The Issue The issue for determination is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Galilee was licensed by the Department. Galilee's last known address is 4685 Haverhill Road, West Palm Beach, Florida. Galilee is a lodging establishment, consisting of rental apartments. It was originally constructed in 1995 as an assisted living facility but, as a business decision, the owner subsequently converted it to rental apartments. The Department's inspector inspected the outside of Galilee on December 18, 2002, and again on January 17, 2003. The inspector found deficiencies at the first inspection, and at the second inspection three deficiencies remained uncorrected. The uncorrected deficiencies were (1) the current report of the annual inspection for the fire sprinkler system was not available; (2) fire extinguishers failed to have state certification tags affixed; and (3) no backflow prevention device on the exterior hose connection to the apartment building. The failure to have available the current report of the annual inspection for the fire sprinkler system was a critical violation. The deficiency was classified as a critical violation because the annual report is the only way that an inspector can ascertain that the fire sprinkler system is operational. The inspector requested the current annual report at the first visit but it was not available. The failure of the fire extinguishers to have state certification tags affixed was a critical violation. The deficiency was classified as a critical violation because the state certified tag verifies that an extinguisher is in proper working order and is being properly maintained. The failure to have a backflow prevention device on the exterior hose connection to the apartment building was not a critical violation. The backflow prevention device stops negative water pressure. At the first inspection, the inspector explained the violations to the owner and gave him a 30-day warning to have the violations corrected, advising the owner that she would return on January 17, 2003, for a follow-up inspection. The violations were not corrected at the follow-up inspection 30 days later. The evidence shows that all the violations were corrected within a month to a month and a half after the second inspection. Galilee provided mitigating circumstances for the violations not being corrected at the time of the second inspection. As to the deficiency regarding availability of the current report of the annual inspection for the fire sprinkler system, Galilee has a current report dated February 27, 2003. Also, Galilee suggests that the inspector did not request the report. The undersigned finds the inspector's testimony credible that she requested the report. Further, the evidence shows that Galilee confused the requested report with the report of the fire department's inspection. The inspector testified, and her testimony is found credible, that the report of the annual inspection for the fire sprinkler system is generated by a private company, not the fire department, because the fire department does not perform the inspection required for the requested report. As to the deficiency regarding tagging of the fire extinguishers, Galilee's owner purchased fire extinguishers from Home Depot and was not aware that the extinguishers were required to be tagged at the time of the first inspection. Subsequent to the second inspection, the fire extinguishers were tagged by the AAC United Fire and Safety Department, with which Galilee has a contract to inspect the fire extinguishers. As to the deficiency regarding backflow prevention device, it too was corrected subsequent to the second inspection. Furthermore, even though the deficiencies were corrected subsequent to the second inspection, Galilee began the process to correct the deficiencies after the first inspection. Galilee was not ignoring the deficiencies. The deficiencies were not timely corrected because Galilee's owner was attempting to obtain, whom he considered, the proper people to perform the tasks involved and have the tasks performed at a reasonable expense. No evidence of prior disciplinary action being taken against Galilee by the Department was presented.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants enter a final order: Finding that Galilee violated NFPA Life Safety Code 25, 1-8.2 and Food Code Rule 5-204.12. Dismissing the violation of Florida Administrative Code Rule 61C-1.004(5). Imposing an administrative fine of $1,500.00, payable under terms and conditions deemed appropriate. S DONE AND ENTERED this 31st day of October, 2003, in Tallahassee, Leon County, Florida. ____ ERROL H. POWELL 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 31st day of October, 2003.
The Issue Is Petitioner entitled to be certified as a Firefighter based upon examination results through an examination administered by Respondent? See Section 633.35, Florida Statutes.
Findings Of Fact Petitioner applied for certification as a Firefighter on June 19, 1998. Subsequently he completed the Firefighter training program administered at Volusia County Fire Science Institute commensurate with the requirements set forth in Section 633.35(1), Florida Statutes. On December 15, 1998, Petitioner took the state examination following completion of the "Minimum Standards Course." The state examination was administered by the Bureau of Fire Standards and Training. That examination was constituted of a written and practical portion with the expectation that a minimum score of 70% was required in both aspects of the examination. See Rule 4A-37.056(6)(b), Florida Administrative Code. When the December 15, 1998 examination was graded, the Petitioner passed the practical with a score of 90. Petitioner did not pass the written, receiving a score of 66. Officials within the Respondent's agency were persuaded that some portions of the examination given on December 15, 1998, were arguably beyond the abilities of a beginning Firefighter. This decision was arrived at recognizing that material on the test had been presented in the "Minimum Standards Course." Nonetheless, adjustments were made to the scores of the candidates in recognition of the difficulty of some of the examination questions. The re-scoring improved Petitioner's written score from 66 to 67. On February 9, 1999, Petitioner retook the written portion of the state examination and received a score of 59. That score was adjusted on the same basis as has been described in relation to the December 15, 1998, examination session. With the adjustment Petitioner received a score of 62. Petitioner took a third written examination on May 12, 1999. This examination was given, having purged the examination instrument of the more difficult questions that had been presented on the occasion of the December 15, 1998, and the February 9, 1999, examinations. In the instance of the May 12, 1999 examination, Petitioner received a 66 on the written portion. Petitioner has failed to demonstrate that the nature of the examinations, taking into account the adjustments in the scoring, were beyond the expectation of the competence of a candidate who had undergone the "Minimum Standards Course" in preparation for this state examination or that Respondent failed to appropriately administer and grade the examinations given Petitioner.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered upholding the examination results in the several examinations administered to Petitioner in relation to the written portion, as adjusted, and finding that Petitioner has exhausted his opportunities for examination in this cycle. DONE AND ENTERED this 23rd day of December, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 23rd day of December, 1999. COPIES FURNISHED: Elenita Gomez, Esquire Department of Insurance 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Anthony Robert Shuta, II 3043 Pine Tree Drive Edgewater, Florida 32141 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Bill Nelson, State Treasurer and Insurance Commissioner The Capital, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issue for consideration in this case is whether Respondent's certification as a fire fighter in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations herein, Petitioner, Department of Insurance and Treasurer, (Department), was the state Fire Marshal and the agency responsible for the certification of fire fighters in Florida. Respondent was either an applicant for certification or a certified fire fighter in this state. On or about January 22, 1991, Respondent, James M. Yingling, submitted an application for certification as a fire fighter to the Division of State Fire Marshal, Florida State Fire College, Bureau of Fire Standards and Training, on which he indicated he had not used tobacco or tobacco products for at least one (1) year immediately preceding the filing of the application. Along with the application, Mr. Yingling submitted certain documentation including his high school diploma, his driver's license, a personal inquiry waiver, fingerprints, a report of medical examination, and an affidavit of even date in which he affirmed he had not been a user of tobacco or tobacco products for at least one year immediately preceding his application for certification as a fire fighter. Provisions of Section 633.345, Florida Statutes, set out the requirements for certification as a fire fighter in Florida. One of these criteria calls for the applicant not to have used tobacco for one year prior to the filing of the application for certification. Had Respondent used tobacco or tobacco products within that year, he would not have been certified. John R. Scott, a full time employee of Grumman Aircraft in Ft.Pierce, was a part-time volunteer fire fighter at the Jensen Beach Volunteer Fire Department when the Respondent became a member in August, 1990. Mr. Scott saw Respondent at the station house on several occasions and they went out on calls together. Mr. Scott executed a sworn statement on April 11, 1991, indicating that since he has known Respondent, Respondent has been a smoker. Scott claims he has seen Respondent smoking at the station on several occasions and on one occasion at a test site in Orlando when both were there to take the test for Emergency Medical Technician, in January, 1991. He claims to have seen Respondent borrow cigarettes from several fire fighters at the station and return a pack later on. Mr. Scott is a smoker and claims to have been approached by Respondent frequently to give him cigarettes. In April, 1991, Mr. Scott requested that his daughter, Rebecca Brown, type several copies similar to that statement signed by him to be given to and signed by others who had agreed to do so. Only Mr. Schwarz and Ms. Brown actually signed such statements, however, and the others refused to do so. These signed statements, along with Mr. Scott's statement, were forwarded to the Fire Marshal's office. According to Mr. Scott, the others, who backed out, did so because they were afraid of repercussions, but none of these individuals were present to testify and the hearsay testimony of Mr. Scott on that point is insufficient to support a Finding of Fact to that effect. Both Mr. Schwarz and Ms. Brown also indicated they had seen Respondent smoking either at the station or elsewhere from the time he was hired in August, 1990, until the time he applied for certification in January, 1991. No other fire fighter from whom Respondent is supposed to have borrowed cigarettes presented evidence to that effect, however. Mr. Schwarz was recognized as a troublemaker at the fire department and was allowed to retire in lieu of disciplinary action. Ms. Brown is Mr. Scott's daughter and the wife of another fire fighter in the Department. The credibility of both is somewhat suspect. Evidence regarding Mr. Scott also detracts from his credibility. He was known in the department to be a practical joker whose pranks from time to time got out of hand or were excessive. His honesty and integrity were seriously suspect due to his tendency to bring items taken, with or without permission, from his employer, Grumman, to work projects at the department. These were not always minor items, either, and Scott frequently remarked that he had gotten them from "G-Mart" under such circumstances as to give rise to the suspicion they were stolen. On the other hand, Respondent, recognized as a hard driving, somewhat brash and bragging young man, is nonetheless well though of by the majority of his peers and superior in the Department. He categorically denies the allegations against him. Neither former Chief Yurillo nor Capt. Recta, both of whom worked with Respondent, recall having ever seen him smoke and neither was approached by Respondent for a cigarette. When the allegations involved here came up, an internal investigation was begun at the Department, a part of which included a voluntary urinalysis examination of the Respondent. The results of that test, done by an independent laboratory, reflected no evidence of the use of tobacco at the time the test was taken. Mr. Scott and Mr. Schwarz both indicate that subsequent to the filing of their affidavits, Respondent came to them and suggested that if they were not sure of the facts they had alleged, they could withdraw them. In fact, neither did so voluntarily. Scott, in April, 1991, after a meeting with Yurillo and Respondent, executed a statement typed for him by Mr. Recca in which he claims he was mistaken in his original allegations regarding Respondent's tobacco use. Scott claims he was pressured into recanting. Yurillo, Recca and Respondent claim Scott's action was voluntary. Whatever the facts regarding the withdrawal of Scott's original statement, analysis of the evidence of record indicates there is insufficient evidence to establish that Respondent used tobacco or tobacco products within a year immediately preceding his application for certification or that he falsified his application and the supporting affidavit, and it is so found.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be entered dismissing the Administrative Complaint in this matter which seeks to discipline Respondent, James M. Yingling's certification as a fire fighter. RECOMMENDED in Tallahassee, Florida this 9th day of April, 1992. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-4458 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: - 3. Accepted and incorporated herein. Accepted as the testimony of the witnesses. Not necessarily accepted as true. Rejected as testimony of Mr. Scott not considered credible. Accepted. For the Respondent: None received. COPIES FURNISHED: Elizabeth J. Gregovits, Esquire Office of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Michael J. Mortell, Esquire 2801 E. Ocean Blvd., Suite 2A Stuart, Florida 34996 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neill General Counsel Department of Insurance The Capitol, Plaza Level - 11 Tallahassee, Florida 32399-0300
The Issue The issue 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 issue presented is whether Petitioner's application for licensure as a real estate salesperson should be granted.
Findings Of Fact Petitioner was born in 1951 and graduated from high school in 1969. He then attended the University of Florida for four years, acquiring an associate of arts degree, with a major in marine biology. He returned to Palm Beach County around the beginning of 1974 and worked as a waiter for approximately eight months. In March 1974, Petitioner made restitution of approximately $52 for issuing a check on a closed bank account. As a result, the charges pending in Palm Beach County were nolle prossed. In July 1974, Petitioner began working in the Palm Beach County Property Appraiser's Office. In approximately 1981, following the appointment of a new property appraiser, Petitioner's employment was terminated. He then worked at a bank performing appraisals for approximately one year. Petitioner then became a partner in Real Estate Management, Inc., a company which represented taxpayers contesting their property assessments issued by the Palm Beach County Property Appraiser's Office. Petitioner did not have a real estate license during the seven months that he worked for that company. When questioned during the final hearing as to Petitioner's activities with that company during a time that he did not posses a real estate license, Petitioner admitted that his activities "technically" fell within the category of appraising. Petitioner next formed a real estate development company with three partners. Petitioner was with that company, Sundown Development, Inc., for approximately one year. He left that company " . . . to go into the hotel business for a more stable pay." Thus, in 1983, Petitioner began working as a night auditor in the hotel business. He continued to work as a night auditor at different hotels until approximately 1993, when he was laid off from his last night auditing job and collected unemployment benefits. Since then, he has "worked in banquets" at a restaurant. In September 1987, in Case No. 87-1896, Petitioner pled "no contest" to retail theft charges. Adjudication was withheld, restitution was ordered, and Petitioner was placed on ninety days probation and required to perform community service. This retail theft charge was for shoplifting. Although Petitioner testified that the merchandise he took had a value of only $20, he was unable to remember what the merchandise was. Petitioner was subsequently charged with violating probation and was arrested. Petitioner explains that the arrest for violation for probation resulted from a misunderstanding and that he had completed his community service by collecting political signs. Although the official records of the Criminal Division of the Circuit Court of the Fifteenth Judicial Circuit of Florida, in and for Palm Beach County, reflect another charge of retail theft a month later in October of 1987, Petitioner's explanation is that the records must be in error because he was only arrested once for shoplifting. That Case No. is 87-24669 and may represent the violation of probation charge. Case No. 86-6719 before the Circuit Court in Palm Beach County involved offenses committed from April 23 through April 26, 1986. Petitioner was charged in one information, consisting of one count of grand theft and eight counts of worthless checks. The charges were filed in June, and Petitioner was arrested in July, 1986. In November of 1987 he pled nolo contendere to one worthless check count, and the other counts were nolle prossed. He was adjudicated guilty and placed on probation for eighteen months. Petitioner's explanation is that although he did not have the money to cover the checks when he wrote them, he had the means to get money to cover the checks but was arrested and put in jail on arson charges preventing him from doing so. There was a fire at a beauty salon in Palm Beach County in May of 1984, in which a person died. Petitioner was first arrested on a charge of second degree arson in June 1985. In September of 1985, Petitioner was arrested again for his failure to appear in court on that charge. On February 18, 1986, Petitioner's $3,000 bond was forfeited and an arrest warrant was issued due to Petitioner again failing to appear in court. In April, Petitioner was again arrested and was jailed without bond. On May 11, 1986, Petitioner entered a plea of guilty, and the Court's commitment order on that date specifically includes after the notation of Petitioner's guilty plea the words "as charged straight up to the [Court]." On September 24, 1986, Petitioner was adjudicated guilty "as charged" and was sentenced to imprisonment for one year and one day with credit for time served. Petitioner's explanation is that he was not involved in the arson but was arrested and held in jail as a political prisoner, that is, governmental officials knew that he was innocent but wanted to convict him in retaliation for his political activities. Petitioner further explains that he pled guilty at the suggestion of his attorney as a plea of convenience in order to not have to spend additional time in jail awaiting trial. It was also Petitioner's belief that if he had prevailed at trial, he would have been indicted for felony-murder related to that arson and would have spent another year in jail awaiting trial. Petitioner admitted that in entering his plea of guilty, he was placed under oath and was questioned by the judge as to whether Petitioner was entering a guilty plea because he was guilty or because someone had promised him something. Petitioner explained that in any plea bargain situation, the judge questions the defendant concerning whether the defendant has been promised anything in exchange for his plea, that the answer is always that the defendant has been promised something, but the defendant is always instructed to tell the judge that he has not. Petitioner's testimony at the final hearing in this cause as to the mechanics of plea bargains, while interesting, is not supported by the documents admitted in evidence in this cause. The certified copies of the court documents do not indicate that there was a plea bargain; rather, those documents indicate that Petitioner pled guilty to the crime with which he was charged, not some other crime, and a pre-sentence investigation was then ordered by the court. Four months later, Petitioner was adjudicated guilty as charged by the court, and he was sentenced. Although Petitioner testified that his civil rights were automatically restored to him very shortly after he was released from incarceration following his conviction for second degree arson, Petitioner did not offer any documentary evidence to support such testimony. Petitioner's driver's license has been suspended five times since his release from jail following his conviction for second degree arson. The last suspension was for failure to comply with financial responsibility requirements; the others were for failure to pay his traffic fines. In January 1993, Petitioner pled guilty to driving while his license was suspended. On May 10, 1993, Petitioner filed an application for licensure as a real estate salesperson. Question numbered 9 of that application reads, in part, as follows: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned... If you answered "YES," attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. Petitioner answered question numbered 9 in the affirmative and attached to his application as his entire explanation the following: QUESTION #9 4/74 INSUFFICIENT FUND/CHECK MADE RESTITUTION I THINK CHARGES WERE DROPPED 5/86 ARSON 2ND DEGREE PLED NOLO CONTENDERE IN MY OWN BEST INTEREST 7/86 INSUFFICIENT FUND/CHECK PLED NOLO CONTENDERE TO THE BEST OF MY KNOWLEDGE THIS IS THE EXTENT OF MY CRIMINAL RECORD INVOLVING ANY SORT OF PLEA OR CONVICTION The April 1974 offense referred to by Petitioner is a fair summary of Petitioner's March 1974 restitution in the amount of $52 for issuing a check on a closed bank account. However, Petitioner's explanation in his answer to question numbered 9 regarding the second degree arson conviction is not accurate since Petitioner pled guilty to that charge and did not plead nolo contendere. Petitioner's last disclosure regarding the insufficient funds check in July of 1986 minimizes his acts of writing nine worthless checks over a period of four days by only disclosing his plea to one count of the nine count information filed in Case No. 86-6719.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure as a real estate salesperson. DONE and ENTERED this 27th day of May, 1994, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-6937 Petitioner's proposed findings of fact numbered 1-3 and 5 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed finding of fact numbered 4 has been rejected as being irrelevant to the issues under consideration herein. Respondent's proposed findings of fact numbered 1-8 and 10-19 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 9 has been rejected as being irrelevant to the issues under consideration in this cause. COPIES FURNISHED: Mr. Herbert Pontz, pro se 8927 Sunset Drive Lake Park, Florida 33410 Steven D. Fieldman, Esquire Assistant Attorney General Suite 107 South 400 West Robinson Street Orlando, Florida 32801 Darlene F. Keller, Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792
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
