STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TAMARA LYNN ROSE, )

)

Petitioner, )

)

vs. ) Case No. 98-0192

)

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on June 30, 1998, by video teleconference at Fort Lauderdale, Florida, before Susan B. Kirkland, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Tamara Lynn Rose, pro se

4051 Southwest 72 Terrace

Davie, Florida 33314

For Respondent: Karuna P. Rao, Esquire

Division of Legal Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 33314

STATEMENT OF THE ISSUES

Whether Petitioner should receive a passing score on the retake of the Minimum Standards Certification Examination for a firefighter, and whether Petitioner should be required to retake the Minimum Standards Certification Examination for a firefighter

without repeating the Minimum Standards Course.

PRELIMINARY STATEMENT

By letter dated October 20, 1997, Respondent, Department of Insurance and Treasurer, Division of State Fire Marshall (Department), notified Petitioner, Tamara Lynn Rose (Rose), that she had failed the Minimum Standards Practical Retest. By letter dated October 23, 1997, the Department advised Rose that she would have to repeat the Minimum Standards Course before she could apply for any additional testing because she had failed the initial and the retake examinations. Rose filed an Election of Rights dated November 7, 1997, requesting an informal hearing.

Rose filed an Amended Election of Rights dated December 23, 1997, requesting a formal administrative hearing. The case was forwarded to the Division of Administrative Hearings for assignment to an administrative law judge.

At the final hearing, Rose testified in her own behalf and submitted no exhibits. The Department called Larry McCall and Philip Bagley as its witnesses and submitted Respondent's Exhibits 1-6 and 8. Official recognition was taken of

Rule 4A-37.056, Florida Administrative Code, and Sections 633.34 and 633.35, Florida Statutes.

The parties agreed to file proposed recommended orders within ten days of the date the transcript was filed with the Division of Administrative Hearings. The transcript was filed on July 17, 1998. Petitioner did not file a proposed recommended order. Respondent filed its Proposed Recommended Order on

July 24, 1998. Respondent's Proposed Recommended Order has been considered in rendering this recommended order.

FINDINGS OF FACT

1. Petitioner, Tamara Lynn Rose (Rose), applied for certification as a firefighter on January 21, 1997.

2. She completed a training course at the Broward Fire Academy.

3. Rose took the initial Minimum Standards Examination for Firefighters in August 1997. She passed the written part of the examination, but failed the practical portion. On October 13, 1997, she retook the practical portion of the examination.

4. The only portion of the examination results which Rose contests is the score received for the 1 3/4" Hose and Nozzle Operation of Part I of the examination.

5. The hose and nozzle operation is a timed event. The hose advance exercise should be completed within two minutes. If the applicant takes over five minutes to finish the operation,

   40 points are deducted from the applicant's score. In order to pass the practical examination, the applicant must score

   70 percent or better on the examination.

   
   

6. Rose took five minutes and thirty-six seconds to complete the hose and nozzle operation portion of the examination, resulting in a forty-point deduction and an automatic failure of the examination.

7. The hose and nozzle portion of the examination consists

   of the applicant shouldering the hose load, advancing to the rear of the fire truck, making a u-turn and looping the hose, advancing to the front of the fire truck, bleeding the lines, advancing 100 feet, and knocking down three cones with the water coming from the nozzle. Rose had difficulty in getting the load out of the bed of the truck. The hose became tangled, and she had to stop and straighten out the hose. She walked to the front of the truck and began her hose drag, but the drag was slow and hard because the hose had caught on one of the truck's tires.

   She pulled the hose free. Because of the tangling of the hose and the hose catching on the tire, Rose lost too much time to be able to complete the hose and nozzle operation in a timely manner.

8. The hose is loaded on the truck by students who are taking the examination. The loading is supervised by instructors who are certified firefighters. It is the responsibility of these instructors to correct any improper loading.

9. The field representative from the State Fire Marshall's Office at the retest was Phillip Bagley. After retiring with

   24 years with the Tampa Fire Department, Mr. Bagley began working for the State Fire Marshall in 1996. He has administered between 900 and 1,000 tests. He did not see any problem with the way that the hose was loaded on the truck. In his experience it is not uncommon for the hoses to become tangled, usually resulting from a failure of the applicant to get enough of the hose on the

   his shoulder causing the load to pull loose when the applicant steps down from the truck.

10. The applicants are given an opportunity to inspect the hoses prior to beginning the examination. Prior to the examination being administered, the applicants are given an orientation and are advised that they should report immediately to the examiners any malfunction. At the time of the examination, Rose did not report to Mr. Bagley that the hose was improperly loaded.

11. Rose also received a five-point deduction because she failed to form a loop during the hose advance portion of the examination.

12. Rose is not contesting the five points that were deducted for failing to tie the safety knot during the 24-foot ladder extension portion of the examination or the five points that were deducted for not having her chin strap under her chin during the donning of the protective gear portion of the examination. Her total score for the retest was 50.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

14. As an applicant, Petitioner bears the general burden of establishing entitlement to the license. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 788 (Fla. 1st DCA

    1981).

    
    

15. Rule 4A-37.056(6), Florida Administrative Code, sets forth the general requirements relating to the state examinations for firefighters and provides:

    1. All tests, both written and practical, given during training shall require maintenance of a percentage score of not less than 70% on each subject listed in the prescribed "Minimum Standards Course." Tests used shall be designed to encompass all the significant contents of the subjects being taught.

       1. In order to sit for the state examination, the information required by Sections 633.34 and 633.35, Florida Statutes, must be furnished to the Bureau of Fire Standards and Training.

       2. State examinations, consisting of a written and practical part, shall be administered by a Field Representative of the Bureau of Fire Standards and Training. The 70% score requirement for both written and practical examinations shall prevail in this testing environment as well.

       3. The state examination will be administered at the local training facility. Whenever possible, the Bureau of Fire Standards and Training will schedule the state examination date at the convenience of the training facility.

       4. Only one retake of the state examination shall be allowed. Retakes of the practical portion of the examination will be offered only at the Florida State Fire College on the 2nd Monday of January, April, July, and October. Retakes of the written portion of the examination will be offered at the Regional Testing Sites in January, April, July, and October. Students must be pre- registered at least ten (10) working days prior to the date of the examination.

       5. The retake of the Minimum Standards Certification Examination must be taken within six (6) months of the initial examination.

       6. Failing the retake of the Minimum

          Standards Certification Examination within the prescribed six-month time period will result in the individual having to repeat the Minimum Standards Course.

          
          

16. Rose contends that the hose was improperly loaded, but the evidence does not support such a contention. She had an opportunity to examine the load before she started to take the examination. She did not report an improper loading either before or during the examination.

17. Rose did not achieve a 70 percent score on the practical portion of the retake examination. Rose, having failed the practical portion of the initial and retake examinations, must successfully repeat the Minimum Standards Course in order take the Minimum Standards Certification Examination again

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Rose's application for certification as a firefighter and requiring her to repeat the Minimum Standards Course prior to retaking the Minimum Standards Certification Examination.

DONE AND ENTERED this 4th day of August, 1998, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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

Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1998.

COPIES FURNISHED:

Bill Nelson

State Treasurer and Insurance Commissioner

Department of Insurance and Treasurer

The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

Daniel Y. Sumner General Counsel Department of Insurance

and Treasurer

The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300

Karuna P. Rao, Esquire Division of Legal Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 33314

Tamara Lynn Rose, pro se 4051 Southwest 72 Terrace

Davie, Florida 33314

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.

Docket for Case No: 98-000192

Orders for Case No: 98-000192