The Issue The issue in the case is whether Petitioner’s employment position was properly reclassified from career service to the selected exempt service pursuant to Section 110.205(2)(x), Florida Statutes (2001). All citations are to Florida Statutes (2001) unless otherwise stated.
Findings Of Fact Petitioner was employed with the Department beginning in 1998 as a Grant Specialist. In April 2000, she applied for and was promoted into a newly created position of Operations Management Consultant (OMC) Manager in the Serving Health Insurance Needs of Elders (SHINE) program. The SHINE program is primarily a statewide health insurance counseling program designed to serve Florida’s elders. At the time of her promotion, Petitioner’s new position was classified under the Career Service System. The position was reclassified from Career Service to Selected Exempt Service effective July 1, 2001. Petitioner’s position description describes the duties and responsibilities of the position as follows: The Operations and Management Consultant Manager assists with supervision and coordination of day-to-day volunteer management and program management functions for the SHINE (Serving Health Insurance Needs of Elders) Program. Works [sic] is performed under the supervision of the program coordinator (Senior Management Analyst Supervisor) and in support of the department’s mission, vision and values. The position description also provides percentages of time regarding activities engaged in pertaining to these duties and responsibilities: 30% Manages volunteer support activities for the SHINE Program. Provides orientation, training and ongoing technical assistance to program partners and volunteer leadership; develops resource guides and other tools to assist with programmatic and operational issues; conducts meetings, workshops and seminars to build leadership skills; maintains regular communication with program liaisons and volunteer leadership; disseminates correspondence on key programmatic issues; helps resolve operational challenges; and works to ensure outcomes measures are achieved. 20% Supervises volunteer service functions for the program. Develops protocols and tracking systems for service and support provided to volunteers and staff. Coordinates collection of information for the volunteer database and maintenance of volunteer files. Assists with surveys and evaluations. Supervises activities of program staff. 10% Assists with development, preparation, monitoring and oversight of contracts of agreement with providers and program partners. 10% Performs other duties as assigned by SHINE Program Coordinator. 10% Ensures the aspects of SHINE Program of Information& Referral (I & R), education and outreach are coordinated with the overall agency responsibility in those areas. Supervises staff activities as they relate to these functions. 5% Takes the lead for the preparation for the SHINE grant reapplication and other related new grant applications and opportunities. 5% Assists with budget development. 5% Ensures that required grant reports and narratives are submitted to funder on time and complete. 5% Represents Department of Elder Affairs and SHINE at community education events for the public and the aging network. May make presentations at workshops, community forums and seminars as assigned. Serves as an advocate for elders. Further, the position description lists six positions which are described as “subordinate positions.” This is consistent with the organizational chart of the Division of Self Care and Community Volunteer Initiatives which also reflects six positions directly under her position. However, during the time Petitioner held the position of OMC Manager, there were some reorganizations that resulted in two of the positions being shifted, sometimes being under the authority of Petitioner and sometimes being under the authority of others. In any event, at all times material hereto Petitioner was the supervisor of five to seven persons. Petitioner does not dispute that she performed some supervisory duties. At hearing, she acknowledged that she had supervisory duties, but asserts that she only spent a minimal amount of time in the performance of supervisory activities. Each morning, Petitioner would hold a staff briefing which lasted 15 to 30 minutes with the individuals she supervised. Petitioner described these group staff meetings as an update session to discuss “what’s hot, what are you working on, do you need help, do you need information . . . and more targeted towards continuing to instill a teamwork type of effort in the attitude of the staff.” In addition to her duties regarding staff, Petitioner was also responsible for the oversight of contracts with program providers and with volunteers. These providers and volunteers were not employees of the Department. Petitioner estimates that she spent between 50 and 75 percent of each day on contract management issues. However, in terms of her responsibility to develop, prepare, monitor, and oversee those contracts, she would utilize her staff in order to carry out many of those duties. Tom Reimers has worked for the Department since 1995. He is currently the Director of the Division of Volunteer and Community Services. Prior to that, he served as Director of the SHINE Program. During part of that time, Mr. Reimers was Petitioner’s direct supervisor. According to Mr. Reimers, Petitioner was responsible for the work product of the employees she supervised, in reviewing their work product, in informing those employees when their work product was inadequate, and in evaluating employees including signing their “Review and Performance Planning” forms. Her signature on those employee reviews appears in the line designated for “supervisor’s signature.” Mr. Reimers considered Petitioner to be a full-time supervisor in that Petitioner had the authority to sign time sheets, approve and consider requests for travel, provide information to her employees about their job and about the Department’s mission, ensure that they were carrying out the mission, and provide guidance to her subordinate employees. When Mr. Reimers received communications from the persons under Petitioner’s supervision or needed to communicate something to them, he would generally funnel that communication through Petitioner. Moreover, Mr. Reimers was frequently out of the office due to his job responsibilities. When he was out of the office, Petitioner described herself as a “second-in-command type of individual monitoring the program at home.” Mr. Reimers conducted Petitioner’s employee evaluations. His review of her work included her ability to communicate with employees, whether she was properly assigning and overseeing work of her subordinates, and whether she was motivating her staff. Petitioner received positive evaluations from Mr. Reimers. Petitioner interviewed applicants for at least two employment positions and made recommendations regarding their employment. In both instances, those persons recommended by Petitioner were hired. Petitioner was employed by the Department until March 31, 2002, when her position was eliminated because of loss of grant monies which funded her position. The weight of the evidence supports a conclusion that Petitioner spent a majority of her time supervising employees as contemplated by Section 110.205(2)(x), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Department of Elder Affairs should enter a final order finding that the position held by Petitioner Candace C. McMahon on July 1, 2001, was properly classified into the selected exempt service. DONE AND ENTERED this 17th day of September, 2004, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 17th day of September, 2004.
The Issue Whether Petitioner is entitled to a passing grade on the practical portion of the Florida Minimum Standards Examination for firefighters taken May 22, 2002.
Findings Of Fact At times pertinent to this proceeding, Petitioner held certification as a firefighter (Firefighter Certificate of Completion #81191) issued by the State Fire Marshal. For at least three years prior to December 5, 2001, Petitioner had not been active as a firefighter or as a volunteer firefighter with an organized fire department. Pursuant to Section 633.352, Florida Statutes, Petitioner was required to successfully complete the practical portion of the Florida Minimum Standards Examination for firefighters to retain his certification. 1/ The practical examinations at issue in this proceeding consisted of four sections: the Self Contained Breathing Apparatus (SCBA) section, the Hose and Nozzle Operation section, the Ladder Operation section, and the Fireground Skills section. A candidate must pass each section to pass the practical examination. On November 16, 2001, Petitioner applied to sit for the practical examination scheduled for December 5, 2001. Petitioner sat for and failed all four sections of the practical examination administered December 5. Respondent's Rule 4A- 37.0527(6), Florida Administrative Code, permits a candidate to retake the practical examination once without further training. Petitioner thereafter applied to retake the examination, which was scheduled for May 22, 2002. Petitioner passed the Hose and Nozzle Operation and the Ladder Operation sections of the practical examination on May 22, and the scoring on those sections are not at issue in this proceeding. At issue in this proceeding is whether Petitioner failed the SCBA section and/or the Fireground Skills section of the practical examination administered May 22, 2002. The SCBA section of the practical examination consisted of questions for which a candidate was awarded credit and certain items that a candidate was required to successfully complete (fatal items). If a candidate missed a fatal item, the candidate failed the SCBA section of the examination and, consequently, the entire practical examination. The Firegrounds Skills section of the examination tests a candidate on a variety of skills a firefighter is expected to demonstrate while fighting a fire, and the candidate is awarded a score for his or her performance. To pass each part of the practical examination, including the SCBA and the Fireground Skills sections, a candidate must achieve a score of 70 points and must not miss a fatal item. The SCBA section of the practical examination requires the candidate to properly don certain protective gear in 1 minute and 45 seconds. The failure to complete the exercise in the allotted time is a fatal item. In addition, the candidate must activate and check a personal alarm system as part of the exercise. The failure of the candidate to properly wear and activate the alarm system is also a fatal item. 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 timely complete the exercise, which is a fatal item. Petitioner failed to properly activate the personal alarm system, which is also a fatal item. Petitioner was awarded no points for 5 of 10 items for which points could be awarded (each item was worth 10 points). Even if he had passed the fatal items noted above, Petitioner would have failed the SCBA section because he failed to achieve a passing score of 70 on that section of the examination. Petitioner failed to establish that he was entitled to additional credit for the SCBA section of the practical examination. Petitioner received a failing score on the Firegrounds Skills section of the practical examination administered May 22, 2002. The greater weight of the credible evidence established that Petitioner's performance on the Firegrounds Skills section of the practical examination administered May 22, 2002, was appropriately and fairly graded. Of the 100 points available for this section of the examination, Respondent established that Petitioner deserved no credit for the following: 20 points on the forcible entry part of the section; 12 points on the ladders and fire service tools part of the section; and 4 points on the hazardous materials part of the section. Consequently, Respondent established that Petitioner was entitled to a total of 64 points on the Firegrounds Skills section of the practical examination administered May 22 2002, which is a failing grade. Petitioner failed to establish that he was entitled to additional credit for the Firegrounds Skills section of the practical examination administered May 22, 2002. Respondent established that the administration and grading of the subject exams were consistent with the provisions of Chapter 4A-37, Florida Administrative Code, which set forth by rule applicable guidelines for the practical examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Facts and Conclusions of Law set forth herein. It is further RECOMMENDED that the final order deny Petitioner's application for re-certification as a firefighter. DONE AND ENTERED this 14th day of January, 2003, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 14th day of January, 2003.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Petitioner was employed by the City of North Port Fire Department, City of North Port, Florida as a paramedic and journeyman with certification as both a Firefighter and an Emergency Medical Technician from the state of Florida. The Division's Bureau of Fire Standards and Training is the state agency in the state of Florida responsible for the management and certification of firefighters in the state of Florida, and is charged under Section 633.382, Florida Statutes, with the responsibility of determining the eligibility of firefighters who are to receive supplemental compensation under the Firefighters Supplemental Compensation Program (Program). On July 25, 1991, Petitioner applied to Respondent for supplemental compensation at the bachelor's degree level of the Program. On August 6, 1991 and again on August 14, 1991 the Division advised the Petitioner by letter that his application for supplemental compensation under the Program had been denied because he did not possess either a bachelor's or an associate's degree that contained a major study concentration area which was readily identifiable and applicable as a fire-related degree. The record is unclear as to why the August 14, 1991 letter was mailed by the Division. On June 2, 1979, the Petitioner received a Bachelor of Arts degree from Cedarville College, Cedarville, Ohio (Cedarville) with a major study concentration area in psychology/behavioral science. During the period that Petitioner attended Cedarville, it did not offer courses in fire science. Petitioner attended Edison Community College (Edison), Fort Myers, Florida during 1980-1982 but did not receive an associate degree from Edison. Petitioner attended Manatee Community College, Bradenton, Florida beginning September 1988 and is currently enrolled at Manatee. Petitioner has not received an associate degree from Manatee. The transcripts from both Manatee and Edison show that Petitioner has taken some course work in fire-related subjects. However, these courses were not part of his study for the bachelor's degree and Petitioner has not earned an associate degree from either Manatee or Edison. Petitioner has had no other degree, bachelor or associate, conferred other than the bachelor's degree conferred by Cederville. Petitioner is not a fire officer. Petitioner's job does not require that he possess any supervisory skills, nor does it require him to engage in debriefing of fellow employees. He takes instruction from a fire officer. Petitioner has taken classes which would help further his chances of becoming a fire officer. These classes do not offer college credits, and Petitioner did not attend those classes as part of the course-work required to earn his Bachelor's degree. Rather, these classes constitute an in-service training program. Petitioner is not employed by his fire department as a psychologist or as a counselor. To the extent that his job requires him to utilize basic psychological principles, it is because he chooses to use those principles in that facet of his life, and not because his job requires an expertise in psychology. Likewise, Petitioner's testimony that his degree helps him in his verbal skills fails to tie that degree uniquely to his position as a paramedic. Petitioner's job description as a paramedic and his explanation of the mostly physical activities which accompany that job does not correlate with his degree. Petitioner's transcript for his bachelor's degree does not reveal a sufficient number of course hours which are readily identifiable and applicable as fire-related. Although the transcript does reveal the titles of the courses taken by Petitioner in earning his bachelor's degree, it is not accompanied by any catalogue from the university which explains the contents of any of the courses taken by him. Accordingly, none of the courses taken by the Petitioner are readily identifiable and applicable as fire-related. Petitioner's job description does not require that he render assistance to persons in crisis.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying Petitioner's application for supplemental compensation pursuant to the Firefighters Supplemental Compensation Program. RECOMMENDED this 9th day of January, 1992, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5982 The following constitutes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner 1. Petitioner did not submit any proposed findings of fact and conclusions of law. Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-2. Adopted in substance as modified in Findings of Fact 1 and 2, respectively. 3. Adopted in substance as modified in Findings of Fact 3 and 4. 4.-5. Rejected as either being irrelevant to the issue involved herein or unnecessary for determination of the issue herein, but see Finding of Fact 9. Rejected as either being unnecessary to the issue herein or as a recitation of the testimony. Adopted in substance as modified in Findings of Fact 6 and 7. 8.-10. Adopted in substance as modified in Findings of Fact 10, 11 and 12, respectively. 11.-12. Adopted in substance as modified in Findings of Fact 12 and 14, respectively. COPIES FURNISHED: Dean L. Scott 18178 Petoskey Circle Port Charlotte, FL 33948 Andrew Kenneth Levine, Esquire Division of Legal Services 412 Larson Building Tallahassee, FL 32399-0300 Tom Gallagher, State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Bill O'Neil, Deputy General Counsel Department of Legal Affairs The Capitol, Plaza Level Tallahassee, FL 32399-0300
Findings Of Fact At all times relevant and material to these proceedings, the Petitioner has been employed as a firefighter with the Metro-Dade Fire Department. The Petitioner's primary function with the Metro-Dade Fire Department is as a firefighter. By letter dated May 30, 1991, and received on June 10, 1991, the Petitioner applied to the Respondent for Firefighters Supplemental Compensation at the Bachelor degree level. Three transcripts were submitted with the Petitioner's application. The first was from Miami-Dade Community College, and showed that an Associate of Science degree in Fire Science was awarded to the Petitioner on May 4, 1991. The second transcript was from Broward Community College, showing many courses taken by Petitioner, but no degree awarded. 3/ The third transcript was from Florida International University, and showed that a Bachelor of Science degree with a major in Industrial Technology was awarded to Petitioner on December 12, 1980. Petitioner's Bachelor degree from Florida International University is not based upon, and does not include, any of the courses in fire science that formed the basis for Petitioner's Associate degree from Miami-Dade Community College. 4/ Petitioner's transcript of her Bachelor degree does not reveal a major study concentration area of at least 18 semester hours or 27 quarter hours which is readily identifiable and applicable as fire-related. On or about June 24, 1991, the Respondent notified the Petitioner that she was eligible for the Firefighters Supplemental Compensation Program at the Associate degree level by virtue of her Associate of Science degree in Fire Science from Miami-Dade Community College. On or about June 26, 1991, the Respondent notified the Petitioner that she was not eligible for the Firefighters Supplemental Compensation Program at the Bachelor degree level because Petitioner's major in Industrial Technology from Florida International University was not a recognized Major Study Concentration Area in Rule 4A-37.084. The denial letter cites and quotes the definition of "Bachelor's Degree" at Rule 4A- 37.084(3), Florida Administrative Code. Rule 4A-37.084(3)(a), Florida Administrative Code, the rule which is the subject of this rule challenge proceeding, reads as follows (with the challenged portion underscored [<> --Ed.]): "Bachelor's Degree" means a Bachelor of Arts or Bachelor of Science degree conferred by an accredited post-secondary institution provided the major study concentration area is readily identifiable and applicable as fire- related. A firefighter may receive Supplemental Compensation based on possession of a Bachelor's Degree regardless of whether or not an Associate Degree was previously earned. <In no event shall receipt of a transcript for an Associate Decree be used in consideration for qualification of the Bachelor's Degree Supplemental Compensation.> The major study concentration area, at least 18 semester hours or 27 quarter hours, must be readily identifiable and applicable as fire-related. Those major study concentration areas specifically defined in this rule chapter are considered to be readily identifiable and applicable as fire-related.
The Issue Whether Petitioner, who on November 17, 1999 (two days prior to the final hearing in this case) was certified by Respondent to be eligible to receive, effective June 1, 1999, firefighter supplemental compensation pursuant to Section 633.382, Florida Statutes, is entitled to any further relief from Respondent in this administrative proceeding (which was initiated by Petitioner after he had received Respondent's June 2, 1999, notice of its preliminary determination that Petitioner was not entitled to firefighter supplemental compensation).
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: In August 1994, Petitioner applied to Respondent for entry in the Firefighters Supplemental Compensation Program (1994 Application). The application materials that Respondent received were a completed and signed Firefighters Supplemental Compensation Program Transcript Request form; a copy of Petitioner's transcript from North Carolina Central University (reflecting that he had graduated on May 10, 1986, with a Bachelor of Science degree in biology), along with a cover letter to Respondent from the Office of the University Registrar; a job description; and a letter to Respondent from Petitioner, which read as follows: Enclosed [y]ou will find information regarding my educational earnings. I received a Bachelor of Science (Biology) in May, 1986 from North Carolina Central University in Durham. Additionally, I have earned 29 credits at Miami Dade Community College [a]nd I [a]m [a] Paramedic. Please [r]eview [t]his information and include me in the supplemental compensation program. I[']d [l]ike to thank you in advance for your time and consideration. The job description that was included in the application materials Respondent received was for the classification of Fire Fighter and read as follows: NATURE OF WORK: Skilled fire-fighting work in combating, extinguishing and preventing fires, and in the operation and maintenance of fire department equipment, apparatus and quarters. Work involves responsibility for protecting life and property by fire-fighting and rescue activities, usually under close supervision. Employees of this class are required to learn and participate in the operation of fire apparatus and equipment, and the performance of hazardous tasks under emergency conditions which may require strenuous exertion under such handicaps as smoke and cramped surroundings. Although fire-fighting and rescue activities are the primary responsibilities of this class, the major portion of time is spent in drilling and studying methods, techniques and organization, and in routine duties in the care and maintenance of fire department property and equipment. Employees of this class may be assigned to duty as communications officer, chief driver and aide, and fire prevention inspector, which involves the application of specialized abilities and knowledge developed through experience and training. Specific orders and directions are given by superior officers, but the work requires initiative and a thorough individual understanding of fire- fighting methods. ILLUSTRATIVE EXAMPLES OF WORK PERFORMED: (The examples of work as listed in this class specification are not necessarily descriptive of any one position in the class. The omission of specific statements does not preclude management from assigning specific duties not listed herein if such duties are a logical assignment to the position. Examples of work performed are not to be used for allocation purposes.) Attends training courses; participation in fire drills and attends classes in fire- fighting and first aid; reads and studies assigned materials related to fire-fighting and prevention. Responds to fire alarms with a company; operates pumps, aerial ladders and auxiliary equipment; lays and connects hose; holds nozzles and directs fog or water streams; raises and climbs ladders; uses chemical extinguishers, bars, hooks, lines and other equipment. Performs general maintenance work in the upkeep of fire department property; cleans and washes walls and floors; makes minor repairs to property and equipment; washes, hangs, and dries hoses; washes, cleans, polishes and tests apparatus. Performs limited fire prevention activities; inspects commercial and residential properties for the existence of fire hazards, and seeks removal of such hazards through education and persuasion. When assigned to the Rescue Division the Fire-Fighter should be able to accurately and efficiently evaluate and gather patient assessment information; interpret assessment finding; formulate a working diagnosis (i.e. possible M.I.); plan, prioritize and implement necessary treatment as per Rescue protocol and/or physician direction via the radio; evaluate treatment outcome and re- assess the patient's status; plan and implement additional treatment or modifications as indicated by re-assessment and follow-up evaluation. When assigned as a fire inspector, inspects buildings and premises; reviews plans for compliance with fire regulations specified in the City of Miami Building Code; checks on complaints; and may aid investigation of arson cases when assigned to fire prevention duties. Performs other related work as required. DESIRABLE KNOWLEDGE, ABILITIES AND SKILLS: (The knowledge, skills and abilities identified in this class specification represent those needed to perform the duties of this class. Additional knowledge, skills and abilities may be applicable for individual positions in the employing departments.) Some knowledge of the street system and physical layout of the City of Miami. Ability to learn a wide variety of fire- fighting duties and methods within a reasonable working test period. Ability to establish and maintain effective working relationships with other employees and the general public. Ability to understand and follow oral and written instructions. Ability to perform limited mechanical work involved in maintaining fire-fighting and rescue apparatus, equipment and tools. Physical strength, endurance, agility and freedom from serious physical defects as shown by a physical examination. Coordination and dexterity. DESIRABLE BASIC TRAINING AND EXPERIENCE: Graduation from high school or State of Florida Equivalency Certificate OR Equivalent combination of training and experience. By letter dated August 23, 1994, Respondent advised Petitioner that it had determined that he was not qualified to receive supplemental compensation. The letter, which was received by Petitioner on September 6, 1994, read as follows: After reviewing your transcript, it has been determined that you do not possess an appropriate Major Study Concentration Area to qualify for the Firefighters Supplemental Compensation Program at the Bachelor level. Rule 4A-37.084, Florida Administrative Code, does not list Biology as a "Major Study Concentration Area." Rule 4A-37.084, Florida Administrative Code, states: "4A-37.084 Definitions. For purposes of this part, terms used in Rules 4A-37.082-4A- 37.089 are as defined in Section 633.382(1), Florida Statutes, and terms which are not otherwise defined in said statutes are defined as follows: 'Bachelor's Degree' means a Bachelor of Arts or Bachelor of Science degree conferred by an accredited post-secondary institution provided the major study concentration area is readily identifiable and applicable as fire related. A firefighter may receive Supplemental Compensation based on possession of a Bachelor's Degree regardless of whether or not an Associate Degree was previously earned. In no event shall receipt of a transcript for an Associate Degree be used in consideration for qualification of the Bachelor's Degree Supplemental Compensation. The major study concentration area, at least 18 semester hours or 27 quarter hours, [must] be readily identifiable and applicable as fire related. Specific Authority 633,45(2)(a) FS. Law Implemented 633.382(2) FS. History-New 01-03-90." 1/ At this level of the Firefighters Supplemental Compensation Program it has been determined that your Bachelor Degree is not readily identifiable and applicable as fire related, per Rule 4A-37.084, Florida Administrative Code. Pursuant to Section 120.57, Florida Statutes, and Rule Chapters 4-121 and 28-5, Florida Administrative Code (F.A.C.), you have a right to request a proceeding to contest this action by the Department. You may elect a proceeding by completing the attached Election of Rights form or filing a Petition. Your Petition or Election of a proceeding must be in writing and must be filed with the General Counsel acting as the Agency Clerk, Department of Insurance. If served by U.S. Mail, the Petition or Election should be addressed to the Florida Department of Insurance, at 612 Larson Building, Tallahassee, Florida 32399-0300. If Express Mail or hand delivery is utilized, the Petition or Election should be delivered to 448 Fletcher Building, 101 East Gaines Street, Tallahassee, Florida 32399-0300. The Petition of Election must be received by, and filed in the Department within twenty-one (21) days of the date of your receipt of this notice. If a proceeding is requested and there is no dispute of fact, the provisions of Section 120.57(2), Florida Statutes, would apply. In this regard you may submit oral or written evidence in opposition to the action taken by this agency or a written statement challenging the grounds upon which the agency has relied. While a hearing is normally not required in the absence of a dispute of fact, if you feel that a hearing is necessary one will be conducted in Tallahassee, Florida or by telephonic conference call upon your request. If you dispute material facts which are the basis for this agency's action, you may request a formal adversarial proceeding pursuant to Section 120.57(1), Florida Statutes. If you request this type of proceeding, the request must comply with all of the requirements of Rule Chapters 4-121 and 28-5, F.A.C. and contain: A statement identifying with particularity the allegations of the Department which you dispute and the nature of the dispute; An explanation of what relief you are seeking and believe you are entitled to; Any other information which you contend is material. These proceedings are held before a State hearing officer of the Division of Administrative Hearings. Unless the majority of witnesses are located elsewhere, the Department will request the hearing be conducted in Tallahassee. Unless a Petition or Election or your written submission challenging this action is received by the Department within twenty-one (21) days from the date of the receipt of this notice, the right to a proceeding shall be deemed waived. Failure to follow the procedure outlined with regard to your response to this notice may result in the request being denied. All prior correspondence in this matter shall be considered freeform agency action, and no such correspondence shall operate as a valid request for an administrative proceeding. Any request for administrative proceeding received prior to the date of this notice shall be deemed abandoned unless timely renewed in compliance with the guidelines as set out above. Petitioner did not file a "Petition or Election or . . . written submission challenging this action [described in Respondent's August 23, 1994 letter]" within 21 days of the date of his receipt of the letter. He next corresponded with Respondent in May of 1999, when he applied for a second time for entry in the Firefighters Supplemental Compensation Program. Along with a completed and signed Application for Initial Entry into Supplemental Compensation Program (Second Application), he sent Respondent a copy of his transcript from North Carolina Central University and an "official job description for current position held: FIREFIGHTER/PARAMEDIC," which was different than the job description that had accompanied his 1994 Application and which read as follows: Firefighter Definition: The term firefighter is used to describe all individuals assigned to the various areas within the City of Miami Fire Department. The responsibilities of a Firefighter are very diverse and require specialized training in many areas. Fire Suppression: These individuals are responsible for protecting life and property by means of fire extinguishment. This individual must have a working knowledge of pumps, water friction and resistance tables as well as ropes, foams and nozzles, infra- red cameras and basic building construction and style. Throughout the fire service, physical fitness is important. Hazardous Material Team: Work involves protecting life and property from toxic substances. Must have a working knowledge of fundamental chemistry and chemical interactions with each other. Must be able to identify Department of Transportation Placards to determine substances being transported by vehicles. Additionally, individuals must be familiar with explosive ranges of gases and mixture that have the potential to explode or cause harm to others. Must understand hazardous materials containment areas and the various levels of protective clothing w[o]rn. Emergency Medical Services: Work involves protecting life through use of basic life support and advance life support methods. Individuals involved in these services work under the license and management of a medical director. Paramedics are generally assigned to these positions when possible. Individuals should be able to accurately gather and interpret patient information to formulate a working diagnosis and provide necessary treatment as per protocol or physician[']s direction. Personnel [are] responsible for calculating and administering various drugs under stressful conditions (i.e. cardiac arrest and major trauma) and reporting patient status and treatment via radio to the medical director. A working knowledge of anatomy and physiology, medical terms and conditions is required. Fire Prevention Bureau: Work involves inspecting buildings and premises; reviewing plans for compliance with fire regulations specified in the City of Miami Building Code; checking on complaints; investigating arson cases and conducting public education throughout the City of Miami. Petitioner did not indicate, in submitting his Second Application, that he was seeking anything other than prospective entry in the Firefighters Supplemental Compensation Program. Respondent preliminarily determined that Petitioner's Second Application should be denied because his "Major Study Concentration Areas of Biology does not meet the criteria found in Rule 4A-37.084, Florida Administrative Code, for entry in the program," and so advised Petitioner, who subsequently requested an administrative hearing on the matter. Respondent, however, subsequently changed its mind regarding Petitioner's eligibility for the program and, by letter dated November 17, 1999 (two days prior to the final hearing in this case) advised Petitioner that, "[u]pon [f]urther review of [his] application, it had "found [Petitioner] to be eligible" and that he would receive supplemental compensation effective June 1, 1999. Respondent also prepared and sent to Chief James Fisher of the City of Miami Fire Rescue an Official Acceptance Notification, which read as follows: James E. Kemp, Social Security Number, . . ., has met the eligibility requirements for entry into the Firefighters Supplemental Compensation Program. Effective June 1, 1999, Mr. Kemp will receive Supplemental Compensation for qualifying under the requirements of Section 633.382, Florida Statutes, and Rule 4A-37.085 for possession of a Bachelor's degree. Mr. Kemp will be eligible to receive up to $110.00 a month until such time as he may become ineligible in accordance with Rule 4A- 37.087. Please insure that the referenced firefighter's name and the amount of Supplemental Compensation paid, appears on your Quarterly Report (form FSTE-3). If any further information is needed, please do not hesitate to contact us. (A copy of this Official Acceptance Notification was sent to Petitioner.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent enter a final order finding that Petitioner is not entitled to the additional relief he is seeking. DONE AND ENTERED this 5th day of January, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 5th day of January, 2000.
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 presented is whether Petitioner's application for supplemental compensation pursuant to the Firefighters Supplemental Compensation Program should be approved.
Findings Of Fact Petitioner is employed as a Captain with the Metro-Dade Fire Department. Petitioner earned a Bachelor of Arts Degree from the State University of New York at Buffalo, an accredited academic institution, on February 12, 1969. At the time that Petitioner attended that university, it did not offer courses in fire science. Petitioner applied to Respondent for supplemental compensation at the bachelor's degree level. His university transcript, which accompanied his application, indicates that Petitioner's major study concentration area was psychology. The Metro-Dade Fire Department requires its officers to attend an officers' training program. That program does not award college credits, and Petitioner did not attend that program as part of the course-work required to earn his bachelor's degree. Rather, it is an in-service training program. Although that program does include some instruction in some basic psychological principles, there is no indication that that program is different from in- service training programs for supervisors and managers in any occupation. Although Metropolitan Dade County does offer a tuition refund program for its employees, that program is unrelated to the State's Firefighters Supplemental Compensation Program and has different criteria. Further, Petitioner's bachelor's degree was not earned in conjunction with that program. Petitioner's job description as a captain does require that he possess supervisory skills. Those supervisory skills appear to be the same supervisory skills required in any occupation. His job description does not require that he have a degree or training in psychology. The only educational requirement for employment as a fire captain with the Metro-Dade Fire Department is graduation from a standard high school or possession of a Florida G.E.D. Petitioner's transcript for his bachelor's degree does not reveal a sufficient number of course hours which are readily identifiable and applicable as fire-related. Although it does reveal the titles of the courses taken by Petitioner in earning his bachelor's degree, it is not accompanied by any catalog from the university which explains the contents of any of the courses taken by him. Accordingly, none of the courses taken by Petitioner is readily identifiable and applicable as fire-related. Petitioner is not employed by the Metro-Dade Fire Department as a psychologist or counselor. To the extent that his job requires him to utilize basic psychological-managerial principles, it is because his job includes being a supervisor-manager and not because his job requires an expertise in psychology.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for supplemental compensation pursuant to the Firefighters Supplemental Compensation Program. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of April, 1991. LINDA M. RIGOT 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 23rd day of April, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's first, second, fourth through twelfth, fifteenth, and seventeenth unnumbered paragraphs have been rejected as not constituting findings of fact but rather as constituting argument. Petitioner's third unnumbered paragraph has been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's thirteenth and sixteenth unnumbered paragraphs have been rejected as being irrelevant to the issues involved herein. Petitioner's fourteenth unnumbered paragraph has been adopted in substance in this Recommended Order. Respondent's proposed findings of fact numbered 1, 2, 4, 5, 9, and 10 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 3, 11, and 13 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony Respondent's proposed findings of fact numbered 6 and 12 have been rejected as being irrelevant to the issues involved herein. Respondent's proposed findings of fact numbered 7 and 8 have been rejected as being unnecessary for determination of the issues herein. Copies furnished: Andrew K. Levine, Esquire Department of Insurance and Treasurer Division of State Fire Marshall 412 Larson Building Tallahassee, Florida 32399-0300 Dean J. John 6890 Scott Street Hollywood, Florida 33024 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue Whether Petitioner's challenge to the failing score he received on the Practical Examination for Retention of Firefighter Retest he took on May 17, 2012, should be sustained.
Findings Of Fact Because no evidence was offered at the final hearing held in the instant case, no findings of fact are made.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services, Division of the State Fire Marshall, enter an order denying Petitioner's challenge to the failing score he received on the Practical Examination for Retention of Firefighter Retest he took on May 17, 2012. S DONE AND ENTERED this 17th day of August, 2012, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 2012. COPIES FURNISHED: Jesse Beauregard 10731 Northwest 18th Court Coral Springs, Florida 33071 Linje E. Rivers, Esquire Department of Financial Services 200 East Gaines Street, Sixth Floor Tallahassee, Florida 32399-0333 Julie Jones, CP, FRP, Agency Clerk Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0390
