STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUSTIN ALLAN CONE,

Petitioner,

vs.

DEPARTMENT OF FINANCIAL SERVICES,

Respondent.

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) Case No. 03-2383

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on

September 24, 2003, in Jacksonville, Florida, before Barbara J. Staros, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William Glenn Cone, Esquire

1530 Ryar Road, No. 7

Jacksonville, Florida 32216

For Respondent: Casia R. Belk, Esquire

Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

The issue is whether Respondent properly denied Petitioner's application for certification as a firefighter after Petitioner failed to successfully pass the practical portion of the Minimum Standards Examination.

PRELIMINARY STATEMENT

In a letter dated May 29, 2003, Respondent, Department of Financial Services (Department) denied Petitioner Justin Allan Cone's application for certification as a firefighter because he had failed the practical portion of the initial examination and the retest examination. Petitioner disputed the Department's determination and filed a timely request for a formal administrative proceeding.

Respondent referred this case to the Division of Administrative Hearings on June 27, 2003. A Notice of Hearing dated July 30, 2003, was issued scheduling the hearing for September 24, 2003.

On August 18, 2003, Respondent filed an unopposed Motion to Amend Denial Letter, together with a First Amended Denial Letter. The motion was granted by Order dated August 21, 2003, and the case proceeded based upon the First Amended Denial Letter.

On September 15, 2003, Respondent filed a Motion to Use Deposition in Lieu of Live Testimony and Notice of Filing Deposition. The motion was addressed at the commencement of the hearing and was granted.

At hearing, Petitioner testified on his own behalf and presented the testimony of Phillip Hershman. Petitioner's Exhibit numbered 1 was admitted into evidence. Respondent

presented the testimony of one witness, Ralph Chase, through the admission of his deposition. Respondent's Exhibits numbered 1 through 9, including the deposition testimony of Ralph Chase, were admitted into evidence. Official recognition was taken of Section 633.35, Florida Statutes, Rules 4A-37.055 and 4A-37.056, Florida Administrative Code, and of Essentials of Fire Fighting, Fourth Edition, which is incorporated by reference into the Department's rules.

A one-volume Transcript of the proceeding was filed on October 14, 2003. The parties timely filed Proposed Recommended Orders which have been considered in the preparation of this Recommended Order.

All citations are to Florida Statutes (2002) unless otherwise indicated.

FINDINGS OF FACT

1. Petitioner applied for certification as a firefighter in October 2002.

2. In order to be certified, Petitioner was required to successfully complete the Minimum Standards Course. The course consists of taking a minimum of 360 hours of training at one of

   30 certified centers in Florida.

   
   

3. After completing the training course, Petitioner was required to take the Minimum Standards Examination, which is structured in two parts: a written portion and a practical

   portion. The practical portion consists of four sections or evolutions including the Self-Contained Breathing Apparatus (SCBA), the hose pull, the ladder operation, and the fire skills section.

4. To pass the four practical evolutions, an applicant must achieve a score of at least 70 percent on each one.

5. Each evolution of the practical exam has certain elements or skills that are graded. The ladder test contains eleven skills and requires that the test be completed in not more than two minutes and forty-five seconds.

6. The eleven skills for the ladder evolution include but are not limited to the following: ladder properly lifted, carried, (50 feet) and positioned for raise; maintains control of ladder during entire operation; extremities in safe position during entire operation; ladder halyard properly secured and proper safety applied; fly section extended without utilizing the wall; and fly section out and positioned correctly.

7. After completing the Minimum Standards Course, Petitioner took the initial Minimum Standards Examination on February 19, 2003. Petitioner passed the written portion of the exam but did not pass the practical portion of the initial exam because he made a score of 60 on the ladder operations evolution of the practical examination.

8. In a memorandum dated March 5, 2003, the Department formally advised Petitioner that he had failed the ladder portion of the practical exam for failure to maintain control of ladder. The memorandum also informed Petitioner that he was scheduled for a retake of the minimum standards practical retest of the ladder evolution.

9. In another memorandum dated March 5, 2003, the Department advised Petitioner that he was scheduled to retake the ladder portion of the practical examination at the Florida State Fire College in Ocala, Florida, on May 22, 2003, at 8:00

   a.m.

   
   

10. Petitioner took the retest of the ladder portion of

    
    

    the practical examination as scheduled on May 22, 2003, in Ocala, Florida. Petitioner did not successfully complete the retest, losing points on three skills and not completing the test in the requisite amount of time. However, there was a problem with the ladder used by Petitioner on the retest in that the "fly" was not locked on the ladder.

11. Ralph Chase is a field representative with the Division of State Fire Marshall of the Department. Mr. Chase was the examiner who tested Petitioner on the retake of the ladder portion of the practical exam on May 22, 2003. Mr. Chase is an experienced examiner. Because of the problem with the ladder on Petitioner's initial attempt on the ladder retest,

    Mr. Chase allowed Petitioner a second attempt to pass the ladder retest on May 22, 2003, although it is unusual to do so.

12. On the second retest, Petitioner finished the test within the required amount of time but points were counted off for the following skills: ladder properly lifted, carried, (50 feet) and positioned for raise; extremities in safe position during entire operation; ladder halyard properly secured and proper safety applied; and fly section out and positioned correctly. Mr. Chase also made a notation that Petitioner had "poor control" but nonetheless gave Petitioner a passing score on the mandatory skill of maintaining control of ladder during the entire operation. Petitioner made a score of 60 on his second attempt of the retest which is below the required passing score of 70.

13. Phillip Hershman was present at the retest in Ocala on May 22, 2003. Mr. Hershman was there to retake the hose pull portion of the practical exam. At the time of the hearing, he had been employed by the Suwannee County Fire Department for two months. Mr. Hershman was about 50 feet away from Petitioner during Petitioner's ladder retest. There was considerable noise near Mr. Hershman because the self-contained breathing apparatus test was also being conducted nearby.

14. Mr. Hershman had a side view of Petitioner during the ladder retest. He could not see everything that was going on during the ladder retest. Mr. Hershman saw Petitioner look over the ladder and say something to Mr. Chase but could not hear what was said. He saw Mr. Chase speaking to Petitioner. When Petitioner picked up the ladder for the retest, Mr. Hershman saw the rungs of the ladder slide open. He saw Petitioner adjust the ladder and pick it up again. He did not see the ladder touch the wall until final resting of the ladder.

15. Petitioner maintains that the ladder he used on the second retest attempt on May 22, 2003, was defective in the same manner as the first. However, Mr. Chase examined the ladder used in the second test to make sure it was in the correct position. Upon examining the ladder Petitioner used in the second retest, Mr. Chase found it to be "normal."

16. It is unclear from the record whether Mr. Hershman witnessed both of Petitioner's attempts at the ladder retest on May 22, 2003. In any event, in instances where Mr. Hershman's testimony and Mr. Chase's testimony are in conflict, Mr. Chase's testimony of the events regarding Petitioner's retest is more persuasive. He is an experienced examiner, he was the person testing Petitioner, and he has a clear recollection of the events that occurred. While Mr. Hershman's testimony is credible, he was not in the same position, neither physically

    nor through experience, as Mr. Chase to determine how Petitioner should have been graded on the retake tests.

17. In the First Amended Denial Letter dated August 15, 2003, Respondent informed Petitioner that since he passed the written portion of the Firefighter Minimum Standards Examination, a Firefighter I certificate was enclosed.

18. Further, the August 15, 2003, letter informed Petitioner that he did not achieve a passing score on the 24" Ladder Carry, Raise and Extension evolution of the Firefighter Minimum Standards practical retest. He was informed that it will be necessary to either repeat the entire Minimum Standards Course or complete the Firefighter II Course before retaking the Firefighter Minimum Standards Examination.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569 and 120.57(1).

20. Petitioner is an applicant for certification as a firefighter in the State of Florida. Accordingly, as the party asserting the affirmative of an issue before this administrative tribunal, Petitioner has the burden of proof. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). Petitioner must establish facts by a preponderance of the evidence that the Department improperly

    denied his application for certification as a firefighter. Department of Banking and Finance v. Osborne Stern Company, 670 So. 2d 932 (Fla. 1996).

21. Section 633.35 reads in pertinent part as follows:

    
    

    633.35 Firefighter training and certification.--

    
    

    1. The division shall establish a firefighter 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. . . .

    
    

    * * *

    
    

    (4) A person who fails an examination given under this section may retake the examination once within 6 months after the original examination date. . . .

    
    

22. Rule 4A-37.056, Florida Administrative Code, reads in pertinent part as follows:

    (6) All tests, both written and practical, given during training shall require maintenance of a percentage score of not less than 70% on each subject listed in the prescribed Firefighter I and Firefighter II courses. If a minimum score of 70% is not achieved on any test, the student shall be afforded a one-time make up examination to

    achieve the required 70%. Tests used shall be designed to encompass all the significant contents of the subjects being taught.

    
    

    * * *

    
    

    1. 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 and shall encompass all components of the Firefighter I course for Firefighter I testing and all components of both Firefighter I and Firefighter II courses for State Certification as a Firefighter. The 70% score requirements for both written and practical examinations shall prevail in this testing environment as well.

       
       

    2. The state examination will be administered at the local training facility. Whenever possible, the Bureau of Fire Standards and Training will schedule the state examination date at the convenience of the training facility.

       
       

    3. Only one retake of the state examination is permitted. Retakes of the practical portion of the examination will be offered only at the Florida State Fire College during the months of February, May, September, and November. Retakes of the written portion of the examination will be offered at the Regional Testing Sites in February, May, September, November and monthly at the Florida State Fire College. Students must be pre-registered at least 10 business days prior to the date of the examination.

       
       

    4. The retake of the Firefighter II Certification Examination must be taken within 6 months of the initial examination date.

23. In this case, Petitioner seeks a fourth opportunity to pass the ladder evolution without having to repeat the training course. However, Petitioner has not met his burden of proving that he should be entitled to another retest, contrary to the clear language of the statute that only one retake is permitted.

24. There is insufficient evidence to prove that the Department improperly graded the ladder test or improperly denied Petitioner's application.

RECOMMENDATION

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

RECOMMENDED:

That the Department enter a final order denying Petitioner's application and that Petitioner be permitted to either repeat the Minimum Standards Course or complete the Firefighter II course before retaking the Firefighter Minimum Standards Examination.

DONE AND ENTERED this 31st day of October, 2003, in Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

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 31st day of October, 2003.

COPIES FURNISHED:

Casia R. Belk, Esquire Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0330

William Glenn Cone, Esquire 1530 Ryar Road, No. 7

Jacksonville, Florida 32216

Honorable Tom Gallagher Chief Financial Officer

Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

Mark Casteel, General Counsel Department of Financial Services 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: 03-002383

Orders for Case No: 03-002383