STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RUTH GUTIERREZ, )

)

Petitioner, )

)

vs. ) Case No. 04-0040

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Miami, Florida, on March 25, 2004.

APPEARANCES

For Petitioner: Ruth Gutierrez, pro se

1585 Northeast 110th Terrace Miami, Florida 33161

For Respondent: Casio R. Sinco

Division of Legal Services Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

The issue is whether Petitioner is entitled to a passing grade on the Hose and Nozzle Operations part of the Minimum Standards Examination for firefighter certification.

PRELIMINARY STATEMENT

By letter dated December 4, 2003, Respondent informed Petitioner that she had not achieved a passing score on the firefighters' Minimum Standards Examination. Petitioner timely requested a formal hearing.

At the hearing, Petitioner called four witnesses and offered into evidence eight exhibits: Petitioner Exhibits 1-8. Respondent called one witness and offered into evidence no exhibits. All exhibits were admitted.

The court reporter filed the transcript on May 4, 2004.

The parties filed their Proposed Recommended Orders by May 21, 2004.

FINDINGS OF FACT

1. Certification as a firefighter requires, among other things, that an applicant successfully complete a Minimum Standards Course and then pass the Minimum Standards Examination. The Minimum Standards Examination comprises a written test and a practice test, each of which an applicant must pass. The practical test comprises four parts, including Hose and Nozzle Operations. An applicant must pass each of the four parts, and a passing score is 70.

2. On October 3, 2003, Petitioner first took the Minimum Standards Examination. She passed three parts, but failed the Hose and Nozzle Operations part. She was entitled to one

   retest, without having to retake the Minimum Standards Course, which she has already passed.

3. On November 20, 2003, Petitioner retook the Hose and Nozzle Operations part of the Minimum Standards Examination. Petitioner received a score of 60 on the retest, and she challenges this score in the present case.

4. Petitioner lost points for four reasons: she failed to have all of her protective gear donned and properly secured, she opened the hose nozzle too quickly, she closed the hose nozzle too quickly, and she ran with the hose. The Hose and Nozzle Operations part of the test is timed, and Petitioner previously had failed it because she had taken too long to complete the tasks within this part.

5. Petitioner was a candid witness. At the end of the hearing, she essentially withdrew her challenge to the points that she had lost for operating the nozzle improperly. She instead focused on running with the hose and leaving her face shield up during part of the examination.

6. In fact, the examiner testified without doubt that Petitioner had misoperated the nozzle during two tasks. Clearly, Petitioner failed to prove that the examiner's scoring of these two tasks was incorrect.

7. As for running, Petitioner testified that she ran, but, consistent with the test rules, received a shouted warning from

   the examiner and did not run again. If so, she should not have lost points for running. However, the examiner again is clear that Petitioner ran after the warning. Aware that she had failed the same test previously for not completing this part of the test within the allotted time, Petitioner probably felt a sense of urgency to complete this part of the test.

8. Petitioner's testimony about running is vague at times and even contradictory. Much of Petitioner's early testimony on this point disputes the clarity of the shouted warning not to run, suggesting that she may have run through a large portion of this part of the test. Later, though, Petitioner concedes that the shout was probably a warning not to run. On balance, Petitioner has failed to prove that the examiner improperly deducted points for running.

9. The last issue in dispute is whether Petitioner performed part of the test with her face shield improperly raised. Petitioner testified that her face shield was always in the proper position, and, on this issue, Petitioner produced a fellow student who testified that he saw Petitioner's face shield in the proper position. However, the other student did not see the whole test and presumably was not observing Petitioner as closely as was the examiner.

10. The examiner was most definite in his testimony on the issue of the face shield. He saw Petitioner engage in the

    awkward task of unloading the heavy hose, and he saw that a section of hose bumped the face shield from its down position into a partial up position. The examiner watched to see if Petitioner would immediately lower the face shield, but she did not. At that point, the examiner properly deducted points for failing to keep the gear properly secured.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Fla. Stat. (2003).

12. Section 633.35(2), Florida Statutes, authorizes Respondent to require the successful completion of an examination as a precondition to certification as a firefighter.

13. As an applicant, Petitioner has the burden of proving that she is entitled to a passing grade on the examination. Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). In a test-challenge case, Petitioner has the burden of proving that the scoring of her test was arbitrary or capricious. Espinoza v. Department of Business and Professional Regulation, 759 So. 2d 1250 (Fla. 3d DCA 1999).

14. Petitioner has failed to prove that the scoring of any part of the Hose and Nozzle Operations part of the Minimum

Standards Examination that took place on November 20, 2003, was incorrect or unfair.

RECOMMENDATION

It is

RECOMMENDED that the Department of Financial Services enter a final order dismissing Petitioner's challenge to the scoring of the Hose and Nozzle Operations part of the Minimum Standards Examination that took place on November 20, 2003.

DONE AND ENTERED this 30th day of June, 2004, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 30th day of June, 2004.

COPIES FURNISHED:

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

Ruth Gutierrez

1585 Northeast 110th Terrace Miami, Florida 33161

Casio R. Sinco

Assistant General Counsel Division of Legal Services Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0333

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 04-000040

Orders for Case No: 04-000040