STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHELLE M. McCUE, )

)

Petitioner, )

)

vs. ) Case No. 99-0415

)

DEPARTMENT OF INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 25, 1999, at Fort Lauderdale, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Shiv Narayan Persaud, Esquire

Department of Insurance Division of Legal Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Petitioner should have received a passing grade on the Firefighter Minimum Standards Retest taken on November 30, 1998.

PRELIMINARY STATEMENT

By letter dated December 10, 1998, Respondent, Department of Insurance and Treasurer (Department), notified Petitioner,

Michelle M. McCue (McCue), that she had failed to achieve a passing score on the Firefighter Minimum Standards Retest administered on November 30, 1998, and that she would be required to repeat the Minimum Standards Course before any additional testing would be allowed. McCue requested an administrative hearing. On January 29, 1999, the case was forwarded to the Division of Administrative Hearings for assignment to an Administrative Law Judge. The case was originally assigned to Administrative Law Judge Patricia Hart Malono. For the final hearing, the case was reassigned to Administrative Law Judge Susan B. Kirkland.

The final hearing was scheduled for May 6, 1999. Petitioner requested a continuance of the final hearing, and an order was issued on May 3, 1999, rescheduling the final hearing for June 4, 1999. On May 17, 1999, Respondent requested a continuance, which was granted by order issued May 21, 1999. The final hearing was rescheduled for August 25, 1999, commencing at 9:00 a.m.

Petitioner failed to appear at the time appointed for the commencement of the hearing. The hearing was delayed until 10:00 a.m., to wait for the Petitioner, but the Petitioner did not appear at the final hearing.

At the final hearing, Respondent presented the testimony of Larry McCall. Respondent's Exhibits 1-9 were admitted in evidence. Respondent's Exhibit 11 was used for demonstrative purposes and was not admitted.

At the final hearing Respondent agreed to file a proposed recommended order within ten days after the transcript was filed. The Transcript was filed on September 24, 1999. On October 1, 1999, Respondent filed a Proposed Recommended Order, which has been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. Respondent, Department of Insurance and Treasurer (Department), through its Division of State Fire Marshall, certifies all paid firefighters.

2. Applicants for firefighters must complete a 360-hour minimum standards training course and pass a written and practical examination. If the applicant fails the examination, the applicant may retake the examination within six months after taking the initial examination. If the applicant does not pass the retest, the applicant must complete the minimum standards training course before additional retesting will be allowed.

3. The examination has two parts, a written and a practical part. The written examination consists of 100 multiple choice questions. The practical portion tests the applicant on skills dealing with breathing apparatus, hose and nozzle operation, and the 24-foot extension ladder. The applicant must receive a score of 70 percent on both portions of the examination in order to pass the examination.

4. In the breathing apparatus section of the practical examination, the applicant is timed during the donning of the

   equipment. If the applicant does not don the equipment within one minute and thirty seconds, points are deducted from the applicant's score. The number of points deducted increases in proportion to the amount of time it takes to don the equipment. If the applicant dons the equipment in more than one minute and thirty seconds but not more than two minutes, five points are deducted.

5. In the hose and nozzle operation portion of the practical examination, the applicant is timed. If the applicant fails to perform the operation in two minutes or less, points are deducted from the applicant's score. Five points are deducted if the applicant takes greater than two minutes but not over two minutes and thirty seconds. Ten points are deducted if the applicant takes greater than two minutes and thirty seconds but not more than three minutes.

6. The ladder operation portion of the examination is timed. If the applicant takes more than two minutes and thirty seconds but not more than three minutes, five points are deducted.

7. During the practical examination, applicants are required to demonstrate their skills in tying knots and hitches. The applicant is required to tie one of a number of knots or hitches. Applicants are also required to show their proficiency in dealing with fire hoses, hose appliances and various fittings by performing one of a number of functions. Applicants must

   demonstrate their knowledge of the North American Emergency Response Guidebook by answering three questions using the guidebook a reference.

8. On January 20, 1998, Petitioner, Michelle M. McCue (McCue), applied for certification as a firefighter. She completed the Minimum Standards Course. On July 30, 1998, McCue took the minimum standards examination. She received a score of

   81 on the written portion and 55 on the practical examination. She was notified by memorandum dated August 12, 1998, of her scores.

9. By memorandum dated September 3, 1998, McCue was notified that she was scheduled to retake the examination on September 22, 1998. She did not take the examination on that date.

10. By memorandum dated October 5, 1998, McCue was notified that she was rescheduled to retake the practical examination on November 30, 1998. She retook the practical portion on the day scheduled.

11. On the retake examination, five points were deducted from McCue's score because her donning time for the breathing apparatus portion was one minute and fifty-one seconds. She took three minutes during the timed portion of the hose and nozzle operation; thus, ten points were deducted from her score. Five points were deducted from her score because she took two minutes and thirty-five seconds to perform the ladder operation. Five

    points were deducted from McCue's score for failure to correctly tie a Becket Bend knot. Another five points were deducted from her score for failing to properly connect a supply line into a female pumper intake. Five points were deducted for her failure to properly answer a question using the North American Emergency Response Guidebook. McCue received a final score of 65 on the retake of the practical examination.

    CONCLUSIONS OF LAW

    
    

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

13. Section 633.35, Florida Statutes governs the training and certification of firefighters by the Department and provides:

    1. The division shall establish a firefighter training program of not less than

       360 hours, administered by such agencies and institutions as it approves for the purpose of providing basic employment training for firefighters. . . .

    2. The division shall issue a certificate of compliance to any person satisfactorily complying with the training program established in subsection (1), who has successfully passed an examination as prescribed by the division, and who possesses the qualifications for employment in

       s. 633.34 except s.633.34(5). . . .

       * * *

       
       

       (4) A person who fails an examination given under this section may retake the examination once within 6 months after the original examination date. An applicant who does not retake the examination within such time must take the Minimum Standards Course, pursuant to subsection (1), before being reexamined.

       The division may establish reasonable preregistration deadlines for such reexaminations.

       
       

14. Rule 4A-37.059, Florida Administrative Code, requires that an applicant must pass the examination with a minimum 70 percent score on both the written and practical portions of the examination. The rule allows only one retake of the examination within six months of the initial examination date. Failure to pass the retake results in the applicant's having to repeat the Minimum Standards Course.

15. McCue did not achieve a 70 percent score on the practical portion of the examination when she initially took the examination in July, 1998. She also failed to achieve a 70 percent score on the retake of the practical portion examination in November 1998. Having failed both the initial and retake practical examinations, McCue is required to repeat the Minimum Standards Course before being allowed to retake the examination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered finding that Michelle M. McCue failed the retake of the practical portion of the Minimum Standards Test and that she shall be required to repeat the Minimum Standards Course before taking any further examinations.

DONE AND ENTERED this 8th day of October, 1999, 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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1999.

COPIES FURNISHED:

Bill Nelson, State Treasurer and Insurance Commissioner

Department of Insurance

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

Daniel Y. Sumner, General Counsel Department of Insurance

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

Shiv Narayan Persaud, Esquire Department of Insurance Division of Legal Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399

Michelle M. McCue

4801 Northwest 26th Avenue Tamarac, Florida 33309

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: 99-000415

Orders for Case No: 99-000415