STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MATTHEW ADAM PEPE,

Petitioner,

vs.

DEPARTMENT OF INSURANCE,

Respondent.

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) Case No. 02-1749

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Jeff B. Clark, held a final hearing in this case in Largo, Florida, on September 3, 2002.

APPEARANCES

For Petitioner: Sherwood S. Coleman, Esquire

Kwall, Showers, and Coleman, P.A.

133 North Fort Harrison Avenue Clearwater, Florida 33755

For Respondent: Mechele R. McBride, Esquire

Elentia Gomez, Esquire Department of Insurance Division of Legal Services

200 East Gaines Street Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner is entitled to credit for his failure to timely complete the ladder evolution

of the Firefighter Minimum Standards practical examination because he was allegedly distracted by an examiner.

PRELIMINARY STATEMENT

On April 24, 2002, Respondent, Department of Insurance, advised Petitioner, Matthew Adam Pepe, in an amended denial letter that he "did not achieve a passing score on the Firefighter Minimum Standards practical retest and therefore your application for certification as a Florida firefighter is denied." With the amended denial letter was an Election of Rights letter, which Petitioner returned to Respondent, disputing Respondent's factual allegations and requesting an administrative hearing.

On May 2, 2002, the Division of Administrative Hearings received a letter from Respondent, which included the amended denial letter and Petitioner's Election of Rights; the letter requested assignment of an Administrative Law Judge to consider the matter. On May 3, 2002, an Initial Order was sent to both parties. On May 9, 2002, the case was scheduled for final hearing in Largo, Florida, on July 1, 2002. In response to Petitioner's Motion to Continue, the case was rescheduled to September 3, 2002. The rescheduled final hearing was conducted on September 3, 2002.

Petitioner testified on his own behalf and offered the deposition testimony of Brian Alexander taken on August 28,

2002. In addition, Petitioner offered two exhibits which were admitted into evidence and marked Petitioner's Exhibits 1 and 2. Respondent presented the testimony of Larry McCall and Richard Riddling, both of the State Fire Marshall's office, and the deposition testimony of Joshua Alderman taken on August 28, 2002. Respondent offered seven exhibits which were admitted into evidence and marked Respondent's Exhibits 1, 2, 4, 6, 7, 8,

and 9.

A Transcript of Proceedings was filed with the Division on September 18, 2002. By agreement, the parties had 30 days from the filing of the Transcript to submit proposed recommended orders. On October 15, 2002, Respondent moved to extend the time for submitting proposed recommended orders. The motion was granted. Both parties timely filed Proposed Recommended Orders.

FINDINGS OF FACT

Based on the evidence and the testimony of witnesses presented and the entire record in this proceeding, the following findings of fact are made:

1. Respondent, Department of Insurance, through its Division of State Fire Marshall, certifies all paid firefighters and establishes a course of instruction and Minimum Standards written and practical examinations for certification.

2. An individual ("candidate") who desires to become a firefighter must take a 360-hour Minimum Standards course of

   instruction and pass a Minimum Standards written and practical examination. If the candidate fails the examination, the candidate is given one opportunity to retake the portions of the examination which were not passed. If the candidate does not pass the retest, the candidate must again complete the Minimum Standards training course before additional retesting will be allowed.

3. Petitioner completed the Minimum Standards course of instruction at Hillsborough Community College in June 2001. He took the Minimum Standards written and practical examination in December 2001.

4. The Minimum Standards practical examination consists of four evolutions: (1) self-contained breathing apparatus;

   (2) inch and three-quarter hose pull and operation; (3) 24-foot ground ladder carry; and (4) other fire ground skills.

5. On the December 2001 Minimum Standards practical examination, Petitioner did not obtain a passing score on the self-contained breathing apparatus and the 24-foot ground ladder carry evolutions.

6. Petitioner was retested on the self-contained breathing apparatus and the 24-foot ground ladder carry evolutions on February 28, 2002, at the State Fire College in Ocala, Florida. Petitioner obtained a passing score on the self-contained

   breathing apparatus evolution; he again failed to obtain a passing score on the 24-foot ground ladder carry evolution.

7. Each evolution of the Minimum Standards practical examination has a value of 100 points. The examiner deducts points for deficiencies that occur throughout the examination. Each candidate is required to achieve a score of 70 points in each evolution to pass the Minimum Standards practical examination.

8. The 24-foot ground ladder carry evolution involves multiple sequenced tasks testing a candidate's ability to safely lift, maneuver, and deploy a 24-foot ladder; the maximum time allowed to complete all tasks required in the 24-foot ground ladder carry evolution is two minutes and 45 seconds. Failure to complete all required tasks of the evolution within the maximum time results in failure of the evolution.

9. As Petitioner proceeded to perform the 24-foot ground ladder carry evolution, he experienced difficulty with some of the required tasks, and, as a result, time was running out as he neared completion of the required tasks.

10. While testimony differs as to the exact words that were spoken, the examiner, noting that time was running out, spoke to Petitioner advising him to hurry to complete the tasks, or words to that effect. While an examiner speaking to a candidate during testing is not a common occurrence, nothing

    prohibits an examiner from speaking to a candidate while the testing progresses.

11. Petitioner completed the 24-foot ground ladder carry evolution in two minutes and 48 seconds, exceeding the maximum time by three seconds and failing the retest.

12. Petitioner maintains that he was distracted by the examiner's spoken words, lost his focus, and, as a result, exceeded the maximum allowable time for the 24-foot ground ladder carry evolution.

13. While Petitioner's contention is plausible, it is not supported by the evidence presented. His previous failure of the same evolution demonstrates the difficulty he had with it; he acknowledged this difficulty. Petitioner did not appear to react to the examiner's spoken words in any way that evidenced shock or distraction. One of the ladder guards recalls Petitioner's performance on the 24-foot ground ladder carry evolution as "a weak performance all around." "I recall him taking a lot of time, an excessive amount of time, "

    ". . . he wasn't performing it as well, so it took him longer to do it since he wasn't doing it well." The ladder guard's observations were essentially confirmed by the examiner.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding, pursuant to Section 120.57, Florida Statutes.

15. Section 633.35, Florida Statutes, governs the training and certification of firefighters by Respondent.

16. Following completion of the Minimum Standards course of instruction, candidates for certification as a firefighter must successfully pass a Minimum Standards examination. Section 633.35(2), Florida Statutes. To succeed in the examination, the candidate must achieve a 70 percent score on the written portion of the examination and a 70 percent score on the practical portion of the examination. Rule 4A-37.056(6), Florida Administrative Code. Petitioner failed to achieve a passing score on two evolutions of the practical examination.

17. In accordance with Rule 4A-37.056(6)(d), Florida Administrative Code, Petitioner was allowed to re-take the evolutions of the practical examination he failed on the first test. Petitioner re-took the two evolutions, passing one and again failing the 24-foot ground ladder carry evolution. Rule 4A-37.056(6)(d), Florida Administrative Code, only allows one re-take of the state examination.

18. The burden of proof is on Petitioner. Petitioner must show by a preponderance of evidence that the examinations were

faulty, arbitrarily or capriciously worded or graded, or that Petitioner was arbitrarily or capriciously denied credit through a grading process devoid of logic or reason. Horac v.

Department of Professional Regulation, 484 So. 2d 1333, 1338 (Fla. 3d DCA 1986); State ex rel. Glaser v. J.M. Pepper, 155 So. 2d 383 (Fla. 1st DCA 1963); and State ex rel. I.H Topp v.

Board of Electrical Contractors for Jacksonville Beach, Florida,

101 So. 2d 583 (Fla. 1st DCA 1958). Petitioner failed to satisfy his burden of proof. Petitioner maintains that comments made to him by an examiner distracted him and resulted in his failure to complete the 24-foot ground ladder carry evolution within the minimum allowable time. Other than his statements to that effect, there is no evidence that the examiner's comments were the cause of Petitioner's failure to complete the 24-foot ground ladder carry evolution within the minimum allowable time.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered confirming Petitioner’s examination score and dismissing his challenge.

DONE AND ENTERED this 12th day of November, 2002, in Tallahassee, Leon County, Florida.

JEFF B. CLARK

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 12th day of November, 2002.

COPIES FURNISHED:

Sherwood S. Coleman, Esquire Kwall, Showers, and Coleman, P.A.

133 North Fort Harrison Avenue Clearwater, Florida 33755

Mechele R. McBride, Esquire Elentia Gomez, Esquire Department of Insurance Division of Legal Services

200 East Gaines Street Tallahassee, Florida 32399-0333

Mark Casteel, General Counsel Department of Insurance

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

Honorable Tom Gallagher

State Treasurer/Insurance Commissioner Department of Insurance

The Capitol, Plaza Level 02 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: 02-001749

Orders for Case No: 02-001749