STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVIAN PETER SOLAN,

Petitioner,

vs.

DEPARTMENT OF FINANCIAL SERVICES, BUREAU OF FIRE STANDARDS AND TRAINING,

Respondent.

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) Case No. 12-3619

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RECOMMENDED ORDER

A final hearing in this cause was held on January 30, 2013, by video teleconference before the Division of Administrative Hearings by its designated Administrative Law Judge Linzie F. Bogan in sites between Orlando and Tallahassee, Florida.

APPEARANCES

For Petitioner: Davian Peter Solan, pro se

8639 Shenna Court

Orlando, Florida 32818-5669

For Respondent: Linje E. Rivers, Esquire

Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

Whether Petitioner's second failed Firesafety Examination should be invalidated because of faulty examination questions, and, if so, the relief to which Petitioner is entitled.

PRELIMINARY STATEMENT

By letter dated September 21, 2012, Respondent, Department of Financial Services, Bureau of Fire Standards and Training (Department), advised Petitioner, Davian Peter Solan (Petitioner), that he did not achieve a passing score on the Firesafety Inspector Certification Examination (Firesafety Exam). The letter also advised Petitioner that because he failed the initial examination and the retake examination, he is required to repeat the Firesafety Inspector Training Course (Inspector Training Course) before retaking the Firesafety Exam.

Petitioner, in response to the letter of September 21, 2012, contends that he should not have to repeat the Inspector Training Course before taking the Firesafety Exam for the third time, because the second Firesafety Exam that he took was flawed. The matter was forwarded to the Division of Administrative Hearings on November 7, 2012, for a disputed fact hearing.

The matter was initially scheduled for final hearing on December 21, 2012. On December 18, 2012, and January 18, 2013, respectively, the parties moved for continuance of the final hearing. The motions for continuance were granted, and the disputed fact hearing ultimately was held on January 30, 2013.

During the final hearing, Petitioner testified on his own behalf. Petitioner's Exhibits 1 through 4 were received into evidence. The Department presented the testimony of one witness,

Dennis Hackett, a fire standards supervisor with the Department. Department Exhibits A through D were received into evidence.

A Transcript of the disputed fact hearing was filed on February 28, 2013. Both parties filed proposed recommended orders, which have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Petitioner is an applicant for certification as a firesafety inspector in the State of Florida.

2. As an applicant for certification as a firesafety inspector, Petitioner was required to complete an approved Inspector Training Course before sitting for the Firesafety Exam. In March 2012, Petitioner successfully completed an approved Inspector Training Course.

3. The Department establishes general curriculum parameters for firesafety inspector training courses taught throughout the State of Florida. Approximately two years before Petitioner commenced his Inspector Training Course, the Department informed entities offering training courses that the textbook, Brannigan's

   Building Construction for the Fire Service (4th edition), should no longer be used as a reference source when preparing students for the Firesafety Exam due to the limited availability of the textbook. The Brannigan textbook had been recognized by the Department for many years as an approved training guide.

   
   

4. Petitioner, after completing his Inspector Training Course, spent several months studying for the Firesafety Exam. On August 30, 2012, Petitioner took the Firesafety Exam for the first time and answered 57 of 100 questions correctly. Petitioner failed this examination. Approximately three weeks later, Petitioner, on September 18, 2012, took the Firesafety Exam a second time. Petitioner answered 63 of 100 questions

   correctly. Petitioner once again failed the Firesafety Exam. By letter dated September 21, 2012, the Department informed Petitioner that because "you failed both the initial and retake examinations, it will be necessary for you to repeat the Inspect[or] Training [Course], and you will be required to submit a new application." Petitioner does not wish to repeat the Inspector Training Course.

5. When Petitioner took his retake examination on

   
   

   September 18, 2012, he encountered several questions that, in his opinion, presented information that was different from what he learned from his Inspector Training Course. Upon post-exam investigation, Petitioner, after having met with a representative from the Department, identified nine questions from the retake examination that he believes were derived from the Brannigan textbook. Of the nine "Brannigan" questions identified by Petitioner, he provided correct answers to six of the questions during his retake examination. According to the Department, even

   
   

   if Petitioner received credit for the additional "Branningan" questions (as identified by Petitioner) that he answered incorrectly, he would have only achieved an exam score of 66 out of 100, which is still a failing score.

6. The Department disagrees with Petitioner's assertion that there were nine "Brannigan" questions on the retake examination. The Department concedes, however, that there was one question on the retake examination that was taken directly from the Brannigan textbook. Petitioner answered correctly on his retake examination the one Brannigan question identified by the Department. Petitioner did not prove that there were nine "Brannigan" questions on the examination, but he did prove the existence of one "Brannigan" question on the examination.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding.

   §§ 120.569 & 120.57(1), Fla. Stat. (2012).1/

   
   

8. The Department has jurisdiction over Petitioner's examination and application for certification as a Florida firesafety inspector pursuant to chapter 633, Florida Statutes.

9. Section 633.081 sets forth criteria for the certification of candidates seeking employment as firesafety inspectors in the State of Florida and provides, in part, as follows:

   
   

   (2) Except as provided in s. 633.082(2), every firesafety inspection conducted pursuant to state or local firesafety requirements shall be by a person certified as having met the inspection training requirements set by the State Fire Marshal. Such person shall:

   
   

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   (f) Have satisfactorily completed the firesafety inspector certification examination as prescribed by the department; . . . .

   
   

10. Florida Administrative Code Rule 69A-39.007 provides that a minimum score of 70 percent of the maximum score is required in order for an applicant to pass the Firesafety Exam.

11. Petitioner bears the burden of proving by a preponderance of the evidence that the examination was faulty, that the questions on the examination were faulty, that the questions were worded arbitrarily or capriciously, that his answers to the questions were arbitrarily or capriciously graded, or that the grading process was devoid of logic and reason. Harac v. Dep't of Prof'l Reg., 484 So. 2d 1333 (Fla. 3d DCA 1986); State ex rel. Glaser v. Pepper, 155 So. 2d 383 (Fla. 1st DCA 1963); State ex rel. Topp v. Bd. of Elec. Exam'rs for

    Jacksonville Beach, 101 So. 2d 583 (Fla. 1st DCA 1958).

    
    

12. Petitioner failed to establish that the September 18, 2012, examination was so contaminated with "Brannigan" questions that it resulted in the overall integrity of the examination

being compromised to the point of being faulty, arbitrary, capricious, or devoid of logic and reason. The Department admits that there was one "Brannigan" question that arguably should not have been included on the examination. Petitioner, however, answered this question correctly. Although Petitioner is not requesting that he be awarded additional points for the three alleged, though not proven, "Brannigan" questions that he missed, it is, nevertheless, worth repeating that even if Petitioner is awarded three additional points, he would still fail the examination. Petitioner failed to meet his burden of proof.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order denying Petitioner's challenge to the failing score he received on the September 2012 Firesafety Inspector Certification Examination and dismiss the petition in this proceeding.

DONE AND ENTERED this 26th day of March, 2013, in Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

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 26th day of March, 2013.

ENDNOTE

1/ All subsequent references to Florida Statutes will be to 2012, unless otherwise indicated.

COPIES FURNISHED:

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

200 East Gaines Street Tallahassee, Florida 32399-0390

Davian Peter Solan 8639 Shenna Court

Orlando, Florida 32818-5669

Linje E. Rivers, Esquire Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0333

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: 12-003619

Orders for Case No: 12-003619