STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SANBORN SAINTILMOND, )

)

Petitioner, )

)

vs. ) Case No. 12-0847

)

DEPARTMENT OF FINANCIAL )

SERVICES, BUREAU OF FIRE )

STANDARDS AND TRAINING, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge Edward T. Bauer held a final hearing in this case by video teleconference between sites in Miami and Tallahassee, Florida, on April 13, 2012.

APPEARANCES

For Petitioner: Sanborn Saintilmond, pro se

380 Northeast 161st Street Miami, Florida 33162

For Respondent: Linje E. Rivers, Esquire

Department of Financial Services

200 East Gaines Street, Sixth Floor Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Petitioner achieved a passing score on the Practical Examination for Retention of Firefighter Retest.

PRELIMINARY STATEMENT

In a letter dated October 18, 2011, the Department of Financial Services, Bureau of Fire Standards and Training ("the Department" or "Respondent"), notified Petitioner that he failed to achieve a passing score on the Practical Examination for Retention of Firefighter Retest ("retention retest").

On November 8, 2011, Petitioner disputed the results and submitted a timely request for a formal hearing. The matter was referred to the Division of Administrative Hearings on March 5, 2012, for the assignment of an administrative law judge to conduct the hearing Petitioner had requested.

As noted above, the final hearing was held on April 13, 2012, during which Petitioner testified on his own behalf.

Petitioner called no other witnesses, nor did he submit any exhibits for admission into evidence. The Department presented the testimony of Dennis Hackett and Thomas Johnson and introduced three exhibits into evidence, identified as Respondent's Exhibits A, B, and C.

The final hearing transcript was filed on May 2, 2012. On May 14, 2012, the Department timely filed its Proposed Recommended Order, which the undersigned has considered.

Petitioner did not file a post-hearing submittal of any kind.

Unless otherwise indicated, statutory citations refer to the 2011 Florida Statutes.

FINDINGS OF FACT

1. The Department is the state agency responsible for the certification of firefighters in the State of Florida, pursuant to chapter 633, Florida Statutes.

2. In or around 2008, Petitioner achieved his Firefighter Minimum Standards Training Certification, which was valid for three years. To maintain his certification, it was necessary for Petitioner to either: maintain employment as a firefighter (or serve as a volunteer firefighter) for at least six consecutive months during the three-year period subsequent to his certification; or successfully complete the retention examination, which is identical to the practical examination given to new applicants.1/ Petitioner could not satisfy the first option, and was therefore required to take the retention examination.

3. Petitioner's first attempt to successfully complete the retention examination occurred on May 20, 2011, and included four components: self-contained breathing apparatus ("SCBA"), hose operation, ladder operation, and fireground skills. To pass the retention examination, an examinee must earn scores of at least 70 on each section.

4. Each portion of the retention examination has certain evaluative components that are graded. For instance, the ladder operation consists of 15 skills——e.g., maintaining contact with

   
   

   the ladder at all times, lifting and securing the ladder properly, using proper hand position——that the examinee must complete within the maximum time of four minutes and 30 seconds. A failure to finish the tasks within the allotted time results in an automatic failure and a score of zero, even if the examinee performs each of the 15 skills successfully.2/

5. Although Petitioner achieved perfect scores of 100 on the ladder operation and fireground skills components, he was unable to achieve scores of 70 or higher on the SCBA or hose portions of the practical examination. Petitioner, like all candidates who fail the retention examination on the first attempt, was offered one retest opportunity.3/

6. Petitioner's retest was administered on September 22, 2011, at the Ocala Fire College. On that occasion, Petitioner passed the SCBA and hose portions——the sections that he failed during his previous attempt——with scores of 85. Interestingly, however, the Department's field notes indicate that Petitioner exceeded the ladder evaluation's maximum permitted time by 32 seconds, a performance 58 seconds slower than his recorded time just four months earlier, when he achieved a perfect score. The field notes further reflect that Petitioner committed no errors in connection with the 15 ladder skills and that his failing score was entirely attributable to the examiner's conclusion that the time limit had been exceeded.

   
   

7. During the final hearing, Respondent called Thomas Johnson, the field representative for the Bureau of Fire Standards and Training that administered Petitioner's retest, who testified that he timed the ladder examination with a stopwatch, and that Petitioner did not complete the evaluation within the prescribed time period. Significantly, however, the Department elicited no detail from Mr. Thomas with respect to the causes——e.g., loss of ladder control, tripping, fumbling, etc.——of Petitioner's purported failure to complete the evaluation within the allotted time.4/

8. In contrast, Petitioner testified that although he was not permitted to bring a timekeeping device to the examination (the Department forbids examinees from doing so), he is confident that he completed the ladder retest within the prescribed time limit:

   Mr. Saintilmond: All right. On the date of the retest, I was taking the ladder examination. I've gone through the evolution. I did not fumble around. I did not take any time. I went through the exam as trained. No fumbling around, no waiting, no nothing. And I believe that I completed the evolution on time.

   
   

   And I passed the examination before. I've done it several times. But on this particular day, on my retake, I know I went through this evolution and I passed it with no fumbling around.

   
   

   Final Hearing Transcript, p. 12.

   
   

9. Notwithstanding the anecdotal nature of Petitioner's evidence, his description of the evaluation, which was credible and adequately detailed, carries significant persuasive force in light of his perfect completion of the same ladder examination—— with 26 seconds to spare——just four months before the retest. The undersigned therefore accepts Petitioner's version of the events and finds that he did not exceed the maximum time limit of four minutes and 30 seconds during the September 22, 2011, retention examination.

   CONCLUSIONS OF LAW

   
   

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

11. 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).

12. During the final hearing in this cause, counsel for the Department conceded that Petitioner passed all portions of the retest other than the ladder evaluation and that the only issue for determination was whether Petitioner completed the ladder exercise within the prescribed time limit.5/ As such, Petitioner's burden in this proceeding was to demonstrate, by a

    
    

    preponderance of the evidence, that he finished the ladder evaluation within the allotted time, and that, therefore, his application to retain his firefighter certification should be approved. See Dep't of Banking and Fin., Div. of Sec. & Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932, 934 (Fla. 1996)(holding that the preponderance of the evidence standard applies to license application proceedings); Walthour v. Dep't of Fin. Servs., Div. of State Fire Marshal, Case No. 08-227, 2008 Fla. Div. Adm. Hear. LEXIS 388 (Fla. DOAH May 20, 2008)("To

    prevail, Petitioner must show by a preponderance of the evidence that the Retention Examination and/or re-test was faulty or that the grading process was devoid of logic").

13. Pursuant to the findings of fact contained herein, Petitioner has proven by a preponderance of the evidence that he completed the ladder evaluation of the September 22, 2011, retest within the prescribed time period of four minutes and 30 seconds. By virtue of the Department's concession that Petitioner otherwise performed satisfactorily on the retest, it is concluded that Petitioner earned an overall passing score and is therefore entitled to retention of his firefighter

certification.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial

Services enter an order granting Petitioner's application to retain his certification as a firefighter in the State of Florida.

DONE AND ENTERED this 17th day of May, 2012, in Tallahassee, Leon County, Florida.

S

Edward T. Bauer Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2012.

ENDNOTES

1/ See Fla. Admin. Code R. 69A-37.0527(1).

2/ Completion of the exercise within the time limit is one of ten mandatory components of the ladder evaluation; non- compliance with respect to any of the mandatory elements results in automatic failure, irrespective of the examinee's performance in connection with the 15 evaluative components.

3/ See Fla. Admin. Code R. 69A-37.0527(6).

4/ Although the Department does not bear the burden of proof in this proceeding, the lack of any explanation during the examiner's final hearing testimony concerning how or why Petitioner exceeded the prescribed time limit is a factor that the undersigned has considered in the assessment of the witness's credibility.

5/ See Final Hearing Transcript, pp. 10-11; Respondent's Proposed Recommended Order, p. 5.

COPIES FURNISHED:

Sanborn Saintilmond

380 Northeast 161st Street Miami, Florida 33162

Linje E. Rivers, Esquire Department of Financial Services

200 East Gaines Street, Sixth Floor Tallahassee, Florida 32399

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

200 East Gaines Street Tallahassee, Florida 32399-0390

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: 12-000847

Orders for Case No: 12-000847