vs.
Respondent.
) Case No. 12-3531
On March 6, 2013, a final hearing was held in this case by video teleconference in Sarasota and Tallahassee, Florida, before Elizabeth W. McArthur, Administrative Law Judge, Division of Administrative Hearings (DOAH).
For Respondent: Linje E. Rivers, Esquire
The issue in this case is whether Petitioner, Brandon Michael Post (Petitioner or Mr. Post), achieved a passing score on the practical exam for firefighter certification.
Mr. Post is seeking to become certified as a firefighter by the State Fire Marshal's Bureau of Fire Standards and Training (Bureau) within the Department of Financial Services (Respondent or Department).
By letter dated September 20, 2012, the Bureau notified Mr. Post that he did not achieve a passing score on the firefighter minimum standards practical retest. Mr. Post was
informed of his right to contest the Bureau's determination in an administrative hearing. Mr. Post timely filed with the Department a request for an administrative hearing in which he raised disputed facts regarding the scoring of his practical exam at both the initial test and the retest. The Department transmitted the case to DOAH for assignment of an Administrative Law Judge to conduct the requested hearing.
The hearing was scheduled, but later continued twice at the unopposed requests of each party, first to allow additional time for Petitioner to review the test scoring results and then to accommodate a calendar conflict.
At the final hearing, Petitioner testified on his own behalf. Petitioner did not offer any exhibits, but made use of Respondent's exhibits. Respondent offered the testimony of the following Bureau witnesses: Dennis Hackett, standards
supervisor; and Kenneth Harper, field representative. Respondent's Exhibits A through D were admitted in evidence.
At the conclusion of the hearing, the parties were informed that proposed recommended orders (PROs) would be due ten days after the final hearing transcript was filed at DOAH. The
one-volume Transcript was filed on March 22, 2013. Respondent timely filed its PRO; Petitioner did not file a PRO. Respondent's PRO has been considered, along with the entire evidentiary record, in the preparation of this Recommended Order.
The Department is the state agency responsible for the regulatory process governing firefighters, including the process by which candidates apply for certification as firefighters in the State of Florida. In addition to meeting certain background and training requirements, candidates must take and attain passing scores on the Firefighter Minimum Standards Written and Practical Examination (firefighter examination) administered by the Department.
Mr. Post applied to the Department for firefighter certification. There is no dispute that Mr. Post met the background and training qualifications for certification in all respects. In addition, Mr. Post took and passed the written portion of the firefighter examination. At issue is whether
Mr. Post attained a passing score on the practical portion of the firefighter examination (practical exam).
The practical exam has four components covering the following subjects: self-contained breathing apparatus (SCBA); hose operations; ladder operations; and fireground scenarios. In order to pass the practical exam, a candidate must obtain a score of at least 70 percent on each component. If a candidate does not pass the practical exam, the candidate is offered the opportunity for a retest.
The practical exams are conducted by Bureau field representatives. A field representative evaluates each candidate's performance and records the candidate's scores on a form called "minimum standards exam field notes" (field notes).
There is a separate field notes form for each component of the practical exam. The field notes form identifies each of the separate skills or activities tested. Certain items are scored on a pass-fail basis, because they are considered mandatory skills. Thus, the failure to achieve an acceptable result in a mandatory item results in automatic failure for the component. Other tested items are considered evaluative, and the candidate's performance is given a point score. A total of 100 points is possible for all of the evaluative items; a candidate must attain a score of at least 70 to pass the component.
Mr. Post took the firefighter examination on June 13, 2012. In the practical exam, Mr. Post received passing scores of
100 percent for the SCBA component; 100 percent for the hose operation component; and 70 percent for the fireground scenarios component. However, Mr. Post failed the ladder operations component.
Mr. Harper was the field representative who administered Mr. Post's practical exam on June 13, 2012, and who completed the field notes reflecting how he scored Mr. Post's performance.
Mr. Harper has been a Bureau field representative for more than five years, and in that time, he has administered thousands of practical exams.
Mr. Harper gave Mr. Post a failing score for not donning and securing all personal protective equipment (PPE) properly. Donning and securing PPE properly is considered a mandatory item that has to be achieved, because of the importance of this skill to a firefighter's safety.
To emphasize the safety concern associated with failing to don and secure all PPE properly, Mr. Harper also gave Mr. Post a failing score for committing an unsafe act that could result in serious injury or death.
The "unsafe act" scoring category is separate on the field notes form from the mandatory item "donning and securing all PPE properly." However, a failing score in either one of
these categories alone required an automatic failure for the ladder operations component. Thus, giving Mr. Post a failing score for an "unsafe act" had no effect on his score; Mr. Post's failing score for not donning and securing his PPE properly required an automatic failure for the ladder operations component.
Mr. Harper credibly explained why he judged Mr. Post's donning and securing of his PPE to be improper. He recalled in precise detail how Mr. Post's mask had a five-point harness mechanism that is designed to hold the face piece tight to the face, creating an air-tight seal that will keep out dangerous smoke and fumes. There were two straps at the temple, two straps at the jaw, and one at the top center. To secure the mask, the two jaw straps are supposed to be pulled tight at the same time, then the two temple straps are pulled tight at the same time, then the top strap is pulled last to pull the mask up evenly on the face. Mr. Post did not secure his mask this way. Instead of pulling the two jaw and temple straps at the same time, he held the face piece with one hand, and pulled the straps on one side of his face with his other hand. This pulled the mask to the side, instead of centering it.
Mr. Post testified that his face piece was on good enough for him to achieve an air-tight seal, which was maintained
throughout the exercise. Therefore, he took issue with the opinion that the way he put on his PPE was unsafe.
Mr. Post's statements were inconsistent regarding whether the mask was askew, pulled to one side. At the final hearing, Mr. Post testified at first that Mr. Harper's field notes comment was incorrect when it said that the "face piece was pulled to left side." Mr. Post testified that he disagreed with the field notes comment that his face piece was "pulled to one side." But then Mr. Post acknowledged that "it could have been maybe a little bit to the left, but there was no poor seal at all times." This latter statement was closer to Mr. Post's statement in his hearing request: "I had a seal of my face piece but was failed because the harness wasn't quite centered on my head." Mr. Post essentially admitted that he did not "properly" don and secure all of his PPE; his argument is with the extent to which it was improper, and whether his failure to properly secure the harness actually caused harm.
Mr. Harper's testimony that Mr. Post improperly donned and secured his PPE and that this failure was an unsafe act that could result in serious injury or death is accepted. Mr. Harper credibly explained the danger of a mask not being harnessed securely with a centered face piece. Even though it is possible to initially attain a proper seal with an off-centered face piece, as Mr. Post did, the fact that it is not properly secured
to be centered on the face means that it is easier to dislodge than a centered, properly-harnessed mask. Anything jarring the head gear, or even an abrupt head movement, could cause the mask to move further off-center and break the critical seal that protects the firefighter from toxic gases and smoke. These serious risks cannot be brushed aside simply because Mr. Post managed to make it through a short simulated exercise without dislodging his off-centered mask.
The Bureau notified Mr. Post that he did not achieve a passing score on his practical exam because of his failed score on the ladder operations component. As provided by statute, Mr. Post was advised that he was allowed one opportunity to retake the practical exam. Mr. Post took the practical exam retest on September 18, 2012. Once again, Mr. Harper was the field representative who administered the practical exam to
Mr. Post.
Mr. Post admitted that his retest "was pretty sloppy." On the hose operations component, once again, Mr. Post had problems donning and securing all of his PPE. This time, the problems were with the gear that was supposed to protect his torso. As Mr. Post acknowledged, "my shoulder strap was twisted and . . . my high-pressure hose [was] under [the] strap. That is true. I remember that." His jacket was pulled up in the back, and his shirt was exposed.
Based on these problems, Mr. Post received an automatic failure under the mandatory category for failing to don and secure all PPE properly. Mr. Post admitted that he failed to don and secure all of his protective equipment properly. The protective jacket is not supposed to be pulled up in the back, exposing one's shirt. Shoulder straps are not supposed to be twisted, with the high-pressure hose caught under a strap.
Mr. Post testified that he did not think he should have been failed for these admitted problems with putting on his protective gear, because no skin was exposed. However, he offered no legitimate challenge to the reasonableness of the exam itself, which makes the proper donning and securing of all of one's PPE a mandatory step. As described, it was entirely reasonable to give Mr. Post an automatic failure on this retest component for his improper donning and securing of his protective gear.
Mr. Post also received an automatic failure in the ladder operations component. There were two separate problems with this exercise. One problem was Mr. Post's failure to fully secure the ladder's "dogs" or locking devices that secure the separate sections of a multi-section ladder. The dogs are like clamps that are activated by a spring mechanism; when employed properly, they clamp around a rung at the joinder point of the ladder's separate sections. In Mr. Post's ladder exercise, he
failed to properly employ the dogs; they were not fully secured in place around the rung. Instead, they were balanced on the tips, sitting on top of the rung, instead of locked around the
rung.
Mr. Post attempted to argue that it was not possible
for him to have failed to properly employ the dogs in this manner because if the dogs were not locked, the ladder would have fallen down and his stayed upright. However, as Mr. Harper credibly explained, the dogs were sitting on top of the rung (instead of clamped around it). As such, the ladder could remain upright, albeit, in a precarious state that depended on the dogs keeping their balance on top of a rung, instead of in a secure state with the dogs locked in place around the rung. Mr. Harper's testimony is credited; Mr. Post did not effectively rebut the testimony regarding his improper employment of the dogs.
The second problem Mr. Post had in the ladder operations component of his retest came in the part of the exercise in which Mr. Post was supposed to exit the building carrying the "victim" and retreat to safety. According to the field notes, Mr. Post received an automatic failure for committing an unsafe act that could result in serious injury or death, because he was running backwards with the victim.
Mr. Post did not take issue with this aspect of his retest scoring, admitting that the field notes were accurate: "When
you're carrying the victim out of a building, that's the only time you're allowed to go backwards, but I guess I was running where I should have been walking. But I don't really--I don't really testify against that."
Mr. Post expressed some generalized concern with the fact that the same field representative--Mr. Harper--administered Mr. Post's initial examination and the retest. However, no evidence was offered to suggest that Mr. Harper's administration of the practical exam or the retest was improper or unfair to
Mr. Post in any respect. Indeed, Mr. Post essentially conceded that Mr. Harper fairly and reasonably assessed Mr. Post's admittedly sloppy performance on the retest. Mr. Post's concession in this regard puts to rest any implication that Mr. Post might not have failed the retest if a different field representative had been assigned. Instead, the evidence established that Mr. Post's performance in the practical exam retest earned three different automatic failures, any one of which would have resulted in an overall failing grade on the retest.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2012).1/
The Department has regulatory jurisdiction over firefighter training and certification in the State of Florida pursuant to chapter 633, Florida Statutes.
Section 633.35 authorizes the Department's State Fire Marshal Division (Division) to establish firefighter training requirements and issue certificates of compliance to individuals who meet the prescribed eligibility requirements and who pass an examination as prescribed by the Division. Pursuant to section 633.35(4), a person who fails a firefighter examination may retake the examination once within six months of the original test date.
Florida Administrative Code Rule 69A-37.056 sets forth the testing parameters for firefighter candidates, including the requirement that an applicant must attain a score of 70 percent on both the written and practical examinations to receive a certificate.
As the applicant for firefighter certification, Petitioner has the ultimate burden of proof to demonstrate by a preponderance of the evidence that his application for firefighter certification should be approved. See Dep't of Banking and Fin., Div. of Sec. & Investor Prot. v. Osborne Stern
& Co., 670 So. 2d 932, 934 (Fla. 1996)(holding that an applicant for a license bears the burden of proving entitlement to the license by a preponderance of the evidence).
In order to prevail in a challenge to the scoring results of a licensure examination, Petitioner must prove that the examination was arbitrary and capricious or that the scoring process was devoid of logic or reason. Harac v. Dep't of Prof. Reg., Bd. of Architecture, 484 So. 2d 1333, 1338 (Fla. 3d DCA 1986) (applicant challenging the scoring results of a licensure examination shoulders "a heavy burden in proving that a subjective evaluation by an expert is arbitrary"); Topp v. Bd. of
Elec. Examiners, 101 So. 2d 583, 586 (Fla. 1st DCA 1958)(where city examining boards conducted examinations fairly and uniformly in accordance with their rules, their judgment as to proper grading of such examinations will not be disturbed by courts unless shown to be devoid of logic and reason); State ex rel.
Glaser v. Pepper, 155 So. 2d 383 (Fla. 1st DCA 1963)(evidence failed to establish that petitioner had actually passed the dental examination and that the board capriciously and arbitrarily failed to give the petitioner the grade he earned).
Department final orders in firefighter certification proceedings consistently apply the standards set forth in these appellate decisions. See, e.g., Serrano v. Dep't of Fin. Servs., Case No. 11-1556, RO at 7-8 (Fla. DOAH July 7, 2011; Fla. DFS Aug. 30, 2011)("Serrano must prove by a preponderance of the evidence that the Firefighter examination was arbitrary or capricious, or that the grading process was devoid of logic and
reason"); Walthour v. Dep't of Fin. Servs., Case No. 08-227,
RO at 14 (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.").
Petitioner did not meet his burden of proof.
Petitioner failed to establish that either the practical exam or the retest was arbitrary and capricious or was administered in an arbitrary and capricious manner. Petitioner failed to establish that the scoring of the practical exam, or of the retest, was devoid of logic or reason or was otherwise flawed.
Instead, based on the facts found above, the initial practical exam results were reasonable in light of the automatic failing score Petitioner earned for not properly donning and securing his PPE in one exam component. In addition, the practical exam retest results were reasonable, based on three different automatic failing scores earned by Petitioner in two exam components; any one of the three automatic failing scores would have supported the result that Petitioner failed the practical exam retest. Respondent acted appropriately in awarding Petitioner failing grades on both the practical exam and the retest.2/
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Financial Services, denying the application of Petitioner, Brandon Michael Post, for certification as a firefighter in the State of Florida.
DONE AND ENTERED this 9th day of April, 2013, in Tallahassee, Leon County, Florida.
ELIZABETH W. MCARTHUR
Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 2013.
1/ All references herein to the Florida Statutes are to the 2012 version, unless otherwise indicated.
2/ As explained by Mr. Hackett, when an applicant does not achieve a passing score in the practical exam or in the single retest allowed, the applicant is then required to take the Firefighter II training program at a training academy. Upon completion of the Firefighter II training program, the applicant can take the practical exam again, and if a passing score is not achieved, then the applicant will be allowed one retest.
Julie Jones, CP, FRP, Agency Clerk Department of Financial Services Division of Legal Services
Linje E. Rivers, Esquire Department of Financial Services
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.
