STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TIMOTHY JOHN O'BRIEN, )

)

Petitioner, )

)

vs. ) Case No. 01-1328

)

DEPARTMENT OF INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case in accordance with Section 120.57(1), Florida Statutes, on August 14, 2001, in Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: M. Ross Shulmister, Esquire

Law Offices of M. Ross Shulmister

590 Southeast 12th Street

Pompano Beach, Florida 33060-9409

For Respondent: Richard J. Santurri, Esquire

Department of Insurance

200 East Gaines Street 612 Larson Building

Tallahassee, Florida 32399-0333 STATEMENT OF THE ISSUE

Whether Petitioner should have received a passing score on the SCBA (Self Contained Breathing Apparatus) section of the

Bureau of Fire Standards and Training's Minimum Standards Practical Examination re-test administered on March 1, 2001.

PRELIMINARY STATEMENT

By letter dated March 6, 2001, Respondent advised Petitioner that he "did not achieve a passing score on the Firefighter Minimum Standards practical retest," which he took on March 1, 2001. Through the submission of a completed Election of Rights form, Petitioner "request[ed] a formal adversarial proceeding pursuant to Section 120.57(1), Florida Statutes to be held before the Division of Administrative Hearings." In an Attachment to Election of Rights Form, Petitioner made the following claim:

I completed the retest on 3-01-01 within the designated time. At the end of the physical activities, I shut off the switch to the "SCBA" pass device. I told the instructor that I closed the switch when we had finished and reported that it had been difficult to keep the switch on. He concurred and stated that some units had problems with the bar slide style, plastic switch.

Amazingly, the test results stated that I did not wear or activate this device. I in fact properly wore and activated this equipment throughout the course of the test.

On April 9, 2001, Respondent referred the matter to the Division of Administrative Hearings (Division) for the assignment of a Division Administrative Law Judge to conduct the hearing Petitioner had requested.

As noted above, the hearing was held on August 14, 2001. 1/ At the hearing, five witnesses testified: Lawrence Burns,

Petitioner, Timothy Coffy, Lawrence McCall, and Ralph Chase. In addition to the testimony of these five witnesses, a total of five exhibits (Petitioner's Exhibits 1 through 5) were offered and received into evidence.

At the conclusion of the evidentiary portion of the hearing, the undersigned, on the record, advised the parties of their right to file proposed recommended orders and established a deadline (14 days from the date of the filing of the transcript of the hearing) for the filing of such post-hearing submittals.

The hearing Transcript (consisting of one volume) was filed on August 27, 2001. Respondent filed a Proposed Recommended Order on September 7, 2001. On September 14, 2001, Petitioner filed a motion requesting an extension of time to file his proposed recommended order. On September 18, 2001, Respondent filed a Response in Opposition to Petitioner's Request to Extend Time to File Proposed Order. That same day, September 18, 2001, the undersigned issued an order granting Petitioner's motion and giving him until September 18, 2001, to file his proposed recommended order. Petitioner filed a Proposed Recommended Order on September 19, 2001. Respondent's and Petitioner's

Proposed Recommended Orders have been carefully considered by

the undersigned.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:

1. On November 15, 2000, after completing a training course at the Broward Fire Academy (where Lawrence Burns was his lead instructor), Petitioner took the Bureau of Fire Standards and Training's Minimum Standards Written and Practical Examinations. He received a passing score on the Written Examination and all sections of the Practical Examination, except for the SCBA section.

2. On March 1, 2001, Petitioner re-took the SCBA section of the Practical Examination.

3. The re-test was administered at the State Fire College in Ocala, Florida.

4. Ralph Chase, a field representative with the Bureau of Fire Standards and Training, was Petitioner's examiner.

   Mr. Chase has been employed as a field representative with the Bureau of Fire Standards and Training for five years. Prior to coming to work for the Bureau of Fire Standards and Training, he was a firefighter with the City of Titusville for 21 years. He was a suppression lieutenant at the time he left the city's employ.

5. Petitioner borrowed from the Broward Fire Academy the equipment that he needed for the re-test: two air tanks, a regulator, a harness, and a PASS device. A PASS device is a safety device worn by firefighters entering a hostile environment. When the device is activated in the automatic mode, it will emit a continuous, piercing sound if the firefighter is immobilized for longer than 30 seconds. To place the device in the automatic mode, a plastic switch must be moved into the appropriate position. When properly positioned in the automatic mode, the device makes a brief, chirping sound.

6. It was emphasized to Petitioner during his training at the Broward Fire Academy that it was the responsibility of the student, before leaving the Academy with borrowed equipment, to inspect the equipment to make sure that the equipment was in good working order.

7. Before leaving the Academy with the equipment that he borrowed for the re-test, Petitioner twice inspected the equipment and ascertained that it was in good working order.

8. At the re-testing site, he re-inspected the borrowed equipment.

9. The re-inspection revealed that all of the equipment was in good working order, except for the regulator.

10. Petitioner obtained another regulator, along with a harness, at the re-testing site. He attached the PASS device

    that he had borrowed from the Broward Fire Academy to the harness and ascertained that "[e]verything was working properly."

11. Before the re-test began, Mr. Chase advised Petitioner that "exceeding the maximum allotted time and/or failure to wear and activate the PASS device in the automatic mode w[ould] constitute an automatic failure for the SCBA evaluation." He further advised Petitioner to "speak loudly and clearly" if Petitioner wanted to tell Mr. Chase "anything during the testing."

12. After Petitioner indicated that he was ready, the re- test began.

13. Throughout the re-test, Mr. Chase stood "only a few feet" in front of Petitioner and watched him intently, focusing upon his hands.

14. Petitioner signaled that he was "done" by clapping his hand.

15. He finished the re-test in one minute and 16 seconds, well within the allotted time.

16. At no time during the re-test, however, did Petitioner make an effort to place the PASS device in the automatic mode.

17. Because he had neither seen Petitioner make such an effort, nor heard the chirping sound that is made when a PASS device is activated in the automatic mode, Mr. Chase walked up

    to Petitioner after Petitioner had signaled that he was "done" and confirmed that the PASS device switch was in the "off" position.

18. Mr. Chase did not say anything to Petitioner about it.

    
    

    He simply told Petitioner to take off his mask.

    
    

19. Shortly thereafter, Petitioner walked up to Mr. Chase and stated, "You know I turned my alert, my PASS alert off." Mr. Chase responded that he did not know what Petitioner meant,

    to which Petitioner replied, "I wanted you to know that I turned it . . . on and then I turned it off again." After telling Petitioner that he could not discuss the matter with him,

    Mr. Chase walked away.

    
    

20. Petitioner did not at any time during the re-test tell Mr. Chase that he had placed the PASS device in the automatic mode.

21. At no time at the re-testing site, either before, during, or after the re-test, did Petitioner tell Mr. Chase that there was any problem with the PASS device.

22. Petitioner justifiably received a failing score of zero on the re-test because he had not make any effort to place the PASS device in the automatic mode.

23. Petitioner did not report that there was any problem with the PASS device when he returned it to the Broward Fire Academy.

    CONCLUSIONS OF LAW

    
    

24. "No person may be employed as a regular or permanent firefighter by an employing agency, or by a private entity under contract with the state or any political subdivision of the state, including authorities and special districts, for a period of time in excess of 1 year from the date of initial employment until he or she has obtained [a] certificate of compliance" from Respondent. Section 633.35(2), Florida Statutes.

25. To obtain a "certificate of compliance" a person must, among other things, satisfactorily complete a Respondent- prescribed training program and pass a state examination. Section 633.35(2), Florida Statutes.

26. The training program must "take place in a training center or facility approved for such training by [Respondent]" and "be given by instructors certified by [Respondent]." Rule 4A-37.056(1) and (2), Florida Administrative Code.

27. The training program's curriculum must include, among other things: "Personal Protective Equipment (6 hours lecture,

    8 hours drill): types, use and care of firefighter protective clothing and equipment; types of protective breathing apparatus; limitations of each; practice drills and exercises." Rules 4A- 37.055(4) and 4A-37.056(3) and (4), Florida Administrative Code.

28. "All tests, both written and practical, given during training shall require maintenance of a percentage score of not

    less than 70% on each subject." Rule 4A-37.056(6), Florida Administrative Code.

29. The state examination that must be passed to obtain a "certificate of compliance" consists of "a written and a practical part" and is "administered by a Field Representative of the Bureau of Fire Standards and Training" at the "local training facility. To pass the examination, a 70% score for each subject tested is required. Rule 4A-37.056(6)(b) and (c), Florida Administrative Code.

30. A person who fails the state examination may re-take the examination only once and must do so "within 6 months after the original examination date." "Retakes of the practical portion of the examination [are] offered only at the Florida State Fire College." Section 633.35(4), Florida Statutes; and Rule 4A-37.056(6)(d) and (e), Florida Administrative Code.

31. If the examination is not re-taken "within 6 months after the original examination date," or if a passing score on the re-take is not achieved, the person must repeat the training course. Section 633.35(4), Florida Statutes; and Rule 4A- 37.056(6)(f), Florida Administrative Code.

32. In the instant case, after receiving a failing score on the re-take of the SCBA section of practical portion of the state certification examination, Petitioner requested a "formal adversarial proceeding pursuant to Section 120.57(1), Florida

    Statutes to be held before the Division of Administrative Hearings."

33. A person who receives a failing score on the state examination or a re-take, like Petitioner, is entitled to such a hearing, pursuant to Chapter 120, Florida Statutes, to contest his or her score. At the hearing, the person bears the burden of establishing, by a preponderance of the evidence, that his or her failing score was the product of arbitrary or otherwise improper or erroneous scoring. See Harac v. Department of

    Professional Regulation, Board of Architecture, 484 So. 2d 1333, 1338 (Fla. 3d DCA 1986)("Ordinarily one who fails a licensure examination would shoulder a heavy burden in proving that a subjective evaluation by an expert is arbitrary."); Florida

    Department of Health and Rehabilitative Services v. Career Service Commission, 289 So. 2d 412, 414-15 (Fla. 4th

    DCA 1974)("[T]he burden of proof is 'on the party asserting the affirmative on an issue before an administrative

    tribunal.' . . . 'As a general rule the comparative degree of proof by which a case must be established is the same before an administrative tribunal as in a judicial proceeding--that is,

    [a] preponderance of the evidence. It is not satisfied by proof creating an equipoise, but it does not require proof beyond a reasonable doubt.'"); and Section 120.57(1)(j), Florida Statutes ("Findings of fact shall be based upon a preponderance of the

    evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute, and shall be based exclusively on the evidence of record and on matters officially recognized.").

34. Petitioner failed to submit such proof in the instant case.

35. Petitioner received a failing score on the re-take of the SCBA section of practical portion of the state certification examination because, according to the examiner, Mr. Chase, at no time during the re-test did Petitioner place the PASS device in the automatic mode.

36. Both Petitioner and Mr. Chase testified at the final hearing.

37. Petitioner testified that, during the re-test, he not only "turned on the PASS device," but also told Mr. Chase he had done so. He added that "throughout this test [he] had problems with the PASS device," having to place it in the automatic mode "two, three times." According to Petitioner, each time he placed the PASS device in the automatic mode, he heard a chirping sound. Petitioner further testified that, after the

    re-test, he told Mr. Chase about the problems he had with the PASS device.

38. Mr. Chase gave a conflicting account of what happened at the re-testing site. He testified that, during the re-test,

    from his position just a few feet in front of Petitioner, he did not see Petitioner make any effort to activate the PASS device in the automatic mode, nor did he hear any chirping sound emanating from the PASS device. In addition, Mr. Chase denied that Petitioner told him, during the re-test, that he (Petitioner) had "turned on the PASS device," and further denied that Petitioner told him, after the re-test, that he (Petitioner) had problems with the PASS device.

39. Given Mr. Chase's apparent candor, sincerity, and honesty; his lack of bias; the absence of any indication that his recollection of the matters about which he testified was faulty; his experience as an examiner; and the fact that, during the re-test, he was standing only a few feet in front of Petitioner in a position to see if and how Petitioner handled the PASS device and to hear any chirping sound emanating from the device, the undersigned has credited Mr. Chase's testimony over Petitioner's self-serving testimony to the contrary 2/

    and has found, based upon Mr. Chase's testimony, that Petitioner did not activate the PASS device in the automatic mode position during the re-test.

40. In view of the foregoing, Petitioner's challenge to the failing score he received on the SCBA (Self Contained Breathing Apparatus) section of the Bureau of Fire Standards and

Training's Minimum Standards Practical Examination re-test he took on March 1, 2001, should be rejected.

RECOMMENDATION

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

RECOMMENDED that a final order be entered rejecting Petitioner's challenge to the failing score he received on the SCBA (Self Contained Breathing Apparatus) section of the Bureau of Fire Standards and Training's Minimum Standards Practical Examination re-test he took on March 1, 2001.

DONE AND ENTERED this 25th day of September, 2001, in Tallahassee, Leon County, Florida.

STUART M. LERNER

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 25th day of September, 2001.

ENDNOTES

1/ The hearing was originally scheduled to commence on June 22, 2001, but was continued at Petitioner's request.

2/ Although the self-serving nature of testimony given by "[p]ersons having a pecuniary or proprietary interest in the

outcome of litigation" does not render such testimony inadmissible, the interest of the person in the outcome of the case may be considered in evaluating the credibility of the testimony. Martuccio v. Department of Professional Regulation, 622 So. 2d 607, 609 (Fla. 1st DCA 1993).

COPIES FURNISHED:

M. Ross Shulmister, Esquire

Law Offices of M. Ross Shulmister

590 Southeast 12th Street

Pompano Beach, Florida 33060-9409

Richard J. Santurri, Esquire Department of Insurance

200 East Gaines Street 612 Larson Building

Tallahassee, Florida 32399-0333

Honorable Tom Gallagher

State Treasurer/Insurance Commissioner Department of Insurance

The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300

Mark Casteel, 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: 01-001328

Orders for Case No: 01-001328