Findings Of Fact Petitioner was employed as a firefighter with the Tallahassee Fire Department, Tallahassee, Florida, on September 23, 1963, and continued in employment until May 5, 1979. (The suggestion by Petitioner that he had 24 to 27 days of leave accrued upon the last day of his employment is not utilized in determining the official termination date of employment. Beyond May 5, 1979, Petitioner was entitled to be paid for leave time, but was no longer obligated to perform as a firefighter, having been terminated effective May 5, 1979.) During his service as a firefighter with the Tallahassee Fire Department, Petitioner received a certificate of tenure in 1974, pursuant to Section 633.41, Florida Statutes. This provision has been referred to as the savings clause or grandfather clause and allows firefighters who were employed upon the effective date of that section to be certified without the necessity of complying with provisions of law related to certification through training and examination. Section 633.41, Florida Statutes became effective in 1969, thus Petitioner was certified by the terms and conditions of that provision. Petitioner left his employment with the Tallahassee Fire Department to pursue private business and for reason of family obligations. Having terminated his employment with the Tallahassee Fire Department on a voluntary basis, there was no prohibition against reapplying for employment with the Tallahassee Fire Department at some future date. That eventuality occurred when the petitioner contacted the Fire Chief of the Tallahassee Fire Department in April, 1981 to discuss the possibility of reemployment. The Fire Chief of the Tallahassee Fire Department then and now is one Edwin C. Ragans. Shortly after this discussion with Chief Ragans, and in the same month, April, 1981, Ragans hired Petitioner with the effective date of Petitioner's reemployment being July 21, 1901. The delay between April and July was caused by the petitioner's need to conclude certain business undertakings before assuming his duties as a firefighter. The State of Florida, Bureau of Fire Standards and Training, had been informed of the date of original employment for the Petitioner, September 23, 1963, and the date of termination, May 5, 1979, based upon a notice of termination which was submitted by Chief Ragans in behalf of the Tallahassee Fire Department. A copy of that form may be found as Petitioner's exhibit number 1 admitted into evidence. Likewise, the Bureau of Fire Standards and Training was made aware of the reemployment of the Petitioner through the filing of a form known as Qualification of New Employee. A copy of that form may be found as Petitioner's exhibit number 2 admitted into evidence. That exhibit reflects the date of reemployment or rehiring as being July 21, 1981, and further notes that the initial employment was September 23, 1963. That form does not allude to the date of original termination of employment with the Tallahassee Fire Department which was May 5, 1979. When Petitioner returned to employment in July, 1981, Chief Ragans made mention of the "two year rule", which is a reference to Rule 4A-37.14, Florida Administrative Code, (1976), dealing with the idea that firefighters who had been employed with an employing agency, such as the Tallahassee Fire Department, would not have to reapply for certification in this same fashion as the person seeking initial employment as a firefighter, if that former individual resumed full time paid employment with the employing agency within a period of two years immediately subsequent to termination of the initial employment. In this connection Ragans told the Petitioner at the point of reemploying the Petitioner in 1981, that Petitioner had two options. First, he could challenge the examination related to firefighters and gain certification or if that choice was not made it would be necessary for the Petitioner to go through a minimum standards class before recertification. At the commencement of reemployment, Petitioner was mindful of the existence of the two year provision pertaining to continuing certification for those persons who had not been away from employment as a firefighter for more than two years. Furthermore, this topic had been discussed between Petitioner and some other individuals of the fire department on one occasion. Under these circumstances, Petitioner contacted an official within the training division of the Tallahassee Fire Department and obtained books necessary to study in preparation for standing the examination for certification as a firefighter. Petitioner had commenced preparation for the examination when he happened to see Bobby Presnell a lieutenant within the Tallahassee Fire Department and president of the local firefighters union. In the course of this conversation with Presnell, Petitioner mentioned that he was going to have to be examined through a test before receiving certification. Presnell indicated that he would check into the situation and find out exactly what would be necessary to obtain certification. A couple of weeks after that conversation, Presnell called the Petitioner and told him that he had spoken with Olin Greene the then Director of the Division of State Fire Marshal in the state of Florida. Presnell reported to the Petitioner that in the course of the conversation between Greene and Presnell, Greene had stated that the Petitioner was a certified fireman. These conversations between Petitioner and Presnell occurred some time in August or September, 1981. Presnell testified that the discussion between Presnell and Greene concerned the problem which Petitioner had with the two year requirement for continuing certification without the necessity of testing or schooling. In testimony, Presnell indicated that he told Greene that the Petitioner had been reemployed and everything was "supposed to be okay, and then a month or two or three later the problem arose", meaning a certification problem. Greene, according to Presnell, stated that he would get back in contact with Presnell on this subject. Again, per the testimony of Presnell, some ten days to two weeks later, beyond the initial discussion between Greene and Presnell, Greene called Presnell and told him that as far as he, Greene, was concerned, and the Fire Marshal's office was concerned, that "They didn't have any problem with Mr. Adams' recertification or certification." Greene has no recollection of any conversation with Presnell on the subject of the certification situation related to the Petitioner. Having considered the testimony of Presnell and Greene, the Presnell testimony is accepted as factually correct. Following the occurrence wherein Presnell related remarks attributed to Greene as described before, a few days after those events, Petitioner had a discussion with District Fire Chief Raymond Love of the Tallahassee Fire Department. In this conversation Love describes a discussion which he claims to have taken place between himself and Buddy Dewar, whose actual name is Dennis Dewar, in which Dewar is reported to have said that Petitioner was certified. At that time Dewar was the Bureau Chief of the Bureau of Fire Standards and Training. At present he is the Director of the Division of State Fire Marshal, having been promoted to that position in April 1982. In testimony, Love's account of the Dewar conversation concerning certification of the Petitioner, was that in the course of a fireman's convention in October 1981, Dewar asked Love if he knew Jimmy Adams, and Love replied in the affirmative. Given this opening, Love then related that he was impressed with Adams as a person and in terms of his capabilities as a firefighter. Love then recounts that he began to tell Dewar that there was a problem related to the Adams certification and if there was any help that Dewar could give, it would be most appreciated. To which, according to Love, Dewar replied that "he didn't see any problem with the recertification." Dewar, per Love's comments, did not state that he considered the Petitioner to be certified at the time of that conversation, nor was the two-year requirement pertaining to the return to the employment roles, to remain in a certified position without reapplication for certification mentioned in the Dewar conversation with Love, according to Love. Dewar, in his testimony, denied that the conversation between Love and Dewar concerned the Petitioner. His recollection is that Love asked Dewar how long the retention of certification would be valid for, to which he responded two years. Having considered the testimony and the demeanor of the witnesses, a decision cannot be reached on which of the witnesses Love or Dewar should be believed pertaining to the conversation which took place between them in October, 1981. Following discussion with Chief Love, and particularly on the next morning after that discussion, Petitioner talked to another fire chief within the Tallahassee Fire Department, whose name is Revel. This conversation was instituted by Revel in his inquiry of the petitioner on the subject of whether Petitioner was studying for the examination for certification. In response Petitioner stated that he had been but that he had found out the night before that he was certified. Revel in turn told Chief Ragans of this conversation and Ragans summoned the Petitioner to his office and the conversation between Love and Petitioner on the question of certification was recounted for the benefit of Chief Ragans. Petitioner and Love indicate that in the course of the meeting with Ragans, Ragans made a phone call and having concluded that phone call, stated that Petitioner did not have any problem with certification, or something to that effect, as Love recalls Ragans comments. Petitioner's recollection of the comment after the phone call was that Chief Ragans said, "You are a certified fireman." Ragans, in his testimony, does not relate having phoned someone on the topic of certification of the Petitioner in the presence of Petitioner and Love as previously described. His recollection is to the effect that some time prior to Love having stated in the fleeting between Ragans, Love and the Petitioner, that Dewar had confirmed Petitioner's status as a certified firefighter, he, Ragans, had talked to a Mr. Schaffner, Standards Coordinator, at the State of Florida, Fire College, and Schaffner had indicated that the time which Petitioner had been out of employment as a firefighter in a Florida department, was so close to being within the two years allowed, that Petitioner would not be required to go back through the certification process. At the time this case was placed at issue Schaffner had died. Having considered Ragans comments in the context of the other proof, it is determined that Ragans was sufficiently acquainted with Schaffner's voice to identify Schaffner in the course of the telephone conversation on the topic of the Petitioners certification. It is also concluded that this was the only conversation which Ragans had with officials within the State of Florida, Office of the State Fire Marshal, during 1981. Whether this conversation between Ragans and Schaffner occurred while Petitioner and Love were in Ragans office is uncertain. Benjamin E. Mclin, inspector with the Fire Department, speaks in terms of a conversation which he had with Olin Greene in October 1981, in the course of a seminar. Mclin introduced himself to Greene and, Greene is reputed, according to Mclin, to have asked Mclin if he knew Jimmy Adams, the Petitioner, and to have asked what kind of person Adams was. Mclin reports that he replied that he thought that Petitioner was an outstanding person as well as an impressive fireman, to which Mclin says that Greene stated, "Well, I know I did the right thing." Greene has no recollection of this conversation. Having considered the comment, even if it can be attributable to Greene, it is sufficiently ambiguous that it has no value in resolving the certification issue related to the Petitioner. After the conversation with Chief Ragans and Chief Love, which took place in Ragans office, Petitioner assumed that he was certified without the necessity of standing examination to receive certification. He had received no written indication from Respondent confirming or denying this understanding and had never personally spoken to anyone in the employ of the Respondent, on this subject. Petitioner continued his duties throughout 1981, into the beginning of 1984, serving in the capacity as a firefighter with the Tallahassee Fire Department. At that point, Petitioner had been promoted to Lieutenant within the Fire Department, and in the face of that action, a grievance was filed by another firefighter employed by the Tallahassee Fire Department indicating that Petitioner was not a certified firefighter. Ragans, in response to the grievance contacted Paul R. Steckle who was employed with the Office of the Bureau of Fire Standards and Training as a Field Representative Supervisor. Steckle had been asked by Dewar to check the Petitioner's file to determine the period of time between the termination of initial employment with the Tallahassee Fire Department and reemployment with that employer. Having made this check Steckle believed that the period was beyond the two years and reported this finding to Dewar. In conversation with Ragans, Steckle had asked Ragans when Petitioner had been employed and Ragans had indicated that Petitioner had been rehired in April but did not report to work until July, 1981. Steckle told Ragans that if Petitioner had been hired in April, 1981, and had been granted a leave of absence, allowing Petitioner to start work in July, 1981, that the reemployment would have been within the two year limit. Ragans indicated that the City of Tallahassee had no policy of allowing a leave of absence such as inquired about by Steckle. Nonetheless, Ragans got the impression that petitioner was duly certified based upon remarks made by Steckle. On January 30, 1984, Ragans wrote Steckle verifying that Petitioner had not returned to work in April, in view of commitments which would not allow him to be actually at work until July. (Mention is made of 1979, but it is determined that Ragans is referring to 1981.) This correspondence also mentions the conversation between Ragans and Schaffner. A copy of the correspondence is Respondent's exhibit number 3 admitted into evidence. On February 22, 1984, Steckle wrote to the Petitioner and advised the Petitioner that a review of the records of the Bureau of Fire Standards and Training revealed that the Petitioner had been out of fire service for over two years before reemployment. This correspondence refers to May 5, 1979, as the date of termination and July 21, 1981, as the date of reemployment. It alludes to the fact that Petitioner must regain certification through provisions of Rule 4A-37.52, Florida Administrative Code, (1981) 1/ related to an equivalency examination and encloses a copy of the package related to that examination process. It requests that the examination be taken in April, 1984. Otherwise, it is indicated in the correspondence, the Petitioner would be terminated from employment with the Tallahassee Fire Department upon request from the Bureau of Fire Standards and Training to the Tallahassee Fire Department. A copy of this correspondence may be found as Respondent's exhibit number 14, admitted into evidence. On April 10, 1984, through correspondence from counsel for the Respondent to counsel for the petitioner, the case is discussed and the Petitioner is requested to stand the equivalency examination and it alludes to the fact that in view of the error of the Respondent in failing to note at the time of reemployment that Petitioner had been away from fire fighting for more than two years, Petitioner is given until February 22, 1985, to undergo an equivalency examination for purposes of recertification. In lieu of this disposition, Petitioner is afforded the opportunity for a Section 120.57, Florida Statutes hearing, which he availed himself of, leading to the present Recommended Order. A copy of the April 10, 1984 correspondence may be found as Respondent's exhibit number 15 admitted into evidence. Luther Richter had been employed as a firefighter with the Tallahassee Fire Department and was dismissed from that employment after being arrested on a federal drug smuggling charge. He subsequently pleaded nolo contendere to the charge in the United States District Court for the Southern District of Georgia in 1976 and was given a three year probation. In April of 1979 he applied to the Tallahassee Fire Department to be reemployed. Through the reemployment paperwork, Chief Ragans recommended that Richter not be accepted based upon an alleged lack of good character. In response, Dewar, the then Bureau Chief of the Fire College, wrote Ragans on May 22, 1979 stating that Richter was not eligible for employment because of his drug conviction. Another letter was sent on June 15, 1979, from Dewar to Ragans to the same effect. On July 17, 1979, Dewar requested a legal interpretation of the Richter situation from the point of view of the Respondent's duties in considering the question of Richter's certification as a firefighter in Florida. On September 10, 1979, the City of Tallahassee and Richter entered into an agreement for Richter's reinstatement as an employee with the City of Tallahassee. In the face of the action of the City of Tallahassee, the Respondent accepted Richter for purposes of certification as if he had never been dismissed. As stated in the October 16, 1979 correspondence from Olin Greene to Daniel E. A. Kleman, City Manager of the City of Tallahassee, with Richter's reinstatement as an employee of the City of Tallahassee the Respondent would ". . . have no alternative but to accept the reinstatement order and allow his certification that was in effect prior to September 1, 1975, to come back into effect." The agreement for reinstatement can be found as part of the composite exhibit number 6 of the Petitioner, admitted into evidence. The October 16, 1979 correspondence may also be found within that document. Those items are copies of the originals. In furtherance of Greene's perception, Richter having been reinstated by the City of Tallahassee was deemed by the Respondent never to have left employment. Richter's certification continues from September 1, 1975, the dismissal date, and his initial certification remains valid to this date as established in the correspondence of Olin Greene to Kleman dated January 9, 1980, a copy of which is found in the Petitioner's composite exhibit number 6. In essence, Respondent felt that in view of the reinstatement it could not refuse to recognize Richter's certification as if it had never lapsed between the interim period of his dismissal in 1975 and the agreement for reinstatement in 1979. In early 1984 a minimum standards training course for firefighters in Florida was taught at Indian River Community College. An unusually high failure rate was experienced by those students who took that course and this led to an investigation by the State Fire College. Through the investigation it was learned that one of the instructors in the minimum standards course had not been properly certified. To resolve this problem, all students who attended that course were required to take further training with a certified instructor. Following that additional training session, another examination was given and those persons who passed the second examination, in addition to those persons who had passed the initial examination, were certified. Those who failed the second examination were not accepted for certification. On other occasions where tenured firefighters, as recognized by Section 633.41, Florida Statutes, have gone beyond the two year time period for reemployment and continuing certification without examination, those firefighters have had to stand the examination, without exception.
The Issue The issue for determination is whether Petitioner successfully completed the Firefighter Minimum Standards Practical Examination Retest.
Findings Of Fact Mr. Berejuk is a candidate for certification as a firefighter in the state of Florida. To be certified as a firefighter, a candidate is required to successfully complete the Firefighter Minimum Standards Written and Practical Examination. 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. On April 11, 2012, Mr. Berejuk took the original examination of the Firefighter Minimum Standards Written and Practical Examination at Miami, Florida. 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. 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). 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. 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. Because of his failure to pass the Ladder Evolution, Mr. Berejuk failed to successfully complete the Practical Examination. 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. 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. As a result of his failing to pass the Ladder Evolution, Mr. Berejuk failed to successfully complete the Practical Examination Retest. Because Mr. Berejuk failed the Practical Examination Retest, the Department denied his certification as a firefighter. 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. 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. 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. 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. The field representative did not testify at hearing. 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. Therefore, the evidence demonstrates that Mr. Berejuk failed to successfully complete the Ladder Evolution within the maximum allotted time. Hence, the evidence demonstrates that Mr. Berjuk failed 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: Finding that Daniel Berejuk failed to successfully complete the Practical Examination Firefighter Retest; and 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.
The Issue The issues are: (1) whether Petitioner passed the Practical Examination for Firefighter Retention test; and (2) whether Petitioner's application for firefighter recertification was properly denied.
Findings Of Fact Petitioner completed his minimum standards training and took the standardized state test in 2004 and Respondent issued him a Firefighter Certificate that year. Florida law requires Petitioner to be employed by a fire agency within a three year period after passing the state examination to keep his minimum standards credentials active. Petitioner is a full-time employee at American Medical Response. Because Petitioner has not been active as a firefighter during the past three years, Petitioner made application to the Department to take the Retention Examination. The practical portion consists of four sections or "evolutions" including the SCBA,1 the hose pull, the ladder operation, and the fire ground skills section. To pass the four practical evolutions, an applicant must achieve a score of at least 70 percent on each component. Each evolution of the practical exam has certain elements or skills that are graded. The SCBA portion of the test contains 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 portion of the Retention Examination also has an established maximum time allotted for the examinee to complete a minimum of 70 percent of the skills. The time limitation is a mandatory requirement. If an examinee completes a minimum of 70 percent of the skills in a particular part, but fails to do so within the maximum allotted time specified for that part, the examinee has not met the mandatory time requirement and, thus, is not awarded any points for that part. Petitioner took the initial Retention Examination in May 2009. Petitioner did not pass the SCBA and fire ground skills components of the practical portion of the initial exam. On September 24, 2009, Petitioner took the Retention Examination re-test for the SCBA and fire skills components. Petitioner passed the fire skills component. The maximum time allotted for completion of the SCBA part of the Retention Examination is two minutes. Petitioner's completion time on the September 2009 Retention Examination re- test was two minutes and 30 seconds. Because Petitioner failed to complete a minimum of 70 percent of skills in the SCBA portion of the Retention Examination within the maximum time allotted, the Bureau properly awarded him zero points. It is an automatic failure if an examinee does not complete the exam in time. Therefore, Petitioner did not earn a passing score on the Retention Examination re-test. As a result of Petitioner's failing to pass the Retention Examination, his Firefighter Certificate of compliance expired. The Division employs field representatives to administer the Retention Examination to examinees in accordance with the applicable rules and procedures. Dennis Hackett is and has been a field representative with the Bureau of Fire Standards and Training for six years. As a field representative, Mr. Hackett administers and scores the minimum standards examination for firefighters, including the Retention Examination. Mr. Hackett has administered well over a thousand SCBA tests. Mr. Hackett was the examiner who tested Petitioner on the September 24, 2009, for re-test of the SCBA portion of the practical exam. Mr. Hackett timed Petitioner at two minutes and 30 seconds. Petitioner testified that before taking the retest, he practiced the SCBA test and had completed it within the time limit. Petitioner first learned SCBA skills in 2004 at the Coral Springs Fire Academy. At the academy, Petitioner took a three month, 450-hour course of fundamental firefighter skills. On or about September 16, 2009, Petitioner took a refresher course in Ocala, Florida. The course was two days and taught the SCBA skills in a manner different from how Petitioner had been taught at Coral Springs Fire Academy. Petitioner testified that the refresher course wasn't fair because he didn't have enough time to learn the new method. He asserted that the two day course was too short to learn the new method and techniques to compensate for errors. Petitioner admitted that a minor hiccup slowed him down while taking the re-test on September 24, 2009. Petitioner said, "It's not like I can't do it because I could do it, it's just I went over the time limit. I didn't have ample enough time to learn the new way of doing it or to overcome any minor obstacles." In a memorandum dated September 25, 2009, the Department formally advised Petitioner that he had failed the SCBA portion of the Minimum Standards Practical Retention Retest. The memorandum also informed Petitioner that, "Because you did not pass the retest, your Firefighter Certificate of compliance #117349, has expired as of 09/24/2009. It will be necessary for you to repeat the firefighter Minimum Recruit Training Program and submit a new application before any additional testing can be allowed." An individual is allowed to re-take the Retention Examination one time. If the person does not pass the re-test, he must repeat the Firefighter Minimum Recruit Training Program before he is eligible to re-take the Retention Examination. See § 633.352, Fla. Stat., and Fla. Admin. Code R. 69A-37.0527. As noted above, Petitioner did not pass the SCBA portion of the Retention Examination re-test. Therefore, before he is eligible to re-take that examination, he must repeat the Firefighter Minimum Recruit Training Program. Petitioner failed to establish that he was entitled to a passing grade for his performance on the Retention Examination re-test. The greater weight of the credible evidence established that Petitioner's performance on the Retention Examination re-test was appropriately and fairly graded.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that the Department enter a final order denying Petitioner's application to retain his certification as a firefighter in the State of Florida. DONE AND ENTERED this 25th day of March, 2010, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 2010.
The Issue The issue in this case is whether the bachelor's degree curriculum by which the Petitioner, James E. Dalrymple, earned his degree "includes a major study concentration area readily identifiable and applicable to fire-related subjects," as set out in Section 633.382(2)(a)2., Fla. Stat. (1991), so as to entitle him to the firefighter supplemental compensation for which he has applied.
Findings Of Fact The Petitioner has a bachelor's degree in Communication Arts awarded by Judson College in Illinois on or about June 11, 1978. Judson College is accredited. The Petitioner's official sealed transcript from Judson College reveals that the Petitioner took no "fire-related" courses to get his degree. He did take courses in language arts and communication arts, such as: "English Language: Uses and Resources"; "Oral Interpretation and Mass Media"; "Language and Society"; "Man and Women"; "Analysis of Literature"; and "Mass Media in Contemporary America." Courses such as these are certainly compatible with and useful for work in the field of firefighting. But they, along with his other general study courses, do not reflect a "major study concentration area readily identifiable and applicable to fire-related subjects."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Insurance Commissioner, in his capacity as State Fire Marshal, and agency head of the Department of Insurance and Treasurer, Division of State Fire Marshal, enter a final order denying the application of the Petitioner, James E. Dalrymple, for firefighters supplemental compensation. RECOMMENDED this 22nd day of June, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2150 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the Department of Insurance and Treasurer's proposed findings of fact: 1.-5. Accepted but subordinate and unnecessary. 6.-7. Accepted and incorporated. 8. Accepted but conclusion of law. 9.-12. Accepted but unnecessary. COPIES FURNISHED: James E. Dalrymple 2816 Weston Terrace Palm Harbor, Florida 34685 Elizabeth J. Gregovits, Esquire Department of Insurance and Treasurer Office of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil, Esquire General Counsel Department of Insurance and Treasurer The Capitol, PL-11 Tallahassee, Florida 32399-0300
The Issue The issue is whether the Department properly denied Petitioner's application for certification as a Florida firefighter due to his not achieving a passing score of 70% on the written portion of the required Firefighter Minimum Standards Examination.
Findings Of Fact Mr. Notkin filed his application for certification as a Florida firefighter on February 4, 2000. As an applicant, Mr. Notkin was required to and did take a state-approved Minimum Standards Course. Upon successful completion of the Florida Minimum Standards Course, applicants must thereafter sit for the Minimum Standards Examination. The examination consists of a written part and a practical part, and applicants must pass each part with a score of 70% or better in order to be eligible for certification. Approximately one-half (180 hours) of the 360 hours of the Minimum Standards Course is dedicated to preparation for the written portion of the Minimum Standards Examination, with the balance of the time devoted to matters to be covered on the practical field work portion of the Minimum Standards Examination. There are 100 questions on the written portion of the Minimum Standards Examination and applicants are able to miss up to 30 questions and still achieve a passing score of 70%. At all times material to this case there were three required texts for students taking the Minimum Standards Course: The Essentials of Fire Fighting, 4th edition, published by Oklahoma State University's Fire School; Medical First Responder, 5th edition, authored by J. David Bergeron; and Initial Response to Hazardous Materials published by the National Fire Academy. Mr. Notkin and his classmates were instructed to study the required text materials and informed that anything found in the text materials could be on the written portion of the Minimum Standards Examination. Students were advised that where information provided in the textbook conflicts with information provided by the instructor, the instructor's interpretation should be followed. Most questions on the Minimum Standards Examination are featured prominently in the required course textbooks. Mr. Notkin successfully completed his Firefighters Minimum Standards course with a score of 85%. He thereafter took his initial written and practical portions of the Minimum Standards Examination on June 13, 2000, at which time Mr. Notkin passed the practical examination with the minimum allowable score of 70%. However, he scored a 67% on the written portion, which is three points below the minimum passing score of 70%. Applicants are permitted two chances to achieve a passing score on the Minimum Standards Examination written portion. If an applicant fails both the initial and retest examinations, that applicant has to retake and successfully complete the 360-hour Minimum Standards Course before being permitted to retake the Minimum Standards Examination. Mr. Notkin re-tested for the written portion of the Minimum Standards Examination on or about August 2, 2000. A score of 70% would have allowed him to be certified as a firefighter without the necessity of taking a second practical examination, or repeating the Minimum Standards Course. Mr. Notkin scored 60% on the August 2, 2000, written examination, ten points below the required minimum for a passing score and certification as a firefighter. Mr. Notkin's examinations were properly graded.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance, Division of the State Fire Marshal, enter a final order denying Petitioner's application for certification as a Florida firefighter. DONE AND ENTERED this 24th day of January, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 24th day of January, 2001. COPIES FURNISHED: Michael Ian Notkin 10809 Northwest 46 Drive Coral Springs, Florida 33076 James B. Morrison, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333 The Honorable Tom Gallagher State Treasurer/Insurance Commissioner The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
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
The Issue The issue in this case is whether the City of Naples, by denying Petitioner employment as a firefighter, or the Division of State Fire Marshal, by denying Petitioner certification as a firefighter, committed an unlawful employment practice.
Findings Of Fact The City of Naples ("City") is an "employer" for purposes of the Florida Human Rights Act of 1977 ("Act"). Both the Division of State Fire Marshal ("Fire Marshal") and Jeff Bronsdon ("Petitioner") are "persons" for purposes of the Act. All time limits have been met by the Petitioner for purposes of jurisdiction under the Act. At some point in 1988, the Petitioner applied for the position of firefighter for the City. Between 1988 and prior to July, 1989, the Petitioner successfully completed the written examination and the physical agility tests which are necessary to become a City firefighter. Subsequent to the successful completion of the written and physical agility tests, the Petitioner was placed on a register of eligible candidates for employment. On July 22, 1989, the Petitioner was notified that a firefighter's position was available and that the Petitioner would be hired for that position if he successfully completed a pre-employment physical examination. A person must be certified or eligible for certification by the Fire Marshal in order to be employed by the City as a firefighter. The Fire Marshal is authorized by statute to prescribe certification requirements for all firefighters in the state. The Fire Marshal's certification requirements include the medical standards established by the National Fire Protection Association ("N.F.P.A."). The N.F.P.A. standards include a color perception requirement, set forth at N.F.P.A. Section 1001 2-2.7.2(a) which provides that failure to visually identify red, or green, or both is cause for denial of a firefighter certification. The Fire Marshal has produced a standard form which is used to report the result of the medical examination. At the top of page one, the form states as follows: THE EXAMINING PHYSICIAN SHOULD HAVE IN HIS POSSESSION A COPY OF THE "MEDICAL REQUIREMENTS FOR FIRE DEPARTMENT CANDIDATES" AS OUTLINED IN THE NFPA PAMPHLET #1001, AND PRESCRIBED BY THE DIVISION, FOR REFERENCE DURING THE EXAMINATION. The form includes a list of conditions which may cause disqualification for employment. Under the category of "EYES AND VISION" is a printed notation of "COLOR PERCEPTION-IDENTIFY RED, GREEN, YELLOW" after which follow a pair of "check-off" boxes denoting a normal or abnormal condition. After a physician performs a test, the results are denoted by checking one of the boxes. The Petitioner's pre-employment physical examination was performed on July 20, 1989 by Dr. Scott Mastores. There is no credible evidence that Dr. Mastores did not rely on the appropriate test methodology in performing the physical as is indicated on the form or in the cited pamphlet. In the Petitioner's July 20, 1989 pre-employment physical examination report, Dr. Mastores checked the box which indicates that the Petitioner's color perception was abnormal and he was unable to distinguish red, green and yellow. Written notes on the form, allegedly those of Dr. Mastores, state that the Petitioner has "significantly abnormal color vision--difficulty with I.D. of blue/green, brown/black, able to tell red/yellow and most greens." On July 20, 1989, the Petitioner took the test results to the City's Fire Training Captain. The Captain saw the box checked, and saw, but did not read, the doctor's handwritten annotation to the vision tests. After observing that the examining physician checked the abnormal color perception box, the Captain inquired as to the Petitioner's color perception. The Petitioner, apparently unaware that his condition could be disqualifying, indicated that he was unable to distinguish red and green. Based on the checked box and his conversation with the Petitioner, the Captain informed the Petitioner that he would not be hired by the City because he could not meet the Fire Marshal's certification requirements. The Captain and the Petitioner discussed the color perception requirement. The Petitioner asserted that he had worked as a fireman previously without incident and that the color perception requirement was unnecessary. The Captain explained to the Petitioner that it was a state, not a City, requirement The Captain provided the Petitioner with a telephone number for the Fire Marshal's office and stated that if he could become certified, the City would be willing to hire him. The Captain also volunteered to contact the Fire Marshal's office as well. The next day, the Captain contacted the Fire Marshal's office and relayed the Petitioner's abnormal test result to a representative of the office. The Captain was informed that in accordance with N.F.P.A. standards, normal color vision was still required for certification and that the Respondent did not appear to meet the requirement. The Captain immediately forwarded the information to the Petitioner. In July 1989, the City hired another man identified on the eligibility list. In November of 1989, the eligibility list upon which the Petitioner was listed expired and he was no longer eligible for employment. In order to retain eligibility, the Petitioner would have needed to retake the written and agility tests. He did not. Although the Petitioner eventually contacted the Fire Marshal's office and obtained additional information about certification, he made no further serious attempt to pursue the matter until approximately May of 1990. On May 18, 1990, the Petitioner met with the City's newly appointed Fire Chief and discussed his previous experience with the City's firefighter employment procedure. The Petitioner opined that his acknowledged color blindness should not bar his employment as a firefighter with the City. The Fire Chief informed the Petitioner that he could only be hired if he became certified by the Fire Marshal. The Fire Chief also informed the Petitioner that he was no longer on the list of persons eligible for new hire. Although a follow-up meeting between the Chief and the Petitioner was scheduled, the Chief subsequently cancelled the meeting. At various times in 1991, the Petitioner discussed the issue with the City's human resource director ("HRD") at a health club where both exercised. She encouraged him to continue attempting to become certified and suggested that he seek City employment in a position which did not require Fire Marshal certification. Attempting to be of some assistance to the Petitioner, the City's HRD, on April 29, 1992, forwarded the Petitioner's 1989 medical examination report to the Fire Marshal's office for review. The copy of the report was not entirely legible. By letter to the HRD dated May 8, 1992, Lou Puka (Field Representative Supervisor for the Fire Marshal's Bureau of Fire Standards and Training) requested that a more recent and legible examination report be supplied. Pursuant to the Fire Marshal's request, the City obtained two ophthalmic medical examinations of the Petitioner. One examination was performed by the City's physician, Dr. Edmond Weidner, whose written report states that the Petitioner "[f]ailed the pseudo- isochronic color plates for red/green differentiation" and specifically notes that the failure is "[c]ause for rejection under rule 2-2.7.2 of the firefighter professional qualifications." The second examination was performed by Dr. William D. Gaskins, the Petitioner's personal choice for the exam. Dr. Gaskins noted in his report that the Petitioner failed the "Ishahara Color Plate screening" and further noted that the Petitioner suffered from "deuteranopia" or "green blindess--color blindness in which there is a defect in the perception of green." On May 28, 1991, the City's HRD sent the two new evaluations to Mr. Puka. Based upon his review of the reports, he responded to the HRD by letter of June 3, 1991, stating in part as follows: Mr. Jeff Bronsdon's application for certification as a firefighter would be denied because he failed to meet the duly-adopted medical standards for color vision contained in Section 2-2.7.2, N.F.P.A. 1001, (1981). The examinations indicate a defect in the perception of green. The Fire Marshal's letter concluded by stating that the Petitioner had a right to request an administrative hearing challenging the supposed determination. At that time, the Petitioner had not applied to take the minimum standards training course conducted at the State Fire College in Ocala and accordingly had not been denied certification. The City HRD forwarded a copy of the Fire Marshal's letter to the Petitioner. At the hearing, a representative of the State Fire Marshal testified that, because the Petitioner had not applied for certification as a firefighter and had not been denied, the letter was only an opinion, and the Petitioner would not have been entitled to a hearing. In any event, the Petitioner did not request a hearing at that time. In July of 1991, the Petitioner sent a letter to the State Commissioner of Insurance, setting forth his position in the matter regarding certification and expressing his extreme displeasure with the situation. Apparently based on the letter, the Petitioner was contacted by an attorney for the Commissioner to discuss the matter and a series of telephone conversations ensued. During several conversations about the requirements and the Petitioner's assertion that the requirements were unnecessary, representatives of the Fire Marshal explained to the Petitioner that the color perception requirements are related to the use of color coding which identifies explosive or hazardous materials which may be present in fire situations. After a number of telephone conversations, it was apparently suggested to him that if he could successfully pass a test in which a red dot and a green dot were displayed against a white background, the Fire Marshal would not deny the certification because of his color perception deficiency. The Petitioner scheduled an appointment for testing with Mary Lou Kircher, a vision specialist who also frequented the health club at which they both exercised. There is no evidence of the nature of the color perception test Dr. Kircher administered, however, by her letter of August 22, 1991, she wrote that the Petitioner was able to determine green from red and red from green with 100 percent accuracy. The Petitioner also scheduled another appointment with Dr. Gaskins and requested that he perform the "red dot/green dot" test. Dr. Gaskins utilized a red object and a green object, but did not display the items before a white background. After the test, Dr. Gaskins provided a letter which states that the Petitioner "has a red/green color deficiency on Ishahara Color Plate screening and Deuteranopia on Farnsworth D-15 panel testing. At the patient's request, I asked the patient to identify the color of 12 red or green areas on a white background, and he was able to identify 12 of the 12 correctly." Contrary to the letter, the evidence establishes that the objects were not displayed before a white background. The Petitioner submitted the two letters to the Fire Marshal's office which (after a further exchange of correspondence and telephone calls) eventually resulted in the Fire Marshal issuing a letter dated September 18, 1991, stating that the Petitioner's color perception would not be a disqualifying factor for certification as a firefighter. The Petitioner took the Fire Marshal's letter of September 18 to the City's HRD. After receiving the September 18 letter, the HRD placed the Petitioner back on, and at the top of, the firefighter applicant elibility list. Although her actions were contrary to City policy, the HRD did so in an attempt to resolve the long-standing matter. By April of 1992, no firefighter vacancies had opened in the Fire Department. On April 3, 1992, the City offered the Petitioner a position as a City firefighter in a position which was specifically created for him. The Petitioner accepted the position offered effective April 20, 1992 at an annual salary of $20,871. At the time the Petitioner was employed, he was awarded seniority retroactive to September of 1991, the time at which the City received the letter related to the Fire Marshal's determination that the Petitioner's color perception deficiency would not be used to disqualify him from certification. On April 23, 1992, the Petitioner made his first application for admission to the State Fire College and certification as a firefighter. He began minimum standards training on May 11, 1992 and completed the training on July 3, 1992 at which time he received his firefighter's certification. The Petitioner continues to be employed by the City as a certified firefighter. Prior to the application filed April 23, 1992, the Petitioner had not applied for admission to the minimum standards training course offered at the State Fire College and had not been denied certification as a firefighter. The Division of State Fire Marshal is responsible for training and certification of firefighters, and is solely responsible for determining whether an applicant is eligible for certification. The City is not permitted to have non-certified and non-certifiable firefighters in its employ. Although the Petitioner asserts that the color perception requirement is unreasonable, the Petitioner has not challenged the Fire Marshal's rules, which adopt and rely upon the N.F.P.A. medical standards. There is no credible evidence whatsoever to support his assertion that the rules or the requirements specifically related to color perception are unreasonable. During the course of events, the Petitioner was examined by a total of five medical personnel, the first three of whom determined that the Petitioner's color perception was deficient. None of the physicians were called to testify. At the hearing, the Petitioner admitted that he is unable to "differentiate some shades of red and some shades of brown or green or blues." Given the conflicting opinions expressed in the exam reports, and absent any persuasive evidence on this point, it is currently no more likely that the Petitioner can distinguish red from green as it is that he can not. The Petitioner seeks an award of back pay from the date upon which employment was initially denied. An award of back pay is not supported by the evidence in this case. Between July 22, 1989, and April 20, 1992, the Petitioner was employed as an auto mechanic. The Petitioner earned $28,265 as an auto mechanic in 1990, and earned $29,389 in 1991. In the months of 1992 prior to becoming employed as a firefighter, he earned $10,883. He took a reduction in salary at the time he became employed as a firefighter. The Petitioner seeks an award of secondary wages. Secondary wages are those the Petitioner asserts that he could have earned during his off-duty hours had he been employed as a firefighter from the time of his initial rejection by the City. The Petitioner asserted that the denial of City employment had cost him a secondary income in the range of $12,000 to $20,000 annually. The Petitioner claimed that during the approximately seven months between becoming employed as a firefighter and the hearing date, he earned approximately $3500- $4000. Neither the potential for secondary income nor the actual secondary earnings claimed are supported by credible evidence. The Petitioner claimed he had been employed irregularly as a part time stock clerk at Publix. The Petitioner produced no wage records or other documentation of his employment at Publix. The evidence fails to establish that the wages from such employment merits serious consideration as secondary income. The Petitioner stated that he performed yard work for his landlady. He initially stated that the landlady had deducted the yard work from his rent. He subsequently stated that the amount of compensation had not been determined but stated that would be agreed upon, that he believed it would be about $850, and she would then give him a receipt for tax purposes. The Petitioner also claimed that he performed minor home cleaning and automotive work for a man who apparently resides in Florida on a seasonal basis. The Petitioner asserted that as his compensation for the work, the man gave the automobile to the Petitioner. The Petitioner stated that he has done minor auto work for some coworkers for a total of $90. Although the City requires an employee to gain approval before working additional jobs, the Petitioner has not filed such a request and has not received authorization from the City to engage in such outside income producing activities. The Petitioner's testimony related to secondary wages was not supported by any documentation and is neither persuasive nor credible. Although clearly the Petitioner would have time to earn secondary income while employed as a firefighter, the evidence does not establish that the Petitioner could have done so. There is no evidence that the failure of the City to employ the Petitioner was based on any factor other that his ineligibility for state certification based upon his color perception deficiency as indicated by the medical information obtained from examination reports from the Petitioner. The Petitioner seeks an award of attorney fees and costs. The evidence fails to establish that such an award is appropriate.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the complaints filed in this case. DONE and RECOMMENDED this 2nd day of April, 1993 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3758 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 10. Rejected as to decision being based "solely" on a check mark in a box. The testimony of the Captain was that he and the Petitioner discussed the matter during which the Petitioner acknowledged a red/green visual deficiency. Rejected as to implication that no further conversation occurred between the Captain and the Petitioner, not supported by greater weight of the evidence. Rejected, not supported by greater weight of the evidence, which establishes that the Captain relayed the Petitioner's specific test result to the Fire College representative. Rejected, not supported by credible and persuasive evidence. Rejected, immaterial. Rejected, not supported by credible and persuasive evidence. 20. Rejected. The question was "[i]f a check appears in the abnormal column does that in and of itself mean that person is disqualified from certification" to which the witness responded "no". The proposed finding inappropriately paraphrases the testimony. 23. Rejected. One of the examinations was performed by a doctor chosen by the Petitioner. Rejected, immaterial. Rejected as to use of phrase "reversed his position". The fourth and fifth test results submitted to the Fire Marshal indicated that the Petitioner could distinguish red from green, contrary to previous tests. 30. Rejected, evidence fails to establish that the Petitioner is entitled to such benefits. Respondent City of Naples Respondent City of Naples' proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 14-15. References to prior related discrimination complaints are rejected as cumulative and unnecessary. 25-27. Rejected, cumulative and unnecessary. 28. Reference to human resource director being unaware of reevaluation activity is irrelevant. 34. Rejected. Although the finding essentially states the nature of the Petitioner's testimony related to secondary employment, the testimony is not credited, therefore the statement is not supported by credible and persuasive evidence. Respondent Office of State Fire Marshal Respondent Office of State Fire Marshal's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 1-3. Rejected, unnecessary. COPIES FURNISHED: Thomas Franchino, Esq. LEHMAN, FRANCHINO & RAWSON, P.A. 700 Eleventh Street South Suite 203 Naples, FL 33940 Peter J. Hurtgen, Esq. Wayne D. Rutman, Esq. MORGAN, LEWIS & BOCKIUS 5300 Southeast Financial Center 200 South Biscayne Boulevard Miami, FL 33131 Lisa S. Santucci, Esq. Division of Legal Services 412 Larson Building Tallahassee, FL 32399-0300 Margaret A. Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
The Issue The issue is whether Respondent should deny an application for certification as a Firefighter II on the alleged grounds that Petitioner failed the Firefighter Minimum Standards Equivalency Examination.
Findings Of Fact Respondent is the state agency responsible for the certification of firefighters in the State of Florida, pursuant to Chapter 633, Florida Statutes (2009).1 At a date not disclosed in the record, Petitioner applied for a certification as a Firefighter II. On September 21, 2009, Petitioner took the Firefighter Minimum Standards Equivalency Examination (“initial examination”). Petitioner failed to pass the Ladder, Hose, and Self Contained Breathing Apparatus (SCBA) components of the practical portion of the initial examination. On November 17, 2009, Petitioner took the Firefighter Minimum Standards Equivalency Examination Re-test (“examination re-test”) for the Ladder, Hose, and SCBA components. Petitioner failed to pass the Ladder component of the examination re-test. By Notice of Denial dated November 20, 2009, Respondent notified Petitioner that Petitioner had failed the Firefighter Minimum Standards Equivalency Examination. Petitioner requested an administrative hearing. Petitioner alleges that, during her initial examination on September 21, 2009, there was an equipment malfunction during the Ladder component of the practical portion of the examination. Petitioner bases her allegations on the Ladder component score sheet for the initial examination (“score sheet”) that was received by Petitioner after she completed the initial examination and examination re-test. The score sheet for the initial examination states that Petitioner failed the Ladder component of the initial examination because Petitioner exceeded the time period to complete the ladder evolution and failed to fully extend the ladder with the dogs locked. In the “Comments Required for Failure” section, the score sheet listed, “Safety latch on dawgs [sic] stuck in top of rung. Unsafe act. Over time.” Petitioner alleges that the statement that a piece of equipment was "stuck" is proof of an equipment malfunction. Two experts testified during the hearing that the "stuck" equipment was caused by operator error rather than an equipment malfunction. The testimony of the two experts was credible and persuasive. Petitioner, as the examinee, could have remedied the "stuck" equipment by raising the ladder to release the finger and then lowering the ladder to allow the dogs to lock onto the rung. The failure to do so was an "unsafe act” that created a safety hazard in which the fly section of the ladder could have fallen down to the ground. A preponderance of the evidence does not show that Petitioner failed the Ladder component of the initial examination because of an equipment malfunction. Rather, the preponderance of evidence shows that Petitioner failed to have the dogs locked, which is required by the examination. A preponderance of the evidence also shows that Petitioner did not complete the ladder evolution within the required time during the re-take examination. The excessive time resulted in an automatic failure of the re-take examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order denying Kim Lashawn Edmonds’ application for certification as a Firefighter II. DONE AND ENTERED this 16th day of April, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 16th day of April, 2010.
