STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL SHAPIRO, )

)

Petitioner, )

)

vs. ) Case No. 12-4159

)

DEPARTMENT OF FINANCIAL )

SERVICES, BUREAU OF FIRE )

STANDARDS AND TRAINING, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge Edward T. Bauer held a final hearing in this case by video teleconference between sites in West Palm Beach and Tallahassee, Florida, on February 25, 2013.

APPEARANCES

For Petitioner: Michael H. Shapiro, pro se

19139 Two River Lane

Boca Raton, Florida 33498

For Respondent: Linje E. Rivers, Esquire

Department of Financial Services

200 East Gaines Street, Sixth Floor Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Petitioner achieved a passing score on the Practical Examination for Retention of Firefighter Retest.

PRELIMINARY STATEMENT

By correspondence dated November 15, 2012, the Department of Financial Services, Bureau of Fire Standards and Training ("the Department" or "Respondent"), notified Petitioner that he failed to achieve a passing score on the Practical Examination for Retention of Firefighter Retest ("retention retest").

On or about November 28, 2012, Petitioner disputed the results and submitted a timely request for a formal hearing. The matter was referred to the Division of Administrative Hearings on December 28, 2012, for the assignment of an administrative law judge to conduct the hearing Petitioner had requested.

As noted above, the final hearing was held on February 25, 2013, during which Petitioner testified on his own behalf.

Petitioner called no other witnesses, nor did he submit any exhibits for admission into evidence. The Department presented the testimony of two witnesses, Dennis Hackett and Thomas Johnson, and introduced four exhibits into evidence, identified as Respondent's Exhibits A, B, C, and D.

The final hearing transcript was filed on March 18, 2013.

Thereafter, on March 27, 2013, Respondent filed its Proposed Recommended Order, which the undersigned considered in the preparation of this Recommended Order. Petitioner did not file a post-hearing submittal.

Unless otherwise indicated, statutory citations refer to the 2012 Florida Statutes.

FINDINGS OF FACT

1. The Department is the state agency responsible for the certification of firefighters in the State of Florida, pursuant to chapter 633, Florida Statutes.

2. In or around 2009, Petitioner achieved his Firefighter Minimum Standards Training Certification, which was valid for three years.

3. To maintain his certification, it was necessary for Petitioner to either: maintain employment as a firefighter (or serve as a volunteer firefighter) for at least six consecutive months during the three-year period subsequent to his certification; or successfully complete the retention examination, which is identical to the practical examination given to new applicants. Petitioner could not satisfy the first option, and was therefore required to take the retention examination.

4. Petitioner's initial attempt to successfully complete the retention examination occurred on September 21, 2012, and included four practical components: self-contained breathing apparatus ("SCBA"), hose operation, ladder operation, and fireground skills. To pass the retention examination, an examinee must earn a score of at least 70 on all sections.

   
   

5. Each portion of the retention examination has certain evaluative components that are graded; the ladder operation, for instance, consists of 15 skills——e.g., maintaining contact with the ladder, lifting and securing the ladder properly, using proper hand position——that the examinee is expected to complete. Significantly, the ladder operation also requires the examinee to fulfill ten mandatory components, which include, among other things, maintaining control of the ladder at all times, donning protective gear appropriately, and finishing the exercise within the time limit of four minutes and 30 seconds. Pertinent to the instant case, noncompliance with respect to any of the mandatory elements results in automatic failure, irrespective of the examinee's performance in connection with the evaluative components.

6. It is undisputed that Petitioner achieved passing scores on the fireground skills, SCBA, and hose components of the retention examination. With respect to the ladder evaluation, however, Petitioner failed to comply with two mandatory elements (he exceeded the time limit and neglected to don his hood properly), which resulted in an automatic failure. Petitioner, like all candidates who fail the retention examination on the first attempt, was offered one retest opportunity.1/

7. Petitioner's retest was administered on November 8,

   
   

   2012, at the Ocala Fire College, during which he passed the SCBA and hose portions of the examination. (Petitioner was not required to re-take the fireground skills component.)

8. As for the ladder evaluation, the Department contends, and Petitioner does not dispute, that a time of four minutes and

   49 seconds was recorded——a result that exceeds the time limit of four minutes and thirty seconds. Petitioner speculates, however, that the examiner, Thomas Johnson,2/ could have mistakenly started the timer during the safety inspection.

   While it is true that the timing process should not begin until an examinee completes a safety examination of the ladder, Petitioner has adduced no evidence, persuasive or otherwise, that Mr. Johnson started the clock too soon. Petitioner has therefore failed to show that he achieved a passing score on the ladder evaluation and, consequently, on his retention retest.

   CONCLUSIONS OF LAW

   
   

9. 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), Florida Statutes.

10. 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., Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

    
    

    Petitioner has the ultimate burden of proof to demonstrate, by a preponderance of the evidence, that he passed his retention examination retest and, therefore, that his application to retain his 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 the preponderance of the evidence standard applies to license application proceedings); Walthour v. Dep't of Fin.

    Servs., Div. of State Fire Marshal, Case No. 08-227, 2008 Fla. Div. Adm. Hear. LEXIS 388 (Fla. DOAH May 20, 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.").

11. Pursuant to the findings of fact contained herein, Petitioner has failed to demonstrate that he passed the ladder portion of the retention of firefighter retest. Indeed, the credible evidence shows that he was properly scored a "zero" on that section of the examination due to his failure to satisfy the mandatory time component.

12. In light of Petitioner's failure of the retention of firefighter retest, Respondent is obligated to deny his application for recertification as a firefighter in the State of Florida. Fla. Admin. Code R. 69A-37.0527(6) & (7)(providing that only one retest of the retention examination is permitted

and that failure to pass the retest "will result in the individual's having to successfully complete Firefighter training . . . before a new application and additional testing can occur"); Sobers v. Dep't of Fin. Servs., Case No. 12-1191, 2012 Fla. Div. Adm. Hear. LEXIS 399 (Fla. DOAH July 25, 2012;

Fla. DFS Oct. 3, 2012)(concluding that failure of firefighter retest required denial of application for recertification).

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services enter an order denying Petitioner's application to retain his certification as a firefighter in the State of Florida.

DONE AND ENTERED this 29th day of March, 2013, in Tallahassee, Leon County, Florida.

S

Edward T. Bauer 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 29th day of March, 2013.

ENDNOTES

1/ See Fla. Admin. Code R. 69A-37.0527(6).

2/ Mr. Johnson has been employed with Respondent for nine years, during which time he has administered thousands of examinations.

COPIES FURNISHED:

Michael H. Shapiro 19139 Two River Lane

Boca Raton, Florida 33498

Linje E. Rivers, Esquire Department of Financial Services

200 East Gaines Street, Sixth Floor Tallahassee, Florida 32399

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 12-004159

Orders for Case No: 12-004159