The Issue The issues for determination in this proceeding are whether Respondent committed the acts alleged in the Administrative Complaint and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for regulating persons certified as fire fighters and fire safety inspectors. Respondent is certified in the state as a fire fighter and fire safety inspector. She is currently employed by Volusia County Fire Services as an Emergency Medical Technician. On or about October 16, 1980, Respondent was charged in circuit court with vehicular manslaughter and driving under the influence of alcohol. Vehicular manslaughter is a felony under Sections 860.01(1)and (2), Florida Statutes. 1/ Driving under the influence of alcohol is a misdemeanor under Section 316.193. On or about April 15, 1981, Respondent entered a plea of nolo contendere to the charge of "Manslaughter by Operation of a Motor Vehicle while Intoxicated or Deprived of Full Possession of Normal Faculties." The court withheld adjudication, placed Respondent on probation for two years, and restricted her driver's license to business purposes for the first three months of her probation. Respondent successfully completed her probation on April 15, 1983. On or about September 15, 1992, Respondent completed an application for certification as a fire fighter. The application asked, "Do you have a record of conviction of a felony or a misdemeanor?" Respondent answered, "No." Respondent did not answer the foregoing questions untruthfully. Respondent was advised by counsel that there had never been an adjudication of guilt and that she should state that she had never been convicted of the charges in 1981. On or about September 10, 1993, Respondent completed an application for certification as a fire safety inspector. The application asked, "Have you ever been convicted of a felony, or a misdemeanor involving moral turpitude?" Respondent answered, "No." Respondent believed that she had never been convicted of such an offense because adjudication of guilt had been withheld, and she had successfully completed her probation. Petitioner certified Respondent as a fire fighter and as a fire safety inspector. Petitioner relied, in part, upon Respondent's answers to the questions quoted in the preceding paragraphs. Respondent did not intentionally misrepresent her criminal history to Petitioner on either application. Respondent relied on advice of counsel and a good faith belief in the truthfulness and correctness of her responses. Respondent is actively employed as a fire fighter. She is seeking certification as a fire safety inspector to further her career and to obtain employment closer to her residence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of all of the charges in the Administrative Complaint except the charge of pleading nolo contendere to a felony within the meaning of Section 633.081(6)(d). It is further recommended that Petitioner enter a Final Order authorizing the issuance of a written reprimand. RECOMMENDED this 9th day of January, 1995, in Tallahassee, Florida. DANIEL S. MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1995.
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.
Findings Of Fact Petitioner is employed as a full-time professional firefighter by the City of Tampa Fire Department. His primary responsibility is the prevention and extinguishment of fires, the protection and saving of life and property, and the enforcement of municipal, county and state fire prevention codes, as well as of any law pertaining to the prevention and control of fires. Petitioner received an associate in arts degree in Business Administration in May 1989 from Hillsborough Community College. In addition, he has earned 90 hours credit towards an associate in science degree from the same accredited post secondary institution. Petitioner's permanent academic record at Hillsborough Community College reveals he has successfully completed the following fire-related courses: SUMMER 1983 SEMESTER CREDITS ENS 1119 EMT AMBULANCE 5 EMS 1119 EMT AMBULANCE LAB 1 FALL 1986 SEMESTER CREDITS FFP 2601 FIRE APPARATUS PRA 3 FFP 1600 FIRE APPARATUS EQ 3 FALL 1990 SEMESTER CREDITS FFP 2420 F/F TACTICS & STRA 3 FFP 2660 RESCUE PRACTICES 3 FFP 2110 FIRE COMPANY MAN AG 3 Although Petitioner has 21 semester hours that the Department has agreed are fire related courses, 9 of these hours were credited to him after his associate in arts degree was conferred upon him in May of 1989. In order for a firefighter to be eligible for supplemental compensation related to an associate degree, he or she must have at least 18 semester hours that are fire related and are part of the firefighter's studies for the degree. Petitioner had only 12 semesters of fire related studies prior to the award of his degree. In order for Petitioner to receive eligibility credits for the full 21 semester hours in the Firefighter's Supplemental Compensation Program, he would have to acquire his second associate degree from Hillsborough Community College.
Recommendation Accordingly, it is RECOMMENDED: That Petitioner should be denied eligibility for the Firefighters Supplemental Compensation Program as he did not complete at least 18 semester hours of fire related courses prior to receiving his award of an associate of arts degree. DONE and ENTERED this 6th day of October, 1992, at Tallahassee, Florida. VERONICA E. DONNELLY 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 6th day of October, 1992. APPENDIX The Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2. Accepted. See Preliminary Statement. Accepted. See HO #4 and #5. COPIES FURNISHED: Mark B. Maxey 6909 N. Glen Avenue Tampa, FL 33614 William C. Childers, Esquire Division of Legal Services 412 Larson Building Tallahassee, FL 32399-0300 Bill O'Neil Deputy General Counsel Department of Legal Affairs The Capitol, Plaza Level Tallahassee, FL 32399-0300 Tom Gallagher State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300
The Issue The issue in this case is whether Respondent, Department of Financial Services, Division of State Fire Marshal (the Department), properly administered and graded the Firefighter Minimum Standards practical examination taken by Petitioner, Catalina Williams (hereinafter Williams).
Findings Of Fact The Department is the state agency charged with the responsibility for testing, monitoring and certifying firefighters. The Department conducts certification examinations at the Florida State Fire College in Ocala, Florida, and some thirty-plus other sites around the State. Those sites are located on college campuses, training facilities, fire stations, and other locales. The test at issue in this proceeding was administered at the Fire College site. Catalina Williams is an Hispanic woman who desires to become a certified firefighter. Her interest in firefighting began when she worked as a photographer covering fire-related events for a magazine and thought it would be exciting and interesting to be on “the front line.” Williams has also served as a caregiver, giving her experience in providing assistance to others, and is a certified lifeguard. In order to accomplish her goal of becoming a firefighter, Williams entered into schooling to learn the trade. Williams first attended First Coast Technological College (First Coast) in 2009. She completed the Firefighter Minimum Basic Standards Course (Firefighter I) that year. In 2010, she enrolled at the school for the summer semester to begin training in the advanced (Firefighter II) curriculum. That school term was shorter and more compressed than a regular semester. Despite her best efforts, Williams did not successfully complete the Firefighter II course. Rochford was one of her instructors during her first unsuccessful enrollment at First Coast. In 2012, Williams entered First Coast again. At that time, she was working as a paid volunteer firefighter for Volusia County. The county paid her tuition costs at First Coast when Williams entered the school for the Firefighter II course work. The second time, Williams was able to successfully complete the course material and pass her final examination. Passing the final examination was a prerequisite to taking the State certification exam. While attending First Coast, Williams took hundreds of practice exams, especially on the practical portions of the tests. She took exams as part of her classes, took exams voluntarily with someone timing her, and took exams just to practice. The State Certification Exam There are four primary segments of the State certification exam: A written examination of 100 multiple choice questions; A hose evolution involving a self- contained breathing apparatus (SCBA) and personal protection equipment (PPE); A ladder/search and rescue evolution; and A skills portion, involving ropes and knots, two fire ground skills, and a short test on the emergency response guide (ERG). The ladder/search and rescue evolution is a practical portion of the exam; it is the singular portion of the test at issue in this proceeding and will be referred to as the ladder evolution. The ladder evolution portion consists of the following tasks and assignments: The candidate inspects ladders hanging on a simulated fire truck. He or she then takes a 24-foot ladder from the truck and extends it against the wall of a building up to the second floor. Once that ladder is properly hoisted, the candidate confirms that a ladder guard (another candidate acting as a spotter) has control of the ladder. The candidate then initiates radio contact and then walks quickly around the building to another ladder that is already in place. He/she must ascend the ladder to the second floor, test the floor inside the building to make sure it is safe, and enter the building through a window. Upon entry the candidate must find a “victim” (a 125-pound mannequin) on the lower floor, secure the victim in an approved manner, and then exit the building with the mannequin. Upon exit, the candidate must safely deposit the victim on the ground and provide notice by way of radio contact that he/she and the victim are outside the building. The radio transmission is something along the lines of: “PAR 2 [Personnel Accountability Reporting, two people]. Firefighter No. “X” and victim have safely exited the building.” The entire ladder evolution sequence must be done within four minutes and 30 seconds although, as will be discussed below, there are differences of opinion as to when the timed portion of the evolution ends. It is necessary for candidates taking the test to pass each of the four sections. Failure of any one portion would result in failure overall. Should a candidate fail the examination, they must reschedule their retest within six months of the failed test. All retest examinations are administered at the Fire College. On test day, there may be dozens of applicants taking the test at the same time. The procedure dictates that candidates arrive at the test facility in time to process paperwork prior to the 7:30 a.m., test commencement. Candidates must first provide identification to an instructor and be assigned a candidate number. They then fill out paperwork, including a waiver should any injuries occur during testing. Candidates will have their gear inspected to make sure it is in compliance with State standards. Prior to commencement of testing, one of the instructors or examiners will read a document called the “Minimum Standards Pre-Exam Orientation” (the Orientation) to the candidates. During the reading of the Orientation, which may take 45 minutes to an hour or more, candidates are allowed and encouraged to ask questions. Unless a question is asked, the Orientation will be read verbatim, word for word, with no additional comment. After the Orientation is read, candidates are walked through the facility so they can familiarize themselves with the test site. Once the test commences, candidates are not allowed to ask any questions. Williams’ Test Experience In October 2012, after successful completion of the Firefighter II course at First Coast, Williams applied for and was approved to take the State certification examination. The exam was conducted at First Coast on the school’s training grounds. The test was conducted by certified employees of the Department. Williams did not pass the examination. One of her shortcomings in that test was a failure in the ladder evolution. Her timed completion of that evolution was in excess of the required time of four minutes and 30 seconds. Williams had been confident she would pass the certification exam because it was similar to the final exam she had passed at First Coast during her schooling. She believes she failed because she was too nervous when she took the exam when it was administered as the actual State certification test. After failing the exam, Williams then applied for a retest which would be held at the Fire College on February 7, 2013. That re-test is the focus of the instant proceeding. On the morning of the retest, Williams arrived well in advance of the 7:30 a.m., start time. As she inspected her gear in anticipation of the start of the exam, she found that the SCBA regulator she was supposed to use did not properly fit the face mask on her helmet. There were extra regulators behind one of the tables being used to process applicants for that day’s test. Examiner Harper was sitting at that table and was providing paperwork to applicants who had already signed in at the first processing station. Williams went to Harper’s table and was allowed to obtain a new regulator. Inasmuch as she was already at Harper’s table getting her replacement regulator before going to the first processing station, Williams went ahead and filled out the paperwork Harper was providing to candidates at his processing station. That is, she filled out the paperwork before actually checking in at the first station. Williams then went to the first check-in table which was manned by Examiner Rochford. She provided her identification to Rochford and was assigned candidate number 37. Rochford then told Williams to go to Harper’s table to fill out the paperwork at that station. Williams told Rochford she had already done so and walked away. (At that point, Williams remembers Rochford yelling at her, asking whether she understood his order and telling her in a harsh manner to obey him. Rochford does not remember talking to Williams at all. Neither version of this alleged confrontation is persuasive. Inasmuch as the conversation was not verified one way or another by a third person -- although there were probably a number of other people around, it will not be considered to have happened for purposes of this Recommended Order.) The Orientation was then read to the candidates. The various portions of the test were addressed in the Orientation. The ladder evolution contained the following language, which Rochford read verbatim to the candidates without anything added or deleted: “Time starts when you touch anything. Time ends when the candidate and victim fully exit the building.” There is no evidence that any of the candidates asked a question concerning this part of the Orientation. Rochford’s timing policy regarding the ladder evolution differs from what he read to the candidates. He takes the position that time stops when the candidate exits the building with the victim, places the victim on the ground in an appropriate manner, and issues a verbal statement into the radio indicating that the firefighter and victim are out of the building. By his own admission, Rochford could not speak to how other examiners handle this timing issue. Harper, who was Williams’ assigned examiner on the test, also seemed to require candidates to lay the victim down and make radio contact before stopping the time. Neither Rochford nor Harper satisfactorily explained why their timing policy was different from what was stated in the orientation. The testimony concerning the correct way of timing the evolution was, at best, confusing. The following statements from the record provide contradictory and disparate opinions by various examiners: Rochford: “As soon as they lay the mannequin on the ground [and] announce they have exited the building . . . the time stops.” Tr. p. 45, lines 9-18 “The mannequin’s feet have got to be outside the plane from the door opening. That’s when the time stops.” Id. Lines 23- 25. “Until they talk on the radio is – - when they finish talking on the radio is when the time would stop.” Tr. p. 255, lines 7-9. Johnson: “At that point, they’ll use one of the prescribed methods for rescue to take the victim and themselves past the threshold out to the fresh air. At that point, the time stops.” Tr. p. 111, lines 11-14 “I read [the Orientation] word for word.” Tr. p. 114, line 23 “On the ladder rescue evolution . . . we [examiners] all stop when they pass the threshold.” Harper: “Then they’re told to lay the victim down, make radio contact you’re out of the building. Time stops.” Tr. p. 138, lines 7-8 “After they make radio contact.” Tr. p. 147, line 3 “[Orientation] says time starts when they touch anything, time ends when the candidate and the victim fully exit the building.” Tr. P. 148, lines 15-17 Hackett: “It stops when the victim comes out of the building.” Tr. p. 222, lines 7-8 [If the victim was thrown out of the building by the firefighter] “I think they would stop the clock.” Id., lines 9-11 “It is part of the timed part that they have to designate that they’re out of the building safely and lay down the victim.” Tr. pp. 222, line 24 through 223, line 1 Question to Hackett: “If [Williams] is coming out and she dropped the victim and picked up -- and presumably picked it up or whatever and then radioed, would that add time?” Answer: “No.” Tr. p. 246, lines 5- 10 Williams was timed by Harper when she took the ladder evolution portion of the exam. According to Harper’s (deposition) testimony, he subscribes to the version of timing that requires the victim to be laid down on the ground and the firefighter to make radio contact. Using that version of timing, Williams received a time of four minutes and 35 seconds for the entire ladder evolution portion of the test. In March, the Department mailed out notices to all the candidates that had tested on February 7. Notices of failure were sent by registered mail, return receipt requested. Williams’ letter was returned to the Department as unclaimed. Williams at some point in time found out from Chief McElroy, head of the Fire Academy, that she had purportedly failed the exam. She began calling examiner Harper in March seeking to find out what portion of the exam she had not successfully completed. She had at least two telephone conversations with Harper in March 2013. On April 4, 2013, the Department re-sent the failure letter to Williams, again by certified mail. This time, the letter was claimed by Williams and she became officially aware that she had not passed the exam. The basis given for Williams’ failure was that she did not complete the ladder evolution within the prescribed time parameters. She was timed at four minutes and 35 seconds, just five seconds beyond the allowable limit. It is her contention that she exited the building with the victim within the four minute/30 second time frame. The basis for her belief is that she has done the test so many times that she knows when she is behind schedule. During the test she did not stumble, drop any equipment, or have any other problem that would have added to her time. So, she concludes, she must have completed the evolution timely. Her personal feelings on the matter, without further corroboration or support, are not persuasive. Harper did not testify at final hearing. The transcript of his deposition taken in this case was admitted into evidence. In that transcript, Harper talks about his policy regarding timing of the evolution. His policy is the same as Rochford’s and is discussed above. He does not specifically say if he employed that policy when timing Williams during her test on February 7, 2013. He does not explain the difference between the Orientation statement about timing and his personal policy. The most persuasive evidence at final hearing established that it would have taken ten to 15 seconds after exiting the building to lay the victim down and make radio contact. The radio contact itself would have taken about four seconds. If Harper had stopped his timing when Williams and the victim broke the threshold of the building, her time would have likely been less than four minutes and 30 seconds. If he used his personal timing policy, then the time of four minutes/35 seconds was probably accurate. Harper deducted points from Williams’ score because of other minor mistakes. The totality of those points would not have caused Williams to fail the test. It was the ladder evolution time that caused the failure. In fact, Williams successfully completed all portions of the re-test except for the timing issue in the ladder evolution portion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Financial Services, Division of State Fire Marshal, rescinding the failing score on the State Firefighter Certification Examination for Catalina Williams and certifying her as a Firefighter. DONE AND ENTERED this 19th day of November, 2013, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 19th day of November, 2013. COPIES FURNISHED: Seth D. Corneal, Esquire The Corneal Law Firm 904 Anastasia Boulevard St. Augustine, Florida 32080 Michael Davidson, Esquire Department of Financial Services Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Julie Jones, CP, FRP, Agency Clerk Department of Financial Services Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0390
The Issue The issues are: (1) whether Respondent properly scored Petitioner's retake of the Practical Examination for Firefighter Retention; and (2) whether Petitioner's application for firefighter recertification was properly denied.
Findings Of Fact Petitioner has worked in the fire service for almost 28 years. During that time, Petitioner served as the assistant fire marshal and the fire marshal for the City of Orlando. After Petitioner retired from the City of Orlando, he served as fire chief, building official, and code enforcer officer of Eatonville, Florida. After more than a three-year time period of not working as a firefighter or in the fire service field, Petitioner accepted a job as fire marshal in Hillsborough County, Florida. Although there is no legal requirement that a fire marshal be certified as a firefighter, a condition of Petitioner's employment with Hillsborough County was that he be recertified as a firefighter. In Florida, a firefighter retains his firefighter certification if he remains an active firefighter with an organized fire department. However, a firefighter who has not been active for a period of three years must successfully complete the Retention Examination in order to retain his certification. The Retention Examination is the practical portion of the examination given to new applicants. Because Petitioner has not been an active firefighter for the past three years, in order to be recertified as a firefighter, he was required to successfully complete the Retention Examination. The Retention Examination consists of the following four parts: Self-Contained Breathing Apparatus ("SCBA"), Hose Operations, Ladder Operations, and Fireground Skills. To pass the Retention Examination, a candidate must achieve a score of at least 70 percent on each part. Petitioner applied for and took the Retention Examination that was given on May 16, 2007. He successfully completed the Fireground Skills part, but did not earn a passing score on the SCBA, the Hose Operations, and the Ladder Operations parts.2/ Petitioner applied for and took the September 13, 2007, Retention Examination re-test. During this re-test, Petitioner took only the SCBA, the Hose Operations, and the Ladder Operations parts, the ones that he had not successfully completed in May 2007. Petitioner passed the Hose Operations part of the Retention Examination re-test, but did not successfully complete the SCBA and the Ladder Operations parts, because he did not complete those components within the maximum allotted time. Each part of the Retention Examination has certain elements or skills that are graded. The SCBA and the Ladder Operations parts of the Retention Examination are each comprised of eleven skills or steps that the examinee must complete within the specified time. Ten of the 11 skills or steps for each part of the Retention Examination are assigned a point value of ten.3/ The other skill (the 11th skill or step) under each part is designated as a "mandatory step" for which the examinee is awarded a score of either "pass" or "fail".4/ Under the scoring system described in paragraph 10, an examinee receives ten points for each of the ten skills he successfully completes and a passing score for the one skill designated as mandatory. The SCBA and Ladder Operations parts of the Retention Examination have an established maximum time allotted for the examinee to complete a minimum of 70 percent of the skills. The time requirements are a mandatory criterion/requirement. In order to successfully complete the Retention Examination, an individual must not only complete a minimum of 70 percent of the ten skills or steps for each part, but he must also successfully complete the two mandatory criteria for that part. If an examinee completes a minimum of 70 percent of the skills in a particular part, but fails to do so within the maximum allotted time specified for that part, he has not met the mandatory time requirement and, thus, is not awarded any points for that part. The Division established the minimum time requirements for completing the various parts of the practical examination for firefighters after consulting the NFPA standards and soliciting input from fire departments, fire chiefs, and other individuals in firefighter profession. Among the factors that were considered in establishing the minimum time frames were the nature of fires (i.e., how quickly they spread) and the need for firefighters to perform their job duties both safely and quickly. The Division uses these time requirements in testing the 3,500 to 3,800 firefighters a year that go through the testing process. On the September 13, 2007, re-test, Petitioner exceeded the maximum time allotted for the SCBA and the Ladder Operations parts. The maximum time allotted for completion of the SCBA part of the Retention Examination is one minute and 45 seconds. Petitioner's completion time on the September 2007 Retention Examination re-test was three minutes and ten seconds. The maximum time allotted on the Ladder Operations part of the Retention Examination is two minutes and 45 seconds. Petitioner's completion time on the September 2007 Retention Examination re-test was three minutes and ten seconds. Because Petitioner failed to complete a minimum of 70 percent of the skills in the SCBA and the Ladder Operations parts of the Retention Examination within the maximum time allotted, the Bureau properly awarded him no points. Therefore, Petitioner did not earn a passing score on the Retention Examination re-test. As a result of Petitioner's failing to pass the Retention Examination, his Firefighter Certificate of Compliance No. 3381 expired as of September 13, 2007. The Division's Bureau of Fire Standards and Training ("Bureau of Standards") employs field representatives to administer the Retention Examination to examinees in accordance with the applicable rules and procedures. Philip D. Oxendine is and has been a field representative with the Bureau of Standards for four years. As a field representative, Mr. Oxendine administers and scores the minimum standards examination for firefighters, including the Retention Examination. Prior to being employed as a field representative, Petitioner worked as a firefighter for 27 years, having retired as a lieutenant. He also has ten years of experience as an instructor in the fire science division of the then South Technical Institution in Palm Beach County, Florida. Mr. Oxendine administered and scored the three parts of the Retention Examination re-test that Petitioner took on September 13, 2007, in accordance with the Division's procedures. All examinees at the September 17, 2007, Retention Examination re-test location, were assigned a number. In an effort to avoid bias, throughout the testing process, examinees' assigned numbers were used instead of their names. On the day of the Retention Examination re-test, Petitioner was assigned a number by which he was identified. When Mr. Oxendine administered and scored Petitioner's re-test, he did not know Petitioner's name or anything about him. Prior to Petitioner's starting the Retention Examination re-test, Mr. Oxendine took Petitioner and other examinees to each station and told them what they had to do at that station. Mr. Oxendine also told the examinees, including Petitioner, how each part of the Retention Examination would be graded.5/ Mr. Oxendine's usual practice is to instruct examinees to touch the apparatus when they are ready for time to begin on a particular part of the examination. He also gives specific instructions to the examinees regarding how they should indicate that they have completed each part. Once an examinee touches the apparatus and says he is ready to begin, Mr. Oxendine starts the stop watch. Mr. Oxendine instructed the examinees to indicate that they had completed the SCBA part by standing up and clapping their hands. The examinees were told that the Ladder Operations part was considered completed when they were behind the ladder and holding it and when they announced that the ladder was ready to be climbed. Mr. Oxendine used the procedures described in paragraph 30 in timing Petitioner on the three parts of the Retention Examination re-test. Mr. Oxendine timed Petitioner's performance on each part of the Retention Examination re-test using a stop watch. This is the method that Mr. Oxendine was trained to use when timing the examinees' performances on the practical portion of the examination. An individual is allowed to re-take the Retention Examination one time. If the person does not pass the re-test, he must repeat the Firefighter Minimum Recruit Training Program before he is eligible to re-take the Retention Examination. See § 633.352, Fla. Stat., and Fla. Admin. Code R. 69A-37.0527. As noted above, Petitioner did not pass the SCBA and the Ladder Operations parts of the Retention Examination re- test. Therefore, before he is eligible to re-take that examination, he must repeat the Firefighter Minimum Recruit Training Program. Petitioner failed to establish that he was entitled to a passing grade for his performance on the Retention Examination re-test. The greater weight of the credible evidence established that Petitioner's performance on the Retention Examination re-test was appropriately and fairly graded.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying Petitioner's application to retain his certification as a firefighter in the State of Florida. DONE AND ENTERED this 20th day of May, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 20th day of May, 2008.
Findings Of Fact Based upon the documentary evidence received, the following findings of fact are made: At all times material to the issue in this case, Petitioner, Jorge L. Barreto, has been employed as a firefighter with the City of Miami, Fire, Rescue & Inspection Services Department (City). Petitioner has attained the rank of Fire Lieutenant with the City. Petitioner's primary function with the City is that of firefighter. During the period March 10, 1986 until January 31, 1987, Petitioner was assigned to Rescue 2B. For that same period, a firefighter named George T. Gross was also assigned to Rescue 2B. Mr. Gross' request for supplemental compensation was approved by the Department on April 17, 1986. Mr. Gross' entry into the Firefighter Supplemental Compensation Program was deemed appropriate under the requirements of Section 633.382, Florida Statutes, and Rule 4A-37.76, Florida Administrative Code. Mr. Gross' field of major study as specified in his transcript indicated the degree, bachelor of business administration major- finance" from Florida Atlantic University. On September 30, 1988, Patrick J. Regan, a member of the City's fire department, was approved for supplemental compensation. On August 12, 1988, Mr. Regan was awarded a bachelor of business administration with a major in finance. On April 10, 1987, Robert D. Martinez, a firefighter with the City, was approved for entry into the Firefighter Supplemental Compensation Program. Pursuant to Statute 633.382, Florida Statutes, and Rule 4A-37.76, Florida Administrative Code, Mr. Martinez was deemed to have qualified. Mr. Martinez' transcript from the University of South Florida indicated "Latest college: Business Administration Latest Major: Finance." On April 17, 1986, Andrew L. Huntington, a firefighter with the City's department, was approved for entry into the Firefighter Supplemental Compensation Program. Mr. Huntington possessed a bachelor of business administration degree with a major field of study in accounting. On August 29, 1986, Edward Pidermann, a firefighter with the City's department, was approved for entry into the Firefighter Supplemental Compensation Program. Mr. Pidermann's notification letter specified he had qualified under the requirements "for possession of a/an B/A degree of Accounting." On June 27, 1986, Daniel G. Meadows, a firefighter with the City's department, was approved for entry into the Firefighter Supplemental Compensation Program. Mr. Meadows' transcript specified that he had been awarded "Bachelor of Business Administration Major: Marketing School of Business and Organization Sci" from Florida International University. Effective July 1, 1981, Donald P. Pilger was accepted foil entry into the Firefighter Educational Incentive Program established by Section 633.382, Florida Statutes. Mr. Pilger's transcript from St. Edward's University provided: "College ARTS and SCIENCES Major Subject Accounting Degree B.B.A." On April 16, 1986, Bruce A. Oestreich, a member of the City's fire department, was authorized to receive supplemental compensation. Mr. Oestreich was awarded a bachelor of arts in political science on December 17, 1977. Mr. Oestreich's duties with the City are not a part of the record in this case. On or about May 11, 1989, Petitioner executed a form entitled "Bureau of Fire Standards and Training Firefighter Educational Incentive Program Transcript Request." The purpose of the form was to secure a transcript which would verify Petitioner's eligibility for entrance into the Educational Incentive Program. On June 19, 1989, the transcript was received by the Department. On or about April 21, 1989, Petitioner was awarded a bachelor's degree in business administration from Florida International University, College of Business Administration. His major field of study was finance. Prior to the award of this degree, Petitioner had received an associate in arts degree (A.A.) in general education on July 30, 1982. The A.A. degree course of study had included 46 semester hours in fire-related subjects. On June 27, 1989, the Department advised Petitioner that it had determined that he did not possess an appropriate major study concentration to qualify for the firefighters supplemental compensation program. Thereafter, on July 18, 1989, Petitioner filed a letter requesting a formal proceeding regarding the denial of eligibility. The Department did not contest the accuracy of Petitioner' s transcripts.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Office of the Treasurer, Department of Insurance, Division of State Fire Marshal, enter a final order granting the application of Petitioner for the Firefighter Supplemental Compensation Program. DONE and ENTERED this 29 day of January, 1990, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1990. APPENDIX RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: The Petitioner in this case submitted a narrative which was not in a form sufficient to address rulings; consequently, the narrative as been deemed argument or comment not requiring specific rulings. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 3 are accepted. While finance is not listed specifically among the areas, business administration (which Petitioner received a degree in) is listed. Apparently, the subarea of specialty is finance but the degree is business administration. The first sentence of paragraph 4 is accepted. The second sentence of paragraph 4 is rejected as irrelevant. COPIES FURNISHED: Lisa S. Santucci Office of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Jorge L. Barreto 1717 North Bayshore Drive #2737 Miami, Florida 33132 Hon. Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell General Counsel Department of Insurance The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Frederick C. Stark Bureau Chief Bureau of Fire Standards & Training 1501 W. Silver Springs Boulevard Ocala, Florida 32675-6499 =================================================================
The Issue The issue is whether Respondent properly denied Petitioner's application for certification as a firefighter after Petitioner failed to successfully pass the practical portion of the Minimum Standards Examination pursuant to Sections 633.34 and 633.35, Florida Statutes, and Rules 4A-37.056 and 4A-37.062, Florida Administrative Code.
Findings Of Fact Petitioner has served as a voluntary firefighter in Bay County, Florida, for approximately nine years. He first applied for certification as a firefighter in October 2001. In order to be certified, Petitioner was required to successfully complete the Minimum Standards Course. The course consists of taking a minimum of 360 hours of training at an approved school or training facility. After completing the training course, Petitioner was required to take the Minimum Standards Examination, which is structured in two parts: a written portion and a practical portion. The practical portion consists of four sections including the Self-Contained Breathing Apparatus (SCBA), the hose pull, the ladder operation, and the fire ground skills. The purpose of the practical portion of the exam is to simulate real fire ground scenarios. To pass the four practical evolutions, an applicant must achieve a score of at least 70 percent on each one. Each evolution of the practical exam has certain steps that are mandatory. Failure to complete a mandatory step results in automatic failure of that portion of the exam. The mandatory steps for the SCBA evolution include the following: (a) complete the procedure in not more than one minute and forty-five seconds; and (b) activate the PASS device in the automatic position. After completing the Minimum Standards Course, Petitioner took the Initial Minimum Standards Examination on May 1, 2002. He was well rested on the day of the test, having slept approximately eight hours the night before. Petitioner passed the written portion of the exam but failed the practical portion of the initial exam because it took him one minute and fifty-nine seconds to complete the SCBA evolution. In a memorandum dated May 7, 2002, Respondent formally advised Petitioner that he had failed the SCBA portion of the practical exam because he exceeded the maximum time for the procedure. The memorandum also stated as follows in pertinent part: Important information about retesting and certification renewal is enclosed. Please read it carefully. You have automatically been scheduled for the next available examination, and written notification indicating your test date and location is enclosed. You are not required to call the Bureau for scheduling. Thank you. (Emphasis provided) In another memorandum dated May 7, 2002, Respondent advised Petitioner that he was scheduled to re-take the SCBA portion of the practical examination at the Florida State Fire College in Ocala, Florida, on May 24, 2002, at 8:00 a.m. The memorandum included the following relevant information: If you are unable to take the examination on the assigned date, please advise the Bureau and we will reschedule you for the next examination. Note: You must retest within six (6) months of the original test date. All an applicant has to do to reschedule a retest exam is to call Respondent's Bureau of Fire Standards and Training and request to be rescheduled. Respondent does not require applicants to provide a justifiable reason in order to be rescheduled. It is a routine and standard practice for Respondent to reschedule exams. Some applicants fail to show up for their retest exam without calling Respondent. In that case, Respondent automatically reschedules the retest. Applicants must take their retest exams within six months of their initial exam dates. Applicants that fail to meet this requirement must repeat the training course. Respondent reminds applicants of these requirements when they call to reschedule retests or fail to show up for retest, and the next retest exam date falls outside of the six-month window. If applicants still wish to reschedule retests outside the six-month window, Respondent will accommodate the requests. The next exam date that Petitioner could have taken his retest was in September 2002, which would have been within the six-month window. Petitioner testified that he called Respondent on May 16, 2002, to reschedule his retest because May 24, 2002, was not convenient with his work schedule. Petitioner also testified that an unidentified female in Respondent's office told him that he could not change the date of his retest. Petitioner's testimony in this regard is not persuasive. Petitioner's job involved working the "graveyard shift" at the Panama City Airport, loading and unloading planes. On May 23, 2002, Petitioner began working at 2:00 a.m. He finished his shift at approximately 1:00 p.m. Petitioner then immediately loaded his gear and began the trip to Ocala, Florida. The trip took about six hours, due to a traffic jam in Tallahassee, Florida. He arrived in Ocala at approximately 8:00 p.m. EST, located the testing site, and checked into a motel. Petitioner reported to the testing site the next morning. He did not tell any officials at the testing site that he was too tired to take the test. Petitioner failed the retest of the SCBA portion of the exam. Petitioner's time for the retest of the SCBA evolution was two minutes and twelve seconds. Additionally, Petitioner had point deductions for failing to complete the "seal check" and failing to properly don and secure all personal protective equipment correctly. In a letter dated May 26, 2002, Petitioner alleged that Respondent had denied his request for a different test date. Petitioner claimed that fatigue had prevented him from succeeding at the test. He requested another opportunity to retest the SCBA evolution within the required six-month period. Shortly thereafter, Fire Chief Tim McGarry from the Thomas Drive Fire Department on Panama City Beach, Florida, called Respondent's Field Representative Supervisor, Larry McCall. During that conversation, Mr. McCall told Chief McGarry that Petitioner could have decided not to show up for the retest. In a letter dated June 3, 2002, Mr. McCall responded to Petitioner's letter. In the letter, Mr. McCall stated that the question of whether Respondent erroneously denied Petitioner's request to reschedule the retest would be closed unless Petitioner could provide more specific details. In a memorandum dated June 6, 2002, Respondent formally advised Petitioner that he had failed the retest. In a letter dated June 6, 2002, Petitioner stated that he could not remember the name of the person he spoke to when he requested a change in his retest date. Once again, Petitioner requested an opportunity to take the retest. Mr. McCall spoke to Petitioner in a telephone call on June 18, 2002. During that conversation, Petitioner indicated that he would file his Election of Rights form, requesting an administrative proceeding.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order denying Petitioner's application. DONE AND ENTERED this 10th day of April, 2003, in Tallahassee, Leon County, Florida. _ SUZANNE F. HOOD 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 10th day of April, 2003. COPIES FURNISHED: Elenita Gomez, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0330 Mark D. Dreyer, Esquire 747 Jenks Avenue, Suite G Panama City, Florida 32401 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
