STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROSS LEE KRAMER,

Petitioner,

vs.

DEPARTMENT OF FINANCIAL SERVICES,

Respondent.

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) Case No. 03-2439

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RECOMMENDED ORDER

Pursuant to notice this cause came on for formal proceeding before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings in Jacksonville, Florida, on September 23, 2003. The appearances were as follows:

APPEARANCES

For Petitioner: Ross Lee Kramer, pro se

103 Baird Way

Saint Mary's, Georgia 31558

For Respondent: Casia R. Belk, Esquire

Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

The issues to be resolved in this proceeding concern whether the Petitioner's application for certification as a firefighter in the State of Florida should be denied. Included

within that question is the issue of whether the Petitioner successfully passed the Fireground Skills portion of the Minimum Standards Examination pursuant to Section 633.35, Florida Statutes, and Florida Administrative Code Rules 4A-37.056 and 4A-37.062.

PRELIMINARY STATEMENT

This action arose when the Petitioner took the Minimum Standards written and practical examination on

December 11, 2002, and did not achieve a passing score on the practical portion, because he failed the Fireground Skills section of that examination.

Thereafter, the Petitioner took the Minimum Standard Practical examination re-test on May 20, 2003. The Petitioner also failed this re-test, which covered only the Fireground Skills portion of the examination. The Petitioner was eligible for only the one re-test. On May 28, 2003, the Division of State Fire Marshall, Bureau of Fire Standards and Training (Agency) sent the Petitioner a letter stating that he had failed both the Minimum Standards Practical Examination and the re-test and was therefore denied certification as a Florida Firefighter. The Petitioner timely elected to contest that decision and filed an Election of Rights form with the Department, requesting a hearing in accordance with Section 120.57(1), Florida Statutes. Thereafter the cause was transmitted to the undersigned

administrative law judge. The Respondent's counsel submitted a Motion to Amend the denial letter along with the Amended Denial Letter on August 13, 2003, and that Motion was granted. The case was heard on September 23, 2003, in Jacksonville, Florida,

The cause came on for hearing as noticed. The Petitioner presented his own testimony and the Petitioner's Exhibits One and Two which were admitted into evidence. The Respondent presented the testimony of one witness, Ralph Parker Chase, Jr., in the form of his deposition admitted into evidence as Respondent's Exhibit Ten. The Respondent's Exhibits One through Nine were also admitted into evidence and official recognition was taken of Section 633.35, Florida Statutes, and Florida Administrative Code Rules 4A-37.55 and 4A-37.56. Upon conclusion of the proceeding the parties ordered a transcript thereof and elected to file proposed recommended orders. The transcript and Proposed Recommended Orders have been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. In July of 2002 the Petitioner applied for certification as a Florida Firefighter. In order to be accorded that status he had to take the Minimum Standards Examination. Prior to being allowed to take that examination applicants are required to successfully complete the Minimum Standards Course,

   consisting of a minimum of 360 hours of training at an approved school or training facility.

2. The Minimum Standards Examination is structured in two parts: A written portion and a practical portion. The practical portion consists of four sections which are: the self-contained breathing apparatus (SCBA), the hose pull, the ladder operation, and Fireground Skills. In order to pass the practical evolutions an applicant must achieve a score of at least 70 percent on each one.

3. The Petitioner took the initial Minimum Standards Examination on December 11, 2002. Mr. Ralph Chase was the examiner for the Petitioner's initial Minimum Standards practical Examination. Mr. Chase is a field representative with the Bureau of Fire Standards and Training and has held that position for seven years. He is a certified EMT and holds numerous fire service certifications, including Instructor Level Three, Inspector Level Two, Fire Investigator Level Two, Fire Officer Level Two, and has been a certified Firefighter since 1974.

4. The Petitioner did not pass either the written portion of the Minimum Standards Examination or the Fireground Skills portion.

5. The Petitioner took his written re-test and Fireground Skills re-test on May 20, 2003. Although he passed the written

   portion of the re-test he failed the Fireground Skills portion of the practical re-test. Mr. Chase was his examiner for the Fireground Skills portion of the re-test examination.

6. Assignment of examiners at the Minimum Standard Re-test is done by the choice of the examiner in charge that day. The examiners are then responsible for conducting the examinations for either all the odd-numbered students or the all the even- numbered students. That is to say, on the day of the re-test, students are assigned an applicant number. They are referred to by this number throughout the testing process to prevent the examiners from knowing whom they are grading. This is done for ease of reference and to prevent possible bias among the examiners.

7. Mr. Chase conducted an orientation for the applicants, including the Petitioner, on the day of the re-test. During the orientation, the applicants were told how each portion of the exam was going to be graded and what would be expected from them. Mr. Chase also referred to and checked off an orientation check-list to ensure that each section was covered and explained.

8. The students were allowed to ask questions about the orientation and the examinations, but were not allowed to ask for a demonstration of exactly how an exam will be conducted. On the day of the Petitioner's re-test, no student, including

   the Petitioner, had any questions concerning how any part of the Firegrounds Skills portion of the exam would be conducted or graded.

9. Part four, or the Fireground Skills portion, of the minimum standard re-test exam consists of five skills stations: ropes and knots, forced entry, ladder operations, hose, and hazardous materials. The specific skills that each applicant must perform are chosen randomly when the test packets are prepared.

10. On the date of the re-test, Mr. Chase prepared the Petitioner's grade sheets. On the ropes, knots, and hitches, portion of Petitioner's Fireground Skills re-test, Mr. Chase deducted points for a number of different errors in the Petitioner's performance. The Petitioner had points deducted or was not awarded them, for failing to successfully tie a bowline knot. The Petitioner did not have the correct configuration for the knot and did not have a safety applied on the knot. He did not tie the knot correctly on his first attempt and he did not successfully complete the requested task.

11. When Mr. Chase originally scored the Petitioner's ropes, knots and hitches exam, he added up the total number of points incorrectly and put the total number of points awarded as "16." When he realized his error he completed a second score sheet tallying the correct total number of points which was "4."

    There is no difference in the score sheet other than the total number of points, the score. The total number of points deducted on both sheets corresponds with a score of "4."

12. The knot the Petitioner attempted to tie fell apart twice and the Petitioner never successfully tied the bowline knot as requested. Points were deducted on the skill number 5 of the ropes, knots, and hitches portion of the Fireground Skills evolution for failing to complete the task without performing an unsafe act.

13. The Petitioner contended that he should have been awarded points on skill number 5 of the ropes, hitches, and knots portion of the re-test because he never performed an unsafe act. According to the Department's score sheet, skill 5 of the ropes, knots, and hitches, portion of the Fireground Skills test or re-test concerns "following instructions, completing the task without performing an unsafe act." The Petitioner failed to complete the assigned task because he never tied a bowline knot.

14. On the forcible entry portion of the re-test,

    
    

    Mr. Chase deducted points for a number of different errors in performance. The Petitioner had points deducted or was not awarded points, for having improper use of his tool, by failing to remove his extremities from in front of the window and for

    performing an unsafe act, by failing to keep his hands and arms outside the window he was breaking.

15. The Petitioner contended that there was no way to hold the tool in order to keep his extremities outside of the glass. Mr. Chase established however, that the Petitioner could have, but did not stand off to one side of the window while breaking the glass, and also did not keep his arm and hand out of the area of broken glass while using his tool.

16. On the ladders and fire service tools portion of the re-test, Mr. Chase deducted points for errors in the Petitioner's performance. The Petitioner had points deducted or was not awarded points, because he failed to achieve a leg lock on a ladder he was climbing and performed an unsafe act by not properly locking himself on to the ladder before working with the tool.

17. On the hose coupling and the hose rolls portion of the re-test, points were deducted for errors in performance. The Petitioner had points deducted or was not awarded points, because he failed to use the proper technique to roll the hose by starting to perform a single donut roll, instead of the twin donut roll he was asked to perform and for failing to dress the hose roll.

18. The Petitioner maintains that he knew what "dressing a hose" means and that a firefighter would dress a hose in order

    to prevent the hose from falling apart while storing or carrying it. The Petitioner contended that there is no requirement in the "Essentials of Firefighting" publication that a diamond be formed when rolling a hose into a twin donut roll configuration. The Petitioner also maintained that there is no requirement in the "Essentials of Firefighting" publication that a hose be dressed upon completion of a hose roll.

19. The Petitioner achieved full credit on the hazardous materials portion of the re-test examination. As a result of the above point deduction, the Petitioner received a score of sixty. A score of seventy is required in order to pass the re- test examination. The Petitioner was provided notice of denial of certification on May 28, 2003.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2003).

21. As an applicant for certification the Petitioner has the burden of proving entitlement to certification. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). The Petitioner must demonstrate by a preponderance of evidence that he meets all the relevant statutory criteria to establish entitlement to certification.

22. Section 633.35, Florida Statutes, establishes the firefighter training program. It sets forth criteria for the certification of candidates seeking employment as a firefighter in the State of Florida and provides, in pertinent part:

    . . .(2) The division shall issue a certificate of compliance to any persons satisfactorily complying with the training program . . ., who has successfully passed an examination as prescribed by the division, and who possesses the qualification for employment in

    S. 633.34. . . .

    
    

    (4) A person who fails an examination given under this section may retake the examination once within 6 months after the original examination date. . . .

    
    

23. Florida Administrative Code Rule 4A-37.056, states, in pertinent part, that:

    (6) All tests, both written and practical, given during training shall require maintenance of a percentage score of not less than 70 percent 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 percent 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 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.

    
    

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24. It is undisputed that the Minimum Standards Written and Practical Examination, prescribed by the Division pursuant to Section 633.35(1), Florida Statutes, consists of a written portion and 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 Fireground 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 retake the examination only once. The retake will consists of only portion or parts of the examination that the candidate failed. If a candidate fails the retake examination that candidate must retake and pass the Minimum Standards Course before being eligible to take the examination again.

25. It is undisputed that an individual who does not achieve a passing score of 70 fails the Fireground Skills part

    of the practical examination and thus fails the entire practical examination. The essential issue to be determined is whether the Petitioner passed the Fireground Skills portion of the re- test examination.

26. The Petitioner has the burden to prove by a preponderance of the evidence that he passed the Fireground Skills portion of the re-test examination.

27. Section 633.35(4), Florida Statutes, and Florida Administrative Code Rule 4A-37.056, provide that there may be one re-test examination within six months of the original examination. Upon failure of the re-test examination, an applicant must take the Minimum Standards Course again before the applicant can be reexamined. See Fla. Admin. Code R. 4A- 37.056(6)(e). The main issue is thus is whether the Petitioner passed the re-test examination.

28. The Petitioner does not really dispute the point deduction given to him by the examiner on the ropes, hose roll, or ladder portions of the re-test. The Petitioner did not testify that he performed those exercises correctly and deserved to receive maximum points. The Petitioner did not testify that he had tied the proper knot, rolled the hose in the proper configuration or that he had correctly applied a leg lock on the ladder. The Petitioner did not establish that he actually

    performed the skills correctly and that the examiner was wrong to deduct points for those skills.

29. The Petitioner argues that he should be awarded points on skill number five, concerning ropes, hitches, and knots because he never performed an unsafe act. The Petitioner also never completed the task, which is also an essential part of skill number five. The two factors cannot be separated merely to justify the Petitioner's requirements for passing that portion of the test. The Petitioner must correctly and completely perform the tasks in order to receive certification. Even if he had never performed an unsafe act he still had to complete each task, which he did not do.

30. The Petitioner's other main contention on the ropes section is that the examiner's error in calculation on the score sheet should be counted as a proper score. The Petitioner has offered no preponderant persuasive evidence that the examiner's error in mathematics was more than a simple human error, which the examiner promptly corrected. The Petitioner has given no reason or evidence which would justify overturning the examiner's re-calculation of the Petitioner's score on the re- test examination.

31. The Petitioner does not dispute that he did not keep his extremities out of the way of the partially cleared window in the forcible entry portion of the re-test. Rather, he

    contends that there is no way to hold the tool in order to keep his extremities outside of the glass. However, the Petitioner presented no evidence to support this contention which contradicts Mr. Chase's testimony that the safe way to perform the task in positioning body and extremities when breaking glass, is to keep all body parts away from the glass itself.

32. The Petitioner does not dispute that he did not form a diamond configuration at the start of his twin donut hose roll or that he did not dress the hose upon completion of the roll. Instead he argues that these are not stated as requirements on page 443 of "Essentials of Firefighting." However, the Petitioner brought forth no evidence or testimony that these techniques are not taught at his training facility. In fact, the Petitioner himself testified that he knew what "dressing a hose" meant and how and why a firefighter would dress a hose. Also, page 443 of "Essentials of Firefighting" shows an initial intentional configuration that resembles a diamond and is required in order to start a twin donut roll. The "Essentials of Firefighting" also shows a dressed hose at the completion of the twin donut roll. Even if the Petitioner did not know what the initial configuration was called, he should have known that such a configuration was required at the start of a twin donut hose roll, since it is shown in the "Essentials of Firefighting" handbook. Therefore the Petitioner has not substantially

disputed the point deduction given to him by the examiner during the re-test. He has not met his burden of proof in showing his entitlement to certification as a firefighter because he has not shown preponderant, persuasive evidence that he should have been accorded a passing score of 70 percent.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witness, and the pleadings and arguments of the parties it is, therefore,

RECOMMENDED that a Final Order be entered denying the Petitioner's application for certification as a firefighter in the State of Florida.

DONE AND ENTERED this 8th day of January, 2004, in Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF 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 Clerk of the

Division of Administrative Hearings this 8th day of January, 2004.

COPIES FURNISHED:

Ross Lee Kramer

103 Baird Way

Saint Mary's, Georgia 31558

Casia R. Belk, Esquire Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0333

Honorable Tom Gallagher Chief Financial Officer

Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

Mark Casteel, General Counsel Department of Financial Services The Capitol, 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: 03-002439

Orders for Case No: 03-002439