The Issue The issue in this case is whether Petitioner’s application for certification as a firesafety inspector should be granted.
Findings Of Fact The Department is the state agency responsible for the certification of firesafety inspectors in the State of Florida pursuant to Chapter 633, Florida Statutes (2009).1 In September 2008, Mr. Bates completed his coursework for certification as a firesafety inspector. In November 2008, Mr. Bates submitted an application for certification as a firesafety inspector. Sometime between November 19, 2008, and December 5, 2008, the Department notified Mr. Bates that the Department did not have a copy of his high school diploma and the certificate showing that course work for the building construction for the fire service had been completed. On December 5, 2008, the Department received documentation showing that Mr. Bates had graduated from high school and had completed the course work for the building construction for the fire service. Scheduling a time to take the firesafety inspector examination can be done online by going to the Pearson Vue testing center website and entering the ID and password provided by the Bureau. Mr. Bates attempted to schedule the examination by telephone and was unsuccessful, but he did not attempt to schedule the examination online. Sometime during January or February 2009, Mr. Bates was able to obtain a date for the examination. Mr. Bates took the examination for firesafety inspector certification for the first time on February 13, 2009. A passing score on the examination was 70 percent. The Bureau sent a notice to Mr. Bates that his score was 56 percent. The notice of the test results advised that he could retake the examination within six months of his test date of February 13, 2009, and that he could review his test questions by contacting the Promissor at www.promissor.com. On April 3, 2009, Mr. Bates contacted Charles Brush, who was the standards supervisor for the Bureau, to schedule a review of his examination taken in February. Mr. Brush was responsible for the testing for certifications and renewals issued by the Bureau. Due to miscommunications with the Bureau, Pearson Vue testing center, and Mr. Bates, Mr. Bates was not scheduled for a review of his examination until May 2009. Mr. Bates reviewed his examination in May 2009; however, after he had gone through the examination one time, he was not allowed to again review the examination. This restriction on the review process is designed to prevent applicants from memorizing questions from the examination. Many of the questions on the examination may be used again in another examination. Because of the communication issues concerning the test review, Mr. Brush gave Mr. Bates an open-ended time extension to retake the examination. Sometime between February 13, 2009, and June 27, 2009, Mr. Bates took a weekend course to practice for the examination. On June 27, 2009, Mr. Bates retook the firesafety inspector examination and again scored 56 percent, which was a failing score. The notice of the test results provided that “[s]hould you fail the retest or waive your right to a retest, the only way to obtain certification is retake the course(s) required, submit a new application for approval, and pass the certification examination.” Mr. Bates does not contest the scores that he received on the examinations. He contends that he should be entitled to be certified as a firesafety inspector due to the amount of time that passed between the completion of his coursework in September 2008 and the taking of the examinations in February and June 2009. He was not able to retain coursework information from September 2008, when he completed his courses, until February 2009, when he first took the test.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Mr. Bates’ request that he be certified as a firesafety inspector. DONE AND ENTERED this 20th day of April, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 April, 2010.
The Issue The issue is whether the Bureau of Fire Standards and Training of the Division of State Fire Marshall properly denied Petitioner's application for certification as a firefighter.
Findings Of Fact On December 8, 1995, Petitioner submitted his application for certification as a firefighter. He later passed the written portion of the minimum standards examination for certification as a firefighter. However, he failed the practical portion of the examination. As permitted by law, Petitioner retook the practical portion of the examination on October 14, 1996. He failed the examination a second time and challenges his grade in this proceeding. William George DePauw, Jr., administered the practical examination on October 14, 1996. Mr. DePauw is a certified firefighter with over 25 years’ experience. He has administered firefighter certification exams since 1994. A passing score on the practical portion of the examination is 70 points. Mr. DePauw correctly scored Petitioner’s practical portion of the examination at 45 points. For part one of the practical examination, Petitioner properly lost five points for failing to complete the breathing apparatus section within the assigned time, five points for failing to carry the 1 3/4 inch hose properly on his shoulder at all times during the advance, ten points for failing to control the extension ladder, five points for failing to extend fully the extension ladder, and ten points for failing to complete the extension ladder section within the assigned time. For part two of the practical examination, Petitioner properly lost five points for failing to tie clove hitch and half hitch knots and five points for incorrectly breaking a plate glass door at the bottom of the pane. As a result of these deficiencies, Petitioner failed the practical examination.
Recommendation It is RECOMMENDED that the Division of State Fire Marshall enter a final order denying Petitioner’s request a determination that he passed the practical portion of the minimum standards examination for certification as a firefighter. DONE AND ENTERED this 3rd day of September, 1997, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1997. COPIES FURNISHED: Jason Wayne Parker 8260 Collins Road Jacksonville, Florida 32244 Elizabeth Arthur Division of Legal Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Daniel Y. Sumner General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300
The Issue The issue in this case is whether Petitioner is entitled to retake the written portion of the examination for state certification as a firefighter (the "firefighter examination").
Findings Of Fact Respondent’s Bureau of Fire Standards and Training (the "Bureau") is located in Ocala, Florida. The Bureau is responsible for certifying firefighters throughout the state. The Bureau is the only entity authorized to schedule and administer the examination for state certification as a firefighter. A person who wishes to become a firefighter must apply to take the examination for state certification. If the application is approved, the person must first complete a minimum standards course certified by the Bureau and given throughout the state prior to each testing period. The minimum standards course consists of approximately 360 hours. Students attend class four days a week Monday through Friday from 6:00 p.m. until 10:00 p.m.; and from 8:00 a.m. until 5:00 p.m. on Sunday. Petitioner satisfactorily completed the minimum standards course conducted from October 26, 1998, through April 2, 1999, at the Mid Florida Tech training center in Orlando, Florida. Upon completion of the course, Petitioner qualified to take the examination given on April 14 and 15, 1999. The examination for state certification as a firefighter consists of two parts. One part is a practical examination, consisting of a physical test, and the second part is a written examination. Candidates must wear their work uniforms for the practical examination and their dress uniforms for the written examination. A person must score 70 percent or greater on each part of the examination to be certified as a firefighter. Petitioner scored 80 percent on the practical examination given on April 15, 1999. However, Petitioner scored only 65 percent on the written examination given on April 14, 1999. A candidate who does not achieve a passing score on either part of the examination is entitled, by rule, to one retest of that part within six months of the original test. If the candidate does not achieve a passing score on the retest, the candidate must submit a new application for certification and re- take the minimum standards course. By letter dated April 23, 1999, the Bureau notified Petitioner that he had not achieved a passing score on the written examination given on April 14, 1999. By letter dated April 26, 1999, the Bureau notified Petitioner that the Bureau had scheduled Petitioner for a retest on May 12, 1999. On May 12, 1999, Petitioner achieved a score of 68 percent on the written portion of the examination. By letter dated May 24, 1999, Respondent notified Petitioner that he did not achieve a passing score on the written examination and denied Petitioner’s application for certification as a firefighter. Petitioner timely requested an administrative hearing. Petitioner does not challenge a question or score used in either written examination given on April 14 or May 12, 1999. Petitioner challenges the procedure used by the Bureau to determine the sequence of the two-part examination given on April 14 and 15, 1999. During the minimum standards course, students generally are told to be prepared for either examination in any sequence. However, Fire Chief Mullins, Petitioner’s course instructor, specifically told Petitioner and his fellow students that the practical examination would be given on April 14, 1999, and that the written examination would be given on April 15, 1999. The written examination in fact was given on April 14, 1999, and the practical examination was given on April 15, 1999. Respondent did not inform Petitioner and his fellow students that the written examination would be given on April 14, 1999, until the morning of the test. Chief Mullins is the agent of Respondent. The Bureau inspects, approves, and certifies each training center, its course curriculum, and its course instructors. Bureau rules and policies are binding on training centers and on training center personnel, including course instructors. The Bureau can decertify training centers and personnel if either violates agency policy. Course instructors have only that authority granted to them by the Bureau and are responsible to the Bureau. The testimony of Respondent’s witness claimed that Chief Mullins did not have actual authority to represent to his students the sequence in which the two-part examination would be given. Assuming arguendo that the testimony is supported by applicable law, the testimony is not dispositive. Chief Mullins had the apparent authority to make each representation to Petitioner and his fellow students, and the students reasonably relied on that representation. Petitioner relied on the representation by Respondent’s agent to Petitioner’s detriment. The detriment to Petitioner consisted of three parts. First, Petitioner was lulled into inaction and lost his opportunity for final preparation before the written examination. Second, the lost opportunity shocked and unnerved Petitioner during the test. Finally, Petitioner was denied an opportunity to take the written examination a second time without being misled by Respondent’s agent. The first part of the detriment to Petitioner occurred on April 13, 1999. In reliance upon Respondent’s misleading representation, Petitioner deferred his final preparation for the written examination until after the practical test which Petitioner believed in good faith would be given on April 14, 1999. Petitioner’s scheduled final preparation for the written examination included a study group that had been prearranged between Petitioner and some of his fellow students to be conducted after the practical examination was completed. When Respondent scheduled the written examination on April 14, 1999, rather than April 15, 1999, Petitioner lost the opportunity Petitioner had scheduled for final study and preparation during the remainder of the day and night following the practical examination. The second part of the detriment to Petitioner occurred to Petitioner’s state of mind during the written examination given on April 14, 1999. Petitioner was shocked and unnerved by the lost opportunity for final preparation before the written examination. The last part of the detriment to Petitioner occurred when Respondent counted the retest on May 12, 1999, as the second test rather than the first test. The test given on May 12, 1999, was the first test not flawed by misleading representations from Respondent’s agent which lulled Respondent into inaction before the written examination. The retest on May 12, 1999, cured the first and second part of the detriment to Petitioner by allowing Petitioner time for final preparation before the written examination. However, the retest did not cure the third part of the detriment to Petitioner. By counting the test given on May 12 as the second test, Respondent did not cure the procedural defect in counting a flawed test as Petitioner’s first test. The detriment to Petitioner is that he would be required to re-apply for certification and take the 360-hour minimum standards course again before he could take a second written examination not flawed by misleading representations that lulled Petitioner into inaction before the written examination. When Petitioner was given the opportunity for final preparation before the written examination on May 12, 1999, his score improved three percentage points from 65 percent to 68 percent. If Petitioner is given a second opportunity for final preparation before the test, he may, or may not, achieve the additional two percentage points needed to score 70 percent on the written examination. Petitioner is entitled, by rule, to a second opportunity to take the written test without being lulled into inaction before the test by misleading representations from Respondent. Respondent argues that tests are frequently rescheduled for weather or other acts of God. However, an act of God was not the reason Respondent rescheduled the sequence of the two-part examination on April 14 and 15, 1999. Respondent scheduled the sequence of the two-part examination at issue in this case for administrative convenience. The Bureau determines the number of days required to give the examination offered to graduates of each training center at the beginning of each training course when the training center sends the Bureau a course roster. The Bureau gives the examination for certification as a firefighter in one day if there are less than 15 applicants enrolled in a training course and in two days if there are 15 to 30 applicants enrolled. If there are more than 30 applicants enrolled, the Bureau gives the examination over three days, adding an additional day for each increment of 15 applicants. The Bureau does not determine the sequence in which the two parts of the examination will be given until the end of the training course, approximately one week before the first test date, and does not inform the test center until that time. The course instructor, therefore, could not have known what the sequence of testing was going to be on April 14 and 15, 1999, when he misled Petitioner and his fellow students into believing the written examination would be given on April 15, 1999. It is equally correct, however, that neither Petitioner nor his fellow students could have known, or should have known, that the course instructor was unaware of the sequence of testing when the course instructor repeatedly misled Petitioner and his fellow students during the training course. The course instructor misrepresented the sequence of testing throughout the course beginning sometime in February 1999 and thereafter until the course was concluded on April 2, 1999. Several times during March 1999, the course instructor represented to Petitioner and his fellow students that the written examination would be given on April 15, 1999. Respondent has no policy that establishes standards for determining the sequence of the two-part examination. Examiners who administer the tests travel from Ocala to each test site. Approximately one week before leaving for the test site, examiners inform someone at the training center of the testing sequence. Respondent failed to explicate any standards for determining the sequence of testing except acts of God, which are irrelevant to the facts in this case; the general principle that firefighters must be prepared for any eventuality, which Respondent failed to explain in the record; and the unbridled discretion of the examiner. Respondent did not explicate why the examiner for the examination given on April 14 and 15, 1999, decided to give the written examination on the earlier date or why the course instructor did not correct his prior misleading representations during the week before the examination. Respondent’s witness testified that Petitioner and his fellow students had no right to know the sequence of testing. While Petitioner and his fellow students may not have had a right to know the sequence of testing, their course instructor volunteered that information and carried out that voluntary agency action in a misleading manner that lulled Petitioner into inaction. Respondent may not have been required to provide notice of the sequence of testing to Petitioner and his fellow students. Once Respondent voluntarily undertook to provide notice of the sequence of testing, Respondent was required to carry out its voluntary action in a fair and adequate manner. The notice voluntarily given by Respondent’s agent was neither fair nor adequate but was misleading, arbitrary, and capricious. The course instructor had no way of knowing the sequence of testing before the telephone call from the test examiner, and the test examiner had no standards to limit his discretion to determine the sequence of testing. Respondent asserts that the changed testing sequence, if any, did not cause extreme hardship to Petitioner. In support of its assertion, Respondent submitted evidence that other students overcame any hardship and passed the written test. Respondent misses the point. If some students were not harmed by Respondent’s misleading notice, the absence of harm does not eliminate the error in the agency notice to those students. It merely means that the error in the notice to those students was harmless error. The lack of harm to those students does not eliminate the prejudice to a student who was harmed by the error in notice. If an agency voluntarily undertakes action and does so in a faulty and misleading manner, the agency properly should suffer the consequences of such action rather than the person who is prejudiced by such action. The harm caused by faulty and misleading notice to a particular student is not measured by the prejudice, or lack of prejudice, to other students. Such harm is personal and is properly measured by the facts and circumstances unique to the individual student and his or her state of mind.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's challenge to the written examination given on April 14, 1999, and granting Petitioner’s request to retake the written examination given on May 12, 1999. DONE AND ENTERED this 6th day of December, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 6th day of December, 1999. COPIES FURNISHED: Honorable Bill Nelson, State Treasurer And Insurance Commissioner The Capitol, Plaza Level II Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Shiv Narayan Persaud, Esquire Division of Legal Services Department of Insurance 200 East Gaines Street Tallahassee, Florida 32399-0333 Jonathan C. Anthony 215 Bella Coola Drive Indian Harbor Beach, Florida 32937
Findings Of Fact On or about April 14, 1988, the Petitioner, Richard N. Harper, applied with the Respondent, the Department of Insurance, Division of State Fire Marshal, for certification as a fire fighter. On or about April 26, 1988, the Department notified the Petitioner, through his employer, the Polk County Fire District, that additional information was needed on his application--including, among other things, a re-check of his uncorrected vision by an optometrist. On or about September 6, 1988, the Department again notified the Petitioner that additional information was needed on his application--again including, but not limited to a re-check of his uncorrected vision by an optometrist. On or about October 17, 1988, the Department notified the Petitioner that his application was being denied because his uncorrected visual acuity allegedly is not good enough. The Petitioner's uncorrected vision is 20/200 in both eyes; his corrected vision is 20/20 in both eyes. The National Fire Protection Association's pamphlet entitled NFPA NO. 1001, "Fire Fighter Professional Qualifications," 1981 edition Section 2-2, "Medical Requirements for Fire Department Candidates," prescribes medical standards which include the following standards for vision: Vision. The cause for rejection for appointment shall be: * * * (b) STANDARD VISUAL ACUITY. Standard visual acuity without correction, less than 20/40 in one eye, and 20/100 in the other eye; and with correction, less than 20/20 in one eye, and 20/40 in the other eye.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of Insurance and Treasurer, Division of State Fire Marshal, enter a final order granting the application of the Petitioner, Richard N. Harper, for certification as a fire fighter. RECOMMENDED this 2nd day of May, 1989, in Tallahassee, Florida. Hearings Hearings LAWRENCE JOHNSON Hearing Officer Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 2nd day of May, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5655 To comply with the requirements of Section 120.59(2), Florida Statutes (1987), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted but unnecessary. 2.-6. To the extent they propose that Harper's uncorrected vision is better than 20/200 in either eye, rejected as subordinate to facts contrary to those found. To the extent they propose that, except for vision, Harper is physically qualified to be a fire fighter, accepted but irrelevant to the issues raised in this proceeding. To the extent that they propose that Harper's vision meets licensure requirements, accepted and incorporated. 7. Accepted but subordinate. 8.-9. Accepted but subordinate and unnecessary. Respondent's Proposed Findings of Fact. 1. Accepted but unnecessary. 2.-6. Accepted and incorporated to the extent necessary. 7. Unnecessary. COPIES FURNISHED: Lawrence C. Stewart, Jr., Esquire Jollay and Stewart, P.A. Post Office Box 979 Winter Haven, Florida 33882-0979 Lisa S. Santucci, Esquire Office of Legal Services 413-B Larson Building Tallahassee, Florida 32399-0300 Honorable Tom Gallagher State Treasurer and Insurance Commissioner Department of Insurance and Treasurer 413-B Larson Building Tallahassee, Florida 32399-0300 Don Dowdell, Esquire General Counsel Department of Insurance and Treasurer Larson Building Tallahassee, Florida 32399-0300 ============================================================ =====
The Issue Whether the Petitioner is entitled to a certificate of compliance as a fire fighter under the provisions of Rule 4A-37.0515, Florida Administrative Code.
Findings Of Fact Petitioner completed 240 hours of firefighter minimum standards training at the Orlando/Orange County Fire Training Academy in 1982 and was issued a certificate of completion at the end of the course. Between 1982 and 1985, Petitioner served as a reserve firefighter with the Winter Park Fire Department. From 1985 to June 1989, Petitioner was on inactive status. From June 1989 until March 1990, Petitioner completed technical training in American Sign Language. From 1990 through 1993, Petitioner completed a Bachelor of Science degree, with a double major in business and marketing. Between 1996 and February 1997, Petitioner was re-certified and also became a fire inspector. In February 1997, Petitioner was awarded an Associate of Science degree in Fire Science. Petitioner has served as a contract fire inspector with the Orange County Fire Department and has been a principal in a private arson investigation company for the past thirteen or fourteen years in Orange County, Florida. Florida law was amended in 1989 to require that a person pass an examination as prescribed by the Department, in addition to completing the firefighter minimum standards training program and being qualified for employment to be issued a certificate of compliance. Promulgated in 1991 and amended in 1995, a Florida administrative rule granted those persons that had been issued a certificate of completion by the opportunity to upgrade their certificate of completion to a certificate of compliance by June 30, 1995, without having to comply with the current requirements of the law. Petitioner did not upgrade her certificate of completion to a certificate of compliance by June 30, 1995. During the years 1991 through 1995, Petitioner made no effort to keep informed about the current requirements of becoming certified as a firefighter. Petitioner had a total of four years in which to upgrade her certificate of completion into a certificate of compliance. More than 11,000 certificates of completion were upgraded to certificates of compliance by June 30, 1995; 2,900 were not. Eighty percent of those certificates of completion that had been issued by the State, since certificates of completion were first issued in 1969, were upgraded to certificates of compliance by June 30, 1995. Petitioner's first inquiry into the status of her certificate of completion and request for a certificate of compliance was made by letter dated August 12, 1997, to the Fire Marshall's office. Respondent responded to Petitioner's August 12, 1997, letter with a letter dated October 3, 1997, which informed Petitioner that any certificate of completion not upgraded by June 30, 1995, was revoked. Respondent's October 3, 1997, letter also informed Petitioner that failure to follow the procedures outlined in Rule 4A-37.0515, Florida Administrative Code, for upgrading certificates of completion would require the individual to meet the current requirements of the law, which include having to complete 360 hours of firefighter minimum standards training, passing the Minimum Standards Certification Examination, and being qualified for employment according to Section 633.34, Florida Statutes, in order to be issued a certificate of compliance. There are no provisions in the rule for an extension after the cutoff date of June 30, 1995. There is no firefighter minimum standards training program consisting of 120 hours of instruction for the Petitioner to take which would enable Petitioner to meet the current requirements of Section 633.35, Florida Statutes, which require a total of 360 hours of firefighter minimum standards training, as Petitioner had completed only 240 hours of firefighter minimum standards training in 1982. Prior to 1984, a person needed both a certificate of completion and a certificate of compliance to become a firefighter. At that time, to be qualified for a certificate of compliance, a person had to successfully complete firefighter minimum standards training and satisfy the qualifications for employment found in Section 633.34, Florida Statutes. Section 633.35, Florida Statutes, was amended in 1984 with the result that the Respondent no longer issued certificates of completion, which had been issued since 1969, for the successful fulfillment of the firefighter minimum standards training program. Rule 4A-37.56 Florida Administrative Code, was amended in order to implement the amendments made in 1989 to Section 633.35, Florida Statutes. Rule 4A-37.056, Florida Administrative Code, was amended to establish the Minimum Standards Certification Examination, as required by the 1989 amendments to Section 633.35, Florida Statutes. Rule 4A-37.0515, Florida Administrative Code, was promulgated in order to implement the amendments made in 1989 to Section 633.35, Florida Statutes. In order to upgrade a certificate of completion to a certificate of compliance, Rule 4A-37.0515, Florida Administrative Code, provided that a person who had been issued a certificate of completion was required to make application to the Respondent for certification as a firefighter. Rule 4A-37.0515, Florida Administrative Code, as initially promulgated in 1991, stated that certificates of completion had to be upgraded to certificates of compliance by June 30, 1993. Respondent published a Notice of Changes to Rule Chapter 4A-37, Florida Administrative Code, including the promulgation of Rule 4A-37.0515, in the Florida Administrative Weekly on March 15, 1991. Respondent keeps a mailing list, which includes every fire department and training center in the State of Florida, to facilitate mailing out notices of anything that effects the fire service, including changes in the statutes and rules governing the fire service. Respondent sent a copy of the Notice of Changes to Rule Chapter, 4A-37, Florida Administrative Code, including the promulgation of Rule 4A-37.0515, to every fire department and training center in the State of Florida on July 26, 1991. Respondent sent a copy of the Notice of Changes to Rule Chapter 4A-37, Florida Administrative Code, including the promulgation of Rule 4A-37.0515, to every fire department and training center in Orange County, Florida appearing on the Department's mailing list. Petitioner has lived and worked in Orange County, Florida, all of her life. Individual notices were not sent to certificate holders. Rule 4A-37.0515, Florida Administrative Code, became effective on June 30, 1991. Petitioner did not upgrade her certificate of completion to a certificate of compliance by June 30, 1993. Section 633.35, Florida Statutes, was amended in 1993 to require that firefighter minimum standards training would be composed of at least 360 hours of instruction. Respondent published a Notice of Changes to Rule Chapter, 4A-37, Florida Administrative Code, including the Rule 4A-37.0515, in the Florida Administrative Law Weekly on December 2, 1994. Respondent also sent a copy of the Notice of Changes to Rule Chapter, 4A-37, Florida Administrative Code, including the amendment of Rule 4A-37.0515, to every fire department and training center in the State of Florida on April 24, 1995. Respondent sent a copy of the Notice of Changes to Rule Chapter, 4A-37, Florida Administrative Code, including the amendment of Rule 4A-37.0515, to every fire department and training center in Orange County, Florida appearing on the Department's mailing list on April 24, 1995. Notice of Changes to the rule were not sent to individuals who held certificates. On March 20, 1995, Rule 4A-37.0515, Florida Administrative Code, was amended, extending the deadline by which certificates of completion could be upgraded to certificates of compliance from June 30, 1993, to June 30, 1995. Rule 4A-37.0515, Florida Administrative Code, was further amended to state that those individuals who held certificates of completion but did not upgrade them by June 30, 1995, would be required to meet the current requirements of Section 633.35, Florida Statutes, which included having to complete 360 hours of firefighter minimum standards training, passing the Minimum Standards Certification Examination, and being qualified for employment according to Section 633.34, Florida Statutes, in order to be issued a certificate of compliance. Certificates of completion which were not upgraded to certificates of compliance by June 30, 1995, were revoked that same day.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered denying the Petitioner's request for a certificate of compliance by the Department's Bureau of Fire Standards and Training of the Division of the State Fire Marshal. DONE AND ENTERED this 13th day of July, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1998. COPIES FURNISHED: Kathleen Mohr 4702 Abaca Street Orlando, Florida 32808 M. Joel Prather, Esquire Department of Insurance 200 East Gaines Street Tallahassee, Florida 32399 Daniel Y. Sumner, Esquire Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Bill Nelson, Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
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.
Findings Of Fact Based on the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner, Alma Elaine Carlus, is an applicant for certification as a firesafety inspector in the State of Florida. 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. 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. Petitioner successfully completed the required training program and, thereafter, took the Special State Firesafety Inspector Examination on May 29, 2003. 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. Petitioner did not pass the examination on May 29, 2003. 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. Petitioner challenged the scoring of two questions on the Special State Firesafety Inspector Examination, Question Nos. 14 and 21. 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. 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). 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. 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. 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). 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. 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.
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
The Issue Whether Petitioner achieved a passing score on the Practical Examination for Retention of Firefighter Retest.
Findings Of Fact The Department is the state agency responsible for the certification of firefighters in the State of Florida, pursuant to chapter 633, Florida Statutes. In or around 2009, 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. Petitioner could not satisfy the first option, and was therefore required to take the retention examination. Petitioner's initial attempt to successfully complete the retention examination occurred on September 21, 2012, and included four practical components: self-contained breathing apparatus ("SCBA"), hose operation, ladder operation, and fireground skills. To pass the retention examination, an examinee must earn a score of at least 70 on all sections. Each portion of the retention examination has certain evaluative components that are graded; the ladder operation, for instance, consists of 15 skills——e.g., maintaining contact with the ladder, lifting and securing the ladder properly, using proper hand position——that the examinee is expected to complete. Significantly, the ladder operation also requires the examinee to fulfill ten mandatory components, which include, among other things, maintaining control of the ladder at all times, donning protective gear appropriately, and finishing the exercise within the time limit of four minutes and 30 seconds. Pertinent to the instant case, noncompliance with respect to any of the mandatory elements results in automatic failure, irrespective of the examinee's performance in connection with the evaluative components. It is undisputed that Petitioner achieved passing scores on the fireground skills, SCBA, and hose components of the retention examination. With respect to the ladder evaluation, however, Petitioner failed to comply with two mandatory elements (he exceeded the time limit and neglected to don his hood properly), which resulted in an automatic failure. Petitioner, like all candidates who fail the retention examination on the first attempt, was offered one retest opportunity.1/ Petitioner's retest was administered on November 8, 2012, at the Ocala Fire College, during which he passed the SCBA and hose portions of the examination. (Petitioner was not required to re-take the fireground skills component.) As for the ladder evaluation, the Department contends, and Petitioner does not dispute, that a time of four minutes and 49 seconds was recorded——a result that exceeds the time limit of four minutes and thirty seconds. Petitioner speculates, however, that the examiner, Thomas Johnson,2/ could have mistakenly started the timer during the safety inspection. While it is true that the timing process should not begin until an examinee completes a safety examination of the ladder, Petitioner has adduced no evidence, persuasive or otherwise, that Mr. Johnson started the clock too soon. Petitioner has therefore failed to show that he achieved a passing score on the ladder evaluation and, consequently, on his retention retest.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services enter an order denying Petitioner's application to retain his certification as a firefighter in the State of Florida. DONE AND ENTERED this 29th day of March, 2013, 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 29th day of March, 2013.
The Issue Whether Petitioner was wrongfully denied certification as a fire fighter due to his visual problems.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Petitioner, Louis C. Decker, is currently employed as a paid fire fighter in the City of Palm Bay, Florida. Additionally, Petitioner serves as a volunteer fire fighter in the town of Micco, Florida. Petitioner has served as a fire fighter in both a paid and/or volunteer status for approximately two and one-half (2 1/2) years. By letter dated April 9, 1981, Respondent, Office of the State Fire Marshal, advised Petitioner that he would not be certified as a fire fighter in Florida based on "pre-employment paper work submitted to the Bureau of Fire Standards and Training [which] reflect that [Petitioner] does not meet the qualifications set forth in Section 633.34(5), Florida Statutes." That statute provides in pertinent part that "any person initially employed as a fire fighter must be in good physical condition as determined by a medical examination as prescribed by the Division." That letter added that a pre-employment medical examination of Petitioner indicates a condition other than normal which is outside the parameters of the visual acuity medical standards for fire fighters. Dr. Andrew Zorbis, an ophthalmologist, was received as an expert in ophthalmology herein. Dr. Zorbis examined Petitioner on July 15, 1981. The results thereof reveal that Petitioner's uncorrected visual acuity with the right eye was 20/50 minus 2 and the uncorrected visual acuity with Petitioner's left eye was 20/50 plus 1, with the total uncorrected visual acuity in both eyes being 20/50 plus 2. During the examination, Petitioner was "squinting" severely, which provided him with the best possible uncorrected visual acuity. That is, without squinting, Petitioner's visual acuity would have been much worse and most probably would have been within the range of 20/200 to 20/100. Dr. Zorbis concluded that Petitioner could not be certified based on the NFPA booklet which sets forth the State's Fire-Fighter Standards 2/ and provides that the cause for rejection for an appointment shall be standard visual acuity without correction less than 20/40 in one eye and 20/100 in the other eye. That rule also provides that the corrected vision must be less than 20/20 in one eye and 20/40 in the other eye. Dr. Zorbis also examined Petitioner with his current prescription glasses which reveal a visual acuity of 20/40 in the left eye and 20/30 in the right eye, with corrected vision in both eyes of 20/30 plus Based on the current standards of required visual acuity, Petitioner, therefore, failed to meet either the uncorrected or the corrected visual acuity standards. Dr. Zorbis added that Petitioner was examined under optimum circumstances under a variety of targets. Accordingly, the above test results of Petitioner's vision are the best that Dr. Zorbis could obtain. Dennis "Buddy" Dewar, Chief of the Bureau of Fire Standards and Training, was received as an expert in fire fighter certification standards and qualifications. The task of a fire fighter requires excellent visual acuity. Fire fighters perform a variety of arduous functions under stress, both mental and physical and in so-called "smoky" conditions. Fire fighters are called upon to safely drive vehicles despite glare from light, road moisture or wetness. Fire fighters usually work in smoke-filled rooms and buildings. The permissible visual acuity parameters are 20/40 in one eye and 20/100 in the other eye, uncorrected; correctable to 20/20 in one eye and 20/40 in the other eye. A fire fighter suffering from a visual acuity problem worse than 20/40 puts himself in a position whereby he would have difficulty seeing through smoke and thereby jeopardized his life, the safety of himself, his peers and the safety of the citizens that he is charged with protecting. Chief Dewar indicated that fire fighters often find themselves disoriented in darkened, smoke-filled rooms. With the normal emotional and psychological stresses involved in a fire fighting activity, a fire fighter suffering uncorrected vision outside the Prescribed parameters compounds the stressful duties under which a fire fighter must perform. Finally, Chief Dewar examined the breathing mask used by Petitioner which has an insert for a corrective lens. Chief Dewar credibly testified that the particular mask used by Petitioner, with the breathing apparatus and corrective lens insert intact, has not been approved by the National Institute of Safety and Occupational Health or the American National Standards Institute. Petitioner, Louis C. Decker, as previously stated herein, has been employed as a fire fighter for approximately two and one-half (2 1/2) years. During this period, Petitioner has worked approximately twenty (20) fires as a volunteer fire fighter. Petitioner was denied certification and was not permitted to enroll in the certification and standards school based on certain pre-enrollment documents submitted which indicated that he suffered from a visual acuity problem. Petitioner has had hose-line and ladder training. Additionally, Petitioner has undergone emergency medical services training, salvage training, and hydraulics training. Petitioner has also fought "fake" fires. Petitioner uses a device called a Scott air mask which is a device used to enter a burning structure. According to Petitioner, with his corrective lens inserted in the Scott air mask, his visual acuity is 20/20. 3/ It was noted that Petitioner was told to refrain from driving a vehicle due to a problem he was experiencing with his vision. Several of Petitioner's coworkers appeared and testified as to his satisfactory performance in fighting fires. (Testimony of Captain Green, Lieutenant Samuel Evans and Bryon Williams Varn.) 4/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That Petitioner's request for State certification as a fire fighter by the State Fire Marshal, be DENIED. RECOMMENDED this 11th day of September, 1981, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1981.
The Issue The issue is whether Petitioner is entitled to a passing grade on the Self-Contained Breathing Apparatus ("SCBA") part of the Firefighter Minimum Standards Examination for firefighter certification.
Findings Of Fact Petitioner applied for certification as a firefighter in August 2004. In order to be certified, Petitioner was first required to successfully complete the Minimum Standards Course, which consists of a minimum of 360 hours of training at an approved school or training facility. After completing the training course, Petitioner was required to take the Minimum Standards Examination, which is structured in two parts: a written portion and a practical portion. The practical portion consists of four sections or "evolutions," including the SCBA, the hose pull, the ladder operation, and the fireground skills section. To pass the four practical evolutions, an applicant must achieve a score of at least 70 percent on each one. Each evolution of the practical exam has certain elements or skills that are graded. The SCBA test contains 11 skills related to checking, donning, and properly activating the SCBA that enables a firefighter to breathe in a hostile environment, such as a burning building. The SCBA test must be completed in not more than one minute and 45 seconds. After completing the Minimum Standards Course, Petitioner took the initial Minimum Standards Examination on December 8, 2004. Petitioner passed the written portion of the exam, but did not pass the practical portion of the initial exam because he exceeded the maximum time for the SCBA test. In a memorandum dated December 21, 2004, the Department formally advised Petitioner that he had failed the SCBA portion of the practical exam. The memorandum also informed Petitioner that he had been automatically scheduled to retake the SCBA test. In another memorandum dated December 21, 2004, the Department advised Petitioner that he was scheduled to retake the SCBA portion of the practical examination at the Florida State Fire College in Ocala, Florida, on February 24, 2005. Petitioner took the retest of the SCBA portion of the practical examination as scheduled. Petitioner again failed the SCBA test. Though he completed each of the 11 skills with no deduction of points, he again exceeded the maximum time of one minute and 45 seconds. Petitioner's time was one minute and 50 seconds. Larry McCall is a field representative with the Department. Mr. McCall described "field representative" as a "glorified name for an examiner." Mr. McCall was the examiner who tested Petitioner on the retake of the SCBA portion of the practical exam on February 24, 2005. He observed Petitioner perform the 11 skills, and he timed Petitioner with a stopwatch. Mr. McCall has been an examiner for 15 years. He is a certified firefighter and a certified fire service instructor. He retired from the City of Jacksonville Fire Department after 30 years. Mr. McCall estimated that he has administered 10,000 SCBA tests. Petitioner testified that before taking the retest, he practiced the SCBA test upwards of 50 times and never exceeded the time limit. Petitioner testified that he was certain that he completed the test within the time limit on February 24, 2005. Petitioner is currently a volunteer at the Isle of Capri Fire and Rescue Department. The chief of that department, Emilio Rodriguez, testified that he administered the SCBA test to Petitioner in practice situations over a dozen times, and Petitioner never went over one minute and ten seconds. Keith Perry, a veteran firefighter working for the Isle of Capri Fire and Rescue Department, testified that he has timed Petitioner many times and that Petitioner has never exceeded the time limit, averaging between one minute and five seconds and one minute and ten seconds. Neither of Petitioner's witnesses was present when he took the SCBA retest on February 24, 2005, and, thus, could not testify as to whether he passed the test on that day. Petitioner's subjective feeling that he passed the test based on the many times he practiced, is necessarily less persuasive than the time actually recorded by Mr. McCall. The students are assigned an applicant number on the day of the test. The examiners refer to the students by this number, rather than their names, during the testing process. After the test has been administered, the examiners coordinate the names with the numbers and assign final scores. At the hearing, Petitioner suggested that a mistake had been made in coordinating the names and numbers and that he had mistakenly been assigned the failing score of another candidate. Petitioner offered no evidence for this speculative suggestion, which, therefore, cannot be credited. Petitioner also noted that Mr. McCall had recorded a time of 20 seconds for Petitioner's performance on the "seal check," an exercise to ensure that the face piece of the SCBA equipment is securely sealed such that the firefighter is breathing only from his air tank. The candidate must perform the seal check for at least ten seconds. Petitioner persuasively contended that 20 seconds is an extraordinarily long time for the seal check, because the candidate must hold his breath for the duration of the check. Further, Petitioner noted that candidates are trained to count off the required ten seconds, making it unlikely that he would inadvertently take twice the required time to complete the check. Petitioner's theory was that Mr. McCall's mistaken recording of 20 seconds was enough to account for the five seconds by which Petitioner failed the overall SCBA test. However, Mr. McCall testified that he used a stopwatch with a split timer to record Petitioner's time for the SCBA test. A split timer independently records a span of time within the overall time being measured. When Petitioner commenced the seal check portion, Mr. McCall triggered the split timer, and he stopped the split timer when Petitioner completed the seal check. The split timer has no effect on the total time. Whether the split for the seal check had been ten seconds, 20 seconds, or more, Petitioner's overall time would have been one minute and 50 seconds. 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 failed to establish that he was entitled to a passing grade for his performance on the SCBA section. Respondent established that Mr. McCall appropriately administered the subject SCBA section pursuant to the applicable provisions of Florida Administrative Code Chapter 69A-37, which set forth guidelines for the practical examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding that Petitioner failed the SCBA section of the practical portion of the Firefighter Minimum Standard Examination administered February 24, 2005. DONE AND ENTERED this 29th day of August, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 29th day of August, 2005. COPIES FURNISHED: Casia R. Sinco, Esquire Department of Financial Services 200 East Gaines Street, Room 612 Tallahassee, Florida 32399-0333 Adam J. Oosterbaan, Esquire Adam J. Oosterbaan, P.A. 2500 Airport Road South, Suite 306 Naples, Florida 34112 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muñiz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
