STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANTHONY ROBERT SHUTA, II, )

)

Petitioner, )

)

vs. ) Case No. 99-2849

) DEPARTMENT OF INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on October 25, 1999, a formal hearing was held in this case. The authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes. The hearing location was the Department of Transportation, 719 South Woodland, Deland, Florida. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Anthony Robert Shuta, II, pro se

3043 Pine Tree Drive Edgewater, Florida 32141

For Respondent: Elenita Gomez, Esquire

Department of Insurance 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

STATEMENT OF 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.

PRELIMINARY STATEMENT

On May 24, 1999, after several attempts, Petitioner was informed by Respondent that Petitioner had failed to achieve a passing score on the Firefighter Minimum Standards test and that Petitioner would have to repeat the Minimum Standards course before any additional testing would be allowed. Petitioner was provided the opportunity to contest the factual allegations in the letter denying his certification to become a Firefighter.

Petitioner elected to dispute the factual allegations.

On June 24, 1999, the Division of Administrative Hearings received a request from Respondent asking that an Administrative Law Judge be assigned to conduct a formal hearing. The hearing ensued following one continuance.

Prior to hearing, Respondent's Motion to Amend its Denial Letter by referring to statutory references at Sections 633.34 and 633.35, Florida Statutes, together with Rule 4A-37.056, Florida Administrative Code, were allowed. In addition, official recognition was given to those references at the commencement of the final hearing.

At hearing Petitioner testified in his own behalf and offered one exhibit which was received. Respondent presented the testimony of Larry McCall. Respondent's Exhibits A through F were admitted at hearing. Respondent timely submitted late filed Exhibits G and H, which are admitted.

A hearing transcript was prepared and filed on November 23, 1999. Respondent timely filed a proposed recommended order. It has been considered in the entry of this recommended order.

Petitioner did not file a recommended order by December 17, 1999, the extended deadline for that submission.

FINDINGS OF FACT

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sections 120.569 and 120.57(1), Florida Statutes.

9. Following completion of the "Minimum Standards Course," candidates for certification as a Firefighter must successfully pass an examination. See Section 633.35(2), Florida Statutes. To succeed in the examination the candidate must achieve a 70% score for the written portion of the examination and a 70% score for the practical portion of the examination. Petitioner achieved the needed score for the practical portion of the examination. Petitioner failed to achieve the necessary score for the written portion of the examination. See Rule 4A- 37.056(6)(b), Florida Administrative Code.

10. In accordance with Section 633.35(4), Florida Statutes, and Rule 4A-37.056(6)(e), Florida Administrative Code, Petitioner was allowed to re-take the written portion of the examination. Petitioner re-took the examination and again he failed the written portion.

11. Rule 4A-37.056(6)(d), Florida Administrative Code, only allows one re-take of the state examination. While unnecessary, given the proper adjustments which Respondent made to the test scores received by Petitioner in the original examination of December 15, 1998 and the retake on February 9, 1999, Petitioner was allowed to take the written examination a third time. This

examination was one which left out the more difficult questions. Even with this extraordinary opportunity, Petitioner again failed to achieve the 70% score needed on the written examination.

Under the circumstances, Petitioner has exhausted his opportunities to take the state Firefighter examination for certification through this cycle.

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

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: 99-002849

Orders for Case No: 99-002849