficiency since the information was not obtained by the established correction dates occurring after October 1, 1987. By the date of the hearing all the above alleged deficiencies had been corrected. Respondent notified Petitioner that it proposed to deny renewal of Petitioner's license to operate the Warrington House on December 23, 1987. The basis for the denial was Section 400.414(1) and (2)(d) which states: 400.414 Denial, revocation, or suspension of license; imposition of administrative fine; grounds. The department may deny, revoke or suspend a license or impose an administrative fine in the manner provided in chapter 120. Any of the following actions by a facility or its employee shall be grounds for action by the department against a licensee: * * * (d) Multiple and repeated violations of this part or of minimum standards or rules adopted pursuant to this part. The language of Subsection (d) was added to Section 400.414 F.S. on October 1, 1987. Prior to that date Respondent had no authority to take punitive action against the license of an ACLF licensee for multiple and repeated violations of Respondent's statutes and rules. The only action Respondent could take against a facility for such violations was in the form of a civil fine the amount of which could be raised if the violation was repetitive. Section 400.426, Florida Statutes. No multiple violations were shown by the evidence through the April 15, 1988 follow-up survey. More importantly, however, no multiple violations were shown by Respondent after October 1, 1987, the effective date of the statutory language at issue in this case. No showing was made by Respondent as to any legislative intent that the statute operate retrospectively. The statute operates only prospectively. Therefore, any alleged deficiencies cited prior to October 1, 1987 are irrelevant for purposes of imposing the punishment contemplated under Section 400.414, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services renew Petitioner's license. DONE and ENTERED this 9th day of November, 1988, in Tallahassee, Florida. DIANE CLEAVINGER 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 9th day of November, 1988.
Findings Of Fact The Department of Insurance and Treasurer (Department), Petitioner/Respondent herein, is the state agency responsible for the regulation, management and certification of fire protection systems contractors. In furtherance of its duties as regulator, the Department filed an Administrative Complaint against Respondent/Petitioner Gardner calling into question conduct by Gardner as a Contractor IV and issued a letter denying him certification as a Contractor II based upon that conduct. On May 18, 1988, Gardner initially applied for certification as a Contractor II. Gardner requested, and was scheduled to take the Contractor II examination for certification on July 11, 1988, however, he never completed that examination. This was evidenced by a blank examination and answer sheet which had been prepared for and assigned to him. Further evidence of Gardner having failed to sit for the Contractor II examination is a confirmation letter from him explaining that he failed to appear at the examination. Gardner was offered a second opportunity to take the examination for a Contractor II certificate whereupon he replied that he would like to sit for the September 19, 1988 examination or the October 10, 1988 exam. Gardner was unable to sit for the September 19, 1988 examination as he failed to qualify under the Department's applicable two-week prior notice rule which was referenced in the letter of inquiry sent to him asking of the dates that he was available to sit for the exam. Gardner was never rescheduled to take the Contractor II examination during October and he opted, instead, to be examined for Contractor IV credentials. During August 1988, Gardner applied for certification as a Contractor IV and he sat for that exam on October 10, 1988. The Department issued Gardner his license as a Contractor IV on January 12, 1989. From that date to the present time, he has been continuously licensed as a Contractor IV. Gardner has not submitted any renewal fee or form for licensure for any class other than Class IV. Starting in 1988, Gardner, or agents on his behalf, began altering certificates of competency issued by the Department and presented them to various local building agencies, including the Cities of St. Petersburg and Gulfport, indicating that he was licensed as a Contractor II. One altered certificate submitted by Gardner indicating Contractor II licensure status carried an issue date of July 1, 1988, a date prior to the time when Gardner was scheduled to sit for his first examination for a Contractor II, i.e., July 11, 1988. Additionally, the license number shown on that altered certificate carried the control number associated with the contractor licensure of Ronald Cox, a witness who testified in this proceeding. Other indicia of the fact that that certificate was altered is that the print (font) of Gardner's name and address information was different from the other print on that certificate. That fact is significant since the Department has never used more than one certificate printer which has only one font. This procedure of printing certificates has been uniform during the entire nine-year life of the Department's computerized licensing program. Gardner was able to obtain permits based on the altered certificates that he submitted to the City of St. Petersburg. Some of the permits that he obtained as a result of that altered certificate were of the type work that only a Contractor II could legally perform as the work was of a commercial nature in buildings occupied by the public at large. Other instances of Gardner altering certificates of competency issued to him was one certificate with the initial date of August 8, 1989, which was a renewal certificate of competency showing licensure as a Contractor IV. The type and class code was "7-18" which correlated with that of a renewal for a Contractor IV with a document control number shown as FM00208. The language shown on the certificate identified the limited activities which could be performed by a Contractor IV. However, the certificate that Gardner presented to various governmental officials upon request, which certificate was altered, indicated the exact same information as above including document control number, type and class code, but included language which explained the type of activities attributed to Contractor II certification. Gardner also showed a similar altered exhibit to the Department's special investigator, P. Gruda, during his investigation of Respondent. From 1988 to the present, Gardner has been engaged solely in installing fire protection systems in commercial-type establishments. Some of his commercial activities included bidding on the installation of commercial sprinkler systems at the Gulfport Casino, a 15,000 square foot ballroom dance hall in Gulfport, Florida, and the Sir Speedy Printing building in Clearwater, Florida, on January 23, 1991. Gardner bid on a project for installation of a fire-sprinkler system at the Casino building in Gulfport, Florida, which included submitting a check on August 23, 1991, for the bid. Gardner was the low bidder, however, he did not receive the contract award because Gulfport City officials checked his licensure status and was able to determine that he was not licensed by the Department as a Contractor II, a requirement for all bidders. 1/ Throughout the process, Gardner was able to furnish original documentation associated with Contractor IV certifications dating back to 1988. Likewise, throughout the Department's investigations, Gardner was only able to provide copies, which were obviously altered, designating him certified as a Contractor II. On February 5, 1991, Gardner submitted an original application for licensure as a Contractor II. That application included materials and fees consistent with an original application. Gardner made no indication to the Department that he was previously licensed as a Contractor II. Gardner's application for certification as a Contractor II was denied by the Department by letter dated March 27, 1991 citing his involvement with construction activities without proper license by the Department. Given the facts and circumstances found herein, the Department's denial was proper.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended: The Department of Insurance and Treasurer issue a final order revoking Respondent/Petitioner's license as a Fire Protection Systems Contractor IV. Enter a final order denying Respondent/Petitioner's application for certification as a Contractor II. RECOMMENDED in Tallahassee, Leon County, Florida, this 30th day of July 1992. JAMES E. BRADWELL 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 30th day of July 1992.
Findings Of Fact Petitioner James T. Steffens is currently employed as Chief of the Oneco-Tallevast Fire Control District located in Manatee County and has been so employed since June 1, 1982. The fire control district covers approximately 26 square miles southeast of Bradenton, and includes residential and commercial developments and some rural areas. The district employs six firefighters who, along with Petitioner, work a normal 3:00 A.M. to 5:00 P.M., Monday through Friday, work week. There are 28 volunteer firemen in the district who provide most of the firefighting services for the district. The career personnel are hired primarily to supplement the volunteer group during the ordinary work week. However, they and the Petitioner are also volunteer firefighters. During the period of his employment, Petitioner has taken charge of firefighting on six or seven instances, one of which occurred during his normal hours of employment. (Testimony of Steffens) Petitioner was hired as a result of a screening and interview process by the Board of Commissioners of the Oneco- Tallevast Fire Control District. They were interested in a person who could unify factions within the district and modernize district procedures. The Board of Commissioners was more interested in Petitioner's administrative skills rather than his qualifications as a firefighter. However, it was aware from prior communications with Respondent's personnel that either a certified firefighter should be hired, or if not, that the individual hired would have to be certified in Florida. Petitioner primarily performs administrative functions, such as personnel and budget matters, training and scheduling of personnel, procurement of supplies, and scheduling of fire inspection and prevention programs. Actual fire inspections are conducted by the district fire marshal. (Testimony of Petitioner, Skinner) Respondent's form FST-1 "Qualification of New Employee," was filed on behalf of Petitioner in June 1982 by Raymond F. Skinner, Jr., Secretary- Treasurer, Board of Commissioners, Oneco-Tallevast Fire Control District. The form reflected that Petitioner had completed the equivalency examination at the State Fire College, Ocala, Florida, on July 11, 1977, and the Report of Physical Examination that accompanied the form showed that he had no physical abnormalities. Upon inquiry by Respondent as to a discrepancy on the physical examination report that reflected Petitioner had adequate visual acuity, as compared to a prior medical report received by the Department showing that his uncorrected vision in the right eye was 20/200 and in the left eye, 20/400, the examining physician advised the Respondent that the earlier eye examination should be deemed correct. (Respondent's Exhibits 1-2) By letter of October 5, 1982, Mr. Skinner was advised by the Office of the State Fire Marshal that Petitioner could not be certified because he did not meet the requirements of pertinent law and regulations as to visual acuity, and also due to the fact that he had a "noticeable limp." Specifically, he was advised that Section 633.34(5), Florida Statutes, required that "Any person initially employed as a firefighter must be in good physical condition as determined by a medical examination as prescribed by the division," and that Rule 4A-37.37, Florida Administrative Code, implementing the statutory provision, provided in subsection (3) for adoption of the standards of NFPA 1001 (1974). The letter further stated that NFPA 1001, Chapter 2-2.7.2(b), provided that standard visual acuity, without correction, of less than 20/40 in one eye, and 20/100 in the other eye, was cause for rejection for appointment, and that Chapter 2-2.6.2.4(d) provided that shortening of a lower extremity resulting in any limp of noticeable degree was also cause for rejection. Subsequent to receipt of the letter from Respondent, Petitioner requested an administrative hearing. (Respondent's Exhibit 1) Petitioner does not meet the visual acuity standards set forth in the above-cited law and regulations in that his uncorrected eyesight is 20/200 in his right eye and 20/400 in his left eye. (Respondent's Exhibit 1-2, Stipulation) Respondent's ground for rejection of certification because Petitioner has a "noticeable limp" was based solely on observation of Petitioner by Mr. Raymond Schaffner, Program Coordinator for Fire Standards, Office of the State Fire Marshal. However, Mr. Schaffner has no knowledge of Petitioner having a shortening of either leg, nor is there any medical evidence in that regard. Although he is of the opinion that a person with a limp would have difficulty as a firefighter carrying heavy weights on stairs, or maintaining control on a ladder with his legs to free his hands, he is unaware of any actual limitations that Petitioner might have in this regard. (Testimony of Schaffner) Petitioner concedes that he has a slight limp, but can offer no medical explanation for it. He purchases trousers which have the same inseam for both legs. The problem becomes more pronounced if he becomes overweight. It has never hampered his sports activities in the past, or his prior activities as a volunteer firefighter since 1956. In 1977, he successfully completed the equivalency examination at the State Fire College in Ocala, which required that he perform field "evolutions" or practical exercises in firefighting. Although they do not necessarily test an individual's endurance, Petitioner participated in advancing heavy hoses and carried a man down from a ladder during his equivalency examination. He has performed "leg locks" on ladders "hundreds of times" in the past. (Testimony of Schaffner, Petitioner) Volunteer firefighters are not required to be certified by the state. However, Respondent's interpretation of applicable statutes is that the employed chief of a fire control district must be certified if he meets the definition of "firefighters" set forth in Section 633.31, Florida Statutes. (Testimony of Schaffner, Stark)
Recommendation That Petitioner James T. Steffens be determined unqualified for employment and certification as a firefighter pursuant to Chapter 633, Florida Statutes. DONE and ENTERED this 3 day of 1983, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1983. COPIES FURNISHED: Richard W. Gross, Esquire Post Office Box 1302 Hialeah, Florida 33011 Susan E. Koch and Dennis Silverman, Esquires Department of Insurance 413-B Larson Building Tallahassee, Florida 32301 The Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol Tallahassee, Florida 32301
The Issue The issue for determination is whether Petitioner successfully completed the Firefighter Minimum Standards Practical Examination or the Practical Examination Retest for certification as a firefighter in the State of Florida.
Findings Of Fact Petitioner is a candidate for certification as a firefighter in the State of Florida. To be certified as a firefighter, a candidate is required to successfully complete the Firefighter Minimum Standards Written and Practical Examination (Practical Examination). A candidate is able to take the certification test twice. If a candidate fails the first time, the candidate is automatically afforded an opportunity for a retest. On October 15, 2012, Petitioner initially took the Practical Examination at Daytona State Fire College in Daytona, Florida. The Practical Examination consists of four parts, or evolutions: self-contained breathing apparatus (SCBA), hose operation, ladder operation, and fireground skills. To successfully complete the Practical Examination, a candidate is required to receive a minimum of 70 points on each evolution and to complete all mandatory steps. Petitioner received more than a minimum of 70 points on the SCBA and hose evolutions, but did not achieve a passing score on either the ladder evolution or the fireground skills evolution. The maximum time allowed on the ladder evolution is four minutes and 30 seconds. Exceeding the maximum time allowed is an automatic failure of the ladder evolution. Petitioner’s time on the ladder evolution was four minutes and 50 seconds, which was 20 seconds more than the maximum time allowed. Petitioner admitted that he exceeded the maximum time allowed to complete the ladder evolution. He blames that failure on the testing instructor, Mr. Johnson, for not being located where Petitioner could hand off a halligan to him in order to complete the test. A halligan is a tool used by firefighters to sound the floor of a burning building for safety. During the ladder evolution, a candidate is required to pick up the halligan prior to ascending a pre-positioned 24-foot extension ladder, sound the floor with the halligan, enter the second floor, descend a set of stairs to the first floor, locate a mannequin, and execute a “rescue” by dragging or carrying the mannequin out of a doorway. When a candidate clears the doorway threshold with the mannequin, the ladder evolution is complete. During testing, Petitioner understood he would be handing the halligan off to Mr. Johnson. However, Mr. Johnson was not there, and, as Petitioner explained, “I had my halligan in my hand and I was looking around for him, but he was nowhere to be found. . . . Well, the time that it took me to look for my instructor, which I am not supposed to do, he was supposed to be there, my time went over –- my time went over.” Because of his failure to pass the ladder evolution and fireground skills evolution, Petitioner failed to successfully complete the Practical Examination. On November 6, 2012, Petitioner took a Practical Examination Retest (Retest) at Florida State Fire College in Ocala, Florida. The Retest consisted of the same four evolutions. He was required to receive a minimum of 70 points on each evolution and to complete all mandatory steps in order to successfully complete the Retest. On the Retest, Petitioner received a perfect score of 100 points on the SCBA and hose evolutions. He received 90 points on the fireground skills evolution, but received no points on the ladder evolution. Petitioner exceeded the maximum time allowed on the ladder evolution. As on the original examination, the maximum time allowed is four minutes and 30 seconds and exceeding the maximum time allowed is an automatic failure of the ladder evolution. Petitioner’s time was four minutes and 38 seconds, which is 8 seconds more than the maximum time allowed. He received zero points on the ladder evolution for exceeding the maximum time allowed. As a result of his failing to pass the ladder evolution, Petitioner failed to successfully complete the Retest. Because Petitioner failed the Retest, the Department denied his certification as a firefighter. In support of his challenge to the Department's determination that he exceeded the maximum time allowed on the ladder evolution, Petitioner testified that his wife was present at the Retest and recorded his time on the ladder evolution as four minutes and 17 seconds, 13 seconds faster than the maximum time allowed. Petitioner explained that his wife was positioned in an automobile at the grounds with a “straight-shot” view of the ground skills course, then drove to the other side of the course to observe and time the ladder evolution. Petitioner introduced into evidence a photocopy of a sheet of notebook paper on which was written “Ricky’s time 3:58” on one line and “4:17” on the next line. Petitioner’s wife neither testified to overcome the hearsay nature of the evidence, nor did she authenticate the evidence. Further, Petitioner admitted that the time his wife recorded was likely not exact, but rather gave him a “ballpark figure of not going over the four minutes and 30 seconds that I had.” Petitioner stated his wife’s recorded time would not be the same as the field representative’s because the field representative started the stopwatch when Petitioner touched the ladder, as per protocol. Petitioner’s wife started her clock when Petitioner gave her the “thumbs up.” Dennis Hackett, Interim Standards Supervisor, testified that it would be impossible for a third party to accurately time a candidate during the ladder evolution at Florida State Fire College. Mr. Hackett explained: There’s just too many obstructions. If they were –- the tower, where the ladder evolution starts, is on the opposite side of where [third party observers] have to stay. Or they could go to another roadway that they could see the ladder evolution started, but there’s a burn building in the way to see the ascension of the ladder to the second floor. You can’t see that. They would have to be a marathon runner to get from where they could see to the second portion where they would come out of the building. [T.53:18 through T.54:2] The time of four minutes and 17 seconds recorded by Petitioner’s wife for Petitioner’s completion of the ladder evolution is not accepted as competent substantial evidence of the actual time in which Petitioner completed the ladder evolution on the Retest. Tuffy Dixon is the Department’s field representative who administered the Retest to Petitioner in Ocala. Petitioner argues that Mr. Dixon may have failed to reset the stopwatch to zero prior to Petitioner beginning the ladder evolution. Petitioner testified that he had been told by unnamed instructors at Daytona State Fire College that mistakes like that had been made. Petitioner failed to present any evidence as to the inaccuracy of the stopwatch used to time the ladder evolution or as to the inaccuracy of the Mr.Dixon’s use of the stopwatch at the Retest. He presented only assumptions or speculation as to the inaccuracy of Mr. Dixon’s use of the stopwatch. Mr. Dixon has administered approximately 500 practical examinations in the two years he has served the Department. He testified that he is certain his stopwatch was functioning correctly on the day of Petitioner’s Retest and that he reset the stopwatch to zero prior to Petitioner beginning the ladder evolution. Mr. Dixon’s testimony is accepted as credible. In further support of his arguments, Petitioner also testified that he never exceeded the maximum time allowed for the ladder evolution during practice runs at the facility. He maintained that the course in Daytona is longer than the course in Ocala, so it does not make sense that he would not complete the ladder evolution within the maximum time allowed. Despite the fact that Petitioner submitted with his petition in this case a list of names and telephone numbers of Daytona State Fire College classmates who could attest to his time on practice runs of the ladder evolution, Petitioner did not present the testimony of any of those candidates. Nor did he introduce any other evidence to corroborate his testimony that he never exceeded the maximum time allowed for the ladder evolution during practice. Further, no evidence was offered as to the comparable length of the two courses. The evidence fails to demonstrate that the amount of time in which Petitioner completed the ladder evolution, as determined by the Department, was incorrect or inaccurate. Therefore, the evidence demonstrates that Petitioner failed to successfully complete the ladder evolution within the maximum time allowed. Hence, the evidence demonstrates that Petitioner failed the Retest.
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: Finding that Ricardo Francois failed to successfully complete the Practical Examination Firefighter Retest; and Denying Ricardo Francois’ application for certification as a firefighter in the State of Florida. DONE AND ENTERED this 3rd day of April, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 3rd day of April, 2013. COPIES FURNISHED: Linje E. Rivers, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 Ricardo Francois 778 Jimmy Ann Drive, No. 1011 Daytona Beach, Florida 32114 Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399
The Issue Whether Petitioner's challenge to the failing score he received on the Practical Examination for Retention of Firefighter Retest he took on May 17, 2012, should be sustained.
Findings Of Fact Because no evidence was offered at the final hearing held in the instant case, no findings of fact are made.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services, Division of the State Fire Marshall, enter an order denying Petitioner's challenge to the failing score he received on the Practical Examination for Retention of Firefighter Retest he took on May 17, 2012. S DONE AND ENTERED this 17th day of August, 2012, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 August, 2012. COPIES FURNISHED: Jesse Beauregard 10731 Northwest 18th Court Coral Springs, Florida 33071 Linje E. Rivers, Esquire Department of Financial Services 200 East Gaines Street, Sixth Floor Tallahassee, Florida 32399-0333 Julie Jones, CP, FRP, Agency Clerk Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0390
The Issue The issue is whether Respondent properly denied Petitioner's application for certification as a firesafety inspector.
Findings Of Fact Petitioner is an applicant for certification as a firesafety inspector. In order to be certified, Petitioner was required to successfully complete the Firesafety Inspector Training Course and pass a firesafety inspector certification examination. Petitioner successfully completed his required coursework at the Florida State Fire College and Daytona State College. To pass the written examination, an applicant must achieve a score of at least 70 percent. Petitioner took the exam the first time and did not receive a passing score. After a month or so, Petitioner took a "retest." He received a score of 68 on the retest, which is below the minimum passing score of 70. By letter dated October 11, 2011, Respondent notified Petitioner that he did not receive a passing grade on the retest. The notice also informed Petitioner that because he failed both the initial and retake examinations, it would be necessary for him to repeat the Inspection Training Program before any additional testing can be allowed. The notice further informed Petitioner that if he enrolled in another training program, he would have to submit a new application. Petitioner submitted a letter which was received by the Department on September 27, 2011, in which he raised concerns about the quality of instruction he received at Florida State Fire College. Petitioner asserted that in two classes he took, the instructors had not taught the class before. He also asserted that the books used for class were not always the books used for testing, and that he believed that some of the state inspector test questions were irrelevant to how or what he would need to know in performing an actual inspection. Attached to this letter were five questions which had been marked as being answered incorrectly on the examination. Petitioner's letter and attachments were treated as a request for administrative hearing, which was forwarded to the Division of Administrative Hearings, which resulted in this proceeding. Marshall Shoop took classes with Petitioner at the Florida State Fire College. It was also Mr. Shoop's understanding that at least one instructor had never taught the class before. Karl Thompson is the Standard Supervisor for the Bureau of Fire Standards and Training. At hearing, Mr. Thompson reviewed each question offered by Petitioner and the answer Petitioner thought to be correct. Mr. Thompson concluded that Petitioner answered each of the five questions incorrectly. Mr. Thompson explained that the firesafety test is a secure document and, pursuant to a contract with a third party, persons who take the test and later review their incorrect answers are not allowed to write down the questions or copy anything from the test. The test must remain secure so that it is not compromised. The test questions and answers are not in evidence. Petitioner has been shadowing a part-time fire inspector for the City of Flagler Beach. Martin Roberts is the Fire Chief for the City of Flagler Beach. Chief Roberts would feel comfortable with Petitioner taking on the role of fire inspector despite Petitioner's grades on the fire safety inspector certification examination. While attending Daytona State College, Petitioner earned an "A" in a building construction course and a "B+" in a course in "construction codes and materials rating."
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department enter a final order denying Petitioner's application for certification as a Firesafety Inspector, and permitting Petitioner to repeat the required coursework before retaking the Firesafety Inspector certification examination. DONE AND ENTERED this 16th day of February, 2012, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 16th day of February, 2012.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner passed the "Hose Operation" portion of the initial and the re-test firefighters examinations and whether she was given a fair opportunity to pass the test.
Findings Of Fact On January 13, 2001, the Petitioner, Josephine Louise Ramsey, applied for certification to become a firefighter in the State of Florida. The Respondent is the agency regulating licensure and enforcing practice standards for firefighters in the State of Florida. On May 9, 2001, the Petitioner took the Minimum Standard Written and Practical Examination, a passing score on which would qualify her for firefighter certification. She did not achieve a passing score on the practical portion of the examination because she failed the Hose Operation portion of the examination. The Petitioner began taking the practical Hose Operation evolution portion of the examination with a broken shoulder strap on the "airpack" she was required to wear. She contended that this was an "unsafe act" and that Mr. Begley, the proctor for the examination, should have stopped her testing time and allowed her to correct the equipment malfunction and then resume the test. The Petitioner contended that this caused her a tremendous distraction while she was performing the Hose Operation evolution. She also contended that Mr. Begley should have stopped her test time from running further as soon as he noticed the broken airpack. The Petitioner testified that she changed airpacks after the Hose Operation evolution portion of her examination and was told to proceed on to the ladder portion of the examination. After the Petitioner had completed the ladder portion of the examination, the Petitioner was allowed to again take the Hose Operation evolution that same day. She took the second Hose Operation evolution test after five other applicants had been tested on that portion of the examination. The Petitioner failed the Hose Operation portion of the initial examination because she exceeded the maximum time allotted for that exercise. The Petitioner contends that she was never told of any recourse she might have if she failed her initial examination and was only told that she could schedule a re-test examination. On September 27, 2001, the Petitioner took the Minimum Standards Practical Examination Re-test which consisted, in her case, of only the Hose Operation portion of the examination. She received point deductions in four different categories on the re-test examination. She received point deductions for (1) failure to properly stop and call for water; (2) failure to slowly and fully open and close the hose nozzle while bleeding the hose line; (3) failure to slowly and fully open and close the nozzle during the cone operation; and (4) failure to maintain control of the hose and nozzle during the entire operation. The Petitioner thus received a total score of 60, which is below the minimum, acceptable, passing score of 70, and thus failed the re-test examination. The Petitioner claims that she was charged with point deductions twice for the same violation or deficiency, which in this case was improperly opening and closing the hose nozzle at the front of the truck bumper and during the cone operation. However, according to the Department's score sheet and scoring method, the opening and closing of the hose nozzle are two different skills at two locations, which are scored separately, based upon the location of the hose. The Department is thus attempting to assess how an applicant will handle the hose nozzle when the line is initially charged with water (at the front of the truck bumper) and also when the line is fully charged with water during the cone operation. In her testimony the Petitioner attempted to analogize the opening and closing of the hose operation with running during the exercise. According to the Department's scoring sheet and method, completing the task without running, or walking backwards, would entitle an applicant to 10 points. Before an applicant is deducted any points, an examiner must warn the applicant that they are running or walking backwards. Running during the exercise and properly opening and closing the hose nozzle, however, are two different skills and are scored separately and differently. The Department's policy is that it is an important skill for applicants to be able to properly maintain control of a fire hose and know how to properly open and close the hose in order to prevent injury to firefighters. In any event, the Petitioner received notice of a denial of her certification effective October 5, 2001.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered denying the Petitioner's application for certification as a firefighter in the State of Florida. DONE AND ENTERED this 29th day of April, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 29th day of April, 2002. COPIES FURNISHED: Ladasiah Jackson, Esquire Department of Insurance 200 East Gaines Street Tallahassee, Florida 32399-0333 Josephine Louise Ramsey 1906 St. John's Bluff Road North Jacksonville, Florida 32225 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
Findings Of Fact Respondent, Hugenna D. Outar, operates a twelve-bed adult congregate living facility (ACLF) under the name of Moorehead House Retirement Center at 1405 Northeast Eighth Street, Homestead, Florida. The facility is licensed by petitioner, Department of Health and Rehabilitative Services (HRS), and as such, is subject to that agency's regulatory jurisdiction. Outar serves as administrator of the facility. On or about August 15, 1987, Paul Grassi, an HRS fire inspector, conducted a routine annual inspection of respondent's facility. The purpose of the inspection was to determine if the facility was in compliance with the fire safety requirements of Chapter 10A-5, Florida Administrative Code (1987). The inspec- tion was made in the presence of Outar's mother since Outar was not at the facility that day. Grassi requested documentation showing that all facility fire alarms and smoke detectors had been checked by facility personnel on a quarterly basis. Also, he requested documentation to evidence that all employees had been given monthly training in procedures to be followed in the event of a fire. The former set of records is required by Department of Insurance Rule 4A-40.017, which has been adopted by reference by HRS. The latter requirement is imposed by Rule 10A-5.023(15)(b) and pertains to ACLF's having thirteen or more licensed beds. Because Outar's mother did not know where such documentation was kept, she was unable to comply with Grassi's request. Next, Grassi observed that Room D had a "pocket type" door with no hinges. According to Grassi, a state fire marshal regulation prohibits the use of this type of door in a resident's room and requires instead that a resident's room located by an exit have a door mounted on a hinge that swings outwardly to the corridor. The Classification of Deficiencies refers to the regulation imposing this requirement as "L.S.C. 85, 17-3.6.2" but the regulation itself is not of record or officially noticed. Finally, Grassi observed two residents' rooms with no door closures. According to Grassi, such closures are required on all residents' rooms, pursuant to a state fire marshal regulation, for the purpose of containing and confining a fire in the event of a fire in a room. The regulation was not identified at hearing nor made a part of the record but is referred to in the Classification of Deficiencies as "N.F.P.A. 101-85, 17.3.6.3." After noting these violations, Grassi explained them to the mother and gave her a brief explanation as to how they might be corrected. Each of the three deficiencies were categorized as Class III deficiencies. By letter dated September 24, 1987, HRS advised Outar in writing of the nature of the violations. Although the letter was not prepared until September 24, it instructed Outar to correct the deficiencies by September 14, 1987, or ten days earlier. Attached to the letter was a copy of the Classification of Deficiencies which identified the deficiencies, their class and the date by which they had to be corrected. On October 29, 1987 Grassi made a follow-up survey of respondent's facility. Since Outar was not at the facility that day, the survey was conducted in the presence of Outar's mother. Grassi found none of the deficiencies had been corrected. Accordingly, Outar was sent a letter by HRS on November 6, 1987 advising her that a second follow-up visit would be made. On December 14, 1987 Grassi returned for a third visit. This time Outar was present. Again, Grassi found none of the deficiencies corrected to his satisfaction. However, he conceded that the documentation pertaining to monthly fire drills and quarterly checks of fire alarms and smoke detectors was available for inspection but maintained it was unsatisfactory because all reports were identical and did not vary from month to month. He reasoned that this was contrary to the "intent" of the rule. During the inspection, Outar requested specific advice as to how to comply with the door regulations for which she had been cited. After receiving advice, these changes were made, and her doors now meet all fire safety requirements. Outar operates a small facility with only twelve beds. She pointed out that she had difficulty in installing closures on the two doors in question since two residents used walkers and had placed door "jams" on the doors to give them easy access through the doorway. As to the other door violation, the building was purchased with an archway leading into Room D which made it difficult to install a door mounted on hinges. Outar attempted to comply with Grassi's instructions but her carpenter was unable to make the necessary changes until Outar received specific advice from Grassi on December 14. Finally, Outar stated that the fire drill documentation was available for inspection on August 15 and October 29 but her mother did not know where it was. Outar did not learn it was filled out improperly until she personally spoke with Grassi on his third visit. She now has satisfactory records.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint filed against respondent be dismissed with prejudice. DONE AND ORDERED this 30th day of September, 1988, 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 30th day of September, 1988.
