STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARK POINTON, )

)

Petitioner, )

)

vs. ) Case No. 10-10371

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on January 27, 2011, by video teleconference with connecting sites in Port St. Lucie and Tallahassee, Florida, before

Errol H. Powell, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mark A. Pointon, pro se

8026 Okeechobee Road

Fort Pierce, Florida 34945

For Respondent: Linje E. Rivers, Esquire

Department of Financial Services Division of Legal Services

612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner

successfully completed the Practical Examination for Retention of Firefighter Retest.

PRELIMINARY STATEMENT

Mark Pointon took the Practical Examination for Retention of Firefighter Retest. By letter dated October 1, 2010, among other things, he was notified by the Department of Financial Services (Department) (a) that he had not successfully completed the Practical Examination for Retention of Firefighter Retest;

(b) that his Firefighter Certificate of Compliance had expired; and (c) that, therefore, he would be required to repeat the Firefighter Minimum Recruit Training Program and submit a new application. Mr. Pointon challenged the Department's decision and requested a hearing. On November 23, 2010, this matter was referred to the Division of Administrative Hearings.

Prior to hearing, the parties filed a Joint Pre-Hearing Stipulation. At hearing, Mr. Pointon testified in his own behalf and entered no exhibits into evidence. The Department presented the testimony of three witnesses and entered eight exhibits (Respondent's Exhibits numbered A through H) into evidence.

A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. The Transcript, consisting of one volume, was filed

on February 8, 2011. The Department timely filed its post- hearing submission. By Order issued on March 17, 2011,

Mr. Pointon was directed to advise the undersigned on a date certain as to whether he would be filing a post-hearing submission. He failed to comply with the directive by the date certain and failed to file a post-hearing submission. The Department's post-hearing submission was considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Mr. Pointon is a candidate for re-certification as a firefighter in the State of Florida.

2. In 2004, Mr. Pointon obtained his Firefighter Minimum Standards Training Certification. A certification is valid for three years. Since 2004, he has been unable to find gainful employment as a firefighter. In 2007, Mr. Pointon obtained re- certification. He has been working two jobs, unrelated to firefighting, and has been unable to volunteer as a firefighter.

3. To maintain certification, a certified firefighter, within the three-year period, must either be employed as a firefighter in a career status position or a volunteer firefighter for at least six consecutive months. If a certified firefighter fails to fit within either of the two statuses within the three-year period, the certified firefighter must take the practical portion of the Firefighter Minimum Standards

   
   

   examination, i.e., the Firefighter Minimum Standards Practical Examination (Practical Examination) to retain certification as a firefighter.

4. The Practical Examination includes a written examination, as well as four practical components. The four practical components include (a) Self-Contained Breathing Apparatus (SCBA); (b) Hose Operations; (c) Ladder Operations; and (d) Fireground Skills. In order to pass the Practical Examination, a candidate must achieve a score of at least 70 percent on each of the four components.

5. Pertinent to the instant case, the SCBA component is scored using a form listing five mandatory steps, which the candidate must pass, and ten "evaluative component" steps worth ten points each. During the SCBA portion of the examination,

   1. a candidate is required to follow the mandatory criteria;

      
      

   2. the mandatory criteria are required to be completed correctly, including completion of all protective equipment, which includes pulling on the candidate's hood that protects the skin from flash fire; and (c) a candidate is required to complete the mandatory criteria within the maximum allotted time. A candidate, who successfully completes the five mandatory steps, receives a total score of the sum of the points from the ten "evaluative component" steps.

   
   

6. A candidate's failure to comply with the mandatory criteria is considered a critical failure. A critical failure is grounds for an automatic failure.

7. A candidate is able to take the re-certification test twice. If a candidate fails the first time, the candidate is automatically afforded an opportunity for a retest.

8. On May 25, 2010, Mr. Pointon took his initial Practical Examination for the re-certification. He completed the SCBA in two minutes and 45 seconds, which was beyond the maximum allowed time of one minute and 35 seconds. Therefore, the Department determined that Mr. Pointon failed to successfully complete that component and, as a result, failed that section of the Practical Examination.

9. Mr. Pointon contends that, on May 25, 2010, during his inspection of the equipment, bottle and air pack, to make sure that it was functioning properly, he discovered that the equipment was not functioning properly. Further, he contends that he made two exchanges of equipment before he obtained properly functioning equipment. Mr. Pointon's testimony is found to be credible.

10. The field representative who administered the initial Practical Examination testified. The field representative did nothing different with Mr. Pointon than he did with any of the other candidates. Furthermore, Mr. Pointon was the eleventh

    
    

    candidate to undergo testing and, by being the eleventh candidate, Mr. Pointon had ample opportunity to test his equipment and ensure that the necessary preparation was conducted before his (Mr. Pointon's) exam began. The field representative's testimony is found to be credible and more persuasive.

11. Therefore, the evidence demonstrates that Mr. Pointon failed to successfully complete the SCBA component within the maximum allotted time.

12. Hence, the evidence demonstrates that, on May 25, 2010, Mr. Pointon failed the SCBA section of the Practical Examination.

13. On September 23, 2010, Mr. Pointon took a retest of the SCBA component. The Department determined that he failed the retest for failure to don all Personal Protective Equipment (PPE), in particular his NOMEX hood. Failure to don all PPE is grounds for automatic failure.

14. As to the retest, Mr. Pointon contends that he was wearing his NOMEX hood.

15. The field representative who administered the retest testified. The field representative observed the NOMEX hood around Mr. Pointon's neck; Mr. Pointon was not wearing the NOMEX hood. The field representative's testimony is more persuasive.

16. Therefore, the evidence demonstrates that, on

    
    

    September 23, 2010, Mr. Pointon failed to don all the PPE by failing to don his NOMEX hood.

17. Hence, the evidence demonstrates that, on September 23, 2010, Mr. Pointon failed the retest.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to sections 120.569 and 120.57(1), Florida Statutes (2011).

19. These proceedings are de novo. § 120.57(1)(k), Fla.

    
    

    Stat. (2011).

    
    

20. The general rule is that "the burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal." Fla. Dep't of Transp. v. J. W. C. Co., Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981). Mr. Pointon has the ultimate burden of proof to show by a preponderance of the evidence that he successfully completed the Practical Examination for Retention of Firefighter Retest. Dep't of Banking and Fin., Div. of Sec. and Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); J. W. C. Co., supra.; § 120.57(1)(j), Fla. Stat. (2011).

21. Section 633.352, Florida Statutes (2009), provides in pertinent part:

    Any certified firefighter who has not been

    
    

    active as a firefighter, or as a volunteer firefighter with an organized fire department, for a period of 3 years shall be required to retake the practical portion of the minimum standards state examination specified in rule 4A-37.056(6)(b),[1] Florida Administrative Code, in order to maintain her or his certification as a firefighter

    . . . The 3-year period begins on the date the certificate of compliance is issued or upon termination of service with an organized fire department.

    
    

22. Florida Administrate Code Rule 69A-37.0527 provides in pertinent part:

    1. The examination for retention of certificate referenced in Section 633.352, F.S., shall be known as the retention examination. Being active as a volunteer firefighter with an organized fire department means the individual has been actively involved for a continuous period of time of not less than 6 months during the 3 year period since certified or the certification was last renewed, or since termination from a fire department. . . .

       
       

       * * *

       
       

       1. Each individual will be required to wear N.F.P.A. labeled helmet, fire coat, bunker pants, boots, protective hood, self- contained breathing apparatus [sic] ("SCBA"), mask, personal alert safety system ("PASS device") and gloves. Such equipment shall be in operating condition to enter a hazardous environment and comply with the NFPA edition noted on the label, tag or design.

          
          

       2. Any individual who does not obtain a passing score of 70% or more on the retention examination will be permitted one opportunity to repeat the examination. The examination must be repeated within 6 months

          
          

          of the original examination or the opportunity is forfeited.

          
          

       3. Failure to pass the examination within the timeframes set forth above will result in the individual's having to successfully complete Firefighter training as defined in Rule 69A-37.055, F.A.C., before a new application and additional testing can occur.

       
       

23. The burden of proof is on Mr. Pointon to show by a preponderance of evidence that the scoring on the re-test was arbitrary or capricious, or that the scoring process was devoid of logic and reason. Harac v. Dep't of Prof'l Reg., Bd. of Architecture, 484 So. 2d 1333 (Fla. 3d DCA 1986); State ex rel. Glasser v. Pepper, 155 So. 2d 383 (Fla. 1st DCA 1963); State ex

    rel. Topp v. Bd. of Elec. Exam'rs for Jacksonville Beach, 101 So. 2d 583 (Fla. 1st DCA 1958).

24. Mr. Pointon failed to meet his burden of proof. The preponderance of the evidence failed to demonstrate that the administration or scoring of the retest was arbitrary or capricious or that the scoring process was devoid of logic and reason.

25. Only one retest is permitted. Fla. Admin. Code R.

69A-37.0527(6). The evidence demonstrates that Mr. Pointon failed to earn a passing score on his retest and, therefore, failed to successfully complete his one-time retest.

RECOMMENDATION

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

RECOMMENDED that the Department of Financial Services enter a final order:

1. Finding that Mark Pointon failed to successfully complete the Practical Examination for Retention of Firefighter Retest; and

2. Denying Mark Pointon's application for recertification as a firefighter in the state of Florida.

DONE AND ENTERED this 1st day of August, 2011, in Tallahassee, Leon County, Florida.

S

ERROL H. POWELL

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 1st day of August, 2011.

ENDNOTE

1/ Section 633.352 was amended effective July 1, 2010. Pertinent

to the instant case, the cited rule provision was changed to "rule 69A-37.056(6)(b), Florida Administrative Code."

COPIES FURNISHED:

Julie Jones, CP, FRP, Agency Clerk Department of Financial Services Division of Legal Services

200 East Gaines Street Tallahassee, Florida 32399-0390

Honorable Jeff Atwater, Chief Financial Officer Department of Financial Services

The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

P. K. Jameson, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

Mark A. Pointon 8026 Okeechobee Road

Fort Pierce, Florida 34945

Linje E. Rivers, Esquire Department of Financial Services Division of Legal Services

612 Larson Building

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

Docket for Case No: 10-010371

Orders for Case No: 10-010371