The Issue Whether the Petitioner is entitled to a certificate of compliance as a fire fighter under the provisions of Rule 4A-37.0515, Florida Administrative Code.
Findings Of Fact Petitioner completed 240 hours of firefighter minimum standards training at the Orlando/Orange County Fire Training Academy in 1982 and was issued a certificate of completion at the end of the course. Between 1982 and 1985, Petitioner served as a reserve firefighter with the Winter Park Fire Department. From 1985 to June 1989, Petitioner was on inactive status. From June 1989 until March 1990, Petitioner completed technical training in American Sign Language. From 1990 through 1993, Petitioner completed a Bachelor of Science degree, with a double major in business and marketing. Between 1996 and February 1997, Petitioner was re-certified and also became a fire inspector. In February 1997, Petitioner was awarded an Associate of Science degree in Fire Science. Petitioner has served as a contract fire inspector with the Orange County Fire Department and has been a principal in a private arson investigation company for the past thirteen or fourteen years in Orange County, Florida. Florida law was amended in 1989 to require that a person pass an examination as prescribed by the Department, in addition to completing the firefighter minimum standards training program and being qualified for employment to be issued a certificate of compliance. Promulgated in 1991 and amended in 1995, a Florida administrative rule granted those persons that had been issued a certificate of completion by the opportunity to upgrade their certificate of completion to a certificate of compliance by June 30, 1995, without having to comply with the current requirements of the law. Petitioner did not upgrade her certificate of completion to a certificate of compliance by June 30, 1995. During the years 1991 through 1995, Petitioner made no effort to keep informed about the current requirements of becoming certified as a firefighter. Petitioner had a total of four years in which to upgrade her certificate of completion into a certificate of compliance. More than 11,000 certificates of completion were upgraded to certificates of compliance by June 30, 1995; 2,900 were not. Eighty percent of those certificates of completion that had been issued by the State, since certificates of completion were first issued in 1969, were upgraded to certificates of compliance by June 30, 1995. Petitioner's first inquiry into the status of her certificate of completion and request for a certificate of compliance was made by letter dated August 12, 1997, to the Fire Marshall's office. Respondent responded to Petitioner's August 12, 1997, letter with a letter dated October 3, 1997, which informed Petitioner that any certificate of completion not upgraded by June 30, 1995, was revoked. Respondent's October 3, 1997, letter also informed Petitioner that failure to follow the procedures outlined in Rule 4A-37.0515, Florida Administrative Code, for upgrading certificates of completion would require the individual to meet the current requirements of the law, which include having to complete 360 hours of firefighter minimum standards training, passing the Minimum Standards Certification Examination, and being qualified for employment according to Section 633.34, Florida Statutes, in order to be issued a certificate of compliance. There are no provisions in the rule for an extension after the cutoff date of June 30, 1995. There is no firefighter minimum standards training program consisting of 120 hours of instruction for the Petitioner to take which would enable Petitioner to meet the current requirements of Section 633.35, Florida Statutes, which require a total of 360 hours of firefighter minimum standards training, as Petitioner had completed only 240 hours of firefighter minimum standards training in 1982. Prior to 1984, a person needed both a certificate of completion and a certificate of compliance to become a firefighter. At that time, to be qualified for a certificate of compliance, a person had to successfully complete firefighter minimum standards training and satisfy the qualifications for employment found in Section 633.34, Florida Statutes. Section 633.35, Florida Statutes, was amended in 1984 with the result that the Respondent no longer issued certificates of completion, which had been issued since 1969, for the successful fulfillment of the firefighter minimum standards training program. Rule 4A-37.56 Florida Administrative Code, was amended in order to implement the amendments made in 1989 to Section 633.35, Florida Statutes. Rule 4A-37.056, Florida Administrative Code, was amended to establish the Minimum Standards Certification Examination, as required by the 1989 amendments to Section 633.35, Florida Statutes. Rule 4A-37.0515, Florida Administrative Code, was promulgated in order to implement the amendments made in 1989 to Section 633.35, Florida Statutes. In order to upgrade a certificate of completion to a certificate of compliance, Rule 4A-37.0515, Florida Administrative Code, provided that a person who had been issued a certificate of completion was required to make application to the Respondent for certification as a firefighter. Rule 4A-37.0515, Florida Administrative Code, as initially promulgated in 1991, stated that certificates of completion had to be upgraded to certificates of compliance by June 30, 1993. Respondent published a Notice of Changes to Rule Chapter 4A-37, Florida Administrative Code, including the promulgation of Rule 4A-37.0515, in the Florida Administrative Weekly on March 15, 1991. Respondent keeps a mailing list, which includes every fire department and training center in the State of Florida, to facilitate mailing out notices of anything that effects the fire service, including changes in the statutes and rules governing the fire service. Respondent sent a copy of the Notice of Changes to Rule Chapter, 4A-37, Florida Administrative Code, including the promulgation of Rule 4A-37.0515, to every fire department and training center in the State of Florida on July 26, 1991. Respondent sent a copy of the Notice of Changes to Rule Chapter 4A-37, Florida Administrative Code, including the promulgation of Rule 4A-37.0515, to every fire department and training center in Orange County, Florida appearing on the Department's mailing list. Petitioner has lived and worked in Orange County, Florida, all of her life. Individual notices were not sent to certificate holders. Rule 4A-37.0515, Florida Administrative Code, became effective on June 30, 1991. Petitioner did not upgrade her certificate of completion to a certificate of compliance by June 30, 1993. Section 633.35, Florida Statutes, was amended in 1993 to require that firefighter minimum standards training would be composed of at least 360 hours of instruction. Respondent published a Notice of Changes to Rule Chapter, 4A-37, Florida Administrative Code, including the Rule 4A-37.0515, in the Florida Administrative Law Weekly on December 2, 1994. Respondent also sent a copy of the Notice of Changes to Rule Chapter, 4A-37, Florida Administrative Code, including the amendment of Rule 4A-37.0515, to every fire department and training center in the State of Florida on April 24, 1995. Respondent sent a copy of the Notice of Changes to Rule Chapter, 4A-37, Florida Administrative Code, including the amendment of Rule 4A-37.0515, to every fire department and training center in Orange County, Florida appearing on the Department's mailing list on April 24, 1995. Notice of Changes to the rule were not sent to individuals who held certificates. On March 20, 1995, Rule 4A-37.0515, Florida Administrative Code, was amended, extending the deadline by which certificates of completion could be upgraded to certificates of compliance from June 30, 1993, to June 30, 1995. Rule 4A-37.0515, Florida Administrative Code, was further amended to state that those individuals who held certificates of completion but did not upgrade them by June 30, 1995, would be required to meet the current requirements of Section 633.35, Florida Statutes, which included having to complete 360 hours of firefighter minimum standards training, passing the Minimum Standards Certification Examination, and being qualified for employment according to Section 633.34, Florida Statutes, in order to be issued a certificate of compliance. Certificates of completion which were not upgraded to certificates of compliance by June 30, 1995, were revoked that same day.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered denying the Petitioner's request for a certificate of compliance by the Department's Bureau of Fire Standards and Training of the Division of the State Fire Marshal. DONE AND ENTERED this 13th day of July, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1998. COPIES FURNISHED: Kathleen Mohr 4702 Abaca Street Orlando, Florida 32808 M. Joel Prather, Esquire Department of Insurance 200 East Gaines Street Tallahassee, Florida 32399 Daniel Y. Sumner, Esquire Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Bill Nelson, Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issue for consideration is whether the Petitioner qualifies for participation in the Firefighter's Supplemental Compensation Program at the Bachelor's level.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Jorge Du Quesne, was a fire fighter, (driver/engineer), employed by the City of Miami Fire Department. The Respondent, Department of Insurance and Treasurer, Bureau of Fire Standards and Training, was and is the state agency in Florida responsible for the management and certification of fire fighters in this state. It is also the agency charged by statute with the responsibility of determination of the eligibility of any fire fighter to receive supplemental compensation under the Program, and the decision of the Bureau is final subject to the provisions of Chapter 120, Florida Statutes. Petitioner was awarded a Bachelor of Civil Engineering degree in 1973 by Georgia Tech. The Bachelor of Civil Engineering degree is equivalent to a Bachelor of Science degree in Engineering. While a student, Mr. Du Quesne majored in structural engineering. In addition to his undergraduate degree, he has also taken several courses sponsored by the Miami Fire Department in hydraulics, structures, construction materials and the like. The questions on the examinations came from materials provided at the course presentation. While a student at Georgia Tech, Mr. Du Quesne took many courses which relate, to some degree, to fire fighting. Included in these are pump operation and efficiency in fluid functions lab, which dealt with a centrifugal pump similar to that which is used on the fire trucks he operates. Others included chemistry, physics, fluid mechanics, thermodynamics, applied electricity, constructions materials, structural analysis, metal structural components, concrete structural components, sanitary engineering, and timber and pre- stressed concrete. All of these subjects have a bearing on fire fighting and give him a background upon which fire training can be based. Petitioner's current position as a driver/engineer of a pumper truck does not require a college degree. By the same token, the fire fighting courses he has taken since becoming a member of the Department do not provide college credit. The Department sponsored courses were designed to make him a better fire fighter, and most attendees did not possess the civil engineering background he has. In his work he relies on both his fire training and that material he studied during his training as a civil engineer. Admittedly the formulae he learned while a student in college do not necessarily relate to the work he performs on a daily basis dealing with hoses pipes and the other functions of a fire fighter. On the other hand, however, much of the information and the formulae he has learned do relate. Petitioner feels his civil education helps him make better decisions while on the fire scene. He believes that the two careers, that of a civil engineer and that of a fire fighter, aredirectly related and he contends his civil engineering background qualifies him for participation in the program and the resultant award of additional compensation. His civil engineering background, for example, gives him a better understanding of the structure of a building, how it works, how it will come down, and how it will react to the pressures of the fire and the fire fighting efforts applied. It is his firm opinion that his understanding of those problems, based on the training as a civil engineer he received in college, makes him far better qualified than someone who does not have this training. The general thrust of Petitioner's argument is supported by the testimony of Fire Lieutenant Erdozain, himself a graduate in engineering from Florida International University. Lt. Erdozain is familiar with the duties of a fire fighter and those of a civil engineer. When he responds to a fire, the first thing he has to take into consideration are those factors dealing with the structure on fire. He needs to know if he can safely enter it or not and the information he learned in his engineering training helps him with that decision. The Miami Fire Department does not offer any courses in building structure. Most knowledge in that area possessed by fire fighters is gained from experience, but the information received as a result of an education in civil engineering would help in the resolution of those problems. Another example is service on the hazardous material team, (HAZMAT). In performing that service, a fire fighter has toknow the properties of the material he will be dealing with in responding to a fire involving them. In that regard, according to Lt. Erdozain, a thorough knowledge of chemistry, beyond that which is taught by the fire department, is helpful. Though Petitioner is not now serving on a HAZMAT team and has not ever served on one during his career, he has had the opportunity to work with hazardous materials, as has most every other fire fighter employed by the Department. It is a constant potential. All fire fighters are trained in the life safety code which relates to the interior construction of buildings. The books used by the Department in the courses it teaches on this subject do not go as far or as thoroughly into it as does the course material given in a civil engineering education, and in Lt. Erdozain's opinion the knowledge possessed by a civil engineer regarding materials and construction would be of great benefit to a fire fighter. Petitioner's application for enrollment in the Program was forwarded to the bureau chief of the Department of Insurance's Bureau of Fire Standards and Training which has the responsibility for determining eligibility. The application was reviewed by Mr. Stark, the Bureau chief, who has a background of 20 years experience as a fire fighter, and subsequent to retirement from that position, as an instructor, curriculum writer, and chief of the Bureau since 1982. He is thoroughly familiar with the Program and has dealt with it since its conception. Mr. Stark determined that the Petitioner was not qualified for entry into the program based on the fact that his bachelor's degree is in civil engineering and is not either a bachelor of science or a bachelor of arts degree. Civil engineering is not one of the concentrations which qualifies for entry into the program. Section 633.382(2)(a)2, Florida Statutes, lists as a qualification: ... a bachelor's degree which bachelor's degree curriculum includes a major study concentration area readily identifiable and applicable to fire related subjects. Rule 4A-37, F.A.C., outlines the qualifying areas of concentration and it is Mr. Stark's opinion that Petitioner's civil engineering degree did not contain the major concentration areas identified by the rule as qualifying for admittance into the program. There were no other reasons for denial. As Mr. Stark sees it, Petitioner is a driver/engineer. He has a responsibility to provide a water supply to hoses in the proper amount for fighting the fire to which he has responded. The particular course material to which Petitioner was exposed while in college constituted a curriculum which does not, in Mr. Stark's opinion, qualify as a fire science curriculum. He is has reviewed the comments furnished by the Petitioner in his letter of response to the Department's letter of denial, but determined that those explanatory comments were not a catalogue description of the courses taken. Petitioner's comments contain much which is not put there by the college. Under the provisions of Section 4A-37.084(3), F.A.C., a bachelor's degree is acceptable provided the major studyconcentration area is readily identifiable and applicable as fire related, and in the major study concentration area, at least 18 semester hours or 27 quarter hours must be so related. The major study concentration areas means a major in fire science, fire science technology, fire science administration, fire protection engineer, municipal management, public administration, emergency medical technology, paramedic technology, and fire science vocational education. Applicants whose major study concentration area does not fall within one of those categories may nonetheless petition the Division for entry into the program but the burden of proof is on the applicant to prove that his major is fire related. Mr. Stark determined that Petitioner's course background does not closely enough relate to his current job. His education background contains no fire science courses which would be more appropriately related to fire fighting than the general engineering courses he took. In short, the Petitioner's educational background, while of a related type, was not sufficiently related to fire science. The intent of the statute and the rule is to require fire fighters to qualify themselves for the performance of their duties by taking fire science courses, not general courses which might be somewhat generally related to the fire fighting career. For example, in the area of hydraulics, Mr. Stark contends that the formulae used by fire fighters in this area are somewhat different than those used by a general civil engineer and the fire fighting approach to this course is more specialized. However, he readily admits that a prior knowledge of basic hydraulics will give a fire fighter an advantage in learning those specifics of fire service related hydraulics. The same would apply to any course which bears some relationship to or has some application in fire fighting. Mr. Stark indicates that if Petitioner had been an officer with the Fire Department as opposed to a fire fighter, his review of the application might have been more detailed. In this comment he does not infer that officers are given preference over fire fighters in entry into the program. He means, instead, that the job of the officer, with its management responsibilities, is what controls - not the rank itself. In that regard, Lt. Erdozain, who is an officer, was denied entry into the program. He contends, as does Petitioner, that any fire fighter who is placed in charge may assume the function of an officer at any given time at the scene of a fire. The over-all additional responsibility of the officer is what controls, however.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT a Final Order be entered denying Petitioner qualification for entry into the Fire Fighter's Supplemental Compensation Program. DONE and ENTERED in Tallahassee, Florida this 23rd day of October, 1991. ARNOLD H. POLLOCK 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 October, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida States, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Petitioner submitted no Proposed Findings of Fact. His three page letter, dated September 30, 1991, containing his observations, and the other materials therein have been carefully considered in the preparation of this Recommended Order. FOR THE RESPONDENT: Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Not a Finding of Fact. & 6. Accepted and incorporated herein. Accepted and incorporated herein except for last sentence which is contra to the evidence of record. Rejected as not necessarily consistent with the evidence. Petitioner indicated that depending upon the situation at the scene of a fire, he could be called upon to make almost any fire related decision. Accepted. Not a Finding of Fact but a comment on the evidence. Accepted. Accepted and incorporated herein. - 15. Accepted. Accepted. Petitioner is not on nor has he ever been on a HAZMAT team. However, the evidence, uncontradicted, indicated he could be called upon to work with them at any given time. Accepted. Not a true Finding of Fact but more a comment on the evidence. Accepted. COPIES FURNISHED: Jorge Du Quesne 2500 SW 79th Court Miami, Florida 33155 Andrew Kenneth Levine, Esquire Department of Insurance Division of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil General Counsel Department of Insurance The Capitol, Plaza Level Tallahassee, Florida 32399-0300
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 Whether Respondent was arbitrary, capricious, or unlawful in examining Petitioner.
Findings Of Fact On or about October 30, 1998, Petitioner applied for certification as a firefighter with the Department under the provision relating to equivalency as a firefighter certified in another state. Petitioner met the requirements for equivalency and on November 3, 1998, was informed by letter from the Department of an Equivalency Examination. On November 23, 1998, Petitioner took the Examination, scoring a 15 percent on the practical portion. Points were deducted from Petitioner's score for the following items: Part I Breathing apparatus inhalation 5 Donning time over time limit 10 Hose and nozzle Operation 5 (Protective clothing not worn properly) Operation of nozzle 20 (poor control, closing nozzle too fast, nozzle not fully opened, nozzle opened when water arrives) Hose and nozzle operation over time limit 10 24' ladder extension 20 (did not check for overhead obstructions, lost control of ladder, did not tie a clove hitch) 24' ladder extension operation over time limit 5 Part II Improper tying on roof ladder 5 Failed to correctly demonstrate the advancing 5 and uncharged 1 3/4" hoseline up a ladder __ Total points deducted 85 A score of at least 70 percent is required to pass the Practical Examination. The Department sent Petitioner a letter on December 3, 1998, notifying him of his score on the Practical Examination and informing him that he failed. Petitioner was notified by letter dated December 10, 1998, from the Department of a retest on February 22, 1999. On February 22, 1999, Petitioner took the retest of the Practical Examination. Points were deducted from Petitioner's score for the following items: Part I a) Breathing apparatus inhalation 5 b) Donning time over time limit 5 c) Hose and nozzle operation over time limit 10 f) 24' ladder extension 5 g) (fly section not fully extended) 24' ladder extension operation over time limit 10 Part II Retied bowline 5 Unable to find requested material in guidebook 5 __ Total points deducted 45 Petitioner's score on the retest was 55. The Department sent Petitioner a letter on March 3, 1999, notifying him of his score and informing him that he failed. On March 4, 1999, the Department issued a letter of intent to deny, denying his certification as a firefighter for failure to meet the certification requirements. There are four events on the Practical Examination that are timed: testing the seal on the breathing apparatus, donning the apparatus, deploying and using the hose and nozzle, and extending and placing the 24-foot ladder. The inhalation test requires a check of the face seal after donning and fitting the mask of not less than 10 seconds. The Petitioner received a 5-point deduction for not maintaining the seal for the full 10 seconds. The total donning operation must be completed in not more than one minute and twenty-nine seconds. Examinees receive a 5-point penalty for each thirty-second increment they exceed the allowable time up to a maximum of 40 points. The Petitioner exceeded the allowable time by two seconds and received a 5-point deduction. The deployment and operation of the hose and nozzle requires an examinee to pull a water-filled hose a given distance, then turn the hose on and direct it properly on a specified type of fire. The examinee must complete the task in not more than one minute and fifty-nine seconds. For each thirty-second increment over the allowable time, 5-points are deducted from the examinee's score up to a maximum of 35 points. The Petitioner exceeded the allowable time by forty- five seconds, and received a 10-point deduction. The raising of the extension ladder requires the examinee to carry a 24-foot extension ladder to the side of a building, extend the ladder fully, and place the ladder against the wall of the building using proper procedures within a maximum allowable time of two minutes and twenty-nine seconds. For each thirty-second increment an examinee exceeds the allowable time, the examinee receives a deduction of 5-points, up to a maximum of 35 points. In each of the listed tasks above, as well as the other un-timed portions of the examination, the examinee can lose additional points for using the wrong technique or procedure. The total number of points that can be deducted from an examinee's score is 450 points. Mr. McCall from the Fire College testified concerning how the times on the examination were normed. The times of various examinees taking the examination before timing was required were taken and their times averaged. An additional increment of time was added to the average time required to complete each event. For each thirty-second increment an examinee exceeded the set time, 5 points are deducted. The method of arriving at the mean time for the events is sound; however, Mr. McCall reported that the data upon which the time standards were based had been destroyed. There was no evidence presented on the manner in which the point deductions schedules were established. They are uniformly linear in terms of the time limits imposed and points deducted. That is to say, that for every thirty seconds in excess of the allowable time, an additional 5 points is deducted. The Fire Colleges data reveals that only 35 percent of out-of-state applicants are able to qualify for certification by equivalency. This, at fact value, appears to be a low number for individuals who have already been examined and re frequently experienced firefighters. However, many of the tasks on the practical test require physical agility and prowess which may be affected by age or injury. No information is maintained regarding the demographic data of equivalency examinees regarding age and sex; however, it is noted that the statutes provide a special exemption for out-of-state firefighters hired to fill top positions within department. During the course of the hearing, it became evident that the number of points which potentially could be deducted totaled 450 points. It also became evident that the deduction of points was directly from 100 points with which each examinee started. This deduction was direct and was not scaled, weighed, or converted to arrive at a final score. The practical examination has a possible 450 points which can be deducted from 100 points. An examinee's score is the result of subtracting the points he or she loses from 100 points. The statute and rule provides that passing on the written and practical portions of the examination will be 70 percent. The Petitioner had a total of 45 points deducted on his performance examination from a total of 450 possible points that could be deducted. He missed 10 percent of the possible points which could be deducted, or conversely made a score of 90 percent. By deducting up to 450 points from 100 points to arrive at a final score, the Respondent has adopted a scoring system which is arbitrary, capricious, and contrary to the statute and rules. The fact that the Respondent has done this for a long time does not validate the process. Contrary to the suggestion by Respondent that looking at the number of possible deductions is a "red Herring," it is precisely the number of possible points "available." If the Respondent uses a 30 percent error rate when the base is 450, an applicant could lose up to 135 points. The Petitioner lost 45 points, only a third of the allowable points using the Respondent's method. Petitioner passed the written examination with a score of 86. The Petitioner should receive a score of 90 on his practical examination based upon the number of points on the examination and the statutory guidance. Based upon the foregoing the Petitioner's grade should be entered as a 90.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Petitioner be licensed. DONE AND ENTERED this 8th day of December, 1999, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 8th day of December, 1999. COPIES FURNISHED: Kurt P. Larson 2225 Inverness Drive Pensacola, Florida 32503 Shiv Narayan Persaud, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Honorable Bill Nelson, State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level 01 Tallahassee, Florida 32399-0300
The Issue The issue in this case is whether Petitioner, Marlene Serrano ("Serrano"), should be awarded certification as a firefighter or, in the alternative, whether Serrano should be allowed to re-take the hose operation and ladder operation portions of the Firefighter Minimum Standards Written and Practical Examination.
Findings Of Fact Serrano was a candidate for certification as a firefighter in the State of Florida. The Department is the state agency responsible for testing all candidates for certification as a firefighter, for conducting such tests, and for issuing a certification upon successful completion of minimum requirements by a candidate. One such examination administered by the Department is the Firefighter Minimum Standards Written and Practical Examination ("Firefighter examination"). The Firefighter examination has a written portion, as well as three practical components: Self-Contained Breathing Apparatus, Hose Operations, and Ladder Operations. In order to meet the minimum requirements for certification, a candidate must obtain at least a 70-percent score on each component of the Firefighter examination. If a candidate fails the test, he or she is afforded one chance to take a re-test. The ladder component of the Firefighter examination is scored using a form listing five mandatory steps which the candidate must pass and ten evaluative component steps worth ten points each. A candidate taking the ladder component, who successfully passes the five mandatory steps, receives a total score of the sum of the scores from the ten evaluative component steps. A candidate who does not successfully complete one or more of the mandatory steps automatically fails the ladder component section and receives a score of zero out of 100 points. Serrano initially took the Firefighter examination on December 22, 2010. That test was administered at the Firefighter Academy, a more controlled environment. She failed to obtain a passing grade on two components of the examination, the hose operations component and the ladder operation component. Specifically, she failed to successfully complete the components within the required time limit of two minutes, 20 seconds; and one minute, 25 seconds, respectively. Her times were two minutes, 40 seconds; and one minute, 41 seconds, respectively. As allowed by law, Serrano was given the opportunity to re-take those components of the examination one time only. On February 15, 2011, Serrano went to a training facility in Ocala, Florida, to re-take the examination. The Ocala site was more open than the Academy site; there were other non-firefighter personnel engaged in activities in close proximity. Thomas Johnson and Kenneth Harper were the examiners assigned to administer the examination to Serrano. Serrano received a score of 100 on the hose operation component of the examination. She completed that portion of the test in one minute and 25 seconds, within the prescribed time. When Serrano finished the hose operation component, she was going to begin the ladder operation section. However, one of the examiners "yelled" at her that her protective face shield was not in place. That is, the shield had been raised to the top of her helmet, rather than being in the lowered position required during testing. The instructor yelled for her to "put your shield down." Serrano interpreted that instruction as a sign that she had failed the prior (hose operation) test. She began to walk toward the examiners, but they pointed her back in the direction of the ladder test. Serrano was confused, but undertook the ladder operation component of the examination anyway. Her concentration was somewhat broken by the examiner's comments, and she was flustered. Then she heard loud noises coming from the field next to the testing site. Apparently, there were military maneuvers of some type going on at the adjacent field. Furthermore, there was a four-wheeler driving around the training ground, creating more distraction for Serrano. However, the Department's field representative said he had administered over 1,000 tests in the same conditions as were present for Serrano's test. During the test, ten points were deducted from Serrano due to her inability to maintain the ladder in a vertical position. Further, Serrano did not complete the ladder operation component of the examination within the prescribed time frame for that section of the test. Her recorded time was two minutes and 49 seconds, some 29 seconds longer than allowed. The examiner also noted that Serrano almost lost control of the ladder twice during the examination and struggled with the halyard and safety lines. There are numerous events going on at the training site during testing. The training grounds are intentionally somewhat hectic in order to simulate real "fire ground" conditions. There is no attempt made by the examiners to keep the testing site quiet. Conversely, at the Firefighter Academy where firefighters are initially trained, there is less noise and distraction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Financial Services, dismissing the Petition of Marlene Serrano, in full. DONE AND ENTERED this 7th day of July, 2011, in Tallahassee, Leon County, Florida. 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 7th day of July, 2011.
The Issue Whether Petitioner should receive a passing score on the retake of the Minimum Standards Certification Examination for a firefighter, and whether Petitioner should be required to retake the Minimum Standards Certification Examination for a firefighter without repeating the Minimum Standards Course.
Findings Of Fact Petitioner, Tamara Lynn Rose (Rose), applied for certification as a firefighter on January 21, 1997. She completed a training course at the Broward Fire Academy. Rose took the initial Minimum Standards Examination for Firefighters in August 1997. She passed the written part of the examination, but failed the practical portion. On October 13, 1997, she retook the practical portion of the examination. The only portion of the examination results which Rose contests is the score received for the 1 3/4" Hose and Nozzle Operation of Part I of the examination. The hose and nozzle operation is a timed event. The hose advance exercise should be completed within two minutes. If the applicant takes over five minutes to finish the operation, 40 points are deducted from the applicant's score. In order to pass the practical examination, the applicant must score 70 percent or better on the examination. Rose took five minutes and thirty-six seconds to complete the hose and nozzle operation portion of the examination, resulting in a forty-point deduction and an automatic failure of the examination. The hose and nozzle portion of the examination consists of the applicant shouldering the hose load, advancing to the rear of the fire truck, making a u-turn and looping the hose, advancing to the front of the fire truck, bleeding the lines, advancing 100 feet, and knocking down three cones with the water coming from the nozzle. Rose had difficulty in getting the load out of the bed of the truck. The hose became tangled, and she had to stop and straighten out the hose. She walked to the front of the truck and began her hose drag, but the drag was slow and hard because the hose had caught on one of the truck's tires. She pulled the hose free. Because of the tangling of the hose and the hose catching on the tire, Rose lost too much time to be able to complete the hose and nozzle operation in a timely manner. The hose is loaded on the truck by students who are taking the examination. The loading is supervised by instructors who are certified firefighters. It is the responsibility of these instructors to correct any improper loading. The field representative from the State Fire Marshall's Office at the retest was Phillip Bagley. After retiring with 24 years with the Tampa Fire Department, Mr. Bagley began working for the State Fire Marshall in 1996. He has administered between 900 and 1,000 tests. He did not see any problem with the way that the hose was loaded on the truck. In his experience it is not uncommon for the hoses to become tangled, usually resulting from a failure of the applicant to get enough of the hose on the his shoulder causing the load to pull loose when the applicant steps down from the truck. The applicants are given an opportunity to inspect the hoses prior to beginning the examination. Prior to the examination being administered, the applicants are given an orientation and are advised that they should report immediately to the examiners any malfunction. At the time of the examination, Rose did not report to Mr. Bagley that the hose was improperly loaded. Rose also received a five-point deduction because she failed to form a loop during the hose advance portion of the examination. Rose is not contesting the five points that were deducted for failing to tie the safety knot during the 24-foot ladder extension portion of the examination or the five points that were deducted for not having her chin strap under her chin during the donning of the protective gear portion of the examination. Her total score for the retest was 50.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Rose's application for certification as a firefighter and requiring her to repeat the Minimum Standards Course prior to retaking the Minimum Standards Certification Examination. DONE AND ENTERED this 4th day of August, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1998. COPIES FURNISHED: Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Y. Sumner General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Karuna P. Rao, Esquire Division of Legal Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 33314 Tamara Lynn Rose, pro se 4051 Southwest 72 Terrace Davie, Florida 33314
The Issue The issues are whether Petitioner, Christie Beverly, should be certified as a firefighter or, in the alternative, whether Petitioner should be allowed to re-take the Firefighter Minimum Standards Practical Examination.
Findings Of Fact Petitioner is a candidate for certification as a firefighter in the State of Florida. The Department is the state agency responsible for testing all candidates for certification as a firefighter, for conducting such tests, and for issuing a certification upon the successful completion of the minimum requirements by a candidate. One such examination administered by the Department is the Firefighter Minimum Standards Written and Practical Examination (firefighter examination). Petitioner successfully completed her firefighting training at the Manatee Technical Institute (MTI). Jeff Durling is an adjunct instructor at MTI, whose main purpose is to get candidates prepared for the state firefighter examination. During his particular MTI course, Mr. Durling's students were taught the three main types of hose pulls: flat, triple layer, and minuteman. Larry W. Schwartz, Jr., is the fire science coordinator of MTI. He oversees MTI's operations and is directly involved in its curriculum. Although Mr. Schwartz is familiar with the double minuteman hose pull, MTI has not taught it in the past because that particular pull has not been tested. The firefighter examination has a written portion, as well as four practical evolutions or components (self-contained breathing apparatus, hose operation, ladder operation, and fireground skills).2/ In order to be certified, a candidate has to achieve a score of at least 70 percent on each component. On Tuesday, June 14, 2011, at the MTI campus, Petitioner successfully completed all portions of the firefighter examination, except the hose component of the practical examination. Petitioner conceded that she exceeded the maximum time allowed to complete the hose component by eight seconds. At some point, Petitioner was notified that she did not receive a passing score on the hose component in the June 2011 firefighter practical examination. Petitioner was advised she could take the Firefighter Minimum Standards Practical Retest (retest) within six months of the June 2011 firefighter examination. Petitioner was required to successfully complete the retest or she would be required to re-take the firefighter course before she could take the test again. On Friday, September 23, 2011, Petitioner presented for her retest at the Florida State Fire College (Fire College) in Ocala, Florida. Petitioner arrived by 7:30 a.m. for her retest. There were over 403/ candidates present to take either an original firefighter practical test or a retest. The retest course was not ready at 7:30 a.m. On September 23, 2011, Eric Steves was also a retest candidate at the Fire College. Mr. Steves observed that the retest course was not set up when he arrived at 7:30 a.m. Further, he observed that the retest course was slightly different than the original practical test course in June 2011. There was no walk-through of the retest course prior to starting it, because the retest course was set up after the other candidates took their test and bad weather was approaching. Although Mr. Steves did not pass his retest, his testimony is credible as he has no vested interest in the outcome of this proceeding. Dennis Hackett is the standards supervisor with the Department's Bureau of Fire Standards and Training (Bureau). Mr. Hackett has administered and scored the minimum standard firefighter examination for candidates, including the retest examination. The majority of the candidates were given another practical test, not the retest administered to Petitioner. Mr. Hackett confirmed that the retest course was not ready at 7:30 a.m. on September 23, 2011. The Fire College was capable and did have the equipment to set up two different hose load courses. It is apparent that the Fire College adheres to a strict protocol in the administration of the firefighter testing; yet, it was not adhered to on September 23, 2011. There was a change to the practical testing component of the firefighter examination being implemented. The majority of the candidates on September 23, 2011, took a different practical test than the retest administered to Petitioner and Mr. Steves. Thomas M. Johnson has been a field representative for the Department's Bureau for seven years. As a field representative, Mr. Johnson has administered and scored numerous firefighting examinations and retest examinations. Mr. Johnson testified that Petitioner's retest course "would be set up when we were done with the rest of the students." He further testified that the retest course "would be set up when we were done with the other students who were taking the new evolutions." Although Mr. Johnson testified that Petitioner's retest was administered in a uniform manner, the credible evidence supports the position that the retest was not conducted following the strict protocol of the Fire College. For Petitioner's retest, the course barrels were held in place by field instructors. Petitioner questioned Mr. Johnson regarding their participation, asking: "Is that standard practice?" Mr. Johnson's response of "It was that day," lends credence that it was not standard practice or part of the uniform retest protocol. Further, Mr. Johnson's testimony that Petitioner was "in a hurry" to complete her retest is illogical. Petitioner waited for 40 or more candidates to test before her, and then she had to wait for the retest course to be assembled before she could attempt the course. There was a great deal of discussion about the type of hose pull required during the retest examination. There was no clear definition of a minuteman hose load or a double minuteman hose load.4/ Whether or not the hose pull was a minuteman or a double minuteman is irrelevant as the retest course was not prepared or set up by 7:30 a.m. as required by the Department's own rule. Mr. Johnson scored Petitioner on the retest examination. The score sheet used on the practical retest examination portion reflected three types of Hose Advancements: Flat Load, Triple Layer Load, and Minuteman Load. (An option to pull a double minuteman load is not printed anywhere on the score sheet.) Further review of the Department's score sheet reveals that someone wrote "4 LR"5/ out beyond the phrase: "Hose Advancement (1¾") ~~ Maximum Time 1:25." This phrase, "4 LR," is purported to mean that Mr. Johnson: asked her [Petitioner] to pull the left-side pre-connect, knock down the cone on the left first and then the cone on the right. And the reason it's above the minuteman is because that's the load she pulled, but it was not a minuteman. This "4 LR" phrase is well above the blank line found beside the words "Minuteman Load." The undersigned does not accept the "4 LR" phrase as an indication that the "double minuteman" hose pull was the retest examination option. Further, the score sheet also has blanks to be filled in by the scorer following the phrase: "Your target sequence is RT/Left or Left/RT ." However, the scorer did not fill in either blank. At the bottom of the page, there is an empty blank following "Candidate #," making it uncertain to whom this score sheet applies. On the score sheet, there is a written time of "2:39," the word "Fail" is circled, and there is a zero beside the "Score." The score sheet appears to be incomplete at best. Mr. Johnson was asked to confirm whether or not a double minuteman load was listed on the score sheet, and he confirmed that the phrase "double minuteman" load was not on the score sheet. The words "double minuteman" do not appear on the score sheet, nor is the type of hose load identified. It is impossible to determine what hose load Petitioner was directed to pull during her retest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of State Fire Marshal, enter a final order granting Petitioner's request to retest on the hose component of the practical portion of the firefighter examination and that Petitioner should be tested as if she were taking the retest within the six-month window for the retest. DONE AND ENTERED this 30th day of April, 2012, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 30th day of April, 2012.
The Issue Whether Petitioner is entitled to a passing grade on the Self Contained Breathing Apparatus section (the SCBA section) of the Firefighter Minimum Standards Examination (the Examination) administered September 25, 2003.
Findings Of Fact Petitioner applied to Respondent for certification as a firefighter. Pursuant to Section 633.35, Florida Statutes, Petitioner was required to take and pass the written portion and all four sections of the practical portion of the Examination to achieve this certification. The practical portion of the Examination consists of four sections: the SCBA section; the Hose and Nozzle Operation section; the Ladder Operation section; and the Fireground Skills section. On May 29, 2003, Petitioner took both the written and practical portions of the Examination. She passed the written portion and three sections of the practical portion. Petitioner failed the SCBA section. Petitioner was not required to retake the written portion of the examination or the three sections of the practical examination she passed. Petitioner thereafter retook the SCBA section on September 25, 2003. As implied by the name of the section, the SCBA section involves the use of equipment that enables a firefighter to breathe in a hostile environment, such as a burning building. The candidate must check the equipment, properly don the equipment, activate the equipment, and properly doff the equipment. Mr. Chase was responsible for administering and grading Petitioner’s retake of the SCBA section on September 25, 2003. To pass each section of the practical examination, including the SCBA section, a candidate has to achieve a score of at least 70 points.2 The candidate’s performance on the SCBA section is graded in ten categories, with each category being worth ten points. 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 earned a score of 40 points on her retake the SCBA portion of the practical examination. Petitioner was awarded no points for six of ten categories for which points could be awarded.3 Petitioner failed to establish that she was entitled to additional credit for her performance on the SCBA section. Respondent established that Mr. Chase appropriately administered and graded the subject SCBA section pursuant to the applicable provisions of Chapter 69A-37, Florida Administrative Code, which set forth 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 finding that Petitioner failed the SCBA section of the practical portion of the Firefighter Minimum Standard Examination administered September 25, 2003. DONE AND ENTERED this 25th day of June, 2004, in Tallahassee, Leon County, Florida. S 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 25th day of June, 2004.
The Issue The issue is whether Respondent properly denied Petitioner's application for certification as a firefighter after Petitioner failed to successfully pass the practical portion of the Minimum Standards Examination.
Findings Of Fact Petitioner applied for certification as a firefighter in October 2002. In order to be certified, Petitioner was required to successfully complete the Minimum Standards Course. The course consists of taking a minimum of 360 hours of training at one of 30 certified centers in Florida. 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 Self-Contained Breathing Apparatus (SCBA), the hose pull, the ladder operation, and the fire 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 ladder test contains eleven skills and requires that the test be completed in not more than two minutes and forty-five seconds. The eleven skills for the ladder evolution include but are not limited to the following: ladder properly lifted, carried, (50 feet) and positioned for raise; maintains control of ladder during entire operation; extremities in safe position during entire operation; ladder halyard properly secured and proper safety applied; fly section extended without utilizing the wall; and fly section out and positioned correctly. After completing the Minimum Standards Course, Petitioner took the initial Minimum Standards Examination on February 19, 2003. Petitioner passed the written portion of the exam but did not pass the practical portion of the initial exam because he made a score of 60 on the ladder operations evolution of the practical examination. In a memorandum dated March 5, 2003, the Department formally advised Petitioner that he had failed the ladder portion of the practical exam for failure to maintain control of ladder. The memorandum also informed Petitioner that he was scheduled for a retake of the minimum standards practical retest of the ladder evolution. In another memorandum dated March 5, 2003, the Department advised Petitioner that he was scheduled to retake the ladder portion of the practical examination at the Florida State Fire College in Ocala, Florida, on May 22, 2003, at 8:00 a.m. Petitioner took the retest of the ladder portion of the practical examination as scheduled on May 22, 2003, in Ocala, Florida. Petitioner did not successfully complete the retest, losing points on three skills and not completing the test in the requisite amount of time. However, there was a problem with the ladder used by Petitioner on the retest in that the "fly" was not locked on the ladder. Ralph Chase is a field representative with the Division of State Fire Marshall of the Department. Mr. Chase was the examiner who tested Petitioner on the retake of the ladder portion of the practical exam on May 22, 2003. Mr. Chase is an experienced examiner. Because of the problem with the ladder on Petitioner's initial attempt on the ladder retest, Mr. Chase allowed Petitioner a second attempt to pass the ladder retest on May 22, 2003, although it is unusual to do so. On the second retest, Petitioner finished the test within the required amount of time but points were counted off for the following skills: ladder properly lifted, carried, (50 feet) and positioned for raise; extremities in safe position during entire operation; ladder halyard properly secured and proper safety applied; and fly section out and positioned correctly. Mr. Chase also made a notation that Petitioner had "poor control" but nonetheless gave Petitioner a passing score on the mandatory skill of maintaining control of ladder during the entire operation. Petitioner made a score of 60 on his second attempt of the retest which is below the required passing score of 70. Phillip Hershman was present at the retest in Ocala on May 22, 2003. Mr. Hershman was there to retake the hose pull portion of the practical exam. At the time of the hearing, he had been employed by the Suwannee County Fire Department for two months. Mr. Hershman was about 50 feet away from Petitioner during Petitioner's ladder retest. There was considerable noise near Mr. Hershman because the self-contained breathing apparatus test was also being conducted nearby. Mr. Hershman had a side view of Petitioner during the ladder retest. He could not see everything that was going on during the ladder retest. Mr. Hershman saw Petitioner look over the ladder and say something to Mr. Chase but could not hear what was said. He saw Mr. Chase speaking to Petitioner. When Petitioner picked up the ladder for the retest, Mr. Hershman saw the rungs of the ladder slide open. He saw Petitioner adjust the ladder and pick it up again. He did not see the ladder touch the wall until final resting of the ladder. Petitioner maintains that the ladder he used on the second retest attempt on May 22, 2003, was defective in the same manner as the first. However, Mr. Chase examined the ladder used in the second test to make sure it was in the correct position. Upon examining the ladder Petitioner used in the second retest, Mr. Chase found it to be "normal." It is unclear from the record whether Mr. Hershman witnessed both of Petitioner's attempts at the ladder retest on May 22, 2003. In any event, in instances where Mr. Hershman's testimony and Mr. Chase's testimony are in conflict, Mr. Chase's testimony of the events regarding Petitioner's retest is more persuasive. He is an experienced examiner, he was the person testing Petitioner, and he has a clear recollection of the events that occurred. While Mr. Hershman's testimony is credible, he was not in the same position, neither physically nor through experience, as Mr. Chase to determine how Petitioner should have been graded on the retake tests. In the First Amended Denial Letter dated August 15, 2003, Respondent informed Petitioner that since he passed the written portion of the Firefighter Minimum Standards Examination, a Firefighter I certificate was enclosed. Further, the August 15, 2003, letter informed Petitioner that he did not achieve a passing score on the 24" Ladder Carry, Raise and Extension evolution of the Firefighter Minimum Standards practical retest. He was informed that it will be necessary to either repeat the entire Minimum Standards Course or complete the Firefighter II Course before retaking the Firefighter Minimum Standards Examination.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department enter a final order denying Petitioner's application and that Petitioner be permitted to either repeat the Minimum Standards Course or complete the Firefighter II course before retaking the Firefighter Minimum Standards Examination. DONE AND ENTERED this 31st day of October, 2003, 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 31st day of October, 2003. COPIES FURNISHED: Casia R. Belk, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0330 William Glenn Cone, Esquire 1530 Ryar Road, No. 7 Jacksonville, Florida 32216 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issue for determination is whether Petitioner successfully completed the Minimum Standards Practical Examination for Retention of Firefighter Certification Retest.
Findings Of Fact Petitioner was certified as a Florida firefighter by Respondent on June 27, 1991, being issued certificate number C- 62497. During the period 1991 through 1994, Petitioner was not active as a firefighter, either in a paid or volunteer role. He maintained his certification by completion of a 40-hour continuing education class in vehicle extrication in 1994. During the period 1994 through 2000, Petitioner was not active as a firefighter, either in a paid or volunteer role. His primary income was derived from being a painting contractor. Effective July 1995, Florida's law, regarding certification of firefighters, changed to require firefighters to take and pass the Examination when they have not been active as a firefighter, either paid or as a volunteer, for a period of three years. The Florida law was Section 633.352, Florida Statutes. As a result, in order for Petitioner to retain his certification, he was required to take the Examination. On September 8, 2000, Petitioner made application to take the Examination, which consisted of four areas--SCBA, Hose Operations, Ladder Operations, and Fireground Skills. Petitioner's primary preparation for the Examination was a private refresher course offered by the Marion County School Board. The refresher course consisted of a 24-hour class, spread over three days. The refresher course reviewed the four areas on the Examination. During the refresher course, approximately 20 hours were devoted to practicing the four areas. As to practicing the SCBA skill, under the supervision of an instructor, two to three hours on the first day were devoted to timed conditions and one to two hours on the second and third day were devoted to timed conditions. The instructor of the course taught and explained to the attendees, including Petitioner, that time was an issue in the Examination and that completing the timed skills within the maximum time allotted is pass/fail. On September 25, 2000, Petitioner took the Examination. None of the candidates taking the Examination were identified by name but were given numbers for identification. Prior to March 1, 2000, the scoring system for the Examination consisted of initially giving each candidate 100 points and thereafter, subtracting points for things done incorrectly. On and after March 1, 2000, the scoring system changed and consisted of each candidate starting with zero points and being awarded points for things done correctly. Three of the four skilled areas on the Examination were being timed. The timed skills were SCBA, Hose Operations, and Ladder Operations and mandatory steps existed for each skill. Each mandatory step for each skill was required to be successfully completed and, if not, the candidate received an automatic failing score for the skill. Examiners for the Examination, during orientation, reviewed the timed skills with the candidates and explained the grading for each of the skills. Furthermore, the examiners explained to the candidates that time was pass/fail for the SCBA and the Ladder Operations skills. The minimum score required to pass the Examination was 70 on each of the four skills. Petitioner received a score of zero on each of the SCBA and the Ladder Operations skills, which was failing for both. The maximum time allotted for SCBA was one minute and forty-five seconds, but Petitioner took one minute and fifty seconds; and for Ladder Operations was two minutes and forty-five seconds, but Petitioner took three minutes and twenty-five seconds. Petitioner exceeded the maximum time allotted for both skills. On November 29, 2000, Petitioner took the Examination Retest. He was only required to re-take the SCBA and the Ladder Operations skills; both again being timed. For the Examination Retest, Petitioner did not take a refresher course. He arrived at the Examination Retest early and was present for the orientation given by the examiners. Again, during the orientation, the examiners reviewed the timed skill with the candidates and explained the grading for each of the skills. Furthermore, the examiners again explained to the candidates that time was pass/fail on SCBA and Ladder Operations. On the Examination Retest, Petitioner passed the Ladder Operations skill. However, Petitioner failed the SCBA skill, having received a score of zero. The maximum time allotted for SCBA was one minute and forty-five seconds, but Petitioner took two minutes and twenty-six seconds. Petitioner exceeded the maximum time allotted for the SCBA skill. By letter dated December 7, 2000, Respondent notified Petitioner, among other things, that he had not successfully completed the Examination Retest and that, therefore, his application to retain his certification was denied. Applicants for retention of their certification are permitted to take the Examination Retest only once. An applicant for retention of certification, who fails the Examination and the Examination Retest, must take and successfully complete the Minimum Standards Course before being allowed to take the Examination again. Having unsuccessfully completed the Examination Retest, Petitioner cannot take the Examination again until he takes and successfully completes the Minimum Standards Course.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance enter a final order finding that Jeffrey M. Williams is not entitled to retention of his firefighter certification and that his certification has expired. DONE AND ENTERED this 15th day of June, 2001, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 15th day of June, 2001. COPIES FURNISHED: Jeffrey M. Williams 3241 Arthur Street Hollywood, Florida 33021 James Morrison, Esquire Department of Insurance 612 Larson Building 200 East Gaines Street 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
