STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALMA ELAINE CARLUS,

Petitioner,

vs.

DEPARTMENT OF FINANCIAL SERVICES,

Respondent.

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) Case No. 04-0041

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Carolyn S. Holifield, conducted a formal hearing in the above- styled case on February 24, 2004, by videoconference between Orlando and Tallahassee, Florida.

APPEARANCES

For Petitioner: Alma Elaine Carlus, pro se

2419 Paradise Drive

Kissimmee, Florida 34741

For Respondent: Casia R. Belk, Esquire

Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to additional credit for her responses to Question Nos. 14 and 21 of the Special State

Firesafety Inspector Certification Examination administered on November 13, 2003.

PRELIMINARY STATEMENT

By letter dated November 21, 2003, Respondent, Department of Financial Services, State Fire Marshall's Office (Department), advised Petitioner, Alma Elaine Carlus (Petitioner), that she did not achieve a passing score on the State Special Firesafety Inspector Certification Examination. The letter also advised Petitioner that because she failed the initial examination and the retake examination, she is required to repeat the Inspection Training Program before retaking the Special State Firesafety Inspector Certification Examination.

Petitioner timely completed the Election of Rights form and indicated that she did not dispute the Department's factual allegations and elected to have an informal proceeding.

However, in another document dated December 12, 2003, and submitted by Petitioner, she clearly challenged her examination score of 66 percent and alleged that "several" questions had one or more correct answers and that her responses to four questions had been graded incorrectly. As a result thereof, Petitioner requested that her score be changed to 70 percent and that she be awarded a special firesafety inspector certificate.

The matter was forwarded to the Division of Administrative Hearings on January 6, 2004, for assignment of an Administrative

Law Judge to conduct a formal hearing and prepare a recommended order.

On February 3, 2004, the Department filed a Motion to Amend the Denial Letter (Motion). The Motion stated that the First Amended Denial Letter (Amended Denial Letter) dated February 3, 2004, "include[d] language citing sufficient facts surrounding Petitioner's . . . denial, as well as specific authority for the Department's denial." On February 10, 2004, the undersigned issued an Order granting the Motion.

Pursuant to the notice, the final hearing convened on February 24, 2004. Prior to the evidentiary portion of the hearing, counsel for the Department made an ore tenus motion to amend the Amended Denial Letter indicating that the Motion was to correct errors related to statutory and rule citations and one other matter. The ore tenus motion, which was unopposed by Petitioner, was granted.

The Second Amended Denial Letter deleted the references to Florida Administrative Code Rules 69A-37.07 and 69A-37.0074(B) and changed those references to Florida Administrative Code Rule 69A-37.0074(B). Also, the references to Section 633.354, Florida Statutes (2003), were deleted and changed to Section 633.081, Florida Statutes (2003).

At the outset of the hearing, the parties agreed that, notwithstanding Petitioner's initial claim that her answers to

four questions on the Special State Firesafety Inspector Examination had been graded incorrectly, only two questions were in dispute and at issue in this proceeding. Petitioner had answered the other two questions correctly, and she had been awarded credit for those answers.

At hearing, Petitioner testified on her own behalf. Petitioner did not offer any exhibits into evidence. The Department presented the testimony of one witness, Larry McCall, a field supervisor with the Department's Bureau of Fire Standards and Training. The Department offered and had eight exhibits received into evidence.

A Transcript of the proceeding was filed on March 22, 2004.

Both parties filed Proposed Recommended Orders.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. Petitioner, Alma Elaine Carlus, is an applicant for certification as a firesafety inspector in the State of Florida.

2. Applicants for certification as firesafety inspectors are required to complete a training course, which consists of 80 hours of training in firesafety inspection and must be completed prior to taking the Special State Firesafety Inspector Certification Examination.

3. The approved textbooks for the Special State Firesafety Inspector Certification Examination training courses are Fire Inspection and Code Enforcement (6th Edition), which is published by the International Fire Service Training Association, and the National Fire Prevention Association Life Safety Code.

4. Petitioner successfully completed the required training program and, thereafter, took the Special State Firesafety Inspector Examination on May 29, 2003.

5. The Special State Firesafety Inspector Examination is a written examination containing 50 multiple choice, objective questions, worth two points each. The candidates are given two hours to complete the exam. In order to obtain a passing score, an applicant must earn a score of at least 70 percent.

6. Petitioner did not pass the examination on May 29, 2003.

7. On November 13, 2003, Petitioner retook the examination and earned a score of 66 percent. Because a minimum score of 70 percent is required to pass the examination, Petitioner needs an additional four points to earn a passing score.

8. Petitioner challenged the scoring of two questions on the Special State Firesafety Inspector Examination, Question Nos. 14 and 21.

9. Question No. 14 required the examinee to identify the "least important" characteristic involved in evaluating storage of flammable and combustible liquids. The answer choices given were: (a) the foundations and supports; (b) size and location of vents; (c) design of the tank; and (d) size of the tank.

10. Question No. 14 is clear and unambiguous and the correct answer is included among the choices provided. The answer to Question No. 14 is found on page 325 of the textbook, Fire Inspection and Code Enforcement (Sixth Edition).

11. The correct answer to Question No. 14 is "(d) size of the tank." Petitioner did not select "d" as the correct response and, thus, is not entitled to any additional points for Question No. 14.

12. Question No. 21 states:

    
    

    In above ground tanks containing liquids classified as Class I, Class II, or Class IIIA, the distance between the tanks must be at least the sum of their diameters.

    
    

    The answer choices given were: a) 3/4; b) 1/2; c) 1/4; and d) 1/6.

13. Question No. 21 is clear and unambiguous and the correct answer is included among the choices provided. The answer to Question No. 21 is found on page 327 of the textbook Fire Inspection and Code Enforcement (Sixth Edition).

14. The correct answer to Question No. 21 is "(d) 1/6." Petitioner did not select "d" as the correct response and, thus, is not entitled to any additional points for Question No. 21.

15. The knowledge tested in the Special State Firesafety Inspector Examination is essential for any firesafety inspector to know in order to properly conduct inspections required of individuals in that position.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2003).

17. The Department has jurisdiction over Petitioner's examination and application for certification as a Florida special state firesafety inspector pursuant to Chapter 633, Florida Statutes (2003).

18. Section 633.081, Florida Statutes (2003), sets forth criteria for the certification of candidates seeking employment as firesafety inspectors in the State of Florida and provides, in pertinent part:

    (2) Every firesafety inspection conducted pursuant to state or local firesafety requirements shall be by a person certified as having met the inspection training requirements set by the State Fire Marshal. Such person shall:

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    f) Have satisfactorily completed the firesafety inspector certification examination as prescribed by the department; . . . .

    
    

19. The procedures and passing score for the certification examination are set forth in Florida Administrative Code Rule 69A-39.007, which provides that a minimum score of 70 percent of the maximum score is required to pass the Special State Firesafety Inspector Examination.

20. In this case, Petitioner bears the burden of providing by a preponderance of the evidence that the examination was faulty, that the questions on the examination were faulty, that the questions were worded arbitrarily or capriciously, that her answers to the questions were arbitrarily or capriciously graded, or that the grading process was devoid of logic and reason. Harac v. Department of Professional Regulation, Board of Architecture, 484 So. 2d 1333 (Fla. 3d DCA 1986); State ex rel. Glaser v. Pepper, 155 So. 2d 383 (Fla. 1st DCA 1963); State ex rel. Top v. Board of Electrical Examiners for Jacksonville

    Beach, 101 So. 2d 583 (Fla. 1st DCA 1958).

    
    

21. Petitioner has failed to meet her burden. She did not establish that the examination or questions were faulty, that the questions and/or answers were arbitrary and capricious, or that her answers were arbitrarily or capriciously graded.

22. Having failed to meet her burden of proof, Petitioner is not entitled to additional points for Question Nos. 14 and 21 on the Special State Firesafety Inspector Examination.

23. Petitioner's score of 66 percent on the Special State Fire Safety Inspector Examination is not a passing score. Thus, she is ineligible for certification as a firesafety inspector.

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding that Petitioner is not entitled to additional points for her responses to Question Nos. 14 and 21 of the Special State Firesafety Inspector Examination and denying Petitioner's application for certification as a special state firesafety inspector.

DONE AND ENTERED this 21st day of April, 2004, in Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

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 21st day of April, 2004.

COPIES FURNISHED:

Casia R. Belk, Esquire Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0333

Alma Elaine Carlus 2419 Paradise Drive

Kissimmee, Florida 34741

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: 04-000041

Orders for Case No: 04-000041