STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANIEL BEREJUK, )

)

Petitioner, )

)

vs. ) Case No. 12-2293

)

DEPARTMENT OF FINANCIAL ) SERVICES, DIVISION OF STATE ) FIRE MARSHALL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on September 4, 2012, by video teleconference with connecting sites in Miami and Tallahassee, Florida, before Errol H. Powell, an Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Lance Joseph, Esquire

Law Offices of Lance Joseph, P.A.

9990 Southwest 77th Avenue, Penthouse 10

Miami, Florida 33156

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 Firefighter Minimum Standards Practical Examination Retest.

PRELIMINARY STATEMENT

Daniel Berejuk took the Firefighter Minimum Standards Practical Examination Retest. By letter dated May 17, 2012, he was notified by the Department of Financial Services (Department) that, among other things, he had not successfully completed the Minimum Standards Practical Examination Retest due to his scoring less than a total of 70 points on the ladder procedure because he had exceeded the maximum time allowed for the ladder procedure. Mr. Berejuk challenged the Department's decision and requested a hearing. On July 2, 2012, this matter was referred to the Division of Administrative Hearings.

At hearing, Mr. Berejuk testified in his own behalf and entered one exhibit (Petitioner's Exhibit numbered 1) into evidence. The Department presented the testimony of one witness and entered four exhibits (Respondent's Exhibits numbered A through D)1/ 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 September 28, 2012.

The Department timely filed its post-hearing submission.

Mr. Berejuk did not 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. Berejuk is a candidate for certification as a firefighter in the state of Florida.

2. To be certified as a firefighter, a candidate is required to successfully complete the Firefighter Minimum Standards Written and Practical Examination.

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

4. On April 11, 2012, Mr. Berejuk took the original examination of the Firefighter Minimum Standards Written and Practical Examination at Miami, Florida.

5. To successfully complete the Minimum Standards Written Examination (Written Examination), a candidate is required to receive a minimum of 70 points on the Written Examination.

   Mr. Berejuk received more than the minimum of 70 points. As a result, he passed the Written Examination.

   
   

6. The Minimum Standards Practical Examination (Practical Examination) consists of four evolutions. To successfully complete the Practical Examination, a candidate is required to receive a minimum of 70 points on each evolution and to complete all mandatory steps. Mr. Berejuk received more than a minimum of 70 points in each evolution, except the ladder search and rescue evolution (Ladder Evolution).

7. During the Ladder Evolution, Mr. Berejuk failed to complete a mandatory step. He failed to don a hood on his head, and because of that failure he received zero points for the Ladder Evolution. As a result, he failed to pass the Ladder Evolution.

8. Also, pertinent to the instant case, the maximum time allowed on the Ladder Evolution is four minutes and 30 seconds. Exceeding the maximum time allowed is an automatic failure of the Ladder Evolution. Mr. Berejuk's time on the Ladder Evolution was three minutes and 20 seconds, which was one minute and 10 seconds, or 70 seconds, less than the maximum allowable time.

9. Because of his failure to pass the Ladder Evolution, Mr. Berejuk failed to successfully complete the Practical Examination.

10. On May 15, 2012, Mr. Berejuk completed a retest of the Practical Examination at Ocala, Florida. The Practical

    
    

    Examination Retest consisted of three evolutions. He was required to receive a minimum of 70 points on each evolution and to complete all mandatory steps in order to successfully complete the Practical Examination Retest.

11. On the Practical Examination Retest, Mr. Berejuk received more than a minimum of 70 points, receiving a perfect score of 100 points, on all of the evolutions, except the Ladder Evolution on which he received zero points. He exceeded the maximum time allowed on the Ladder Evolution. As on the original examination, the maximum time allowed is four minutes

    30 seconds and exceeding the maximum time allowed is an automatic failure of the Ladder Evolution. Mr. Berejuk's time was four minutes 42 seconds, which is 12 seconds more than the maximum allowable time. He received zero points on the Ladder Evolution for exceeding the maximum allowable time.

12. As a result of his failing to pass the Ladder Evolution, Mr. Berejuk failed to successfully complete the Practical Examination Retest.

13. Because Mr. Berejuk failed the Practical Examination Retest, the Department denied his certification as a firefighter.

14. As support for his challenge to the Department's determination that he exceeded the maximum allowable time on the Ladder Evolution, Mr. Berejuk relies upon his performance on the

    
    

    practice ladder evolution at the Coral Springs Fire Academy (Academy). He completed his training at the Academy in 2012. His time on the practice ladder evolution was three minutes and

    49 seconds, which is 41 seconds less than the maximum allowable time.

15. The Ladder Evolution's footprint at the Practical Examination Retest in Ocala is different from the footprint at the Academy (the practice site) in Coral Springs and at the original examination site in Miami. At the practice,

    Mr. Berejuk's time for the Ladder Evolution was three minutes and 49 seconds, 41 seconds less than the maximum allowable time; at the original examination, his time was three minutes and 20 seconds, 70 seconds less than the maximum allowable time; and at the Practical Examination Retest, a little over 30 days after the first test, his time was four minutes and 42 seconds, 12 seconds more than the maximum allowable time.

16. Even though the difference in the times recorded for the Ladder Evolution at the original examination and the Practical Examination Retest are markedly different, Mr. Berejuk presented insufficient evidence addressing the difference in order to make a finding of fact or draw an inference. Also, he did not present any evidence detailing his specific performance on the Ladder Evolution at the Practical Examination Retest,

    
    

    such as his not stumbling or hesitating at any point during the Ladder Evolution.

17. Mr. Berejuk failed to present any evidence as to the inaccuracy of the instrument, a stopwatch, used to time the Ladder Evolution or as to the inaccuracy of the field representative recording the time at the Practical Examination Retest. He presented only assumptions or conjectures as to the inaccuracy of the instrument or the recording of the field representative.

18. The field representative did not testify at hearing.

    
    

19. The evidence fails to demonstrate that the amount of time determined by the Department for Mr. Berejuk to complete the Ladder Evolution was incorrect or inaccurate.

20. Therefore, the evidence demonstrates that Mr. Berejuk failed to successfully complete the Ladder Evolution within the maximum allotted time.

21. Hence, the evidence demonstrates that Mr. Berjuk failed the Practical Examination Retest.

    CONCLUSIONS OF LAW

    
    

22. 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 (2012).

    
    

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

    
    

    Stat. (2012).

    
    

24. 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. Berejuk has the ultimate burden of proof to show by a preponderance of the evidence that he successfully completed the Practical Examination 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. (2012).

    
    

25. Section 633.35, Florida Statutes (2011), provides in pertinent part:

    (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, and who possesses the qualifications for employment in s. 633.34, except s. 633.34(5). . . .

    
    

    * * *

    
    

    (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. The division may establish

    
    

    reasonable preregistration deadlines for such reexaminations.

    
    

26. Florida Administrate Code Rule 69A-37.056 provides in pertinent part:

    To be recognized for certification as a firefighter by the Bureau, training shall be obtained under the conditions specified herein. Satisfactory completion of the prescribed training, instruction, and standards in accordance with these specifications shall be certified by a designated instructor or member of the Bureau staff.

    
    

    * * *

    
    

    (6) Each subject area within the Minimum Standards Course will be tested to validate the acquisition and application of relevant knowledge and skill. All subject area and final tests, both written and practical, given during the Minimum Standards Course shall require maintenance of a percentage score of not less than 70% on each subject listed in the Minimum Standards Course. 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%. Students not in compliance with the minimum score requirement shall be dropped from the course.

    
    

    * * *

    
    

    (b) State examinations, consisting of a written and a practical part, shall be administered by a Field Representative of the Bureau, or designee, and shall encompass all components of the Minimum Standards Course. The applicant must attain a score of 70 percent on both the written and practical examinations to receive a certificate of compliance.

    
    

27. The burden of proof is on Mr. Berejuk to show by a preponderance of evidence that the scoring on the Practical Examination Retest was arbitrary or capricious, or that the scoring process on the Practical Examination Retest 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).

28. Mr. Berejuk failed to meet his burden of proof. The preponderance of the evidence failed to demonstrate that the administration or scoring of the Practical Examination Retest was arbitrary or capricious or that the scoring process of the Practical Examination Retest was devoid of logic and reason.

29. Hence, the evidence demonstrates that Mr. Berejuk failed to earn a passing score on his retest and, therefore, failed to successfully complete the Practical Examination

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 Daniel Berejuk failed to successfully complete the Practical Examination Firefighter Retest; and

2. Denying Daniel Berejuk's application for certification as a firefighter in the state of Florida.

DONE AND ENTERED this 20th day of December, 2012, 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

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

Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 2012.

ENDNOTE

1/ This Administrative Law Judge redacted the social security number of Daniel Berejuk from the Department's exhibits.

COPIES FURNISHED:

Lance Joseph, Esquire

Law Offices of Lance Joseph, P.A.

9990 Southwest 77th Avenue, Penthouse 10

Miami, Florida 33156

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

612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

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

Docket for Case No: 12-002293

Orders for Case No: 12-002293