Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings on January 24, 2002, in Jacksonville, Florida. The appearances were as follows:
1906 St. John's Bluff Road Jacksonville, Florida 32225
The issue to be resolved in this proceeding concerns whether the Petitioner passed the "Hose Operation" portion of the initial and the re-test firefighters examinations and whether she was given a fair opportunity to pass the test.
This cause arose on May 9, 2001, when the Petitioner took the Minimum Standard Written and Practical Examination for licensure or certification as a Florida firefighter. She did not achieve a passing score on the practical portion of the examination because she failed the "Hose Operation evolution." The Petitioner was eligible for one re-test and, on
September 27, 2001, took the Minimum Standards Practical Examination Re-test, which covered only the Hose Operation portion of the exam. She failed the re-test as well.
Thereafter, on October 5, 2001, she was sent a letter by the State Fire Marshall's Bureau of Standards and Training stating that she had failed both the Minimum Standards Practical Examination and the re-test of that practical examination and was therefore denied certification as a Florida firefighter.
The Petitioner timely filed an Election of Rights with the Department, requesting a formal proceeding and hearing to dispute the agency's Notice of Intended Action.
The hearing came on as noticed on January 24, 2002. The Petitioner did not submit any exhibits but testified on her own behalf. She called no witnesses at the final hearing. The Respondent called witness Lawrence McCall of the State Fire Marshal's Office, Bureau of Fire Standards and Training. The Respondent also offered exhibits one through nine into evidence
and they were admitted without objection. Upon concluding the hearing the parties elected to have it transcribed and to submit Proposed Recommended Orders which were timely submitted and are considered in the rendition of this Recommended Order.
On January 13, 2001, the Petitioner, Josephine Louise Ramsey, applied for certification to become a firefighter in the State of Florida. The Respondent is the agency regulating licensure and enforcing practice standards for firefighters in the State of Florida.
On May 9, 2001, the Petitioner took the Minimum Standard Written and Practical Examination, a passing score on which would qualify her for firefighter certification. She did not achieve a passing score on the practical portion of the examination because she failed the Hose Operation portion of the examination.
The Petitioner began taking the practical Hose Operation evolution portion of the examination with a broken shoulder strap on the "airpack" she was required to wear. She contended that this was an "unsafe act" and that Mr. Begley, the proctor for the examination, should have stopped her testing time and allowed her to correct the equipment malfunction and then resume the test. The Petitioner contended that this caused her a tremendous distraction while she was performing the Hose
Operation evolution. She also contended that Mr. Begley should have stopped her test time from running further as soon as he noticed the broken airpack.
The Petitioner testified that she changed airpacks after the Hose Operation evolution portion of her examination and was told to proceed on to the ladder portion of the examination.
After the Petitioner had completed the ladder portion of the examination, the Petitioner was allowed to again take the Hose Operation evolution that same day. She took the second Hose Operation evolution test after five other applicants had been tested on that portion of the examination.
The Petitioner failed the Hose Operation portion of the initial examination because she exceeded the maximum time allotted for that exercise. The Petitioner contends that she was never told of any recourse she might have if she failed her initial examination and was only told that she could schedule a re-test examination. On September 27, 2001, the Petitioner took the Minimum Standards Practical Examination Re-test which consisted, in her case, of only the Hose Operation portion of the examination.
She received point deductions in four different categories on the re-test examination. She received point deductions for (1) failure to properly stop and call for water;
(2) failure to slowly and fully open and close the hose nozzle while bleeding the hose line; (3) failure to slowly and fully open and close the nozzle during the cone operation; and (4) failure to maintain control of the hose and nozzle during the entire operation. The Petitioner thus received a total score of 60, which is below the minimum, acceptable, passing score of 70, and thus failed the re-test examination.
The Petitioner claims that she was charged with point deductions twice for the same violation or deficiency, which in this case was improperly opening and closing the hose nozzle at the front of the truck bumper and during the cone operation. However, according to the Department's score sheet and scoring method, the opening and closing of the hose nozzle are two different skills at two locations, which are scored separately, based upon the location of the hose.
The Department is thus attempting to assess how an applicant will handle the hose nozzle when the line is initially charged with water (at the front of the truck bumper) and also when the line is fully charged with water during the cone operation.
In her testimony the Petitioner attempted to analogize the opening and closing of the hose operation with running during the exercise. According to the Department's scoring sheet and method, completing the task without running, or
walking backwards, would entitle an applicant to 10 points. Before an applicant is deducted any points, an examiner must warn the applicant that they are running or walking backwards. Running during the exercise and properly opening and closing the hose nozzle, however, are two different skills and are scored separately and differently.
The Department's policy is that it is an important skill for applicants to be able to properly maintain control of a fire hose and know how to properly open and close the hose in order to prevent injury to firefighters. In any event, the Petitioner received notice of a denial of her certification effective October 5, 2001.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Sections 120.569 and 120.57(1), Florida Statutes (2001).
The Petitioner bears the burden of proving entitlement to certification as a firefighter by a preponderance of evidence that she meets the relevant statutory criteria. See Florida Department of Trans. v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
Section 633.35, Florida Statutes, establishes the firefighter training program and sets forth criteria for the
certification of candidates seeking employment as a firefighter in the state.
(2) The division shall issue a certificate of compliance to any person satisfactorily complying with the training program . . ., who has successfully passed an examination as prescribed by the division, and who possesses the qualifications for employment in Section
633.34 . . ..
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(4) A person who fails an examination given under this section may retake the examination once within 6 months after the original examination date . . . (Emphasis supplied).
Rule 4A-37.056, Florida Administrative Code states:
(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.
* * *
Only one re-take of the state examination shall be allowed . . ..
The re-take of the Minimum Standards Certification Examination must be taken within six (6) months of the initial examination date.
Failing the re-take 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.
* * *
The minimum standards written and practical examination, prescribed by the Division pursuant to Section 633.35(2), Florida Statutes, consists of a written portion and a practical portion. The practical portion consists of four parts: the Self Contained Breathing Apparatus (SCBA) part; the Hose Operation part; the Ladder Operation part; and the Fire Ground Skills part. A candidate must pass the written portion and each part of the practical portion to pass the examination. If a candidate fails the written portion or any part of the practical portion, the candidate may re-take the examination only once. The re-take will consist of only the portion or parts of the examination that the candidate failed. If a candidate fails the re-take examination, the candidate must
re-take and pass the Minimum Standards Course before being eligible to take the examination again.
It is undisputed that an individual who exceeds the maximum time allowed for the Hose Operation portion of the exam
or who does not achieve a passing score of 70 fails the Hose Operation part of the practical examination and thus fails the entire practical examination.
The issue to be determined is thus whether the Petitioner passed the Hose Operation portions of both the initial and re-test examinations.
The Respondent contends that the Petitioner's substantial interests were not affected by failure on the initial examination because the agency had expressed no intent to deny the application for licensure at that point. The Respondent observes that the Department did not issue a notice of intent to deny licensure until after the Petitioner failed the re-test examination. Therefore, the initial examination results, according to the Respondent, should be considered "free form" agency action or proposed action which does not amount to an injury in fact to her substantial interests, which would thus not give a point of entry to the applicant to invoke a formal proceeding such as this.
The undersigned does not subscribe to that view of the law. The according of a failing score on the initial examination is a sufficient injury to a candidate's substantial interests to engender the right to a hearing to contest the score and the means by which it was derived. Whether or not one takes the view that there has been no notice of intent to take
agency action upon the notification of the score on the initial minimum standards examination, because of the right to an automatic re-take of the failed portions of the examination, the fact remains that, upon being informed of her failing grade on the initial minimum standards examination the Petitioner did not seek to contest that scoring. Since more than 21 days passed and since she did not at any time contest that initial examination score and result, the Petitioner effectively had no available point of entry to trigger a formal Section 120.57(1), Florida Statutes, proceeding and hearing until after she received a failing grade on the re-test examination and notification of denial of licensure. She then sought and obtained a formal proceeding to contest that result.
The Petitioner should not be granted certification because there were no irregularities in the administration of the initial exam. The Petitioner has stated that she had an equipment malfunction during her initial Hose Operation evolution and that the examiner did not stop her time at that moment, allow her to correct the problem and continue the exercise.
The Petitioner also testified, however, that the examiner allowed her to take the Hose Operation evolution again. This was a proper administration of the examination because the Petitioner was not barred from performing the "hose pull" that
day. She simply took the Hose Operation evolution a second time, with proper equipment, at a later point in the day.
Therefore, the examination was properly administered because the Petitioner received two chances to pass it. Furthermore, the Petitioner was not biased by taking the hose pull twice in a day because she had an opportunity to rest while five other applicants took their examinations. She took the Hose Operation evolution for the second time during the initial examination day after those five applicants had been tested so she had ample time to recover from any fatigue occasioned by her first hose pull operation. She thus had a fair opportunity to perform at her best for the second Hose Operation evolution during the initial examination.
The Petitioner has not shown that the examiner was aware that her equipment had malfunctioned (broken strap) during the first Hose Operation evolution for the initial examination. It is not clear from her statements whether the examiner actually knew that her airpack strap was broken during the hose pull. In her written statement and her testimony at hearing she does not state that she told Mr. Begley, the examiner, that there was an equipment problem, nor did she ever imply that she put him on notice that there was a problem during the course of the exercise.
Mr. Begley became aware, at some time that day, that there had been a problem with her equipment, however. The Petitioner has not adduced any evidence to show that during the exercise the examiner knew that her equipment was broken.
Mr. Begley's actions imply that he may not have known about the problem during the time she was actually performing the Hose Operation test. Later after telling her to go immediately to the ladder portion of the examination after the first hose pull examination, he was made aware of her equipment malfunction and she was given a second opportunity that day to do the Hose Operation portion of the test. These actions imply that
Mr. Begley may not have known that the Petitioner was having a problem contemporaneously with her first performance of the exercise in question.
Moreover, the Petitioner could have stopped the exercise if she had an equipment malfunction that seriously hampered her performance on the examination. She had a right to stop the exercise and have the problem corrected. The running of her time for that portion of the examination would have been suspended until the problem was corrected and she could resume the performance of the Hose Operation portion of the test. If the examiner did not allow the applicant to correct that problem, the applicant could report that situation to the Bureau of Fire Standards and Training. In this case, however, the
Petitioner does not contend that she actually stopped the exercise and reported the problem to the examiner.
Indeed, the Petitioner could have protested the initial exam results immediately. After the initial examination the Petitioner did not contact the Bureau of Fire Standards and Training to report any misconduct by the examiner in administering the examination. After the initial examination, the Petitioner, if she believed that she had been treated unfairly by the examiner, could have reported the incident to the Bureau of Fire Standards and Training. Moreover, even if no initial report was made by the Petitioner concerning an incident, immediately after the examination, she could still have reported any irregularities upon receipt of the initial examination results which showed that she had failed the examination. She could have then sought a formal or informal proceeding to dispute the results.
She did not take such action, however. Instead she simply took the re-test examination. In fact and at law, she might have reported irregularities and contested the scoring on the initial examination and refused to take the re-test examination or, alternatively, disputed the initial examination results as well as taking the re-test examination.
Section 633.35(4), Florida Statutes, and Rule 4A- 37.056, Florida Administrative Code, states that there may be
one re-test examination within six months of the original examination. Upon failure of the re-test examination the applicant must take the Minimum Standards Course again before being re-examined. Thus, the other issue in this proceeding, in addition to the alleged irregularity concerning the Hose Operation portion of the original examination, concerns whether the Petitioner passed the re-test examination.
The Petitioner was fairly assessed point deductions for her performance on the re-test. She maintains she was charged twice in point deductions for the same deficiency, which in this case is improper opening and closing of the hose nozzle at the front of the truck bumper and during the cone operation. These points were deducted at two different locations during the Hose Operation of the examination. According to the Department's score sheet, the opening and closing of the hose nozzle are two different skills, which are scored separately, based upon the location of the hose. Although it may seem to the Petitioner that she was performing the same skill twice, the Department considers the opening and closing of the hose nozzle at the truck bumper and at a later point during the cone operation as two separate and distinct events, which are graded individually. For instance, an applicant can receive ten points for proper opening and closing of the nozzle at the truck bumper. The same applicant, however, can receive a ten point
deduction for improperly opening and closing the nozzle later during the cone operation. Therefore, the Department is assessing points for the opening and closing of the hose nozzle separately depending upon the location of the hose nozzle during the examination.
The Department tests the opening and closing of the hose nozzle at two different locations to assess how an applicant will handle the hose nozzle when the line is initially charged with water at the front of the truck bumper and also separately, later, when the line is fully charged with water during the cone operation. Therefore, even though the Petitioner believes she should not have suffered deductions twice for the same operation, the Department's position that the opening and closing of the hose nozzle at two different locations were different skills, which test the applicant's ability to handle the hose at two different critical points in a firefighting operation, was supported by preponderant evidence and is correct in relation to the germane statutes and rules.
The Petitioner's attempt analogy between running during the exercise and the proper operation of opening and closing of the hose nozzle is unfounded. Opening and closing of the hose nozzle is a separate and distinct skill which is not scored the same as is the issue involving running during the Hose Operation. The Department's policy is that it is important
for applicants to know how to properly maintain control of a fire hose and to know how to properly open and close the nozzle in order to prevent injury to firefighters. For this reason, the opening and closing of the hose nozzle is tested once at the truck bumper and again during the cone operation. Therefore, the Petitioner's analogy between running and properly opening and closing the nozzle is irrelevant because it is a comparison of two different skills or performances which are tested and scored differently.
The Petitioner does not substantially dispute any point deductions given to her by the examiner for the re-test. The Petitioner did not contend that she performed the exercises correctly and deserved to receive the points. During the course of the hearing the Petitioner never offered testimony that she had actually performed the relevant skills correctly and that the examiner was incorrect in deducting points for those skills. If the Petitioner had properly opened and closed the hose nozzle, she would have received the correct number of points and therefore certification to become a firefighter. If she had properly maintained control of the hose throughout the exercise she would have received the proper number of points to pass and receive her certification. The Petitioner did not call into question the actual evaluation of her performance on the re-test examination but only questioned whether two deductions of points
for the same skill deficiency had occurred, which was established not to be the case.
Thus the Petitioner has not substantially disputed any of the point deductions given to her by the examiner during the re-test and has thus not established that she received a passing 70% score. She has not met her burden of proof in showing entitlement to certification.
