15-006182 Department Of Financial Services, Division Of State Fire Marshal vs. Patrick Pointu Status: Closed Recommended Order on Wednesday, August 31, 2016.

Summary: Department demonstrated that Respondent's firefighter certification should be revoked because Respondent failed to maintain the minimum requirements pursuant to section 633.352, Florida Statutes (2010).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL

SERVICES, DIVISION OF STATE FIRE

MARSHAL,

Petitioner,

vs. Case No. 15 - 6182

PATRICK POINTU,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice to all parties, the final hearing was

conducted in this case on June 3, 2 016, by video teleconference

in Tallahassee, Flor ida, before Administrative Law J udge June C.

McKinney of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Melissa E. Dembicer, Esquire

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

For Respondent: Patrick Pointu, pro se

(Address of Record)

STATEMENT OF THE ISSUE

The issue in this case is whether the Department of

Financial Services, Division of State Fire Marshal can revoke

Respondent ' s certification as a firefighter because Respondent

failed to timely complete the requirements to maintain his

Firefighter Certificate of Compliance prior to September 30,

2011, pursuant to section 633.352, Florida Statutes (2010).

PRELIMINARY STATEMENT

By correspondence dated July 2, 2015, the Department of

Financial Services, Division of State Fire Marshal

( " Department " ), issued Patrick Pointu ( " Respondent " or " Pointu " )

a Notice of Intent to Revoke Firefighter Certificate of

Compliance ( " N otice " ) . On or about July 18 , 2015, Respondent

disputed the Notice and submitted a request for a formal

hearing.

On November 2, 2015, t he matter was referred to the

Division of Administrative Hearings for assignment of an

administrative law judge to conduct the hearing Respondent

requested. The undersigned placed the m atter in abeyance after

the Department requested the case be stayed pending a

legislative amendment, which directly impacted Respondent ' s

certifications.

As noted above, the final hearing was held on June 3 , 2016 .

At hearing, the Department moved to amend the Notice, which

proposed to change the legal basis for Respondent ' s revocation

to section 633.352, Florida Statutes ( 2010). The undersigned

granted the unopposed motion.

D uring the hearing, P ointu testified o n his own behalf.

Respondent called no other witnesses, and submitted Exhibits 1

through 5 into evidence. The Department presented the testimony

of Michael Tucker , i nterim c hief for the Bureau of Fire

Standards and Training , as a witness. The Department introduced

three exhibits into evidence.

The proceedings were transcribed, and the parties availed

themselves of the right to submit proposed recommended orders.

The one - volume Transcript of the final hearing was filed with

the Division of Administrative Hearings on July 19, 2016.

Petitioner and Respondent timely filed proposed recommended

orders, which have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. The Department is the state agency charged with th e

responsibility for certifying firefighters in the State of

Florida, pursuant to chapter 633, Florida Statutes .

2. On June 30, 2006, Respondent also obtained

certification as a fire I nstructor III.

3. On October 9, 2006, Pointu obtained his Firefighter II

Certificate of Compliance ("certification").

4. On September 30, 2008, Respondent stopp ed volunteering

with Lauderdale - B y - The - Sea Volunteer Fire Department

("Lauderdale - By - The - Sea").

5. Prior to July 1, 2010, state certified fire instructors

were able to maintain their firefighter certification as long as

their fire instructor certification was current.

6. On July 1, 2010, the statutory requirements for

firefighters changed. Section 633.352 was amended to require a

certified firefighter be a full - time fire instructor or a full -

time fire inspector to maintain certification.

7. The 2010 statutory change retained a three - year period

for firefighters to complete the requirements to maintain

certification.

8. It is u ndisputed that between September 30, 2008, and

September 30, 2011, Pointu did not perform any of the necessary

requirements to maintain his certification in section 633.352,

such as retake the Minimum Standards Examination; maintain

employment as a firefig hter or volunteer firefighter; or work

full time as an instructor or firesafety inspector.

9. On April 6, 2012, t he Department distributed a n

informational bulletin titled " Firesafety Instructors &

Maintenance of Firefighter Certification. " The bulletin stated

in bold " The 3 - year period begins on July 1, 2010 for persons

who held an active instructor certification and an active

firefig hter certification as of June 30th , 2010. "

10. Question 7 of the bulletin also provided :

7. Is the Division of the S tate F ire

Marshal attempting to amend the State

Statute to reflect the previous language

that does not require " full - time employment

as a fire instructor " ?

The Division has attempted to amend or

reinstate this language, however, the

Statute remains unchang ed, and the Division

may not be successful in amending the

language to its previous form.

11. Pointu received the 2012 bulletin and determined that

since he held an active instructor certification and active

firefighter certification as of June 30, 2010, his firefighter

certification period started July 1, 2010, and expired July 1,

2013.

12. On July 1, 2013, section 633.352 was revised amended

and renumbered legisla ture as section 633.414. The statutory

amendment also changed the three - year recertification cycle to a

four - year cycle and remov ed the full - time instructor

requirement.

13. Respondent used the 2013 statutory change to calculate

his certification validation date until 2018.

14. In 2014, Pointu contacted the Department regarding his

certification after being told by a county official that his

certification was not valid . Thereafter , over an approximate

two - year period, Respondent was informed various and conflicting

information regarding his certification status and expiration

dates.

15. The Department does not have a statutory requirement

to provide notice to certified individuals of requirements to

maintain certification.

16. The Fire College Department of Insurance Continuing

Education ( " FCDICE " ) database monitors and manages all

firefighters ' certifications.

17 . Department ' s interim chief , Michael Tucker ("Tucker") ,

made the final decision regarding Point u ' s certification.

Tucker reviewed FCDICE and did not find an y records which

demonstrated Pointu ' s renewal o f certification prior to

September 29 , 2011.

1 8 . Tucker correctly determined that the 2010 version of

the statute applied to Pointu ' s certification because Respondent

left his employment at Lauderdale - By - The - Sea on September 30,

2008 , which made his three - year period for renewal deadline

September 3 0, 2011 , p ursuant to section 633.352 .

19. Tucker also established that Pointu did not ful fill

the minimum requirements to renew his certification prior to

September 30, 2011 , because he did not become employed again,

volu nteer with a fire department, become a full - time fire

inspector or a full - time instructor, or retake the practical

portion of the examination.

20. After evaluating Respondent ' s certification history,

Tucker concluded Respondent failed to meet the minimum

firefighter requirements and therefore Pointu ' s certification is

not valid and should be revoked.

21. At hearing, Tucker a cknowledged that he was not

familiar with the issuance of the April 6, 2012 , bulletin , but ,

after reviewing it , he determined there were misstatement s in

the bulletin regarding requirements for certification because

the Department did not have the authority to waive any statutes.

22. On June 3, 2011, Petitioner issued an amended N otice

that it intend ed to revoke Po intu ' s certification for failure

to renew his certification with in three years of employment

termination from an organized fire department pursuant to

section 633.352.

23. Pointu contested the notice and requested a hearing.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over this matter pursuant to section 120.57(1),

Florida Statutes (2016) . Unless specifically stated otherwise

herein, all references to Florida Statutes will be in the 2010

version.

25. Petitioner seeks to take disciplinary action and

revoke Respondent ' s firefighter certification. A proceeding to

impose discipline against a professional license is penal in

nature, and Petitioner bears the burden to prove the allegations

in the amended Notice by cle ar and convincing evidence. Dep't

of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

26. Clear and convincing evidence :

[r]equires t hat the evidence must be found

to be credible; the facts to which the

witnesses testify must be distinctly

remembered; the testimony must be precise

and explicit and the witnesses must be

lacking in confusion as to the facts in

issue. The evidence must be of such weight

that it produces in the mind of the trier of

fact a firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

27. Section 633. 352 sets forth the minimum standards

required for Pointu to maintain his firefighters certification:

Retention of firefighter certification. Ï Any

certified firefighter who has not been

active as a firefighter, or as a volunteer

firefighter with an organized fire

department, for a period of 3 years shall be

required to retake the practical portion of

the minimum standards state examination

specif ied in rule 69A - 37.056(6)(b), Florida

Administrative Code, in order to maintain

her or his certification as a firefighter;

however, this requirement does not apply to

state - certified firefighters who are

certified and employed as full - time

firesafety inspe ctors or firesafety

instructors, regardless of the firefighter ' s

employment status. The 3 - year period begins

on the date the certificate of compliance is

issued or upon termination of service with

an organized fire department.

28. The amended Notice cor rectly charges Respondent with

failing to meet the requirements of section 633.352. Pointu

contends that the Department's April 6 , 2012 , bulletin dictates

that his certification status is valid until July 1, 2013. The

undersigned is not persuaded that t he Department ' s bulletin is

controlling in th is matter for the bulletin can n either serve as

authority nor vary the requirements from the express language of

section 633.352 . The record is also void of evidence to

demonstrate how a bulletin issued in April 2012, prevented

Respondent from completing the requirements of 2011 . On such

grounds, the undersigned rejects Respondent ' s estoppel argument.

29. To that end, t he Department has met its burden and

proven that Respondent failed to meet the minimum standards for

certification pursuant to section 633.352 because i t is

undisputed that between September 30, 2008, and September 30 ,

2011 , Respondent did not complete any of the necessary

certification requirements such as retake the Minimum Sta ndards

Examination; have employ ment as a firefighter or volunteer

firefighter; or work full time as an instructor or firesafety

inspector. Accordingly, it is proper to revoke Respondent ' s

certification that is not valid.

RE COMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Department of Financial

Services, Division of State Fire Marshal , enter a final order

finding that Respondent, Pa t r ick Pointu, violated section

633.252 , Florida Sta tutes . It is further RECOMMENDED that

Respondent ' s Firefighter Certificate of C ompliance be revoked.

DONE AND ENTERED this 31st day of August, 2016 , in

Tallahassee, Leon County, Florida.

S

JUNE C. MCKINNEY

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 31st day of August, 2016 .

COPIES FURNISHED:

Melissa E. Dembicer, Esquire

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

(eServed)

Merribeth Bohanan, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399

(eServed)

Patrick Pointu

(Address of Record - eServed)

Julie Jones, CP, FRP, Agency Clerk

Division of Legal Services

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0390

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.