STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEFFREY M. WILLIAMS, )

)

Petitioner, )

)

vs. ) Case No. 01-0520

)

DEPARTMENT OF INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference on March 26, 2001, at sites located in Fort Lauderdale and Tallahassee, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Jeffrey M. Williams, pro se

3241 Arthur Street

Hollywood, Florida 33021

For Respondent: James Morrison, Esquire

Department of Insurance 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner successfully completed the Minimum Standards Practical Examination for Retention of Firefighter Certification Retest.

PRELIMINARY STATEMENT

On September 27, 2000, Jeffrey M. Williams (Petitioner) took the Minimum Standards Practical Examination for Retention of Firefighter Certification (Examination), which contained four areas of skill. Petitioner was required to pass all four areas of skill. Petitioner passed only two of the skills, having failed to pass the Self-Contained Breathing Apparatus (SCBA) and the Ladder Operations skills.

On November 29, 2000, Petitioner took the Minimum Standards Practical Examination for Retention of Firefighter Certification Retest (Examination Retest) in which Petitioner only had to retake the SCBA and the Ladder Operations skills. Petitioner only passed the Ladder Operations skill, having failed SCBA, and, therefore, failed the Examination Retest. By letter dated December 7, 2000, the Department of Insurance (Respondent) notified Petitioner that he did not successfully complete the Retest Examination and that his Firefighter Certificate of Compliance had expired as of June 27, 1997. Petitioner challenged the results of the Examination Retest and requested a hearing.

On February 5, 2001, this matter was referred to the Division of Administrative Hearings. By Order dated March 16, 2001, Respondent was permitted to amend its denial letter to include the statutory and rule provisions applicable to

Respondent's denial of Petitioner's retention of his Firefighter Certificate.

At hearing, Petitioner testified in his own behalf and entered no exhibits into evidence. Respondent presented the testimony of two witnesses and entered eight exhibits (Respondent's Exhibits numbered 1-8) into evidence.

A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. The Transcript, consisting of one volume, was filed on April 5, 2001. Only Respondent filed a post-hearing submission, which has been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner was certified as a Florida firefighter by Respondent on June 27, 1991, being issued certificate number C- 62497.

2. During the period 1991 through 1994, Petitioner was not active as a firefighter, either in a paid or volunteer role.

   He maintained his certification by completion of a 40-hour continuing education class in vehicle extrication in 1994.

3. During the period 1994 through 2000, Petitioner was not active as a firefighter, either in a paid or volunteer role.

   His primary income was derived from being a painting contractor.

4. Effective July 1995, Florida's law, regarding certification of firefighters, changed to require firefighters to take and pass the Examination when they have not been active as a firefighter, either paid or as a volunteer, for a period of three years. The Florida law was Section 633.352, Florida Statutes. As a result, in order for Petitioner to retain his certification, he was required to take the Examination.

5. On September 8, 2000, Petitioner made application to take the Examination, which consisted of four areas--SCBA, Hose Operations, Ladder Operations, and Fireground Skills.

6. Petitioner's primary preparation for the Examination was a private refresher course offered by the Marion County School Board. The refresher course consisted of a 24-hour class, spread over three days. The refresher course reviewed the four areas on the Examination.

7. During the refresher course, approximately 20 hours were devoted to practicing the four areas. As to practicing the SCBA skill, under the supervision of an instructor, two to three hours on the first day were devoted to timed conditions and one to two hours on the second and third day were devoted to timed conditions. The instructor of the course taught and explained to the attendees, including Petitioner, that time was an issue in the Examination and that completing the timed skills within the maximum time allotted is pass/fail.

8. On September 25, 2000, Petitioner took the Examination.

   
   

   None of the candidates taking the Examination were identified by name but were given numbers for identification.

9. Prior to March 1, 2000, the scoring system for the Examination consisted of initially giving each candidate 100 points and thereafter, subtracting points for things done incorrectly. On and after March 1, 2000, the scoring system changed and consisted of each candidate starting with zero points and being awarded points for things done correctly.

10. Three of the four skilled areas on the Examination were being timed. The timed skills were SCBA, Hose Operations, and Ladder Operations and mandatory steps existed for each skill. Each mandatory step for each skill was required to be successfully completed and, if not, the candidate received an automatic failing score for the skill.

11. Examiners for the Examination, during orientation, reviewed the timed skills with the candidates and explained the grading for each of the skills. Furthermore, the examiners explained to the candidates that time was pass/fail for the SCBA and the Ladder Operations skills.

12. The minimum score required to pass the Examination was

    
    

    70 on each of the four skills. Petitioner received a score of zero on each of the SCBA and the Ladder Operations skills, which was failing for both. The maximum time allotted for SCBA was

    one minute and forty-five seconds, but Petitioner took one minute and fifty seconds; and for Ladder Operations was two minutes and forty-five seconds, but Petitioner took three minutes and twenty-five seconds. Petitioner exceeded the maximum time allotted for both skills.

13. On November 29, 2000, Petitioner took the Examination Retest. He was only required to re-take the SCBA and the Ladder Operations skills; both again being timed.

14. For the Examination Retest, Petitioner did not take a refresher course. He arrived at the Examination Retest early and was present for the orientation given by the examiners. Again, during the orientation, the examiners reviewed the timed skill with the candidates and explained the grading for each of the skills. Furthermore, the examiners again explained to the candidates that time was pass/fail on SCBA and Ladder Operations.

15. On the Examination Retest, Petitioner passed the Ladder Operations skill. However, Petitioner failed the SCBA skill, having received a score of zero. The maximum time allotted for SCBA was one minute and forty-five seconds, but Petitioner took two minutes and twenty-six seconds. Petitioner exceeded the maximum time allotted for the SCBA skill.

16. By letter dated December 7, 2000, Respondent notified Petitioner, among other things, that he had not successfully

    completed the Examination Retest and that, therefore, his application to retain his certification was denied.

17. Applicants for retention of their certification are permitted to take the Examination Retest only once. An applicant for retention of certification, who fails the Examination and the Examination Retest, must take and successfully complete the Minimum Standards Course before being allowed to take the Examination again. Having unsuccessfully completed the Examination Retest, Petitioner cannot take the Examination again until he takes and successfully completes the Minimum Standards Course.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Section 120.569 and

    Subsection 120.57(1), Florida Statutes.

    
    

19. Section 633.352, Florida Statutes, provides as

    
    

    follows:

    
    

    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 specified in rule 4A-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 instructors, as determined

    by the division. The 3-year period begins on the date the certificate of compliance is issued or upon termination of service with an organized fire department.

    
    

20. Rule 4A-37.056, Florida Administrative Code, provides in pertinent part:

    (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 designed to encompass all the significant contents of the subjects being taught.

    
    

    * * *

    
    

    (b) State examinations, consisting of a written and a 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.

    
    

    * * *

    
    

    1. Only one retake of the state examination shall be allowed. . . .

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

    3. 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.

    
    

21. Petitioner, as the applicant, has the ultimate burden of proof to establish that he is entitled to retention of his

    certification. Florida Department of Transportation v. J.W.C.

    
    

    Company, Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

    
    

22. The burden of proof is upon the Petitioner to show by a preponderance of evidence that the Examination and/or the Examination Retest was faulty, or that the grading process was devoid of logic and reason. Harac v. Department of Professional Regulation, Board of Architecture, 484 So. 2d 1333, 1338 (Fla. 3d DCA 1986); State ex rel. Glaser v. Pepper, 155 So. 2d 383 (Fla. 1st DCA 1963); State ex rel. Topp v. Board of Electrical

    Examiners for Jacksonville Beach, 101 So. 2d 583 (Fla. 1st DCA 1958).

23. Petitioner failed to satisfy his burden. He does not contend that the Examination or Examination Retest was faulty or that the grading process was devoid of logic and reason. Petitioner contends that, for the Examination, he was not informed that the skills, which were timed, would be graded on a pass/fail basis regarding the maximum time allotted for the skills and that, for the Examination Retest, he was not timely informed of the pass/fail grading of the skills, which were timed.

24. Moreover, Petitioner failed to receive a passing score on the Examination or Examination Retest. He failed to receive a passing score of 70 on each of the four skills in either the Examination or the Examination Retest. He failed to pass the

    SCBA and the Ladder Operations skills on the Examination and the SCBA skill on the Examination Retest.

25. Petitioner failed to demonstrate that he is entitled to retention of his certification.

RECOMMENDATION

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

RECOMMENDED that the Department of Insurance enter a final order finding that Jeffrey M. Williams is not entitled to retention of his firefighter certification and that his certification has expired.

DONE AND ENTERED this 15th day of June, 2001, in Tallahassee, Leon County, Florida.

ERROL H. POWELL

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 15th day of June, 2001.

COPIES FURNISHED:

Jeffrey M. Williams 3241 Arthur Street

Hollywood, Florida 33021

James Morrison, Esquire Department of Insurance 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

Honorable Tom Gallagher

State Treasurer/Insurance Commissioner Department of Insurance

The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300

Mark Casteel, General Counsel Department of Insurance

The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307

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: 01-000520

Orders for Case No: 01-000520