vs.
Respondent.
) Case No. 12-4157
Pursuant to notice, a final hearing was held in this case on February 25, 2013, by video teleconference with sites in Daytona Beach and Tallahassee, Florida, before Suzanne Van Wyk, duly-appointed Administrative Law Judge of the Division of
Administrative Hearings.
778 Jimmy Ann Drive, No. 1011 Daytona Beach, Florida 32114
For Respondent: Linje E. Rivers, Esquire
The issue for determination is whether Petitioner successfully completed the Firefighter Minimum Standards
Practical Examination or the Practical Examination Retest for certification as a firefighter in the State of Florida.
Petitioner, Ricardo Francois, took the Firefighter Minimum Standards Practical Examination Retest on November 6, 2012, at the Florida State Fire College in Ocala, Florida. By letter dated December 5, 2012, Petitioner was notified by the Department of Financial Services, Bureau of Fire Standards and Training (Department or Respondent) that he had not successfully completed the Minimum Standards Practical Examination Retest.
Petitioner scored less than a total of 70 points on the ladder component because he exceeded the maximum time allowed for the ladder evolution. Petitioner challenged the Department’s decision and requested a hearing. On December 28, 2012, this matter was referred to the Division of Administrative Hearings.
The final hearing was scheduled for February 25, 2013, and commenced as scheduled. At hearing, Petitioner testified on his own behalf and entered seven exhibits (Petitioner's Exhibits 3-6 and 8-10) into evidence. The Department presented the testimony of Dennis Hackett, Interim Standards Supervisor, Bureau of Fire Standards and Training; and Tuffy Dixon, a Bureau field representative. The Department entered four exhibits (Respondent's Exhibits A-D) into evidence.
A transcript of the hearing was ordered. The Transcript,
consisting of one volume, was filed on March 18, 2013. The parties timely filed post-hearing submissions, which have been considered in the preparation of this Recommended Order.
Petitioner is a candidate for certification as a firefighter in the State of Florida.
To be certified as a firefighter, a candidate is required to successfully complete the Firefighter Minimum Standards Written and Practical Examination (Practical Examination).
A candidate is able to take the certification test twice. If a candidate fails the first time, the candidate is automatically afforded an opportunity for a retest.
On October 15, 2012, Petitioner initially took the Practical Examination at Daytona State Fire College in Daytona, Florida.
The Practical Examination consists of four parts, or evolutions: self-contained breathing apparatus (SCBA), hose operation, ladder operation, and fireground skills. To successfully complete the Practical Examination, a candidate is required to receive a minimum of 70 points on each evolution and to complete all mandatory steps. Petitioner received more than a minimum of 70 points on the SCBA and hose evolutions, but did
not achieve a passing score on either the ladder evolution or the fireground skills evolution.
The maximum time allowed on the ladder evolution is four minutes and 30 seconds. Exceeding the maximum time allowed is an automatic failure of the ladder evolution. Petitioner’s time on the ladder evolution was four minutes and 50 seconds, which was 20 seconds more than the maximum time allowed.
Petitioner admitted that he exceeded the maximum time allowed to complete the ladder evolution. He blames that failure on the testing instructor, Mr. Johnson, for not being located where Petitioner could hand off a halligan to him in order to complete the test.
A halligan is a tool used by firefighters to sound the floor of a burning building for safety. During the ladder evolution, a candidate is required to pick up the halligan prior to ascending a pre-positioned 24-foot extension ladder, sound the floor with the halligan, enter the second floor, descend a set of stairs to the first floor, locate a mannequin, and execute a “rescue” by dragging or carrying the mannequin out of a doorway. When a candidate clears the doorway threshold with the mannequin, the ladder evolution is complete.
During testing, Petitioner understood he would be handing the halligan off to Mr. Johnson. However, Mr. Johnson was not there, and, as Petitioner explained, “I had my halligan
in my hand and I was looking around for him, but he was nowhere to be found. . . . Well, the time that it took me to look for my instructor, which I am not supposed to do, he was supposed to be there, my time went over –- my time went over.”
Because of his failure to pass the ladder evolution and fireground skills evolution, Petitioner failed to successfully complete the Practical Examination.
On November 6, 2012, Petitioner took a Practical Examination Retest (Retest) at Florida State Fire College in Ocala, Florida. The Retest consisted of the same four evolutions. He was required to receive a minimum of 70 points on each evolution and to complete all mandatory steps in order to successfully complete the Retest.
On the Retest, Petitioner received a perfect score of
100 points on the SCBA and hose evolutions. He received
90 points on the fireground skills evolution, but received no points on the ladder evolution. Petitioner exceeded the maximum time allowed on the ladder evolution. As on the original examination, the maximum time allowed is four minutes and
30 seconds and exceeding the maximum time allowed is an automatic failure of the ladder evolution. Petitioner’s time was four minutes and 38 seconds, which is 8 seconds more than the maximum time allowed. He received zero points on the ladder evolution for exceeding the maximum time allowed.
As a result of his failing to pass the ladder evolution, Petitioner failed to successfully complete the Retest.
Because Petitioner failed the Retest, the Department denied his certification as a firefighter.
In support of his challenge to the Department's determination that he exceeded the maximum time allowed on the ladder evolution, Petitioner testified that his wife was present at the Retest and recorded his time on the ladder evolution as four minutes and 17 seconds, 13 seconds faster than the maximum time allowed. Petitioner explained that his wife was positioned in an automobile at the grounds with a “straight-shot” view of the ground skills course, then drove to the other side of the course to observe and time the ladder evolution.
Petitioner introduced into evidence a photocopy of a sheet of notebook paper on which was written “Ricky’s time 3:58” on one line and “4:17” on the next line. Petitioner’s wife neither testified to overcome the hearsay nature of the evidence, nor did she authenticate the evidence.
Further, Petitioner admitted that the time his wife recorded was likely not exact, but rather gave him a “ballpark figure of not going over the four minutes and 30 seconds that I had.” Petitioner stated his wife’s recorded time would not be the same as the field representative’s because the field
representative started the stopwatch when Petitioner touched the ladder, as per protocol. Petitioner’s wife started her clock when Petitioner gave her the “thumbs up.”
Dennis Hackett, Interim Standards Supervisor, testified that it would be impossible for a third party to accurately time a candidate during the ladder evolution at Florida State Fire College. Mr. Hackett explained:
There’s just too many obstructions. If they were –- the tower, where the ladder evolution starts, is on the opposite side of where [third party observers] have to stay. Or they could go to another roadway that they could see the ladder evolution started, but there’s a burn building in the way to see the ascension of the ladder to the second floor. You can’t see that. They would have to be a marathon runner to get from where they could see to the second portion where they would come out of the building.
[T.53:18 through T.54:2]
The time of four minutes and 17 seconds recorded by Petitioner’s wife for Petitioner’s completion of the ladder evolution is not accepted as competent substantial evidence of the actual time in which Petitioner completed the ladder evolution on the Retest.
Tuffy Dixon is the Department’s field representative who administered the Retest to Petitioner in Ocala. Petitioner argues that Mr. Dixon may have failed to reset the stopwatch to zero prior to Petitioner beginning the ladder evolution.
Petitioner testified that he had been told by unnamed instructors at Daytona State Fire College that mistakes like that had been made. Petitioner failed to present any evidence as to the inaccuracy of the stopwatch used to time the ladder evolution or as to the inaccuracy of the Mr.Dixon’s use of the stopwatch at the Retest. He presented only assumptions or speculation as to the inaccuracy of Mr. Dixon’s use of the stopwatch.
Mr. Dixon has administered approximately 500 practical examinations in the two years he has served the Department. He testified that he is certain his stopwatch was functioning correctly on the day of Petitioner’s Retest and that he reset the stopwatch to zero prior to Petitioner beginning the ladder evolution. Mr. Dixon’s testimony is accepted as credible.
In further support of his arguments, Petitioner also testified that he never exceeded the maximum time allowed for the ladder evolution during practice runs at the facility. He maintained that the course in Daytona is longer than the course in Ocala, so it does not make sense that he would not complete the ladder evolution within the maximum time allowed.
Despite the fact that Petitioner submitted with his petition in this case a list of names and telephone numbers of Daytona State Fire College classmates who could attest to his time on practice runs of the ladder evolution, Petitioner did
not present the testimony of any of those candidates. Nor did he introduce any other evidence to corroborate his testimony that he never exceeded the maximum time allowed for the ladder evolution during practice. Further, no evidence was offered as to the comparable length of the two courses.
The evidence fails to demonstrate that the amount of time in which Petitioner completed the ladder evolution, as determined by the Department, was incorrect or inaccurate.
Therefore, the evidence demonstrates that Petitioner failed to successfully complete the ladder evolution within the maximum time allowed.
Hence, the evidence demonstrates that Petitioner
failed the Retest.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to sections 120.569 and 120.57(1), Florida Statutes (2012).
These proceedings are de novo. § 120.57(1)(k), Fla.
Stat.
The general rule is that "the burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal." Fla. Dep't of Transp.
v. J. W. C. Co., 396 So. 2d 778, 788 (Fla. 1st DCA 1981).
Petitioner has the ultimate burden of proof to show by a preponderance of the evidence that he successfully completed the Retest. Dep't of Banking & Fin., Div. of Sec. and Investor
Prot. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); J. W. C. Co., supra.; § 120.57(1)(j), Fla. Stat.
Section 633.35, Florida Statutes (2012), provides in pertinent part:
(2) The division shall issue a certificate of compliance to any person satisfactorily complying with the training program established in subsection (1), who has successfully passed an examination as prescribed by the division, and who possesses the qualifications for employment in s. 633.34, except s. 633.34(5). . . .
* * *
(4) A person who fails an examination given under this section may retake the examination once within 6 months after the original examination date. An applicant who does not retake the examination within such time must take the Minimum Standards Course, pursuant to subsection (1), before being reexamined. The division may establish reasonable preregistration deadlines for such reexaminations.
Florida Administrate Code Rule 69A-37.056 provides in pertinent part:
To be recognized for certification as a firefighter by the Bureau, training shall be obtained under the conditions specified herein. Satisfactory completion of the prescribed training, instruction, and standards in accordance with these specifications shall be certified by a
designated instructor or member of the Bureau staff.
* * *
(6) Each subject area within the Minimum Standards Course will be tested to validate the acquisition and application of relevant knowledge and skill. All subject area and final tests, both written and practical, given during the Minimum Standards Course shall require maintenance of a percentage score of not less than 70% on each subject listed in the Minimum Standards Course. If a minimum score of 70% is not achieved on any test, the student shall be afforded a one-time make up examination to achieve the required 70%. Students not in compliance with the minimum score requirement shall be dropped from the course.
* * *
(b) State examinations, consisting of a written and a practical part, shall be administered by a Field Representative of the Bureau, or designee, and shall encompass all components of the Minimum Standards Course. The applicant must attain a score of 70% on both the written and practical examinations to receive a certificate of compliance.
The burden of proof is on Petitioner to show by a preponderance of evidence that the scoring on the Retest was arbitrary or capricious, or that the scoring process on the Retest was devoid of logic and reason. Harac v. Dep't of Prof'l Reg., Bd. of Architecture, 484 So. 2d 1333 (Fla. 3d DCA 1986); State ex rel. Glasser 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).
Petitioner failed to meet his burden of proof. The preponderance of the evidence failed to demonstrate that the administration or scoring of the Retest was arbitrary or capricious or that the scoring process of the Retest was devoid of logic and reason.
Hence, the evidence demonstrates that Petitioner failed to earn a passing score on his Retest and, therefore, failed to successfully complete the Retest.
DONE AND ENTERED this 3rd day of April, 2013, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 2013.
Linje E. Rivers, Esquire Department of Financial Services
778 Jimmy Ann Drive, No. 1011 Daytona Beach, Florida 32114
Julie Jones, CP, FRP, Agency Clerk Division of Legal Services 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.
