STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JESSE BEAUREGARD, )

)

Petitioner, )

)

vs. ) Case No. 12-2331

)

DEPARTMENT OF FINANCIAL )

SERVICES, DIVISION OF )

STATE FIRE MARSHALL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case pursuant to sections 120.569 and 120.57(1), Florida Statutes, before Stuart M. Lerner, a duly-designated administrative law judge of the Division of Administrative Hearings (DOAH), on August 17, 2012, by video teleconference at sites in Lauderdale Lakes and Tallahassee, Florida.

APPEARANCES

For Petitioner: No appearance

For Respondent: Linje E. Rivers, Esquire

Department of Financial Services

200 East Gaines Street, Sixth Floor Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

Whether Petitioner's challenge to the failing score he received on the Practical Examination for Retention of Firefighter Retest he took on May 17, 2012, should be sustained.

PRELIMINARY STATEMENT

By letter dated May 31, 2012, the Department of Financial Services, Division of Fire Marshall, Bureau of Fire Standards and Training (Department) notified Petitioner that he had failed to "achieve a passing score on the Practical Examination for Retention of Firefighter Retest" (Retention Retest) and that, "[b]ecause [he had] not pass[ed] the retest [his] Firefighter Certificate of Compliance #151665 ha[d] expired as of 5/17/2012."

On June 20, 2012, Petitioner filed with the Department an executed Election of Rights "request[ing] a formal adversarial proceeding pursuant to [s]ection 120.57(1), Florida Statutes, to be held before [DOAH]" to challenge the failing score he had received on the Retention Retest. The matter was referred to DOAH on July 11, 2012, for the assignment of an administrative law judge to conduct the hearing Petitioner had requested.

The final hearing in the instant case was scheduled by video teleconference at sites in Lauderdale Lakes and Tallahassee, Florida, for August 17, 2012, commencing at 9:00

1. Petitioner and Respondent were provided with written notice of the scheduled hearing in accordance with section 120.569(2)(b). Such notice was in the form of a Notice of Hearing by Video Teleconference mailed on July 24, 2012, to Petitioner and to Respondent's counsel of record, Linje Rivers, Esquire.

   Respondent appeared at the hearing, which was held as scheduled on August 17, 2012, through its counsel of record, Mr. Rivers. Petitioner, on the other hand, did not make an appearance at the hearing, either in person or through counsel or any other authorized representative.

   After waiting approximately 45 minutes for Petitioner to appear, and not having heard from him, the undersigned went on the record. Mr. Rivers, on behalf of Respondent, declined to present any evidence, arguing, persuasively, that it was Petitioner, not Respondent, who had the burden of proof and that therefore Petitioner's failure to appear at the hearing and offer evidence in support of his challenge should result in the denial of his challenge. The undersigned indicated that he agreed and that he would issue an order recommending that Respondent take such action. The hearing was thereupon concluded.

   Unless otherwise indicated, statutory citations in this Recommended Order refer to the 2012 version of Florida Statutes.

   
   

   FINDINGS OF FACT

   
   

   1. Because no evidence was offered at the final hearing held in the instant case, no findings of fact are made.

      CONCLUSIONS OF LAW

      
      

   2. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to sections 120.569 and 120.57(1).

   3. To be employed as a regular or permanent firefighter in Florida, a person needs to possess a certificate of compliance issued by the Department. Successfully completing a Department- prescribed firefighter training program, passing a state examination, and meeting the requirements of section 633.34(1) through (3) and (5) are the prerequisites to obtaining such a certificate. See § 633.35(2).

   4. The state examination requirement is the subject of Florida Administrative Code Rule 69A-37.056(6)(b) and (c), which provides as follows:

      1. 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 within the Department], or designee, and shall encompass all components of the Minimum Standards Course. The applicant must attain a score of 70 percent on both the written and practical examinations to receive a certificate of compliance.

         
         

      2. The state practical examination will be administered at the local training facility.

         
         

         Whenever possible, the Bureau will schedule the state examination date at the convenience of the training facility. The written examination will be administered electronically at the local training center facility or local testing center if the training center lacks the capacity to support electronic testing.

         
         

   5. With exceptions not pertinent to the instant case, "[a]ny 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 69A-37.056(6)(b), Florida Administrative Code, in order to maintain her or his certification as a firefighter." § 633.352.

   6. Florida Administrative Code Rule 69A-37.0527 is the Department's "Retention of Certification" rule. It provides as

      follows:

      
      

      1. The examination for retention of certificate referenced in Section 633.352, F.S., shall be known as the retention examination. Being active as a volunteer firefighter with an organized fire department means the individual has been actively involved for a continuous period of time of not less than six months during the three-year period since certified or the certification was last renewed, or since termination from a fire department. Verification of being active shall be evidenced by documentation from the chief or ranking person of the volunteer fire department.

         
         

      2. To be eligible to participate in the retention examination, an individual shall apply on-line at www.florida statefirecollege.org, or submit to the Bureau Form DFS-K4-1308, "Application for Firefighter Certification Retention Examination", which is adopted in subsection 69A-37.039(2), F.A.C., and can be obtained where indicated in subsection 69A-37.039(1), F.A.C., which shall include a medical examination in accordance with Rule 69A- 37.037, F.A.C. An individual shall not participate in the practical examination unless a completed Form DFS-K4-1022 is on file with the Bureau.

         
         

      3. To be eligible to participate in the retention examination, an individual must submit fingerprints in accordance with Rule 69A-37.036, F.A.C.

         
         

      4. The Bureau, or its designee, will schedule the date and time for all retention examinations.

         
         

      5. Each individual will be required to wear NFPA labeled helmet, fire coat, bunker pants, boots, protective hood, self- contained breathing apparatus ("SCBA"), mask, personal alert safety system ("PASS device") and gloves. Such equipment shall be in operating condition to enter a hazardous environment and comply with the NFPA edition noted on the label, tag or design.

         
         

      6. Any individual who does not obtain a passing score of 70 percent or more on the retention examination will be permitted one opportunity to repeat the examination. The examination must be repeated within six months of the original examination or the opportunity is forfeited.

         
         

      7. Failure to pass the examination within the timeframes set forth above will result in the individual's having to successfully

      
      

      complete Firefighter training as defined in Rule 69A-37.055, F.A.C., before a new application and additional testing can occur.

      
      

   7. In the instant case, Petitioner is challenging the failing score he received on the Retention Retest.

   8. It was Petitioner's burden to prove at the final hearing held in this matter the merits of his challenge. See Espinoza v. Dep't of Bus. & Prof'l Reg., 739 So. 2d 1250, 1251 (Fla. 3d DCA 1999)("The general rule is that, apart from statute, the burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal.")(citation omitted); Harac v. Dep't of Prof'l Reg.,

      484 So. 2d 1333, 1338 (Fla. 3d DCA 1986)("Ordinarily one who fails a licensure examination would shoulder a heavy burden in proving that a subjective evaluation by an expert is arbitrary."); Fla. Dep't of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981)("In accordance with the general rule, applicable in court proceedings, 'the burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal.'"); Sobers v. Dep't of Fin. Servs., Case No. 12-1191, 2012 Fla. Div. Adm. Hear. LEXIS 399 *6 (Fla. DOAH July 25, 2012)("Petitioner has the ultimate burden of proof to demonstrate, by a preponderance of the evidence, that he passed his retention examination retest,

      
      

      and that, therefore, his application to retain his firefighter certification should be approved."); and Walthour v. Dep't of

      Fin. Servs., Case No. 08-227, 2008 Fla. Div. Adm. Hear. LEXIS

      
      

      388 *17 (Fla. DOAH May 20, 2008; Fla. DFS July 1, 2008)("To prevail, Petitioner must show by a preponderance of the evidence that the Retention Examination and/or re-test was faulty or that the grading process was devoid of logic.").

   9. Petitioner, however, failed to make an appearance at the final hearing and present any evidence in support of his challenge, despite having been afforded proper notice of the hearing.

   10. Accordingly, his challenge to the Retention Retest must be denied.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department of Financial Services, Division of the State Fire Marshall, enter an order denying Petitioner's challenge to the failing score he received on the Practical Examination for Retention of Firefighter Retest he took on May 17, 2012.

S

DONE AND ENTERED this 17th day of August, 2012, in Tallahassee, Leon County, Florida.

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 2012.

COPIES FURNISHED:

Jesse Beauregard

10731 Northwest 18th Court Coral Springs, Florida 33071

Linje E. Rivers, Esquire Department of Financial Services

200 East Gaines Street, Sixth Floor Tallahassee, Florida 32399-0333

Julie Jones, CP, FRP, Agency Clerk Department of Financial Services Division of Legal Services

200 East Gaines Street Tallahassee, Florida 32399-0390

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: 12-002331

Orders for Case No: 12-002331