The Issue The issues are: (1) whether Respondent properly scored Petitioner's retake of the Practical Examination for Firefighter Retention; and (2) whether Petitioner's application for firefighter recertification was properly denied.
Findings Of Fact Petitioner has worked in the fire service for almost 28 years. During that time, Petitioner served as the assistant fire marshal and the fire marshal for the City of Orlando. After Petitioner retired from the City of Orlando, he served as fire chief, building official, and code enforcer officer of Eatonville, Florida. After more than a three-year time period of not working as a firefighter or in the fire service field, Petitioner accepted a job as fire marshal in Hillsborough County, Florida. Although there is no legal requirement that a fire marshal be certified as a firefighter, a condition of Petitioner's employment with Hillsborough County was that he be recertified as a firefighter. In Florida, a firefighter retains his firefighter certification if he remains an active firefighter with an organized fire department. However, a firefighter who has not been active for a period of three years must successfully complete the Retention Examination in order to retain his certification. The Retention Examination is the practical portion of the examination given to new applicants. Because Petitioner has not been an active firefighter for the past three years, in order to be recertified as a firefighter, he was required to successfully complete the Retention Examination. The Retention Examination consists of the following four parts: Self-Contained Breathing Apparatus ("SCBA"), Hose Operations, Ladder Operations, and Fireground Skills. To pass the Retention Examination, a candidate must achieve a score of at least 70 percent on each part. Petitioner applied for and took the Retention Examination that was given on May 16, 2007. He successfully completed the Fireground Skills part, but did not earn a passing score on the SCBA, the Hose Operations, and the Ladder Operations parts.2/ Petitioner applied for and took the September 13, 2007, Retention Examination re-test. During this re-test, Petitioner took only the SCBA, the Hose Operations, and the Ladder Operations parts, the ones that he had not successfully completed in May 2007. Petitioner passed the Hose Operations part of the Retention Examination re-test, but did not successfully complete the SCBA and the Ladder Operations parts, because he did not complete those components within the maximum allotted time. Each part of the Retention Examination has certain elements or skills that are graded. The SCBA and the Ladder Operations parts of the Retention Examination are each comprised of eleven skills or steps that the examinee must complete within the specified time. Ten of the 11 skills or steps for each part of the Retention Examination are assigned a point value of ten.3/ The other skill (the 11th skill or step) under each part is designated as a "mandatory step" for which the examinee is awarded a score of either "pass" or "fail".4/ Under the scoring system described in paragraph 10, an examinee receives ten points for each of the ten skills he successfully completes and a passing score for the one skill designated as mandatory. The SCBA and Ladder Operations parts of the Retention Examination have an established maximum time allotted for the examinee to complete a minimum of 70 percent of the skills. The time requirements are a mandatory criterion/requirement. In order to successfully complete the Retention Examination, an individual must not only complete a minimum of 70 percent of the ten skills or steps for each part, but he must also successfully complete the two mandatory criteria for that part. 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, he has not met the mandatory time requirement and, thus, is not awarded any points for that part. The Division established the minimum time requirements for completing the various parts of the practical examination for firefighters after consulting the NFPA standards and soliciting input from fire departments, fire chiefs, and other individuals in firefighter profession. Among the factors that were considered in establishing the minimum time frames were the nature of fires (i.e., how quickly they spread) and the need for firefighters to perform their job duties both safely and quickly. The Division uses these time requirements in testing the 3,500 to 3,800 firefighters a year that go through the testing process. On the September 13, 2007, re-test, Petitioner exceeded the maximum time allotted for the SCBA and the Ladder Operations parts. The maximum time allotted for completion of the SCBA part of the Retention Examination is one minute and 45 seconds. Petitioner's completion time on the September 2007 Retention Examination re-test was three minutes and ten seconds. The maximum time allotted on the Ladder Operations part of the Retention Examination is two minutes and 45 seconds. Petitioner's completion time on the September 2007 Retention Examination re-test was three minutes and ten seconds. Because Petitioner failed to complete a minimum of 70 percent of the skills in the SCBA and the Ladder Operations parts of the Retention Examination within the maximum time allotted, the Bureau properly awarded him no points. 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 No. 3381 expired as of September 13, 2007. The Division's Bureau of Fire Standards and Training ("Bureau of Standards") employs field representatives to administer the Retention Examination to examinees in accordance with the applicable rules and procedures. Philip D. Oxendine is and has been a field representative with the Bureau of Standards for four years. As a field representative, Mr. Oxendine administers and scores the minimum standards examination for firefighters, including the Retention Examination. Prior to being employed as a field representative, Petitioner worked as a firefighter for 27 years, having retired as a lieutenant. He also has ten years of experience as an instructor in the fire science division of the then South Technical Institution in Palm Beach County, Florida. Mr. Oxendine administered and scored the three parts of the Retention Examination re-test that Petitioner took on September 13, 2007, in accordance with the Division's procedures. All examinees at the September 17, 2007, Retention Examination re-test location, were assigned a number. In an effort to avoid bias, throughout the testing process, examinees' assigned numbers were used instead of their names. On the day of the Retention Examination re-test, Petitioner was assigned a number by which he was identified. When Mr. Oxendine administered and scored Petitioner's re-test, he did not know Petitioner's name or anything about him. Prior to Petitioner's starting the Retention Examination re-test, Mr. Oxendine took Petitioner and other examinees to each station and told them what they had to do at that station. Mr. Oxendine also told the examinees, including Petitioner, how each part of the Retention Examination would be graded.5/ Mr. Oxendine's usual practice is to instruct examinees to touch the apparatus when they are ready for time to begin on a particular part of the examination. He also gives specific instructions to the examinees regarding how they should indicate that they have completed each part. Once an examinee touches the apparatus and says he is ready to begin, Mr. Oxendine starts the stop watch. Mr. Oxendine instructed the examinees to indicate that they had completed the SCBA part by standing up and clapping their hands. The examinees were told that the Ladder Operations part was considered completed when they were behind the ladder and holding it and when they announced that the ladder was ready to be climbed. Mr. Oxendine used the procedures described in paragraph 30 in timing Petitioner on the three parts of the Retention Examination re-test. Mr. Oxendine timed Petitioner's performance on each part of the Retention Examination re-test using a stop watch. This is the method that Mr. Oxendine was trained to use when timing the examinees' performances on the practical portion of the examination. 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 and the Ladder Operations parts 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 Based upon the foregoing Findings of Fact and Conclusions of Law, 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 20th day of May, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2008.
The Issue The issue is whether Petitioner is entitled to a passing grade on the Self-Contained Breathing Apparatus ("SCBA") part of the Firefighter Minimum Standards Examination for firefighter certification.
Findings Of Fact Petitioner applied for certification as a firefighter in August 2004. In order to be certified, Petitioner was first required to successfully complete the Minimum Standards Course, which consists of a minimum of 360 hours of training at an approved school or training facility. After completing the training course, Petitioner was required to take the Minimum Standards Examination, which is structured in two parts: a written portion and a practical portion. The practical portion consists of four sections or "evolutions," including the SCBA, the hose pull, the ladder operation, and the fireground skills section. To pass the four practical evolutions, an applicant must achieve a score of at least 70 percent on each one. Each evolution of the practical exam has certain elements or skills that are graded. The SCBA test contains 11 skills related to checking, donning, and properly activating the SCBA that enables a firefighter to breathe in a hostile environment, such as a burning building. The SCBA test must be completed in not more than one minute and 45 seconds. After completing the Minimum Standards Course, Petitioner took the initial Minimum Standards Examination on December 8, 2004. Petitioner passed the written portion of the exam, but did not pass the practical portion of the initial exam because he exceeded the maximum time for the SCBA test. In a memorandum dated December 21, 2004, the Department formally advised Petitioner that he had failed the SCBA portion of the practical exam. The memorandum also informed Petitioner that he had been automatically scheduled to retake the SCBA test. In another memorandum dated December 21, 2004, the Department advised Petitioner that he was scheduled to retake the SCBA portion of the practical examination at the Florida State Fire College in Ocala, Florida, on February 24, 2005. Petitioner took the retest of the SCBA portion of the practical examination as scheduled. Petitioner again failed the SCBA test. Though he completed each of the 11 skills with no deduction of points, he again exceeded the maximum time of one minute and 45 seconds. Petitioner's time was one minute and 50 seconds. Larry McCall is a field representative with the Department. Mr. McCall described "field representative" as a "glorified name for an examiner." Mr. McCall was the examiner who tested Petitioner on the retake of the SCBA portion of the practical exam on February 24, 2005. He observed Petitioner perform the 11 skills, and he timed Petitioner with a stopwatch. Mr. McCall has been an examiner for 15 years. He is a certified firefighter and a certified fire service instructor. He retired from the City of Jacksonville Fire Department after 30 years. Mr. McCall estimated that he has administered 10,000 SCBA tests. Petitioner testified that before taking the retest, he practiced the SCBA test upwards of 50 times and never exceeded the time limit. Petitioner testified that he was certain that he completed the test within the time limit on February 24, 2005. Petitioner is currently a volunteer at the Isle of Capri Fire and Rescue Department. The chief of that department, Emilio Rodriguez, testified that he administered the SCBA test to Petitioner in practice situations over a dozen times, and Petitioner never went over one minute and ten seconds. Keith Perry, a veteran firefighter working for the Isle of Capri Fire and Rescue Department, testified that he has timed Petitioner many times and that Petitioner has never exceeded the time limit, averaging between one minute and five seconds and one minute and ten seconds. Neither of Petitioner's witnesses was present when he took the SCBA retest on February 24, 2005, and, thus, could not testify as to whether he passed the test on that day. Petitioner's subjective feeling that he passed the test based on the many times he practiced, is necessarily less persuasive than the time actually recorded by Mr. McCall. The students are assigned an applicant number on the day of the test. The examiners refer to the students by this number, rather than their names, during the testing process. After the test has been administered, the examiners coordinate the names with the numbers and assign final scores. At the hearing, Petitioner suggested that a mistake had been made in coordinating the names and numbers and that he had mistakenly been assigned the failing score of another candidate. Petitioner offered no evidence for this speculative suggestion, which, therefore, cannot be credited. Petitioner also noted that Mr. McCall had recorded a time of 20 seconds for Petitioner's performance on the "seal check," an exercise to ensure that the face piece of the SCBA equipment is securely sealed such that the firefighter is breathing only from his air tank. The candidate must perform the seal check for at least ten seconds. Petitioner persuasively contended that 20 seconds is an extraordinarily long time for the seal check, because the candidate must hold his breath for the duration of the check. Further, Petitioner noted that candidates are trained to count off the required ten seconds, making it unlikely that he would inadvertently take twice the required time to complete the check. Petitioner's theory was that Mr. McCall's mistaken recording of 20 seconds was enough to account for the five seconds by which Petitioner failed the overall SCBA test. However, Mr. McCall testified that he used a stopwatch with a split timer to record Petitioner's time for the SCBA test. A split timer independently records a span of time within the overall time being measured. When Petitioner commenced the seal check portion, Mr. McCall triggered the split timer, and he stopped the split timer when Petitioner completed the seal check. The split timer has no effect on the total time. Whether the split for the seal check had been ten seconds, 20 seconds, or more, Petitioner's overall time would have been one minute and 50 seconds. The greater weight of the credible evidence established that Petitioner's performance on the SCBA section of the practical examination was appropriately and fairly graded. Petitioner failed to establish that he was entitled to a passing grade for his performance on the SCBA section. Respondent established that Mr. McCall appropriately administered the subject SCBA section pursuant to the applicable provisions of Florida Administrative Code Chapter 69A-37, which set forth guidelines for the practical examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding that Petitioner failed the SCBA section of the practical portion of the Firefighter Minimum Standard Examination administered February 24, 2005. DONE AND ENTERED this 29th day of August, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2005. COPIES FURNISHED: Casia R. Sinco, Esquire Department of Financial Services 200 East Gaines Street, Room 612 Tallahassee, Florida 32399-0333 Adam J. Oosterbaan, Esquire Adam J. Oosterbaan, P.A. 2500 Airport Road South, Suite 306 Naples, Florida 34112 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muñiz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
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 to be resolved in this proceeding concern whether the Petitioner Gary L. Neal, is qualified by virtue of experience, training and education, in accordance with the provisions of Section 633.521, Florida Statutes, to sit for the Fire Protection Systems Contractor V examination for licensing.
Findings Of Fact The Petitioner Gary L. Neal seeks to take a written examination for purposes of ultimate licensure as a "Fire Protections Systems Contractor V." The Contractor V license enables a license holder to install underground water mains that are connected to a fire protection system, such as a sprinkler system. The Petitioner presently holds a Certified Plumber's License in the State of Florida and has been so licensed since March 11, 1981. He also holds a Master Plumber's License for the State of Georgia. Prior to the creation of a separate license for installation of underground water mains connected to Fire Protection Systems, the Contractor V license for which the Petitioner seeks to be examined, installation of these water mains was performed by certified plumbing contractors, including the Petitioner, and by underground utility contractors. Underground water mains installed for potable water and fire protection systems were once one and the same, before Fire Code changes mandated that these be separate lines. Even after the creation of the Contractor V license, local code enforcers took the position that plumbers and underground utility contractors could perform this work, so long as they did so under the supervision and control of Fire Protection Contractors, which practice continued until 1996. The Petitioner established that, as a Certified Plumbing Contractor since 1981, he has installed underground water mains for many years, including water mains connected to fire protection systems, as well as those connected to potable water systems. His testimony was corroborated by the sworn deposition testimony of persons who have supervised his work. See Exhibits 43, 44 and 45, in evidence. The trenching, excavation and pipe assembly skills required for installing underground water mains are the same whether the water main is used for Fire Protection Systems or used for potable water. The only substantive difference is the materials used and the testing procedures. For water mains connected to Fire Protection Systems, materials and testing are controlled by the National Fire Protection Association Code (NFPA), as adopted by the State of Florida. Knowledge of that fire code is tested on the Contractor V examination, which the Petitioner seeks to take. All other aspects of installing underground water mains, whether for use by Fire Protection Systems or for potable water, are governed by the National Plumbing Code, which applies to the work of Certified Plumbing Contractors such as the Petitioner, Certified underground utility contractors and Fire Protection Contractor V contractors. Both Florida and Georgia allow persons holding plumbers licenses to install underground utilities, work that may also be performed by underground utility and excavation contractors in Florida. Both Florida and Georgia require plumbing contractors to take continuing education courses in subjects that include the installation of underground utilities and excavation. In Florida these courses include NFPA Code material. The Petitioner demonstrated, through un-rebutted evidence that he has satisfied the continuing education requirements (annually) of both Florida and Georgia through taking formal classroom education courses in subjects that have included course work in trenching, excavation and installation of underground water mains. These classes have included course work in the National Fire Protection Association Code governing the installation of components of fire protection systems. Prior to obtaining his Certified Plumber's License in 1981, the Petitioner was employed by various underground utility and excavation contractors, including Junger Utilities, as well as certified plumbing contractors who performed underground utility and excavation contracting. The Petitioner's experience included excavation for and installation of underground water mains. The Petitioner's experience with these companies was established by his un-refuted sworn testimony since these companies are no longer in existence and could not have a representative to testify or supply letter documentation. The Petitioner has established a total experience of more than 28 years in the installation of underground water mains and other underground utilities, including the installation of water mains connected to fire protection systems. This was established through the un-rebutted testimony of the Petitioner and corroborated by the deposition testimony of witnesses Thomas M. Brown, Dale R. Cowie and Jimmy Patrick Riley. This experience was gained both as an employee of companies performing underground utilities work and through directly contracting for such work by virtue of holding a license that authorized him to contract for underground utilities work. (Certified Plumber's License). The Petitioner is employed by Professional Plumbing of NWF, Inc., as President, Chief Executive Officer, as well as qualifying agent. Professional Plumbing of NWF, Inc., the Petitioner's own corporation, is a company that, because of the Petitioner's certified plumbers license, is authorized to perform and does perform trenching, excavation and installation of underground water mains as part of its underground utilities work. The Petitioner has been employed in that position since 1987. The Petitioner's 28 years of experience in performing layout, design, excavation and underground pipe assembly has included, without limitation, the same work for which he seeks to sit for an examination; i.e., the installation of the underground components of Fire Protection Systems. The fact that the Petitioner has successfully performed not only closely related work involving installation of underground water mains, but has successfully performed and completed the very same work for which he seeks to be licensed (by virtue of his Certified Plumber's License) is relevant to the issue of whether he has demonstrated sufficient education and experience to qualify him to sit for the Contractor V examination. During the Petitioner's 28 years in his profession he has worked as a laborer, a foreman, a project superintendent and a qualifying agent for a company (Professional Plumbing of NWF, Inc.) that installs underground water mains. His experience has included layout, design, financial administration and project management for underground utilities work. The Petitioner, by virtue of being a State Certified Plumber, has gained experience in "laying-out, fabricating, installing, inspecting, altering, repairing, or servicing fire protection systems" for purposes of qualifying for the "highest level" or scope of fire protection systems license, the Contractor I license. Although such experience is not a prerequisite to qualify for the lowest level or scope of fire protection license, the Contractor V license which the Petitioner seeks; the fact that the Department recognizes by Rule 4A-46.010, Florida Administrative Code, that the Petitioner, as a plumber, gains such experience is relevant to whether the Petitioner is qualified to sit for the Contractor V examination. The Department has conceded that a Contract I License is a "higher license" or higher or broader scope of license than that of a Contractor V, the license which the Petitioner seeks. The Department also concedes that a Contractor I, without holding a separate Contractor V license, may nonetheless perform every aspect of the work that may be performed by a Contractor V. Thus a Contractor V's license is a "lesser included" license to that of a Contractor I or a Contractor II. Similarly, it has been established that an underground utility and excavation contractor's license is a "lesser included" license to that of a Certified Plumbing Contractor, as a Certified Plumbing Contractor can perform all aspects of underground utilities and excavations that may also be performed by the holder of that "lesser" license. The minutes of the Construction Industry Licensing Board in evidence, together with the associated letter in evidence, establishes that that Agency, which is charged with the jurisdiction of regulating licensure and practice of both Certified Plumbing Contractors and underground utility and excavation contractors, interprets the latter license as being a lesser included license to that of Certified Plumbing Contractor and that a Certified Plumbing Contractor can perform all aspects of underground utility and excavation contracting. See Petitioner's Exhibits 3, 4, 36, 37, 38 and 42, in evidence. The Department's witness at hearing conceded that the Petitioner's more than 20 years of experience as a Certified Plumbing Contractor was the "equivalent of" the experience that would be gained from "working for" an underground utility contractor for four years. Given that concession, and in determining whether the Petitioner qualifies by the combination of education and experience method contained in the statute relating to qualification for the Contractor V examination, it must be determined whether the "education" he has attained is equal to that he would have gained in the "employment of" a Certified Underground Utilities Contractor." In this regard, given his acknowledged 28 years of experience, the Department acknowledged that the amount of education that the Petitioner would need to demonstrate would be minimal. The Respondent has also acknowledged that the "education" that the Petitioner must show to sit for the Contractor V examination would be the type of education the Petitioner would have gained by working for an underground utility contractor for four years. It was established that the type of education that could be expected from working for an underground utility contractor for four years would not be college education or necessarily formal classroom education but rather acquiring that body of knowledge required to install underground utilities including water mains through education on the job and through continuing education courses. Even if it were assumed that the Petitioner's Certified Plumbing Contractor's license is not at least "equal to" that of an underground utility and excavation contractor's license, which therefore would automatically qualify the Petitioner to sit for the examination, the Petitioner amply demonstrated at hearing that he had obtained the same body of knowledge, i.e., "education," at a minimum, that he would have obtained by virtue of being employed for four years by a company holding the "lesser included" license, i.e., the underground utility and excavation contractor's license. The Petitioner established that he acquired the "equivalent to" education through on-the-job training during more than 28 years in the business of installing and supervising the installation of underground utilities, as well as through attending more than 100 hours of formal classroom education in subjects that taught the skills required for the bidding, estimating, layout, design and performance of underground utilities work. The Petitioner established this education through his sworn testimony, as well as documentary evidence. He introduced into evidence, supplemented by his sworn testimony, all of the documentation of these courses within his possession and control. These continuing education courses are not graded, therefore, there could be no "transcripts." Although not specifically required by the governing statute, Chapter 633, the Petitioner demonstrated that his formal classroom education includes some 53 hours of instruction in the National Fire Protection Association Code governing fire protection contractors. He demonstrated that he has obtained formal classroom instruction in courses teaching the skills required for the performance of underground utilities work. In fact it was established that Certified Plumbing Contractors such as the Petitioner and Certified Underground Utility and Excavation Contractors, such as Lee Brown, who testified for the Petitioner, often take the same continuing education courses, in the same subject, due to the overlap in their scope of work. These courses are typically taught by industry professionals who know their subjects, rather than by local colleges. In fact, the Petitioner has more than 100 hours of classroom education on subjects including course material in the NFPA Codes, as well as technical issues relating to the installation of underground utilities.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Respondent Agency allowing the Petitioner to sit for the Contractor V examination. It is further, RECOMMENDED that if the Petitioner seeks to pursue a claim for attorney's fees and costs on the basis that the Respondent Agency's position was not substantially justified, that a proper petition within the time constraints of Section 57.111, Florida Statutes, must be filed, which has not been accomplished, since no final order has yet been entered in this matter. Thus the purported claim for attorney's fees and costs cannot be addressed at this time. DONE AND ENTERED this 20th day of December, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 20th day of December, 2002. COPIES FURNISHED: Edward M. Fleming, Esquire McDonald, Fleming, Moorhead, Ferguson Green & Smith, LLP 4300 Bayou Boulevard Suite 13 Pensacola, Florida 32503-2671 Elenita Gomez, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
The Issue The issue in this case is whether Respondent, Department of Financial Services, Division of State Fire Marshal (the Department), properly administered and graded the Firefighter Minimum Standards practical examination taken by Petitioner, Catalina Williams (hereinafter Williams).
Findings Of Fact The Department is the state agency charged with the responsibility for testing, monitoring and certifying firefighters. The Department conducts certification examinations at the Florida State Fire College in Ocala, Florida, and some thirty-plus other sites around the State. Those sites are located on college campuses, training facilities, fire stations, and other locales. The test at issue in this proceeding was administered at the Fire College site. Catalina Williams is an Hispanic woman who desires to become a certified firefighter. Her interest in firefighting began when she worked as a photographer covering fire-related events for a magazine and thought it would be exciting and interesting to be on “the front line.” Williams has also served as a caregiver, giving her experience in providing assistance to others, and is a certified lifeguard. In order to accomplish her goal of becoming a firefighter, Williams entered into schooling to learn the trade. Williams first attended First Coast Technological College (First Coast) in 2009. She completed the Firefighter Minimum Basic Standards Course (Firefighter I) that year. In 2010, she enrolled at the school for the summer semester to begin training in the advanced (Firefighter II) curriculum. That school term was shorter and more compressed than a regular semester. Despite her best efforts, Williams did not successfully complete the Firefighter II course. Rochford was one of her instructors during her first unsuccessful enrollment at First Coast. In 2012, Williams entered First Coast again. At that time, she was working as a paid volunteer firefighter for Volusia County. The county paid her tuition costs at First Coast when Williams entered the school for the Firefighter II course work. The second time, Williams was able to successfully complete the course material and pass her final examination. Passing the final examination was a prerequisite to taking the State certification exam. While attending First Coast, Williams took hundreds of practice exams, especially on the practical portions of the tests. She took exams as part of her classes, took exams voluntarily with someone timing her, and took exams just to practice. The State Certification Exam There are four primary segments of the State certification exam: A written examination of 100 multiple choice questions; A hose evolution involving a self- contained breathing apparatus (SCBA) and personal protection equipment (PPE); A ladder/search and rescue evolution; and A skills portion, involving ropes and knots, two fire ground skills, and a short test on the emergency response guide (ERG). The ladder/search and rescue evolution is a practical portion of the exam; it is the singular portion of the test at issue in this proceeding and will be referred to as the ladder evolution. The ladder evolution portion consists of the following tasks and assignments: The candidate inspects ladders hanging on a simulated fire truck. He or she then takes a 24-foot ladder from the truck and extends it against the wall of a building up to the second floor. Once that ladder is properly hoisted, the candidate confirms that a ladder guard (another candidate acting as a spotter) has control of the ladder. The candidate then initiates radio contact and then walks quickly around the building to another ladder that is already in place. He/she must ascend the ladder to the second floor, test the floor inside the building to make sure it is safe, and enter the building through a window. Upon entry the candidate must find a “victim” (a 125-pound mannequin) on the lower floor, secure the victim in an approved manner, and then exit the building with the mannequin. Upon exit, the candidate must safely deposit the victim on the ground and provide notice by way of radio contact that he/she and the victim are outside the building. The radio transmission is something along the lines of: “PAR 2 [Personnel Accountability Reporting, two people]. Firefighter No. “X” and victim have safely exited the building.” The entire ladder evolution sequence must be done within four minutes and 30 seconds although, as will be discussed below, there are differences of opinion as to when the timed portion of the evolution ends. It is necessary for candidates taking the test to pass each of the four sections. Failure of any one portion would result in failure overall. Should a candidate fail the examination, they must reschedule their retest within six months of the failed test. All retest examinations are administered at the Fire College. On test day, there may be dozens of applicants taking the test at the same time. The procedure dictates that candidates arrive at the test facility in time to process paperwork prior to the 7:30 a.m., test commencement. Candidates must first provide identification to an instructor and be assigned a candidate number. They then fill out paperwork, including a waiver should any injuries occur during testing. Candidates will have their gear inspected to make sure it is in compliance with State standards. Prior to commencement of testing, one of the instructors or examiners will read a document called the “Minimum Standards Pre-Exam Orientation” (the Orientation) to the candidates. During the reading of the Orientation, which may take 45 minutes to an hour or more, candidates are allowed and encouraged to ask questions. Unless a question is asked, the Orientation will be read verbatim, word for word, with no additional comment. After the Orientation is read, candidates are walked through the facility so they can familiarize themselves with the test site. Once the test commences, candidates are not allowed to ask any questions. Williams’ Test Experience In October 2012, after successful completion of the Firefighter II course at First Coast, Williams applied for and was approved to take the State certification examination. The exam was conducted at First Coast on the school’s training grounds. The test was conducted by certified employees of the Department. Williams did not pass the examination. One of her shortcomings in that test was a failure in the ladder evolution. Her timed completion of that evolution was in excess of the required time of four minutes and 30 seconds. Williams had been confident she would pass the certification exam because it was similar to the final exam she had passed at First Coast during her schooling. She believes she failed because she was too nervous when she took the exam when it was administered as the actual State certification test. After failing the exam, Williams then applied for a retest which would be held at the Fire College on February 7, 2013. That re-test is the focus of the instant proceeding. On the morning of the retest, Williams arrived well in advance of the 7:30 a.m., start time. As she inspected her gear in anticipation of the start of the exam, she found that the SCBA regulator she was supposed to use did not properly fit the face mask on her helmet. There were extra regulators behind one of the tables being used to process applicants for that day’s test. Examiner Harper was sitting at that table and was providing paperwork to applicants who had already signed in at the first processing station. Williams went to Harper’s table and was allowed to obtain a new regulator. Inasmuch as she was already at Harper’s table getting her replacement regulator before going to the first processing station, Williams went ahead and filled out the paperwork Harper was providing to candidates at his processing station. That is, she filled out the paperwork before actually checking in at the first station. Williams then went to the first check-in table which was manned by Examiner Rochford. She provided her identification to Rochford and was assigned candidate number 37. Rochford then told Williams to go to Harper’s table to fill out the paperwork at that station. Williams told Rochford she had already done so and walked away. (At that point, Williams remembers Rochford yelling at her, asking whether she understood his order and telling her in a harsh manner to obey him. Rochford does not remember talking to Williams at all. Neither version of this alleged confrontation is persuasive. Inasmuch as the conversation was not verified one way or another by a third person -- although there were probably a number of other people around, it will not be considered to have happened for purposes of this Recommended Order.) The Orientation was then read to the candidates. The various portions of the test were addressed in the Orientation. The ladder evolution contained the following language, which Rochford read verbatim to the candidates without anything added or deleted: “Time starts when you touch anything. Time ends when the candidate and victim fully exit the building.” There is no evidence that any of the candidates asked a question concerning this part of the Orientation. Rochford’s timing policy regarding the ladder evolution differs from what he read to the candidates. He takes the position that time stops when the candidate exits the building with the victim, places the victim on the ground in an appropriate manner, and issues a verbal statement into the radio indicating that the firefighter and victim are out of the building. By his own admission, Rochford could not speak to how other examiners handle this timing issue. Harper, who was Williams’ assigned examiner on the test, also seemed to require candidates to lay the victim down and make radio contact before stopping the time. Neither Rochford nor Harper satisfactorily explained why their timing policy was different from what was stated in the orientation. The testimony concerning the correct way of timing the evolution was, at best, confusing. The following statements from the record provide contradictory and disparate opinions by various examiners: Rochford: “As soon as they lay the mannequin on the ground [and] announce they have exited the building . . . the time stops.” Tr. p. 45, lines 9-18 “The mannequin’s feet have got to be outside the plane from the door opening. That’s when the time stops.” Id. Lines 23- 25. “Until they talk on the radio is – - when they finish talking on the radio is when the time would stop.” Tr. p. 255, lines 7-9. Johnson: “At that point, they’ll use one of the prescribed methods for rescue to take the victim and themselves past the threshold out to the fresh air. At that point, the time stops.” Tr. p. 111, lines 11-14 “I read [the Orientation] word for word.” Tr. p. 114, line 23 “On the ladder rescue evolution . . . we [examiners] all stop when they pass the threshold.” Harper: “Then they’re told to lay the victim down, make radio contact you’re out of the building. Time stops.” Tr. p. 138, lines 7-8 “After they make radio contact.” Tr. p. 147, line 3 “[Orientation] says time starts when they touch anything, time ends when the candidate and the victim fully exit the building.” Tr. P. 148, lines 15-17 Hackett: “It stops when the victim comes out of the building.” Tr. p. 222, lines 7-8 [If the victim was thrown out of the building by the firefighter] “I think they would stop the clock.” Id., lines 9-11 “It is part of the timed part that they have to designate that they’re out of the building safely and lay down the victim.” Tr. pp. 222, line 24 through 223, line 1 Question to Hackett: “If [Williams] is coming out and she dropped the victim and picked up -- and presumably picked it up or whatever and then radioed, would that add time?” Answer: “No.” Tr. p. 246, lines 5- 10 Williams was timed by Harper when she took the ladder evolution portion of the exam. According to Harper’s (deposition) testimony, he subscribes to the version of timing that requires the victim to be laid down on the ground and the firefighter to make radio contact. Using that version of timing, Williams received a time of four minutes and 35 seconds for the entire ladder evolution portion of the test. In March, the Department mailed out notices to all the candidates that had tested on February 7. Notices of failure were sent by registered mail, return receipt requested. Williams’ letter was returned to the Department as unclaimed. Williams at some point in time found out from Chief McElroy, head of the Fire Academy, that she had purportedly failed the exam. She began calling examiner Harper in March seeking to find out what portion of the exam she had not successfully completed. She had at least two telephone conversations with Harper in March 2013. On April 4, 2013, the Department re-sent the failure letter to Williams, again by certified mail. This time, the letter was claimed by Williams and she became officially aware that she had not passed the exam. The basis given for Williams’ failure was that she did not complete the ladder evolution within the prescribed time parameters. She was timed at four minutes and 35 seconds, just five seconds beyond the allowable limit. It is her contention that she exited the building with the victim within the four minute/30 second time frame. The basis for her belief is that she has done the test so many times that she knows when she is behind schedule. During the test she did not stumble, drop any equipment, or have any other problem that would have added to her time. So, she concludes, she must have completed the evolution timely. Her personal feelings on the matter, without further corroboration or support, are not persuasive. Harper did not testify at final hearing. The transcript of his deposition taken in this case was admitted into evidence. In that transcript, Harper talks about his policy regarding timing of the evolution. His policy is the same as Rochford’s and is discussed above. He does not specifically say if he employed that policy when timing Williams during her test on February 7, 2013. He does not explain the difference between the Orientation statement about timing and his personal policy. The most persuasive evidence at final hearing established that it would have taken ten to 15 seconds after exiting the building to lay the victim down and make radio contact. The radio contact itself would have taken about four seconds. If Harper had stopped his timing when Williams and the victim broke the threshold of the building, her time would have likely been less than four minutes and 30 seconds. If he used his personal timing policy, then the time of four minutes/35 seconds was probably accurate. Harper deducted points from Williams’ score because of other minor mistakes. The totality of those points would not have caused Williams to fail the test. It was the ladder evolution time that caused the failure. In fact, Williams successfully completed all portions of the re-test except for the timing issue in the ladder evolution portion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Financial Services, Division of State Fire Marshal, rescinding the failing score on the State Firefighter Certification Examination for Catalina Williams and certifying her as a Firefighter. DONE AND ENTERED this 19th day of November, 2013, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 19th day of November, 2013. COPIES FURNISHED: Seth D. Corneal, Esquire The Corneal Law Firm 904 Anastasia Boulevard St. Augustine, Florida 32080 Michael Davidson, Esquire Department of Financial Services Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Julie Jones, CP, FRP, Agency Clerk Department of Financial Services Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0390
The Issue Whether Respondent's renewal facilities licensure application for a group home contained a falsified fire inspection report, as alleged in the Administrative Complaint; and, if so, what is the appropriate penalty?
Findings Of Fact APD is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, residential habitation centers, and comprehensive transitional education programs pursuant to sections 20.197 and 393.067, Florida Statutes. Rivero is an applicant for renewed licensure of a group home facility in Dania Beach, Florida. At all times material to the Administrative Complaint, Yitzhak Rivero was a corporate officer of Rivero. Mr. Rivero, was a psychiatrist in Cuba treating patients with mental and intellectual disabilities before he moved to the United States and became a citizen. He became a licensed mental health counselor, and for the past ten years has operated group homes in an effort to serve disabled persons, owning as many as seven group homes, employing 30 people at one time, and currently owning and operating three licensed group homes. On June 20, 2019, Sally Vazquez, then administrator for Rivero, submitted a license renewal application on behalf of Rivero’s Dania Beach group home to APD by hand delivering it to APD employee Patricia White, who was on the premises. On that same day, fire inspectors were also at the Dania Beach property to conduct an inspection. Prior to submitting the renewal application and supporting documents to APD on June 20, 2019, Ms. Vazquez prepared the application and compiled or prepared the supporting documents in the renewal application. The handwriting on pages 1 through 11 of the renewal application is that of Ms. Vazquez. Ms. Vazquez is listed as backup manager supervisor for Rivero on page 7 of the renewal application. After Ms. Vazquez prepared the renewal application and compiled the supporting documents, Mr. Rivero, as the group home owner, did a brief review of the application and supporting documents before he signed it. Before he signed it, Mr. Rivero identified nothing unusual in the application packet. When Mr. Rivero signed the attestation on the renewal application, which read, “Under penalty of perjury…all information contained in and submitted with application is true and accurate to the best of my knowledge,” he believed that the information in the application and supporting documents was true and correct. Unbeknownst to Mr. Rivero, the renewal application contained a document purporting to be a fire inspection report dated May 1, 2019, that was falsified. Mr. Rivero did not know the fire inspection was false when he reviewed the renewal application and signed it on June 7, 2019, or when Ms. Vazquez submitted it to APD on behalf of Rivero on June 20, 2019. In fact, the only email or communication Mr. Rivero received about the Dania Beach group home in regard to fire safety was a June 20, 2019, email sent by Fire Inspector Braun at 12:49 p.m., stating it was “From: Broward Sheriff’s Office Fire Rescue,” identified by the subject, “Inspection Report,” which contained an attachment related to the Dania Beach home from “Broward Sheriff’s Office Fire Rescue” bearing the agency’s logo that stated: “An annual fire inspection of your occupancy revealed no violations at the time of this inspection. Thank you for your commitment to maintaining a fire safe occupancy.” On August 21, 2019, when asked in an email from APD representative Kimberly Carty to provide the fire inspection report for Rivero, Mr. Rivero forwarded the email he had received from the Broward Sheriff’s Office Fire Rescue indicating no violations, the only fire inspection report for this home he had ever received, and the only fire inspection report regarding this property of which he was aware. On August 23, 2019, Ms. Carty sent Mr. Rivero a fire inspection report showing violations noted from the June 20, 2019, fire safety inspection of the Dania Beach group home. The report notes six, of what fire safety inspector Craig Braun described as less serious, non “critical-life” violations. Rivero was given 30 days to correct the violations.1 The day after he was sent the full fire inspection report for the Rivero Dania Beach group home, Mr. Rivero corrected the “easily corrected,” relatively minor violations in approximately three hours. Mr. Rivero then contacted the fire department to re-inspect the facility. When no fire inspector came to re-inspect for over a month, on September 30, 2019, Mr. Rivero sent an email to Mr. Zipoli, the fire inspector who had signed the inspection report showing the minor violations. Nevertheless, the fire department has never re-inspected the facility. Fire Prevention Officers Braun and Zipoli testified unequivocally and without contradiction that the document Mr. Rivero forwarded to APD’s Kimberly Carty on August 23, 2019 (the document indicating, “An annual fire inspection of your occupancy revealed no violations at the time of this inspection”), was a genuine and authentic document. Further, Officer Braun indicated that on June 20, 2019, he was Officer Zipoli’s supervisor, and that on that date Officer Braun and Zipoli “went together to inspect the Rivero Group Home.” “[U]sually…just [one] fire safety inspector goes,” and it was “not the norm” for two fire safety inspectors to go together. In this unusual situation, Fire Safety Inspector Zipoli wrote the report of the June 20, 2019, inspection, and Fire Safety Inspector Braun “wrote a report,” a separate report, indicating that he “assisted him [Zipoli] on another 1 These violations included: front and rear door of the group home (two doors) had a key lock instead of a “simple thumb turn or something that does not require special knowledge”; a fire alarm needed to be updated with its annual fire inspection from a private contractor; a fire extinguisher needed to be mounted on its mounting on the wall instead of placed on the ground beneath the mounting; the fire extinguisher needed to have its annual certification updated for 2019; the smoke detector located in the kitchen needed to be moved to a different location. form.” It was this other form that Officer Braun completed--this fire safety “Inspection Assist” for--that was emailed to Mr. Rivero on June 20, 2019. It was this form that stated, “[a]n annual fire inspection of your occupancy revealed no violations at the time of this inspection.” Officers Braun and Zipoli confirmed that the Broward Sheriff’s electronic streamline system “had a ‘glitch,’” “a default problem at that time,” the period including June 20, 2019, that caused the “template of an assist” ( i.e., an Inspection Assist form) to generate the statement indicating, “[a]n annual fire inspection of your occupancy revealed no violations at the time of this inspection,” and the system gave fire safety inspectors no option or ability to remove this statement. When APD’s Kimberly Carty requested that Mr. Rivero send the most recent fire inspection report for the Rivero Dania Beach group home, Mr. Rivero forwarded to Ms. Carty the document he received on June 20, 2019, from Broward Sheriff’s Office Fire Rescue without altering or changing the document in any way. The first time Mr. Rivero was notified that the fire inspection report submitted with the renewal application at issue here was false was when he received the Administrative Complaint in this case on October 23, 2019. In addition to the June 20, 2019, document Mr. Rivero received from Broward Sheriff’s Office Fire Rescue that indicated “no violations,” and the fire inspection report indicating six violations that was sent to Mr. Rivero by APD on August 23, 2019, this case involves a document dated May 1, 2019, purporting to be a Broward Sheriff’s Office Fire Rescue fire inspection that was fabricated (“the false fire inspection report”). The false fire inspection report was submitted to APD by Ms. Vazquez during APD’s June 20, 2019, inspection of the Rivero’s Dania Beach group home. At the time she submitted the application with the false fire inspection report, Ms. Vazquez had worked for Rivero for at least six years, and for at least two years as an administrator for between four and seven group homes. At the time she submitted the application at issue in this case to APD, Ms. Vazquez had prepared more than 20 APD renewal applications for Mr. Rivero’s group homes. In short, Ms. Vazquez was a “trusted employee,” whom Mr. Rivero relied on to accurately prepare applications and the documents submitted with the applications, and to handle the inspections conducted by APD. After Mr. Rivero learned, by receiving the Administrative Complaint in this case on October 23, 2019, that an altered or falsified document had been submitted as a fire inspection report with Rivero’s Dania Beach group home’s annual renewal application to APD, he conducted an investigation to determine how it had happened. When Mr. Rivero determined Ms. Vazquez was to blame for the false fire inspection report being submitted with the application, he fired her. The evidence presented indicates Ms. Vazquez created and submitted the falsified fire inspection report in violation of her job duties and professional obligations, and without the knowledge or consent of Mr. Rivero or Rivero.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons With Disabilities enter a final order dismissing the Administrative Complaint filed against Respondent. DONE AND ENTERED this 17th day of April, 2020, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 April, 2020. COPIES FURNISHED: Sean Michael Ellsworth, Esquire Ellsworth Law Firm, P.A. 1000 5th Street, Suite 223 Miami Beach, Florida 33139 (eServed) Trevor S. Suter, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Anthony Vitale, Esquire The Health Law Offices of Anthony C. Vitale, P.A. 2333 Brickell Avenue, Suite A-1 Miami, Florida 33129 (eServed) Daniel Ferrante, Esquire Health Law Offices Of Anthony C. Vitale, P.A. 2333 Brickell Avenue, Suite A-1 Miami, Florida 33129 (eServed) Danielle Thompson Senior Attorney/Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 309 Tallahassee, Florida 32399-0950 (eServed) Francis Carbone, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
