STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAUL APPLETON, )

)

Petitioner, )

)

vs. ) Case No. 98-0937

)

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing by teleconference before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings on July 2, 1998, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Paul Appleton, pro se

13500 Shaker Boulevard, No. 102

Cleveland, Ohio 44120

For Respondent: Elenita Gomez, Esquire

Division of Legal Services Department of Insurance

and Treasurer

612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

The issue is whether Respondent properly denied Petitioner certification as a Florida firefighter.

PRELIMINARY STATEMENT

By letter dated August 26, 1997, Respondent Department of

Insurance and Treasurer (Respondent), through the State Fire Marshall's Bureau of Standards and Training, advised Petitioner Paul Appleton (Petitioner) that he had failed both the initial and retake examinations for certification as a Florida firefighter. Petitioner requested a formal hearing to contest the denial of his certification.

Respondent referred this case to the Division of Administrative Hearings on February 25, 1998. As agreed by the parties, a Notice of Telephone Hearing and Order of Instructions scheduled the case for hearing on July 2, 1998.

At the hearing, Petitioner testified on his own behalf and presented the testimony of one witness. He did not submit any exhibits. Respondent presented the testimony of three witnesses and offered four exhibits into evidence.

The transcript of the proceeding was filed on July 29, 1998. Respondent filed a proposed recommended order on August 10, 1998. Petitioner did not elect to file proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. Petitioner, a resident of Ohio, requested to qualify for the Florida Minimum Standards Equivalence Examination, based on his experience, to become a Florida firefighter. Petitioner's request effectively "challenged" the exam and requested an exemption from attending the Florida Minimum Standards Course.

2. Petitioner could have taken the Florida Minimum

   Standards Course. If he had taken the course, he may have had an opportunity to review video tapes and other instructional materials which are available but not a required part of the basic curriculum. Instead, Petitioner elected to furnish Respondent with his out-of-state firefighter credentials.

   Subsequently, Respondent granted Petitioner the requested exemption.

3. Prior to taking the examination, Respondent's staff accurately informed Petitioner about the scope, structure and subject matter of the test during numerous telephone calls. On at least ten occasions, Respondent's staff described the test to Petitioner and told him how to prepare for it. Respondent's staff specifically told Petitioner that he should study the International Fire Service Training Association Manual (IFSTA Manual).

4. As to part one of the practical portion of the exam, Petitioner knew that Respondent would test him on the breathing apparatus, the one and three quarter-inch hose and nozzle operation, and the twenty-four foot ladder evolution.

5. Respondent told Petitioner that he needed to know how to perform all skills set forth in the IFSTA Manual because Respondent randomly selects six different sections of tasks to test on part two of the practical examination. The six skill sections which are picked for part two remain unknown to anyone in advance of the test regardless of whether he is out-of-state

   or in-state applicants. These skills are chosen by Respondent's Field Representatives in their offices at the Florida State Fire College prior to going to a testing site or for testing at the Florida State Fire College.

6. The two parts of the practical examination are of equal worth. An examinee begins with 100 points and points are deducted for deficiencies throughout the exam. Candidates are required to achieve a score of at least seventy (70) points in order to pass the practical examination.

7. Petitioner took his Minimum Standards Equivalency Practical Examination on April 28, 1997, at the Florida State Fire College in Ocala, Florida. Petitioner's final score on the April 28, 1997, Minimum Standards Equivalency Practical Examination was twenty-five (25) points, which was not a passing score.

8. Candidates are allowed one retest of the Minimum Standards Equivalency Practical Retest if they are not successful on their initial test. Petitioner chose to take the test again on July 28, 1997, at the Florida State Fire College in Ocala, Florida.

9. Respondent's Field Representative administered part one of the Minimum Standards Equivalency Practical Retest to Petitioner. Petitioner did not take part two of the Minimum Standards Equivalency Practical Retest. He chose to quit after realizing that his score on part one was so low that he could not

   pass the retest as a whole.

   
   

10. After deciding not to take part two in the Minimum Standards Equivalency Practical Retest, Petitioner approached Field Representative Bill DePauw to tell him that he was quitting. Petitioner was not attired in the mandatory minimum safety gear, but in civilian clothes. At that time, Mr. DePauw

    was in the process of testing another examinee. Mr. DePauw told the Petitioner he needed to talk to Larry McCall, Field Representative Supervisor.

11. Petitioner then approached Mr. McCall and informed him that he would not be taking part two of the retest. Mr. McCall asked Petitioner to leave the testing grounds because Petitioner was being loud and disruptive to the applicants testing or waiting to be tested. Further, once an applicant decides not to continue, he is no longer allowed in the testing area.

12. Petitioner informed Mr. McCall, both on the field and in Mr. McCall's office, that the Florida exam and the process were "chicken."

13. Petitioner lost seventy-five (75) points on part one of the Minimum Standards Equivalency Practical Retest. The maximum allowable deduction for part one of fifty (50) points was deducted from Petitioner's part one score. Therefore, Petitioner's final score on the Minimum Standards Equivalency Practical Retest administered on July 28, 1997, was fifty (50) points, which is not a passing score.

14. Applicants are assigned a number during orientation. From that time on, the applicants are referred to only by that number to ensure impartiality. The applicant's name is attached to the number after the exam, sometimes several days later.

15. The examiner makes up a package of exams, numbers the packets, and then circles six (6) skills at random in each

    packet. No names are applied to the packets and the numbers are not assigned to the examinees until the day of testing.

16. The Field Representatives are required to give an orientation prior to each Minimum Standards Equivalency Examination on the day of the exam. The orientation consists of walking the applicants through each section of part one. The Field Representatives use the same form check-off sheet during each orientation to ensure that each candidate is given the same orientation.

17. The Field Representatives use a scoresheet to grade the applicants which is a guide to simplify the scoring process. The numeric values on the scoresheet are negative points deducted from an applicant's raw score of 100 points. The Field Representatives only make deductions when the applicant does not follow the required procedure for performing the evolution.

18. Petitioner admits that the point deduction is correct for exceeding the required time on the breathing apparatus evolution.

19. Petitioner admits that he had to go back to the loop during the hose and nozzle evolution to fix the kinks in the hose line. Additionally, he took a couple of steps backwards while he was pulling the hose line. Walking backwards occurs when a candidate takes two steps or more backwards, walking in the opposite direction from where he is looking. There are no warnings issued for walking backwards during the certification

    examination.

    
    

20. Petitioner admits that the deduction for exceeding time during the hose and nozzle evolution was correct.

21. The greater weight of the evidence indicates that Petitioner struggled during the ladder evolution. He lacked control of the ladder at all times during the demonstration.

22. All of the deficiencies which Petitioner admits to amount to a total of 35 negative points as the least possible point deduction. That equals a score of 65 without Petitioner even having taken part two. A score of 65 is not a passing score.

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over this subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

24. The State Fire Marshal has jurisdiction over Petitioner's application for certification as a Florida firefighter pursuant to Chapter 633, Florida Statutes.

25. As an applicant, Petitioner bears the general burden of proving entitlement to certification as a firefighter. Florida Dept. of Trans. v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). Petitioner must show by a preponderance of the evidence that he meets all of the relevant statutory criteria to satisfy this burden. Id.

26. The Florida legislature has established the Firefighter Training Program. The Florida Statutes set forth criteria for issuance of a certificate of compliance. These criteria include the requirement that an applicant either take the Florida Minimum

    Standards Course or qualify by experience, and successfully passing the Minimum Standards Equivalency Examination. Section 633.35, Florida Statues, states in pertinent part as follows:

    1. 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 qualification for employment in

       s. 644.34 . . .

       
       

    2. The division may issue a certificate to any person who has received basic employment training for firefighters in another state when the division as determined that such training was at least equivalent to that required by the division for approved firefighter education and training programs in this state and when such person has satisfactorily complied with all other requirements of this part. (Emphasis added.)

27. The Petitioner was required to take a Minimum Standards Course unless he could demonstrate that he had sufficient out-of- state experience to qualify for the Minimum Standards Equivalency Examination in Florida. Section 633.35(3), Florida Statutes.

28. Petitioner was required to take and pass the Minimum Standards Practical Examination in order to qualify for certification as a firefighter in the State of Florida. Section 633.35(2), Florida Statutes.

29. Petitioner did not pass the Minimum Standards Equivalency Practical Retest due to his own lack of preparation. His failure to pass the retest was not based on any bias or prejudice against out-of-state candidates who decline to take the

    Minimum Standards Course.

30. The examination guidelines are found in Chapter 4A-37, Florida Administrative Code. The guidelines regarding an applicant's participation in the Florida Minimum Standards Examinations are set forth in Rule 4A-37.056, Florida Administrative Code.

31. Petitioner was required to score at least a total of seventy (70) points in order to pass the practical portion of the examination to qualify for his certification as a firefighter in the State of Florida. "State examinations, consisting of a written and a practical part, shall be administered by a Field Representative of the Bureau of Fire Standards and Training. The

    70 percent score requirement for both written and practical examinations shall prevail in this testing environment as well." Rule 4A-37.056(6)(b), Florida Administrative Code.

32. Only one retake of the Minimum Standards Equivalency Examination is allowed within six (6) months of the date of the initial examination. Rule 4A-37.056(6)(d), Florida Administrative Code.

33. Because Petitioner failed his Minimum Standards Equivalency Examination Retest, in order to qualify to retake the exam, Petitioner will need to take the Florida Minimum Standards Course. "Failing the retake of the Minimum Standards Certification Examination within the prescribed six-month time period will result in the individual having to repeat the Minimum Standards Course." Rule 4A-37.056(6)(f), Florida Administrative

    Code.

34. Petitioner failed to submit any evidence that he was wrongly deducted points on his Minimum Standards Certification Retest.

35. Respondent acted properly by not granting Petitioner his firefighter certification for the State of Florida when he did not pass the Minimum Standards Equivalency Examination or the Minimum Standards Equivalency Retest as required by statute.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Bill Nelson in his capacity as State Fire Marshal enter a Final Order denying Petitioner's request for a Certification of Compliance as a Florida Firefighter.

DONE AND ORDERED this 20th day of August, 1998, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1998.

COPIES FURNISHED:

Elenita Gomez, Esquire Division of Legal Services Department of Insurance

and Treasurer

612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

Paul Appleton

13500 Shaker Boulevard, No. 102

Cleveland, Ohio 44120

Bill Nelson, Commissioner Department of Insurance

and Treasurer

The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300

Daniel Y. Sumner, General Counsel Department of Insurance

and Treasurer

The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

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: 98-000937

Orders for Case No: 98-000937