04-003045RX James H. Busch vs. Department Of Financial Services, Bureau Of Fire Standards And Training Status: Closed DOAH Final Order on Wednesday, December 8, 2004.

Summary: There was no persuasive evidence that Rule 69A-62, Florida Administrative Code, is an invalid exercise of delegated legislative authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES H. BUSCH, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3045RX

)

DEPARTMENT OF FINANCIAL )

SERVICES, BUREAU OF FIRE )

STANDARDS AND TRAINING, )

)

Respondent, )

)

and )

)

FLORIDA PROFESSIONAL )

FIREFIGHTERS, INC., )

)

Intervenor. )

)

FINAL ORDER

A formal hearing was conducted in this case on November 8,

2004, in Palatka, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Divis ion of Administrative

Hearings.

APPEARANCES

For Petitioner: James H. Busch, pro se

Post Office Box 1925

Hawthorne, Florida 32640

For Respondent: Gabriel Mazzeo, Esquire

Department of Financial Services,

Division of State Fire Marshal

200 East Gaines Street

Tallahassee, Florida 32399 - 0340

For Intervenor: Richard A. Sicking, Esquire

1313 Ponce de Leon Boulevard,

Suite 300

Coral Gables, Florida 33134

STATEMENT OF THE ISSUE

The issue is whether Florida Administrative Code Rules 69A -

62.001, 69A - 62.003, 69A - 62.006, and 69A - 62.007, constitute an

invalid ex ercise of delegated legislative authority as defined

in Sections 120.52(8)(d), 120.52(8)(e), and 120.52(8)(f),

Florida Statutes (2004).

PRELIMINARY STATEMENT

On August 30, 2004, Petitioner James H. Busch (Petitioner)

filed a Petition to Determine the In validity of a Rule with the

Division of Administrative Hearings (DOAH). The petition

alleged that proposed Florida Administrative Code Rule 69A - 62

was an invalid exercise of delegated legislative authority.

On September 1, 2004, the undersigned issued a Notice of

Hearing, scheduling the hearing for October 22, 2004.

In a letter dated September 13, 2004, Petitioner requested

that the hearing take place in Palatka, Florida. According to

the letter, Respondent did not object to the request. In an

Amende d Notice of Hearing dated September 24, 2004, the location

of the hearing was changed from Tallahassee, Florida, to

Palatka, Florida.

On September 14, 2004, Respondent Department of Financial

Services, Bureau of Fire Standards and Training (Respondent),

filed a Motion for Clarification of Order of Assignment. The

motion asserted that the instant case involved a challenge to an

existing rule under Section 120.56(3), Florida Statutes, as

opposed to a proposed rule under Section 120.56(2), Florida

Statutes . In an Order dated September 22, 2004, the undersigned

ruled that the instant case would proceed as a challenge to an

existing rule.

On September 14, 2004, Florida Professional Firefighters'

Inc. filed a Petition for Leave to Intervene. On September 22,

2004, the undersigned issued an Order Granting Intervention to

Florida Professional Firefighters' Inc. (Intervenor).

On October 11, 2004, Respondent filed an unopposed Motion

for Continuance of Final Hearing. On October 12, 2004, the

undersigned is sued an Order Granting Continuance and Re -

Scheduling Hearing for November 8, 2004.

On November 4, 2004, the parties filed a joint Pre - hearing

Stipulation. According to the stipulation, Petitioner asserts

that the rules at issue here are invalid exercis es of delegated

legislative authority as defined in Sections 120.52(8)(d),

120.52(8)(e), and 120.52(8)(f), Florida Statutes (2004).

During the hearing, Petitioner testified on his own behalf

and presented the testimony of two additional witnesses.

Peti tioner offered twenty exhibits that were accepted into

evidence.

Respondent presented the testimony of two witnesses.

Respondent offered three exhibits that were accepted into

evidence.

Intervenor presented the testimony of two witnesses.

Intervenor did not offer any exhibits for admission into the

record as evidence.

The Transcript of the proceeding was filed on November 16,

2004. Petitioner and Respondent filed Proposed Final Orders on

November 29, 2004.

FINDINGS OF FACT

1. Petitioner is and , at all times material to this case,

was a volunteer firefighter.

2. The size of the volunteer firefighter population is

dependent on the ability of volunteer fire departments to

attract and keep volunteers. People are willing to volunteer as

firefig hters if the experience is rewarding, training is not

excessive, and conflict is minimized. However, the greater

weight of the evidence indicates that the subject rules do not

detract from the volunteer experience, impose excessive

training, or create bet ween conflict between professional and

volunteer firefighters.

3. Petitioner testified that a reduction in volunteer

population will result in increased hazards to volunteers and a

reduction in the delivery of services to citizens. This

testimony is n ot persuasive for two reasons. First, there is no

persuasive testimony that the subject rules will result in a

reduction of the number of volunteer firefighters. Second, the

most persuasive evidence indicates that the subject rules will

reduce hazards to volunteers without impairing the delivery of

services to Floridians.

4. Some labor unions that represent career firefighters

discourage their members from volunteering their services with

volunteer fire departments. The competition between the unions

and the volunteer fire departments is commonly referred to as

the "turf - war." There is no persuasive evidence that the

subject rules contribute to the tension between the two groups

of firefighters.

5. The firefighter labor unions are usually very ac tive in

the political arena. It is undisputed that the unions support

legislation that benefits their members. However, the subject

rules were not promulgated to eliminate or place hardships on

volunteer fire departments and volunteer firefighters.

6. The safety needs and concerns of firefighters have

evolved over time. Technology has improved firefighting

equipment to such an extent that the greatest threat to

firefighters is from heart attacks and transportation accidents.

Nevertheless, the fact t hat the subject rules focus on safety

enhancement at the scene of a fire instead of firefighter health

and transportation safety does not render them invalid.

7. Florida Administrative Code Rule 69A - 62.003 provides as

follows in pertinent part:

(3) With respect to 29 C.F.R. Section

1910.134(g)(4), the two individuals located

outside the immediately dangerous to life

and health atmosphere may be assigned to an

additional role, such as incident commander,

pumper operator, engineer, or driver, so

long a s such individual is able to

immediately perform assistance or rescue

activities without jeopardizing the safety

or health of any firefighter working at an

incident.

(a)1. Except as provided in subparagraphs

2., 3., and 4., no firefighter or any other

pe rson under the authority of the

firefighter employer at the scene of a fire

is permitted to participate in any operation

involving two - in, two - out as one of the two

or more persons inside the IDLH atmosphere

or as one of the two or more persons outside

of the IDLH atmosphere unless such

firefighter or other person at the scene of

a fire is certified in this state by the

division as a Firefighter I or a Firefighter

II, as established in subsections (1) and

(2) of Rule 69A - 37.055, F.A.C. Such training

shall consist of the training described in

subsection (6) of Rule 69A - 37.055, F.A.C.

This requirement specifically applies to

volunteer fire departments and volunteer

firefighters but is also applicable to any

other person working under the authority of

the Fire fighter Employer at the scene of a

fire.

2.a. A volunteer firefighter who possesses

the State Basic Volunteer certificate

previously issued by the division is exempt

from the Firefighter I and Firefighter II

requirement in subparagraph 1. The training

en compassed in the basic volunteer

certificate in itself may not meet “trained

commensurate to duty” as defined depending

upon duties or tasks assigned or undertaken

in the exclusionary zone.

b. A volunteer firefighter who provides

evidence of having compl eted curriculum

equivalent to the Florida Firefighter I

course of study as provided in subsection

69A - 37.055(6), F.A.C., prior to January 1,

2004, is exempt from the Firefighter I and

Firefighter II requirement in subparagraph

1., if

(I) The fire chief o r other chief

administrative officer of the fire

department of which the firefighter is a

member files with the State Fire Marshal

form DFS - K4 - 1594, “Firefighter I Training

Exemption Application,” which is hereby

adopted and incorporated by reference, and

(II) The said form is accepted by the State

Fire Marshal after confirmation of the

evidence provided. Form DFS - K4 - 1594 may be

obtained by writing the Bureau of Fire

Standards and Training, 11655 Northwest

Gainesville Road, Ocala, Florida 34482 - 1486.

c. Any volunteer exempted by sub -

subparagraph a.or b. is permitted to take

the Florida Firefighter I examination until

December 31, 2005, upon the completion and

filing with the division of form DFS - K4 -

1380, “Firefighter I Training Record,” Rev.

03/00, adopt ed in Rule 69A - 37.039, F.A.C.,

by a Florida certified instructor that

verifies equivalent training and

demonstration of competency.

8. The above - referenced rule sets forth ways that a

firefighter, trained prior to the current regulations, may keep

his or her interior - firefighter status without becoming

certified as a Firefighter I or Firefighter II. The rule will

not disqualify all previously qualified firefighters as long as

they are "trained commensurate to duty" for any type of work

they are requested to perform.

9. There is no persuasive evidence that Florida

Administrative Code Rule 69A - 62.003(3)(a) will cause a reduction

in the number of volunteer firefighters due to newly created

administrative hurtles. The rule, which has its basis in safety

e nhancement, clearly is not arbitrary or damaging to the safety

of volunteers.

10. Florida Administrative Code Rule 69A - 62.003(3)(a)4.

states as follows:

4. Volunteer firefighters having NWCG S -

130, S - 190, and Standards for Survival

certification by the Florida Division of

Forestry are permitted to participate in

wild land fire suppression without the

Firefighter I certification.

11. The above - referenced rule allows a volunteer to fight

wild - land fires without earning Firefighter I certification.

The rule sets forth an exception to the Firefighter I

certification requirement; it does not mandate that the NWCG

courses are the exclusive means to qualify as a wild - land

firefighter.

12. Florida Administrative Code Rule 69A - 62.003(3)4. is

not invalid or arbitrary because it requires volunteers to pass

training courses that are accepted as setting national standards

or because the training courses teach firefighting techniques

that are applicable across the nation as well as Florida.

Petitioner presen ted no persuasive evidence to the contrary.

13. Florida Administrative Code Rule 69A - 62.006 states as

follows:

69A - 62.006 Requirements for Recognition as a

Fire Department.

(1) To be recognized as an organized fire

department by the division, compl iance with

the following must be documented:

(a) Capability of providing fire protection

24 hours a day, seven days a week;

(b) Responsibility for response in an area

capable of being depicted on a map; and

(c) Staffing with a sufficient number of

qu alified firefighters who are employed

full - time or part - time or serve as

volunteers and who shall have successfully

completed an approved basic firefighting

course recognized by the Bureau of Fire

Standards and Training.

(2)(a) A fire department shall me et the

requirements of the Insurance Services

Office (ISO) for Class 9 Protection, the

2003 edition, the Fire Suppression Rating

Schedule, effective February, 2003, which is

hereby adopted and incorporated by reference

and which may be obtained from Insura nce

Services Office (ISO), 545 Washington Blvd.,

Jersey City, NJ 07310 - 1686 or at

www.iso.com. If the fire department does

not meet the requirements of this section,

the fire department shall submit a plan of

compliance which provides for meeting these

re quirements within 90 days of the date of

submission of the plan.

(b) ISO measures the major elements of a

community’s fire - suppression system and

develops a numerical grade ranging from 1 to

10. Class 1 represents the best public

protection rating and Cl ass 10 indicates no

recognized protection.

(c) The requirements for ISO 9 may be

obtained at the ISO website located at

www.iso.com, or it may be obtained by

writing to the Division of State Fire

Marshal, Bureau of Fire Standards and

Training, 11655 Nort hwest Gainesville Road,

Ocala, Florida 34482 - 1486.

14. Florida Administrative Code Rule 69A - 62.006(1)(a) is

not invalid because it requires fire departments to document

their capability of providing fire protection 24 hours a

day/seven days a week. The requirement for full - time

availability will provide significant safety enhancement for the

communities being served. This is true because some voluntary

fire departments in rural communities historically have provided

only part - time service.

15. There is no persuasive evidence that requiring full -

time fire protection will result in the following: (a) the

creation of a fire - suppression performance standard that is

unauthorized by law; (b) the closing of some volunteer fire

departments; (c) a reduction in services to the public; and (d)

uncorrectable rule - violations; an increase in conflict between

professional and volunteer firefighters.

16. Florida Administrative Code Rule 69A - 62.006(1)(c)

requires that each fire department be staffed with a suffic ient

number of qualified firefighters. The rule is not vague because

it uses the word "sufficient" to determine the number of

firefighters that are required. One must read the applicable

rules in their entirety and consider the needs of each community

to determine adequate staffing. There is no persuasive evidence

that the staffing requirement fails to establish adequate

standards for determining compliance.

17. Florida Administrative Code Rule 69A - 62.006(2)

requires fire departments to meet certain requirements of the

Insurance Services Office (ISO) for Class 9 protection. This

requirement determines the minimum equipment that is necessary

to safely fight a structure fire.

18. There is no persuasive evidence that requiring a fire

department to p rovide Class 9 protection will make it impossible

to start a new voluntary fire department. The rule clearly is

not arbitrary in setting this minimum standard.

19. Florida Administrative Code Rule 69A - 62.007(1) states

as follows in pertinent part:

69A - 62.007 Minimum Requirements for Class 9

Protection.

(1) To be considered for Class 9

protection, the following minimum facilities

must be available:

(a) Organization:

1. The fire department shall be organized

on a permanent basis under applicable sta te

or local laws. The organization shall

include one person responsible for operation

of the department, usually with the title of

chief.

2. The fire department must serve an area

with definite boundaries. If a municipality

is not served by a fire depa rtment solely

operated by or for the governing body of

that city, the fire department providing

such service shall do so under a contract or

resolution. When a fire department’s

service area involves one or more

jurisdictions, a contract shall be executed

with each jurisdiction served.

(b) Membership: The department shall have a

sufficient number of firefighters/members to

assure the response of at least 4

firefighters/members that can assemble at

the scene of a fire as contemplated by

subsection (1) of Rule 69A - 62.003, F.A.C.,

to be compliant with Rule 69A - 62.003,

F.A.C., the two - in, two - out rule. The fire

chief may be one of the 4 responding

firefighters/members.

20. The above - referenced rule does require fire

departments to have four "interior - quali fied" firefighters at

the scene of a structure fire. The requirement is necessary to

comply with the longstanding "two - in, two - out" rule. However,

the rule does not preclude a fire department from relying on

mutual - aid from other fire departments in orde r to comply with

the rule. The rule clearly is not vague.

21. Florida Administrative Code Rule 69A - 62.007(4)(a)

states as follows in relevant part:

(4)(a) The chief of any fire department

that includes volunteer firefighters shall

annually submit a Roster of Volunteer

Firefighters to the State Fire Marshal

utilizing form DFS - K4 - 1581, effective 05/04,

which is hereby adopted and incorporated by

reference, no later than June 30 of each

year. Form DFS - K4 - 1581 may be obtained by

contacting the Division of State Fire

Marshal, Bureau of Fire Standards and

Training, 11655 Northwest Gainesville Road,

Ocala, Florida 34482 - 1486 or at the

division’s website located at

http://www.fldfs.com/SFM/. The roster shall

include:

1. The fire department name,

2. The f ire department identification

number (FDID),

3. The complete fire department address,

4. The fire department contact person,

telephone number and the fire department fax

number, if any,

5. The certification level for each

firefighter reported and, if an y equivalency

exemption has been issued, the number of

persons for whom such exemption has been

issued, and

6. The firefighter certification number,

the issue date of the certification, the

status of the certification, i.e., volunteer

or career, and the s tatus of each

firefighter who has been issued an

equivalency exemption, i.e., volunteer or

career, if any.

22. The above - referenced rule requires the chief of a fire

department to submit an annual roster of volunteer firefighters.

Petitioner objects to the rule because some career firefighters

volunteer their off - duty hours with the local volunteer fire

department. Career firefighters who also perform volunteer work

may do so contrary to their union rules. Publication of the

roster might keep some pro fessional firefighters from

volunteering their services. Nevertheless, there is no

persuasive evidence that losing some speculative number of

career/volunteer firefighters will undermine the safety of

firefighters or the public.

23. The information th at the roster contains is a public

record. The information is necessary so that Respondent can

perform statutorily - mandated studies involving injuries to

firefighters. The rule clearly is not arbitrary.

CONCLUSIONS OF LAW

24. The Division of Administ rative Hearings has

jurisdiction over the parties and the subject matter of this

case pursuant to Sections 120.56(3), Florida Statutes (2004).

25. Petitioner has standing pursuant to Sections

120.56(1)(a) and 120.56(3)(a), Florida Statutes (2004).

2 6. Petitioner has the burden to prove, by a preponderance

of the evidence, that the subject rules are an invalid exercise

of delegated legislative authority. See § 120.56(3)(a), Fla.

Stat. (2004).

27. Section 120.52(8), Florida Statutes (2004), stat es as

follows in pertinent part:

(8) "Invalid exercise of delegated

legislative authority" means action which

goes beyond the powers, functions, and

duties delegated by the legislature. A

proposed or existing rule is an invalid

exercise of delegated le gislative authority

if an one of the following applies:

* * *

(d) The rule is vague, fails to establish

adequate standards for agency decision, or

vests unbridled discretion in the agency;

(e) The rule is arbitrary or capricious. A

rule is arbitrar y if it is not supported by

logic or the necessary facts; a rule is

capricious if it is adopted without thought

or reason or is irrational; or

(f) The rule imposes regulatory costs on

the regulated person county or city which

could be reduced by the adop tion of less

costly alternatives that substantially

accomplish the statutory objectives.

28. Section 633.01(1), Florida Statutes (2004), provides

the State Fire Marshal with authority to adopt rules that adhere

to "generally accepted standards of fire safety" and that

"balance and temper the need of the State Fire Marshall to

protect all Floridians from fire hazards with the social and

economic inconveniences that may be caused or created by the

rules." Additionally, Section 633.01(2), Florida Statute s

(2004), provides that the State Fire Marshall has the duty to

"minimize the loss of life and property in this state due to

fire." The subject rules are within the powers, functions, and

duties delegated by the Legislature.

29. Petitioner has not met his burden of proving that the

subject rules are invalid. To the contrary, the greater weight

of the evidence indicates that the challenged rules do not meet

the definition of an invalid rule as defined in Sections

120.52(8)(d), 120.52(8)(e), and 120.52( 8)(f), Florida Statutes

(2004).

ORDER

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

ORDERED:

That the Petition to Determine the Invalidity of a Rule is

dismissed.

DONE AND ORDERED this 9th day of December, 2004, in

Tallahasse e, Leon County, Florida.

S

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 Fili ng (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of December, 2004.

COPIES FURNISHED :

James Busch

Post Office Box 1925

Hawthorne, Florida 32640

Richard A. Sicking, Esquire

Richard A. Sicking, P.A.

1313 Ponce de Leon Boulevard, Suite 300

Coral Gables, Florida 33134

Gabriel Mazzeo, Esquire

Department of Financial Services,

Division of State Fire Marshal

200 East Gaines Street

Tallahassee, Florida 32399 - 033 3

Honorable Tom Gallagher

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Peter Dunbar, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florid a 32399 - 0300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Proced ure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency Clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or wi th the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.