STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHARRICE REANETTE BLACKMON,

Petitioner,

vs.

DEPARTMENT OF FINANCIAL SERVICES,

Respondent.

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) Case No. 04-0766

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted on

May 19, 2004, by video teleconference between Fort Lauderdale and Tallahassee, Florida, before Administrative Law Judge Claude B. Arrington of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Sharrice Reanette Blackmon, pro se

9999 Summerbreeze Drive, No. 414

Sunrise, Florida 33322

For Respondent: Casia R. Sinco, Esquire

Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to a passing grade on the Self Contained Breathing Apparatus section (the SCBA section) of the Firefighter Minimum Standards Examination (the Examination) administered September 25, 2003.

PRELIMINARY STATEMENT

The Examination consists of a written portion and a practical portion. The SCBA section is one of four sections of the practical portion of the Examination. Petitioner took both portions of the Examination on May 29, 2003. Petitioner passed the written portion of the Examination and three of four sections of the practical portion of the Examination.

Petitioner failed the SCBA section.

Pursuant to applicable statute and rule, Petitioner was permitted to retake the SCBA section on September 25, 2003.1 Thereafter, Respondent notified Petitioner that she had failed the retake of the SCBA section. Petitioner requested a formal administrative hearing to challenge the scoring of her retake of the SCBA section, the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

At the final hearing, Respondent presented its evidence first to facilitate the proceeding. Respondent presented the testimony of Ralph Chase, Jr. (a field representative with the State Fire Marshal’s Bureau of Fire Standards and Training), and offered 11 sequentially numbered exhibits, each of which was admitted into evidence. Petitioner presented no testimony and no exhibits.

A Transcript of the proceedings was filed on June 10, 2004.

Each party filed a Proposed Recommended Order, which has been

duly-considered by the undersigned in the preparation of this Recommended Order.

All statutory references are to Florida Statutes (2004), and all references to rules are to those set forth in the Florida Administrative Code as of the date of this Recommended Order.

FINDINGS OF FACT

1. Petitioner applied to Respondent for certification as a firefighter. Pursuant to Section 633.35, Florida Statutes, Petitioner was required to take and pass the written portion and all four sections of the practical portion of the Examination to achieve this certification.

2. The practical portion of the Examination consists of four sections: the SCBA section; the Hose and Nozzle Operation section; the Ladder Operation section; and the Fireground Skills section.

3. On May 29, 2003, Petitioner took both the written and practical portions of the Examination. She passed the written portion and three sections of the practical portion. Petitioner failed the SCBA section. Petitioner was not required to retake the written portion of the examination or the three sections of the practical examination she passed. Petitioner thereafter retook the SCBA section on September 25, 2003.

4. As implied by the name of the section, the SCBA section involves the use of equipment that enables a firefighter to breathe in a hostile environment, such as a burning building. The candidate must check the equipment, properly don the equipment, activate the equipment, and properly doff the equipment.

5. Mr. Chase was responsible for administering and grading Petitioner’s retake of the SCBA section on September 25, 2003. To pass each section of the practical examination, including the SCBA section, a candidate has to achieve a score of at least

   70 points.2 The candidate’s performance on the SCBA section is graded in ten categories, with each category being worth ten points.

6. The greater weight of the credible evidence established that Petitioner's performance on the SCBA section of the practical examination was appropriately and fairly graded. Petitioner earned a score of 40 points on her retake the SCBA portion of the practical examination. Petitioner was awarded no points for six of ten categories for which points could be awarded.3 Petitioner failed to establish that she was entitled to additional credit for her performance on the SCBA section.

7. Respondent established that Mr. Chase appropriately administered and graded the subject SCBA section pursuant to the

   applicable provisions of Chapter 69A-37, Florida Administrative Code, which set forth guidelines for the practical examination.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof pursuant to Chapter 120, Florida Statutes.

9. Section 633.35, Florida Statutes, provides, in relevant part, as follows:

   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. . . .

      
      

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      (4) A person who fails an examination given under this section may retake the examination once within 6 months after the original examination date. An applicant who does not retake the examination within such time must take the Minimum Standards Course, pursuant to subsection (1), before being reexamined. . . .

      
      

10. Florida Administrative Code Rule 69A-37.056 pertains to the Firefighter Minimum Standards Test and provides, in relevant 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%.

    
    

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    (d) Only one retake of the state examination is permitted ...

    
    

11. Petitioner has the burden of proving by a preponderance of the evidence that she is entitled to a passing grade on the SCBA section of the test administered September 25, 2003. See Harac v. Department of Professional Regulation, 484 So. 2d 1333 (Fla. 3d DCA 1986); State ex rel. I. H. Topp v. Board of Electrical Contractors for Jacksonville Beach, Florida,

    101 So. 2d 583 (Fla. 1st DCA 1958); and State ex rel. Glaser v.

    
    

    J. M. Pepper, 155 So. 2d 383 (Fla. 1st DCA 1963). Petitioner did not meet that burden in this proceeding.

12. Petitioner argues in her Proposed Recommended Order that she should be permitted an additional retake of the SCBA section. The rationale underpinning her argument is rejected as being contrary to the factual findings that the examination was properly administered and graded. Moreover, her requested relief is inconsistent with the provisions of Section 633.35(4),

Florida Statutes, and Florida Administrative Code Rule 69- 37.056(6).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding that Petitioner failed the SCBA section of the practical portion of the Firefighter Minimum Standard Examination administered September 25, 2003.

DONE AND ENTERED this 25th day of June, 2004, in Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

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 June, 2004.

ENDNOTES

1/ See Section 633.35(4), Florida Statutes, and Florida Administrative Code Rule 69A-37.056(6)(d), the relevant portions of which are set forth in the Conclusions of Law section of this Recommended Order.

2/ The SCBA section also has two fatal items which a candidate must successfully complete to pass, regardless of total score. The failure to activate and check a personal alarm as part of the exercise is one fatal item. The failure to complete the SCBA section within one minute, forty-five seconds is the other fatal item. Those fatal items are not at issue in this proceeding, although the scoring sheet completed by Mr. Chase erroneously reflects that Petitioner did not timely complete the SCBA section. This harmless error is not the basis for Petitioner’s scoring on the SCBA section on September 25, 2003.

3/ Petitioner failed to connect to her air supply during the exercise, which established that she failed to properly don the equipment and failed to properly secure all valves and connections. In addition, Petitioner failed to announce a required numerical reading of her regulator, failed to properly secure her facemask, failed to properly seal her facemask, and failed to properly doff the equipment.

COPIES FURNISHED:

Casia R. Sinco, Esquire Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0333

Sharrice Reanette Blackmon

9999 Summerbreeze Drive, No. 414

Sunrise, Florida 33322

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: 04-000766

Orders for Case No: 04-000766