STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

CHASITY L. DURBIN, )

)

Petitioner, )

)

vs. ) CASE NO. 97-0450

)

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Following notice to all parties, Don W. Davis, Administrative Law Judge for the Division of Administrative Hearings, held a final hearing in the above-styled case on April 15, 1997, in Starke, Florida.

APPEARANCES

For Petitioner: Chasity L. Durbin, pro se

708 MacMahon

Starke, Florida 32091

For Respondent: Mark P. Brewer, Esquire

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

Whether Petitioner's challenge to a question on the Corrections Officer Basic Recruit Training Examination should be sustained and Petitioner’s score increased by award of additional credit for the answer given by her.

PRELIMINARY STATEMENT

Petitioner, having failed to make a passing score on the Basic Recruit Training Examination (the examination) administered to her on November 20, 1996, challenged an examination question.

By letter dated January 9, 1997, Respondent’s representative informed Petitioner that her challenge to the examination question was denied. On January 21, 1997, Petitioner requested a formal administrative hearing with regard to Respondent’s denial.

By letter dated January 28, 1997, the matter was forwarded to the Division of Administrative Hearings for the conduct of formal proceedings pursuant to Section 120.57, Florida Statutes.

At the final hearing, Petitioner testified on her own behalf but presented no exhibits. Respondent presented testimony of four witnesses and five exhibits. No transcript of the final hearing was provided by the parties.

The parties requested and were granted leave to file posthearing submissions more than 10 days after the final hearing, and in accordance with Rule 60Q-2.031, Florida Administrative Code, waived provisions of Rule 28-5.402, Florida Administrative Code. Proposed findings were submitted by the parties and have been considered in the preparation of this recommended order.

FINDINGS OF FACT

1. Respondent is the state agency responsible for testing

   and certification of corrections officers within the State of Florida.

2. Petitioner is an applicant for certification, having taken the examination on November 20, 1996.

3. The minimum score required to pass Section 5 of the examination is 80 percent. Petitioner received a score of 78 percent.

4. Examination materials were clearly and unambiguously presented when Petitioner took the examination. The challenged examination contained sufficient and correct information for a candidate to select correct responses.

5. Question number 37 is the subject of Petitioner’s challenge. The question and possible answers were posed by Respondent’s examination as follows:

   1. A small, injured child requires care. The parents cannot be contacted, but the child says you can help him. You provide care because of .

      1. consent

      2. informed consent

      3. the Baker Act

      4. the Medical Practices Act

         
         

6. Petitioner selected “informed consent” as the appropriate answer to the question. Respondent deemed that answer inappropriate due to a minor child’s inability to grant informed consent.

7. The correct answer to the question is the first choice, “consent”. The term necessarily includes “implied consent” which is applicable to minor children and others unable to consent to

   treatment.

   
   

8. Correct responses to the exam questions are supported by approved reference materials. Correct responses did not require knowledge beyond the scope of knowledge that could be reasonably expected from a candidate for certification.

9. The examination question challenged by Petitioner was reliable and valid. The challenged question is not arbitrary, capricious or devoid of logic. There exists no evidentiary basis to award Petitioner additional credit for her examination response.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

11. Section 943.12, Florida Statutes, imposes responsibility upon Respondent for certification of corrections officers, inclusive of minimum curricular requirements, training standards and testing of applicants for certification.

12. The answer to question 37 which Respondent maintains is the correct answer, was disregarded by Petitioner. Petitioner chose instead to select another answer which is patently incorrect within the factual scenario of the question. Any allegation that Respondent has failed to provide clear and unambiguous examination materials is not supported by the evidence.

13. Petitioner bears the burden of proof in this proceeding with regard to entitlement to the relief she seeks. Fla. DOT v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA, 1981).

Petitioner has not met this burden.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying the relief requested by Petitioner.

DONE and ENTERED in Tallahassee, Florida, this 22nd day of May, 1997.

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1997.

COPIES FURNISHED:

Chasity L. Durbin 708 MacMahon

Starke, FL 32091

Mark P. Brewer, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302

A. Leon Lowry, III, Director Division of Criminal Justice

Standards and Training Post Office Box 1489 Tallahassee, FL 32302

Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302

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: 97-000450

Orders for Case No: 97-000450