STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KURT P. LARSON, )

)

Petitioner, )

)

vs. ) Case No. 99-3085

)

DEPARTMENT OF INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on October 7, 1999, in Pensacola, Florida, by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kurt P. Larson, pro se

2225 Inverness Drive

Pensacola, Florida 32503

For Respondent: Shiv Narayan Persaud, Esquire

Department of Insurance Division of Legal Services

200 East Gaines Street Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

Whether Respondent was arbitrary, capricious, or unlawful in examining Petitioner.

PRELIMINARY STATEMENT

This proceeding was instituted by the Petitioner, Kurt P. Larson, by an Election of Rights form filed with Respondent, Department of Insurance (the Department) requesting a proceeding pursuant to Section 120.57(1), Florida Statutes.

By letter dated March 3, 1999, the Department notified Petitioner that he had failed the Minimum Standards Equivalency Practical Retest. By letter dated March 4, 1999, the Department notified Petitioner that he would have to take the Minimum Standards Course before he could apply for any additional testing and denied his application by equivalency. After Petitioner requested a hearing, the matter was forwarded to the Division of Administrative Hearings for assignment of an Administrative Law Judge. On October 7,1999, a final hearing was convened.

At hearing Petitioner testified in his own behalf and offered Exhibits lettered A through J which were admitted into evidence.

Respondent called Larry McCall as a witness. Respondent offered Exhibits numbered 1 through 10.

The Transcript of the proceeding was filed on October 22, 1999. Both parties filed post-hearing filings which were read and considered.

FINDINGS OF FACT

1. On or about October 30, 1998, Petitioner applied for certification as a firefighter with the Department under the provision relating to equivalency as a firefighter certified in another state.

2. Petitioner met the requirements for equivalency and on November 3, 1998, was informed by letter from the Department of an Equivalency Examination.

3. On November 23, 1998, Petitioner took the Examination, scoring a 15 percent on the practical portion. Points were deducted from Petitioner's score for the following items:

   Part I

   1. Breathing apparatus inhalation 5

   2. Donning time over time limit 10

   3. Hose and nozzle Operation 5

      (Protective clothing not worn properly)

   4. Operation of nozzle 20

      (poor control, closing nozzle too fast, nozzle not fully opened, nozzle opened when water arrives)

   5. Hose and nozzle operation over time limit 10

   6. 24' ladder extension

      20

      (did not check for overhead obstructions, lost control of ladder, did not tie a clove hitch)

   7. 24' ladder extension operation over time limit 5

      Part II

   8. Improper tying on roof ladder 5

   9. Failed to correctly demonstrate the advancing 5

   and uncharged 1 3/4" hoseline up a ladder

   __

   Total points deducted 85

   
   

4. A score of at least 70 percent is required to pass the Practical Examination.

5. The Department sent Petitioner a letter on December 3, 1998, notifying him of his score on the Practical Examination and informing him that he failed.

6. Petitioner was notified by letter dated December 10, 1998, from the Department of a retest on February 22, 1999.

7. On February 22, 1999, Petitioner took the retest of the Practical Examination. Points were deducted from Petitioner's score for the following items:

   Part I

   a) Breathing apparatus inhalation 5

   b)	Donning time over time limit		5
   c)	Hose and nozzle operation over time	limit	10
   f)	24' ladder extension
   5
   g)	(fly section not fully extended) 24' ladder extension operation over	time limit	10

   
   

   Part II

   1. Retied bowline 5

   2. Unable to find requested material in guidebook 5

   __

   Total points deducted 45

8. Petitioner's score on the retest was 55. The Department sent Petitioner a letter on March 3, 1999, notifying him of his score and informing him that he failed.

9. On March 4, 1999, the Department issued a letter of intent to deny, denying his certification as a firefighter for failure to meet the certification requirements.

10. There are four events on the Practical Examination that are timed: testing the seal on the breathing apparatus, donning the apparatus, deploying and using the hose and nozzle, and extending and placing the 24-foot ladder.

11. The inhalation test requires a check of the face seal after donning and fitting the mask of not less than 10 seconds. The Petitioner received a 5-point deduction for not maintaining the seal for the full 10 seconds.

12. The total donning operation must be completed in not more than one minute and twenty-nine seconds. Examinees receive a 5-point penalty for each thirty-second increment they exceed the allowable time up to a maximum of 40 points.

13. The Petitioner exceeded the allowable time by two seconds and received a 5-point deduction.

14. The deployment and operation of the hose and nozzle requires an examinee to pull a water-filled hose a given distance, then turn the hose on and direct it properly on a specified type of fire. The examinee must complete the task in

    not more than one minute and fifty-nine seconds. For each thirty-second increment over the allowable time, 5-points are deducted from the examinee's score up to a maximum of 35 points.

15. The Petitioner exceeded the allowable time by forty- five seconds, and received a 10-point deduction.

16. The raising of the extension ladder requires the examinee to carry a 24-foot extension ladder to the side of a building, extend the ladder fully, and place the ladder against the wall of the building using proper procedures within a maximum allowable time of two minutes and twenty-nine seconds. For each thirty-second increment an examinee exceeds the allowable time, the examinee receives a deduction of 5-points, up to a maximum of 35 points.

17. In each of the listed tasks above, as well as the other un-timed portions of the examination, the examinee can lose additional points for using the wrong technique or procedure. The total number of points that can be deducted from an examinee's score is 450 points.

18. Mr. McCall from the Fire College testified concerning how the times on the examination were normed. The times of various examinees taking the examination before timing was required were taken and their times averaged. An additional increment of time was added to the average time required to

    complete each event. For each thirty-second increment an examinee exceeded the set time, 5 points are deducted.

19. The method of arriving at the mean time for the events is sound; however, Mr. McCall reported that the data upon which the time standards were based had been destroyed.

20. There was no evidence presented on the manner in which the point deductions schedules were established. They are uniformly linear in terms of the time limits imposed and points deducted. That is to say, that for every thirty seconds in excess of the allowable time, an additional 5 points is deducted.

21. The Fire Colleges data reveals that only 35 percent of out-of-state applicants are able to qualify for certification by equivalency. This, at fact value, appears to be a low number for individuals who have already been examined and re frequently experienced firefighters. However, many of the tasks on the practical test require physical agility and prowess which may be affected by age or injury. No information is maintained regarding the demographic data of equivalency examinees regarding age and sex; however, it is noted that the statutes provide a special exemption for out-of-state firefighters hired to fill top positions within department.

22. During the course of the hearing, it became evident that the number of points which potentially could be deducted

    totaled 450 points. It also became evident that the deduction of points was directly from 100 points with which each examinee started. This deduction was direct and was not scaled, weighed, or converted to arrive at a final score.

23. The practical examination has a possible 450 points which can be deducted from 100 points. An examinee's score is the result of subtracting the points he or she loses from 100 points.

24. The statute and rule provides that passing on the written and practical portions of the examination will be 70 percent.

25. The Petitioner had a total of 45 points deducted on his performance examination from a total of 450 possible points that could be deducted. He missed 10 percent of the possible points which could be deducted, or conversely made a score of 90 percent.

26. By deducting up to 450 points from 100 points to arrive at a final score, the Respondent has adopted a scoring system which is arbitrary, capricious, and contrary to the statute and rules. The fact that the Respondent has done this for a long time does not validate the process.

27. Contrary to the suggestion by Respondent that looking at the number of possible deductions is a "red Herring," it is precisely the number of possible points "available." If the

    Respondent uses a 30 percent error rate when the base is 450, an applicant could lose up to 135 points. The Petitioner lost 45 points, only a third of the allowable points using the Respondent's method.

28. Petitioner passed the written examination with a score of 86. The Petitioner should receive a score of 90 on his practical examination based upon the number of points on the examination and the statutory guidance.

29. Based upon the foregoing the Petitioner's grade should be entered as a 90.

    CONCLUSIONS OF LAW

    
    

30. The Division of Administrative Hearings has jurisdiction over this subject matter in this case. See Sections

    120.569 and 120.57(1), Florida Statutes.

    
    

31. As an applicant, Petitioner bears the general burden of proving entitlement to certification as a firefighter. See Florida Dept. of Trans. v. J.W.C. Co., Inc. 396 So. 2d 778 (Fla. 1st DCA 1981). Petitioner must show by a preponderance of the evidence that he meets all of the relevant statutory criteria to satisfy this burden.

32. Section 633.35, Florida Statutes, provides as follows:

    
    

    1. 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 Section 633.34, Florida Statutes, except Section 633.34(5), Florida Statutes. [Section 633.35(2), Florida Statutes].

       
       

    2. The Division may issue a certificate to any person who has received basic employment training for firefighters in another sate when the division has determined that such training was at least equivalent to that required by the Division for approved firefighter education and training programs in this state and when such person has satisfactorily complied with all other requirements of this section.

       [Section 633.35(3), Florida Statutes].

       
       

33. Petitioner was qualified to take the Examination by showing that he received "basic employment training for firefighters equivalent to that required in the Minimum Standards Course," pursuant to Rule 4A-37.054(2)(b), Florida Administrative Code.

34. Rule 4A-37.056(6), Florida Administrative Code, provides for one retake of the Examination.

35. Rule 4A-37.056(6), Florida Administrative Code, sets forth the general requirements for scoring the state examination for firefighters as follows:

    (6) 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 designated to encompass all the significant contents of the subjects being taught.

    * * *

    
    

    (b) 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.

    
    

36. Petitioner passed the written examination with a score of 86. The Petitioner should receive a score of 90 on his Practical Examination based solely upon the number of points on the examination (450) and the statutory provision that 70 percent is passing.

37. The Respondent moved to reopen the record to permit additional testimony to be given on the Respondent's point deduction methodology. This motion was denied. Respondent called at hearing one of its principal agents for this examination process, a man who was quite familiar with the process and who was very credible. There is no controversy regarding the number of points that may be deducted. There is no controversy that the Respondent deducts these points from 100 points with which each examinee starts the examination. There is no controversy that the law provides that a person passing 70 percent of the written and practical examination is to be licensed.

38. It is concluded that the Respondent's test scoring methodology is fatally flawed on the facts above. The

Petitioner scored a 90 percent on his second practical examination, and an 86 percent on his written examination. Therefore, he meets the criteria for licensure.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED:

That Petitioner be licensed.

DONE AND ENTERED this 8th day of December, 1999, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 December, 1999.

COPIES FURNISHED:

Kurt P. Larson

2225 Inverness Drive

Pensacola, Florida 32503

Shiv Narayan Persaud, Esquire Department of Insurance Division of Legal Services

200 East Gaines Street Tallahassee, Florida 32399-0333

Daniel Y. Sumner, General Counsel Department of Insurance

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

Honorable Bill Nelson, State Treasurer and Insurance Commissioner

Department of Insurance The Capitol, Plaza Level 01

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: 99-003085

Orders for Case No: 99-003085