STATE OF FLORIDA

DIVISION OF ADMINISTRATION HEARINGS

RYAN PATRICK KALIHER, )

)

Petitioner, )

)

vs. ) Case No. 00-4156

) DEPARTMENT OF INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final administrative hearing was held in the above-styled cause before Administrative Law Judge

Fred L. Buckine, Division of Administrative Hearings, on December 7, 2000, in Bradenton, Florida.

APPEARANCES

For Petitioner: Ryan Patrick Kaliher, pro se

2108 Flamingo Boulevard

Bradenton, Florida 34207

For Respondent: James B. Morrison, Esquire

Michelle McBride, 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 in this case is whether the Department properly denied Petitioner's application for certification as a Florida firefighter due to his not achieving a passing score of seventy

1. on the written portion of the required Minimum Standards Examination for firefighters.

   PRELIMINARY STATEMENT

   
   

   On August 22, 2000, the Department of Insurance, State Fire Marshall (hereinafter Department), advised Petitioner, (hereinafter Mr. Kaliher) that on his retest he had received a score of sixty-nine (69) points, a failing score, on the Firefighter Minimum Standards. On July 20, 2000, Mr. Kaliher took the initial written examination scored sixty-two (62) points, a failing grade.

   On October 6, 2000, Mr. Kaliher filed his election of rights pursuant to Section 120.57(2), Florida Statutes.

   On October 20, 2000, a Notice of Hearing and Pre-Hearing Instructions were issued.

   At the final hearing Petitioner's two exhibits were admitted in evidence over objections. Respondent's Exhibits 1, 2, 3, 4, 6, 7, and 8 were admitted in evidence without objections; Exhibits 5 and 9 were admitted over Petitioner's objections. Petitioner did not testify on his own behalf and called one witness, Ryan Moore, a classmate at Hillsborough Community College (hereinafter HCC). Respondent presented the testimony of three witnesses: Larry McCall, Bureau of Standards and Training; State Fire Marshall, Dennis Phillips; Fire Science Coordinator at HCC; and Mike Gonzalez, Instructor, HCC.

   At the request of Respondent, the Administrative Law Judge took official notice of Section 633.35, Florida Statutes, and Chapter 4A-37, Florida Administrative Code.

   The Transcript was filed on December 18, 2000.

   
   

   Respondent's Proposed Recommended Order was received on December 28, 2000. Petitioner did not submit a proposed recommended order.

   FINDINGS OF FACT

   
   

   1. Mr. Kaliher submitted his application for certification as a Florida firefighter on January 4, 2000.

   2. As an applicant, Mr. Kaliher was required to take a Minimum Standards Course in order to be eligible to take the Minimum Standards Certification Examination.

   3. Mr. Kaliher took the Minimum Standards Course at HCC, which began on or about January 5, 2000, and concluded on or about July 2000. Approximately one-half (180 hours) of the 360 hours of the Minimum Standards Course are dedicated to preparation for the written portion of the Minimum Standards Examination.

   4. To be certified as a Florida firefighter an applicant must successfully complete the Florida Minimum Standards Course and thereafter pass the written (70%) portion and the practical (70%) portion of the Minimum Standards Examination.

   5. There are one hundred questions on the written portion of the Minimum Standards Examination and applicants are able to miss up to thirty (30) questions and still achieve a passing score of seventy (70).

   6. There are three required texts for students taking the Minimum Standards Course: The Essentials of Fire Fighting by Oklahoma State University; First Responder, 5th Edition, published by Brady, authored by Bergeron, Bizjak; and lastly; Initial Response to Hazardous Materials by the National Fire Academy.

   7. Mr. Kaliher, and other students, were instructed to study the required text materials and informed that basically anything found in the text materials could be on the written portion of the Minimum Standards Examination.

   8. The first section of the Minimum Standards classes came for First Responder text which covered basic first aid, assessment of an injured victim's signs and symptoms, and how to stabilize for transport to the hospital.

   9. HCC ordered and made available to Minimum Standards Course students the text, First Responder text published by Brady and authored by Karren and Hafen; not First Responder, published by Brady and authored by Bergeron and Bizjak.

   10. Dennis Phillips, coordinator, and Mike Gonzalez, HCC instructor, both testified that the First Responder text by

       Karren and Hafen contained accurate information to learn the skills necessary to pass the First Responder portion of the Minimum Standards Course.

   11. Mr. Kaliher and other students used the initially issued First Responder text by Karren and Hafen to prepare for and pass the First Responder portion of the Minimum Standards Course.

   12. Because First Responder by Brady, Bergeron and Bizjak, is the source text from which the Fire Marshall's office randomly selects a bank of questions from which the computer make random selections for each examination, Dennis Phillips, coordinator, advised HCC to order the Bergeron and Bizjak' edition.

   13. First Responder by Brady, Bergeron and Bizjak authors, was ordered, made available to each class member on or about the second week of February 2000, and each Minimum Standards class members exchanged their text without cost and sign an exchange sheet evidencing that fact.

   14. Mike Gonzalez, HCC instructor, testified that all essential materials were covered in both First Responder textbooks and that only minor differences are such that in one textbook pediatric and geriatric patients are covered together in one chapter in one textbook, but in the other textbook pediatric and geriatric patients are treated as separate

       chapters. The substantive similarly of content in both texts negated the need to re-teach materials initially covered at the beginning of the class.

   15. The HCC class conducted two review sessions of the First Responder materials during the Minimum Standards class, one prior to the mid-term and again prior to the final examination.

   16. Mr. Kaliher took his initial written and practical portions of the Minimum Standards Examination on or about July 20, 2000, scoring 62, not a passing score, on the written portion.

   17. Of the 52 students in Mr. Kalihers' Minimum Standards class at HCC, 43 (more than 80%) passed the written portion of the Minimum Standards examination. Indeed, Mr. Kaliher's classmate and only witness, Ryan Moore, admitted that HCC provided him with the proper instructions, materials, and training to prepare him for his successful completion of the examination.

   18. Mr. Kaliher re-tested for the written portion of the Minimum Standards Examination on or about August 10, 2000, scoring 69, not a passing score, on the written portion.

   19. Larry McCall, the Department's representative, testified that both Mr. Kaliher's examinations were correctly graded; that he missed only two of ten First Responder questions

on the retake examination, and missed 29 questions from Essentials of Fire Fighting textbook and Initial Response to Hazardous Materials textbook materials. Further, there is no basis upon which Mr. Kaliher can be granted certification under existing circumstances.

1. Applicants such as Mr. Kaliher are only allowed to take the Minimum Standards Examination written portion two times. If an applicant fails both the initial and retest examinations, that applicant has to retake and complete the 360- hour Florida Minimum Standard Course and successfully pass that course before being permitted to retake the Minimum Standards Examination.

2. Respondent acted properly by not granting Mr. Kaliher his firefighter certification for the State of Florida because he did not pass the written portion of the examination as required of all firefighters by Florida Statutes.

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings. Sections 120.57(2) and Section 633, Florida Statutes.

4. Petitioner, having admitted the Department's factual allegations, has the burden of asserting the affirmative by

   demonstrating by a preponderance of the evidence entitlement to the relief sought. See Balino v. Department of Health, 348

   So. 2d 349 (Fla. 1st DCA 1977); Espinoza v. Department of Business and Professional Regulations, 739 So. 2d 1250 (Fla. 3d DCA 1999).

5. Every allegation made by Petitioner, i.e., that he was somehow denied or mislead by the temporary use and then change of textbook; that the five-week delay before changing of textbook was the cause; and that he scored highest in the practical aspects, is without merit. Mr. Kaliher has failed to meet his burden of proof.

6. Mr. Kaliher failed the first examination by eight points, those were not all First Responder incorrect answers. Mr. Kaliher failed the retest examination by one point and offered no evidence of a causal relationship between the five- week use of one particular textbook was responsible. Mr. Kaliher has failed to meet his burden of proof that his failure to score 70% on the written examination was caused by conduct of Respondent.

7. Section 633.35, Florida Statutes, Firefighters Training and certification, in part provides:

   1. The division shall establish 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 section 633.34, except section 633.34(5).

      
      

8. Rule 4A-37.056, Florida Administrative Code, in pertinent part, states that:

   (6)(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.

   
   

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

   
   

   (6)(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.

   
   

9. Mr. Kaliher 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. Accordingly, Respondent acted properly in not granting Mr. Kaliher's application for certification as a Florida firefighter.

10. For the reasons above, Petitioner's application for certification as a Florida firefighter is herein DENIED.

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 Marshall, enter a final order DENYING Petitioner Ryan Patrick Kaliher's application for certification as a Florida firefighter; further order that Ryan Patrick Kaliher is required to re-take the Florida Minimum Standards Course prior to submission of all future applications; and to

re-take the written portion of the Florida Minimum Standards Examination for certification as a Florida firefighter.

DONE AND ENTERED this 3rd day of January, 2001, in Tallahassee, Leon County, Florida.

FRED L. BUCKINE

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 3rd day of January, 2001.

COPIES FURNISHED:

Ryan Patrick Kaliher 2108 Flamingo Boulevard

Bradenton, Florida 34207

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

200 East Gaines Street 612 Larson Building

Tallahassee, Florida 32399-0333

The Honorable Bill Nelson

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: 00-004156

Orders for Case No: 00-004156