STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HIPOLITO CRUZ, JR.,

Petitioner,

vs.

DEPARTMENT OF INSURANCE,

Respondent.

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) Case No. 01-0955

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RECOMMENDED ORDER

The parties having been provided proper notice, Administrative Law Judge John G. Van Laningham of the Division of Administrative Hearings convened a formal hearing of this matter by video teleconference on May 4, 2001, with one site in Fort Lauderdale, Florida, and the Administrative Law Judge presiding in Tallahassee, Florida.

APPEARANCES

For Petitioner: None

For Respondent: James Morrison, Esquire

Department of Insurance

200 East Gaines Street 612 Larson Building

Tallahassee, Florida 32399-0333 STATEMENT OF THE ISSUE

The issue is whether Petitioner's apparent failure to achieve a passing score on the written portion of the

Firefighter Minimum Standards retest resulted from improper administration or grading of the examination by Respondent.

DISCUSSION

The Administrative Law Judge convened a properly noticed final hearing in this matter on May 4, 2001, at 1:00 p.m., as scheduled. An attorney for Respondent Department of Insurance (the "Department") appeared on time at the Division of Administrative Hearings in Tallahassee and was prepared to proceed with the hearing. Petitioner Hipolito Cruz, Jr. ("Cruz") failed to appear in either Tallahassee or Fort Lauderdale at the scheduled time.

Attempts were made to contact Cruz by telephone at home and at work, using his phone numbers of record. These efforts were not successful. After waiting in vain for 50 minutes, it became clear that Cruz was not going to arrive, and the Administrative Law Judge adjourned the hearing.

The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes. In this examination challenge, the burden of proof rested on Cruz to establish by a preponderance of the evidence that the Department had graded his test arbitrarily and capriciously. Espinoza v.

Department of Business and Professional Regulation, 739 So. 2d 1250, 1251 (Fla. 3d DCA 1999), cause dismissed, 761 So. 2d 328

(2000); Harac v. Department of Professional Regulation, 484

So. 2d 1333, 1338 (3d DCA 1986).

Because Cruz did not appear at hearing and present any evidence in support of his allegations, he necessarily failed to carry his burden of proving that the Department, in scoring the written portion of his Minimum Standards Retest Examination, had abandoned logic and reason. Accordingly, it is determined as a matter of law that Cruz in fact did not pass the retest examination.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED that the Department enter a final order dismissing Cruz's petition and denying his application for certification as a Florida firefighter.

DONE AND ENTERED this 4th day of June, 2001, in Tallahassee, Leon County, Florida.

JOHN G. VAN LANINGHAM

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 4th day of June, 2001.

COPIES FURNISHED:

Hipolito Cruz, Jr.

1214 Southwest 46 Avenue Deerfield Beach, Florida 33442

James Morrison, Esquire Department of Insurance

200 East Gaines Street 612 Larson Building

Tallahassee, Florida 32399-0333

Honorable Tom Gallagher

State Treasurer and 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 32399-0300

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: 01-000955

Orders for Case No: 01-000955