STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL IAN NOTKIN, )

)

Petitioner, )

)

vs. )

)

DEPARTMENT OF INSURANCE, ) DIVISION OF STATE FIRE MARSHAL, )

)

Respondent. )

Case No. 00-3904

)

RECOMMENDED ORDER

Pursuant to notice, a final administrative hearing was held in the above-styled cause before Administrative Law Judge Florence Snyder Rivas, Division of Administrative Hearings, on December 5, 2000, by videoconference in Ft. Lauderdale and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Michael Ian Notkin, pro se

10809 Northwest 46 Drive Coral Springs, Florida 33076

For Respondent: James B. Morrison, Esquire

Department of Insurance Division of Legal Services

200 East Gaines Street 612 Larson Building

Tallahassee, Florida 32399-0333 STATEMENT OF THE ISSUE

The issue is whether the Department properly denied Petitioner's application for certification as a Florida

firefighter due to his not achieving a passing score of 70% on the written portion of the required Firefighter Minimum Standards Examination.

PRELIMINARY STATEMENT

On August 10, 2000, the Department of Insurance, Division of State Fire Marshal ("Department"), advised Petitioner, Michael Ian Notkin ("Mr. Notkin") that he had failed the Firefighter Minimum Standards Examination.

Mr. Notkin timely filed his election of rights requesting a formal administrative hearing pursuant to Section 120.57(2), Florida Statutes.

At the final hearing Petitioner's Exhibits 1 and 10 were admitted without objection. Petitioner's Exhibits 2, 3, 4, 6,

8, 9, 11, and 13 were admitted over objection. Petitioner's Exhibit 5 was also admitted over objection, except that the objection to handwritten portions of that exhibit was sustained.

Respondent's Exhibits 1-4 were admitted into evidence without objection.

Petitioner testified on his own behalf.

Respondent presented the testimony of Larry McCall of the State Fire Marshall's Bureau of Standards and Training.

At the request of Respondent and without objection, official recognition of Section 633.35, Florida Statutes, and Chapter 4A-37, Florida Administrative Code, was taken.

The hearing transcript was filed on December 13, 2000.

Respondent's Proposed Recommended Order was filed on December 22, 2000. Petitioner did not submit a proposed recommended order.

FINDINGS OF FACT

1. Mr. Notkin filed his application for certification as a Florida firefighter on February 4, 2000.

2. As an applicant, Mr. Notkin was required to and did take a state-approved Minimum Standards Course.

3. Upon successful completion of the Florida Minimum Standards Course, applicants must thereafter sit for the Minimum Standards Examination. The examination consists of a written part and a practical part, and applicants must pass each part with a score of 70% or better in order to be eligible for certification.

4. Approximately one-half (180 hours) of the 360 hours of the Minimum Standards Course is dedicated to preparation for the written portion of the Minimum Standards Examination, with the balance of the time devoted to matters to be covered on the practical field work portion of the Minimum Standards Examination.

5. There are 100 questions on the written portion of the Minimum Standards Examination and applicants are able to miss up to 30 questions and still achieve a passing score of 70%.

6. At all times material to this case there were three required texts for students taking the Minimum Standards Course: The Essentials of Fire Fighting, 4th edition, published by Oklahoma State University's Fire School; Medical First Responder, 5th edition, authored by J. David Bergeron; and

   Initial Response to Hazardous Materials published by the National Fire Academy.

7. Mr. Notkin and his classmates were instructed to study the required text materials and informed that anything found in the text materials could be on the written portion of the Minimum Standards Examination.

8. Students were advised that where information provided in the textbook conflicts with information provided by the instructor, the instructor's interpretation should be followed.

9. Most questions on the Minimum Standards Examination are featured prominently in the required course textbooks.

10. Mr. Notkin successfully completed his Firefighters Minimum Standards course with a score of 85%. He thereafter took his initial written and practical portions of the Minimum Standards Examination on June 13, 2000, at which time Mr. Notkin passed the practical examination with the minimum allowable score of 70%. However, he scored a 67% on the written portion, which is three points below the minimum passing score of 70%.

11. Applicants are permitted two chances to achieve a passing score on the Minimum Standards Examination written portion. If an applicant fails both the initial and retest examinations, that applicant has to retake and successfully complete the 360-hour Minimum Standards Course before being permitted to retake the Minimum Standards Examination.

12. Mr. Notkin re-tested for the written portion of the Minimum Standards Examination on or about August 2, 2000. A score of 70% would have allowed him to be certified as a firefighter without the necessity of taking a second practical examination, or repeating the Minimum Standards Course.

13. Mr. Notkin scored 60% on the August 2, 2000, written examination, ten points below the required minimum for a passing score and certification as a firefighter.

14. Mr. Notkin's examinations were properly graded.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings. Section 120.57(2), Florida Statutes.

16. In order to prevail Mr. Notkin must establish by a preponderance of the evidence that he is entitled to the relief sought. Balino v. Department of Health, 348 So. 2d 349 (Fla. 1st DCA 1977); Espinoza v. Department of Business and Professional Regulation, 739 So. 2d 1250 (Fla. 3d DCA 1999),

    cause dismissed, 761 So. 2d 328 (Fla. Jan 4, 2000), rehearing

    
    

    denied (Fla. April 5, 2000).

    
    

17. Section 633.35, Florida Statutes, Firefighters Training and Certification, in part provides:

    1. The division shall establish a firefighters training program of not less than 360 hours, administered by such agencies and institutions as it approves for the purpose of providing basic employment training for firefighters. . . .

       
       

    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). . . .

       
       

18. Rule 4A-37.056(6), Florida Administrative Code, in

    
    

    pertinent part, states:

    
    

    * * *

    
    

    (b) State examinations, consisting of a written and practical part, shall be administered by a Field Representative of the Bureau of First Standards and Training. The 70% score requirement for both written and practical examination shall prevail in this testing environment as well.

    
    

    * * *

    
    

    (d) Only one retake of the state examination shall be allowed. . . .

    
    

    * * *

    
    

    (f) 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.

    
    

19. In his petition, Mr. Notkin asserted that there is "something wrong" because he received a grade of 85% at the state-approved Minimum Standards Course, but failed to pass the written portion of the examination in the two attempts permitted by law.

20. Mr. Notkin has invested time and money in his fire training, and achieved a class grade which might have reasonably led him to believe that he would pass the required state examinations. Despite this significant effort, Mr. Notkin was not able to fulfill one portion of the state's examination requirements for licensure.

21. Mr. Notkin did not offer any competent evidence to support his belief that the school did not adequately prepare him for the exam. Had he provided evidence to support such a belief, it would still not furnish a legal basis upon which to compel the Department to grant Mr. Notkin a firefighter's license.

22. Mr. Notkin did not establish that there were any legally cognizable deficiencies in the test questions, nor the manner in which they were graded.

23. Mr. Notkin was required to pass the examination to become a certified Florida firefighter. He did not earn a

passing score after two examination attempts and he is, therefore, not qualified to be certified as a Florida firefighter.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Insurance, Division of the State Fire Marshal, enter a final order denying Petitioner's application for certification as a Florida firefighter.

DONE AND ENTERED this 24th day of January, 2001, in Tallahassee, Leon County, Florida.

FLORENCE SNYDER RIVAS

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 2001.

COPIES FURNISHED:

Michael Ian Notkin 10809 Northwest 46 Drive

Coral Springs, Florida 33076

James B. Morrison, Esquire Department of Insurance Division of Legal Services

200 East Gaines Street 612 Larson Building

Tallahassee, Florida 32399-0333

The Honorable Tom Gallagher

State Treasurer/Insurance Commissioner The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300

Daniel Y. Sumner, General Counsel Department of Insurance

The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307

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: 00-003904

Orders for Case No: 00-003904