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 Whether Petitioner should have received a passing score on the SCBA (Self Contained Breathing Apparatus) section of the Bureau of Fire Standards and Training's Minimum Standards Practical Examination re-test administered on March 1, 2001.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: On November 15, 2000, after completing a training course at the Broward Fire Academy (where Lawrence Burns was his lead instructor), Petitioner took the Bureau of Fire Standards and Training's Minimum Standards Written and Practical Examinations. He received a passing score on the Written Examination and all sections of the Practical Examination, except for the SCBA section. On March 1, 2001, Petitioner re-took the SCBA section of the Practical Examination. The re-test was administered at the State Fire College in Ocala, Florida. Ralph Chase, a field representative with the Bureau of Fire Standards and Training, was Petitioner's examiner. Mr. Chase has been employed as a field representative with the Bureau of Fire Standards and Training for five years. Prior to coming to work for the Bureau of Fire Standards and Training, he was a firefighter with the City of Titusville for 21 years. He was a suppression lieutenant at the time he left the city's employ. Petitioner borrowed from the Broward Fire Academy the equipment that he needed for the re-test: two air tanks, a regulator, a harness, and a PASS device. A PASS device is a safety device worn by firefighters entering a hostile environment. When the device is activated in the automatic mode, it will emit a continuous, piercing sound if the firefighter is immobilized for longer than 30 seconds. To place the device in the automatic mode, a plastic switch must be moved into the appropriate position. When properly positioned in the automatic mode, the device makes a brief, chirping sound. It was emphasized to Petitioner during his training at the Broward Fire Academy that it was the responsibility of the student, before leaving the Academy with borrowed equipment, to inspect the equipment to make sure that the equipment was in good working order. Before leaving the Academy with the equipment that he borrowed for the re-test, Petitioner twice inspected the equipment and ascertained that it was in good working order. At the re-testing site, he re-inspected the borrowed equipment. The re-inspection revealed that all of the equipment was in good working order, except for the regulator. Petitioner obtained another regulator, along with a harness, at the re-testing site. He attached the PASS device that he had borrowed from the Broward Fire Academy to the harness and ascertained that "[e]verything was working properly." Before the re-test began, Mr. Chase advised Petitioner that "exceeding the maximum allotted time and/or failure to wear and activate the PASS device in the automatic mode w[ould] constitute an automatic failure for the SCBA evaluation." He further advised Petitioner to "speak loudly and clearly" if Petitioner wanted to tell Mr. Chase "anything during the testing." After Petitioner indicated that he was ready, the re- test began. Throughout the re-test, Mr. Chase stood "only a few feet" in front of Petitioner and watched him intently, focusing upon his hands. Petitioner signaled that he was "done" by clapping his hand. He finished the re-test in one minute and 16 seconds, well within the allotted time. At no time during the re-test, however, did Petitioner make an effort to place the PASS device in the automatic mode. Because he had neither seen Petitioner make such an effort, nor heard the chirping sound that is made when a PASS device is activated in the automatic mode, Mr. Chase walked up to Petitioner after Petitioner had signaled that he was "done" and confirmed that the PASS device switch was in the "off" position. Mr. Chase did not say anything to Petitioner about it. He simply told Petitioner to take off his mask. Shortly thereafter, Petitioner walked up to Mr. Chase and stated, "You know I turned my alert, my PASS alert off." Mr. Chase responded that he did not know what Petitioner meant, to which Petitioner replied, "I wanted you to know that I turned it . . . on and then I turned it off again." After telling Petitioner that he could not discuss the matter with him, Mr. Chase walked away. Petitioner did not at any time during the re-test tell Mr. Chase that he had placed the PASS device in the automatic mode. At no time at the re-testing site, either before, during, or after the re-test, did Petitioner tell Mr. Chase that there was any problem with the PASS device. Petitioner justifiably received a failing score of zero on the re-test because he had not make any effort to place the PASS device in the automatic mode. Petitioner did not report that there was any problem with the PASS device when he returned it to the Broward Fire Academy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rejecting Petitioner's challenge to the failing score he received on the SCBA (Self Contained Breathing Apparatus) section of the Bureau of Fire Standards and Training's Minimum Standards Practical Examination re-test he took on March 1, 2001. DONE AND ENTERED this 25th day of September, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 2001.
The Issue The issue is whether the Bureau of Fire Standards and Training of the Division of State Fire Marshall properly denied Petitioner's application for certification as a firefighter.
Findings Of Fact On December 8, 1995, Petitioner submitted his application for certification as a firefighter. He later passed the written portion of the minimum standards examination for certification as a firefighter. However, he failed the practical portion of the examination. As permitted by law, Petitioner retook the practical portion of the examination on October 14, 1996. He failed the examination a second time and challenges his grade in this proceeding. William George DePauw, Jr., administered the practical examination on October 14, 1996. Mr. DePauw is a certified firefighter with over 25 years’ experience. He has administered firefighter certification exams since 1994. A passing score on the practical portion of the examination is 70 points. Mr. DePauw correctly scored Petitioner’s practical portion of the examination at 45 points. For part one of the practical examination, Petitioner properly lost five points for failing to complete the breathing apparatus section within the assigned time, five points for failing to carry the 1 3/4 inch hose properly on his shoulder at all times during the advance, ten points for failing to control the extension ladder, five points for failing to extend fully the extension ladder, and ten points for failing to complete the extension ladder section within the assigned time. For part two of the practical examination, Petitioner properly lost five points for failing to tie clove hitch and half hitch knots and five points for incorrectly breaking a plate glass door at the bottom of the pane. As a result of these deficiencies, Petitioner failed the practical examination.
Recommendation It is RECOMMENDED that the Division of State Fire Marshall enter a final order denying Petitioner’s request a determination that he passed the practical portion of the minimum standards examination for certification as a firefighter. DONE AND ENTERED this 3rd day of September, 1997, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1997. COPIES FURNISHED: Jason Wayne Parker 8260 Collins Road Jacksonville, Florida 32244 Elizabeth Arthur Division of Legal Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Daniel Y. Sumner General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300
The Issue The issue in this case is whether Petitioner’s application for certification as a firesafety inspector should be granted.
Findings Of Fact The Department is the state agency responsible for the certification of firesafety inspectors in the State of Florida pursuant to Chapter 633, Florida Statutes (2009).1 In September 2008, Mr. Bates completed his coursework for certification as a firesafety inspector. In November 2008, Mr. Bates submitted an application for certification as a firesafety inspector. Sometime between November 19, 2008, and December 5, 2008, the Department notified Mr. Bates that the Department did not have a copy of his high school diploma and the certificate showing that course work for the building construction for the fire service had been completed. On December 5, 2008, the Department received documentation showing that Mr. Bates had graduated from high school and had completed the course work for the building construction for the fire service. Scheduling a time to take the firesafety inspector examination can be done online by going to the Pearson Vue testing center website and entering the ID and password provided by the Bureau. Mr. Bates attempted to schedule the examination by telephone and was unsuccessful, but he did not attempt to schedule the examination online. Sometime during January or February 2009, Mr. Bates was able to obtain a date for the examination. Mr. Bates took the examination for firesafety inspector certification for the first time on February 13, 2009. A passing score on the examination was 70 percent. The Bureau sent a notice to Mr. Bates that his score was 56 percent. The notice of the test results advised that he could retake the examination within six months of his test date of February 13, 2009, and that he could review his test questions by contacting the Promissor at www.promissor.com. On April 3, 2009, Mr. Bates contacted Charles Brush, who was the standards supervisor for the Bureau, to schedule a review of his examination taken in February. Mr. Brush was responsible for the testing for certifications and renewals issued by the Bureau. Due to miscommunications with the Bureau, Pearson Vue testing center, and Mr. Bates, Mr. Bates was not scheduled for a review of his examination until May 2009. Mr. Bates reviewed his examination in May 2009; however, after he had gone through the examination one time, he was not allowed to again review the examination. This restriction on the review process is designed to prevent applicants from memorizing questions from the examination. Many of the questions on the examination may be used again in another examination. Because of the communication issues concerning the test review, Mr. Brush gave Mr. Bates an open-ended time extension to retake the examination. Sometime between February 13, 2009, and June 27, 2009, Mr. Bates took a weekend course to practice for the examination. On June 27, 2009, Mr. Bates retook the firesafety inspector examination and again scored 56 percent, which was a failing score. The notice of the test results provided that “[s]hould you fail the retest or waive your right to a retest, the only way to obtain certification is retake the course(s) required, submit a new application for approval, and pass the certification examination.” Mr. Bates does not contest the scores that he received on the examinations. He contends that he should be entitled to be certified as a firesafety inspector due to the amount of time that passed between the completion of his coursework in September 2008 and the taking of the examinations in February and June 2009. He was not able to retain coursework information from September 2008, when he completed his courses, until February 2009, when he first took the test.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Mr. Bates’ request that he be certified as a firesafety inspector. DONE AND ENTERED this 20th day of April, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 2010.
The Issue The issue for determination is whether Petitioner successfully completed the Practical Examination for Retention of Firefighter Retest.
Findings Of Fact Mr. Pointon is a candidate for re-certification as a firefighter in the State of Florida. In 2004, Mr. Pointon obtained his Firefighter Minimum Standards Training Certification. A certification is valid for three years. Since 2004, he has been unable to find gainful employment as a firefighter. In 2007, Mr. Pointon obtained re- certification. He has been working two jobs, unrelated to firefighting, and has been unable to volunteer as a firefighter. To maintain certification, a certified firefighter, within the three-year period, must either be employed as a firefighter in a career status position or a volunteer firefighter for at least six consecutive months. If a certified firefighter fails to fit within either of the two statuses within the three-year period, the certified firefighter must take the practical portion of the Firefighter Minimum Standards examination, i.e., the Firefighter Minimum Standards Practical Examination (Practical Examination) to retain certification as a firefighter. The Practical Examination includes a written examination, as well as four practical components. The four practical components include (a) Self-Contained Breathing Apparatus (SCBA); (b) Hose Operations; (c) Ladder Operations; and (d) Fireground Skills. In order to pass the Practical Examination, a candidate must achieve a score of at least 70 percent on each of the four components. Pertinent to the instant case, the SCBA component is scored using a form listing five mandatory steps, which the candidate must pass, and ten "evaluative component" steps worth ten points each. During the SCBA portion of the examination, a candidate is required to follow the mandatory criteria; the mandatory criteria are required to be completed correctly, including completion of all protective equipment, which includes pulling on the candidate's hood that protects the skin from flash fire; and (c) a candidate is required to complete the mandatory criteria within the maximum allotted time. A candidate, who successfully completes the five mandatory steps, receives a total score of the sum of the points from the ten "evaluative component" steps. A candidate's failure to comply with the mandatory criteria is considered a critical failure. A critical failure is grounds for an automatic failure. A candidate is able to take the re-certification test twice. If a candidate fails the first time, the candidate is automatically afforded an opportunity for a retest. On May 25, 2010, Mr. Pointon took his initial Practical Examination for the re-certification. He completed the SCBA in two minutes and 45 seconds, which was beyond the maximum allowed time of one minute and 35 seconds. Therefore, the Department determined that Mr. Pointon failed to successfully complete that component and, as a result, failed that section of the Practical Examination. Mr. Pointon contends that, on May 25, 2010, during his inspection of the equipment, bottle and air pack, to make sure that it was functioning properly, he discovered that the equipment was not functioning properly. Further, he contends that he made two exchanges of equipment before he obtained properly functioning equipment. Mr. Pointon's testimony is found to be credible. The field representative who administered the initial Practical Examination testified. The field representative did nothing different with Mr. Pointon than he did with any of the other candidates. Furthermore, Mr. Pointon was the eleventh candidate to undergo testing and, by being the eleventh candidate, Mr. Pointon had ample opportunity to test his equipment and ensure that the necessary preparation was conducted before his (Mr. Pointon's) exam began. The field representative's testimony is found to be credible and more persuasive. Therefore, the evidence demonstrates that Mr. Pointon failed to successfully complete the SCBA component within the maximum allotted time. Hence, the evidence demonstrates that, on May 25, 2010, Mr. Pointon failed the SCBA section of the Practical Examination. On September 23, 2010, Mr. Pointon took a retest of the SCBA component. The Department determined that he failed the retest for failure to don all Personal Protective Equipment (PPE), in particular his NOMEX hood. Failure to don all PPE is grounds for automatic failure. As to the retest, Mr. Pointon contends that he was wearing his NOMEX hood. The field representative who administered the retest testified. The field representative observed the NOMEX hood around Mr. Pointon's neck; Mr. Pointon was not wearing the NOMEX hood. The field representative's testimony is more persuasive. Therefore, the evidence demonstrates that, on September 23, 2010, Mr. Pointon failed to don all the PPE by failing to don his NOMEX hood. Hence, the evidence demonstrates that, on September 23, 2010, Mr. Pointon failed the retest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order: Finding that Mark Pointon failed to successfully complete the Practical Examination for Retention of Firefighter Retest; and Denying Mark Pointon's application for recertification as a firefighter in the state of Florida. DONE AND ENTERED this 1st day of August, 2011, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2011.
The Issue The issue for determination in this proceeding is whether the proposed amendment to Florida Administrative Code Rule 69A-39.005(1)(b)2.d. is an invalid exercise of legislatively granted authority in violation of section 120.52(8)(b), (c), (e), and (f), Florida Statutes (2020).
Findings Of Fact The Parties Respondent, Department of Financial Services, Division of State Fire Marshal, is headed by the Chief Financial Officer of the state, who serves as the Chief Fire Marshal pursuant to section 603.104(1), Florida Statutes. The State Fire Marshal is charged with the responsibility to minimize the loss of life and property in Florida due to fire, and to adopt rules, which must “be in substantial conformity with generally accepted standards of firesafety; must take into consideration the direct supervision of children in nonresidential child care facilities; and must balance and temper the need of the State Fire Marshal to protect all Floridians from fire hazards with the social and economic inconveniences that may be caused or created by the rules.” § 633.104(1), Fla. Stat. Petitioner is a Florida corporation authorized by the Department to offer fire certification training courses in both online and blended learning formats. A blended learning course is one that has both online and in-person components. The blended learning courses Petitioner currently offers have 37 hours of online learning and eight hours of in-person instruction to address those portions of the course that may need “hands on” instruction. Section 633.216, Florida Statutes, requires Respondent to certify fire safety inspectors, and to provide by rule for the development of a fire safety inspector training program of at least 200 hours. The program developed by Department rule must be administered by education or training providers approved by the Department for the purpose of providing basic certification training for fire safety inspectors. § 633.216(2), (8), Fla. Stat. Current Certification Requirements Section 633.406 identifies several certifications in the fire safety arena that may be awarded by the Division of State Fire Marshal: firefighter, for those meeting the requirements in section 633.408(4); fire safety inspector, for those meeting the requirements in section 633.216(2); special certification, for those meeting the requirements in section 633.408(6); forestry certification, for those meeting the requirements of section 590.02(1)(e); fire service instructor, for those who demonstrate general or specialized knowledge, skills, and abilities in firefighting and meet the qualifications established by rule; certificate of competency, for those meeting certain requirements with special qualifications for particular aspects of firefighting service; and volunteer fire fighter certifications. In order to become a fire safety officer, an applicant must take the courses outlined in rule 69A-39.005, and pass an examination with a score of 70% or higher. The five courses as listed in the current version of rule 69A- 39.005 are Fire Inspection Practices; Private Protection Systems; Blue Print Reading and Plans Examinations (also known as Construction Documents and Plans Review); Codes and Standards; and Characteristics of Building Construction. The Rulemaking Process On November 5, 2015, the Department held the first of a series of rule workshops and “listening sessions” as it began the process for making changes in the certification program for fire safety inspectors.1 These workshops and listening sessions were held on November 5, 2015; July 10, 2016; November 10, 2016; January 17, 2017; August 8, 2018; November 8, 2018; and October 29, 2019. As described by Mark Harper, who is now the assistant superintendent of the Bureau of Fire Standards and Training at the Florida State Fire College, the Bureau conducted the first few listening sessions to hear the industry’s view on what changes were needed, followed by drafting proposed rule language and conduct of rule workshops. 1 Curiously, neither party introduced the notices for any of these workshops or listening sessions, so how notice was provided to interested persons wanting to give input on possible changes cannot be determined. The first workshop/listening session was conducted on November 5, 2015, in Palm Beach Gardens, and was moderated by Mark Harper. At this workshop, a variety of comments were received regarding the quality of the existing program and the quality of the fire safety inspectors being certified. Those comments included the need for more field training and more hours of instruction; suggested use of a “task book” in training; the view that classes should be taught by more experienced inspectors, not just people who have passed the classes; and the need for more practical training. The view was expressed by at least one attendee that the quality and method of delivery needed to be examined, and that Codes and Standards and Construction Documents and Plans Review should not be taught online. In December 2015, Tony Apfelbeck, the Fire Marshal for Altamonte Springs, provided to Mr. Harper proposed draft revisions to chapter 69A-39, which included increasing the number of training hours to 315 hours (as opposed to the 200 hours required by section 633.216), and requiring use of a task book, as well as other changes. The draft did not include any language regarding course methodology in terms of classroom, online, or blended format classes. At the next workshop, held July 10, 2016, a draft proposal was provided to the audience, but it is not clear whether the draft provided is the one Mr. Apfelbeck suggested or something else. Concerns were expressed regarding the implementation of the use of a task book, and at least one speaker speaking against the suggested changes opined that the changes suggested in the draft would cost more money. Another commented that increasing the hours may not help the issue. Instead, there should be a greater emphasis on the quality of the educational delivery, and that instruction needed to be tied more closely to field work. Late in the workshop, comments were made regarding online and classroom delivery, and it was suggested that some classes should not be held online. While the drafts that were provided at the various workshops are not in the record, at some point, language was added that would require two of the five courses for fire safety certification, i.e., Codes and Standards and Construction Documents and Plans Review, be taught in a traditional classroom setting only. The subject of online classes was discussed more thoroughly at the next workshop held November 10, 2016. During this workshop, there were comments both in favor of and against the use of online classes. While the speakers cannot always be identified from the recordings of the workshops, some attendees stated that some of the online providers were doing a really good job, and the concern was raised that if online classes were eliminated, it might be an exchange of convenience for quality.2 At least one person expressed the opinion that the speaker was not a fan of online classes, and Mr. Harper suggested that blended learning might be a way to meet some of the concerns expressed, and that the method of delivery would be up to the institution. Others who participated in the workshop spoke highly of blended classes. The remaining workshops also had discussions regarding the online class change, as well as other changes in the proposed rule. Opinions were voiced on both sides of the issue. The primary source of comments seeking a traditional classroom setting only were fire marshals at various municipalities around the state concerned about the need for “hands-on” training and the current lack of preparation encountered with new staff. On July 10, 2019, the Department filed a Notice of Proposed Rules for rules 69A-39.003, 39.005, and 39.009. The proposed rule amendments included the following amendment to rule 69A-39.005(1)(b)2.d.: d. The courses “Codes and Standards” and “Construction Documents and Plans Review” 2 The identity of the speakers is not important, and the comments are not relayed for the truth of the statements made. They are listed simply to show that the Department heard several viewpoints during these listening sessions. required under this paragraph (1)(b) will only be approved by the Bureau when taught in a traditional classroom delivery method. No definition for “traditional classroom delivery method” is provided. On January 15, 2020, Respondent conducted a public hearing on the proposed rule. As was the case with the workshops, people voiced both support and opposition to the proposal to require a traditional classroom setting for the Codes and Standards and Construction Documents and Plans Review courses. Counsel for Petitioner appeared and spoke against the proposed language to eliminate online and blended learning for the two classes, and asked whether any type of data existed to support the change in the rule, or whether any type of study had been conducted to gauge the need for the change. Respondent’s representative stated that the proposed language was based upon “extensive testimony” from employers requesting the change. Counsel also asked that Respondent consider defining what is meant by traditional classroom delivery. No such definition has been added to the rule. The Notice of Proposed Rule does not include a Statement of Estimated Regulatory Costs. Instead, it states: The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency. The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The Department’s economic analysis of the potential impact of the proposed rule amendments determined that there will be no adverse economic impact or increased regulatory costs that would require legislative ratification. Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so within 21 days of this Notice. Petitioner addressed the increased costs under the proposed rule during at least one of the workshops. There is no evidence, however, that Petitioner submitted, in writing, a proposal for a lower cost regulatory alternative within 21 days of the Notice of Proposed Rule. On January 27, 2020, Petitioner filed its Petition to Challenge Specific Changes to Proposed Rule 69A-39.005(1)(b)2.d. The Petition is timely filed. Current Online Providers and Course Review Process As of April 10, 2020, there are approximately 20 organizations approved by the Bureau of Fire Standards and Training that offer distance learning delivery for courses in programs leading to a certification pursuant to rule 69A-37.605. Of those providers, two are approved to teach Codes and Standards and three are approved to teach Construction Documents and Plans Review. In addition, as of June 1, 2020, there are 13 state colleges and/or universities in Florida also approved to provide distance learning. Of those, ten are approved to offer Codes and Standards, and ten are approved to offer Construction Documents and Plans Review. Petitioner has been approved to teach these two courses in a blended format since at least 2015. It also has articulation agreements with some educational institutions, including Waldorf University in Iowa, and Columbia Southern University in Alabama. The Department previously sought to take action against Ricky Rescue related to the type of courses taught, although the statutory basis for taking action against Ricky Rescue is not part of the evidence presented in this proceeding. The Consent Order entered to resolve the prior proceeding expressly provides, “Respondents agree that they will not offer any on-line courses until such time as they obtain approval from the Bureau, which will not be unreasonably withheld.” In order to be approved to teach any of the courses for certification in an online or blended format, a provider is required to go through an extensive review process. Initially, Respondent used a Quality Matters Higher Education Rubric to evaluate the courses a provider sought to offer. Course approvals initially took anywhere from four months to a year and a half to meet the standards and be approved. Respondent no longer uses the Quality Matters rubric, because it has transitioned to the accreditation process used by the Southern Association of Colleges and Schools. With this change, the length of time for class approvals has shortened considerably. Susan Schell used to be the Department’s Training Programs Manager and was in charge of the review and approval of classes for online learning. She has since moved on to another position within the Department. Ms. Schell would take the submitted course herself, view the different videos and discussion boards, and work through some of the projects, as well as review some of the case discussions and questions. Ricky Rescue’s courses that she reviewed met all of the state requirements to be approved. According to Ms. Schell, classes taught in the traditional format did not go through the same review process. Ricky Rescue’s accreditation verification from AdvancED Southern Association of Colleges and Schools Council on Accreditation and School Improvement indicated that Ricky Rescue’s accreditation was confirmed on March 31, 2017, for a five-year term expiring June 30, 2022. There is no credible dispute regarding whether Ricky Rescue complies with the requirements for offering its courses in a blended format. The report of the external review team prepared by AdvancED Education, Inc., noted that the school’s website is exemplary and stated in its conclusions: Once a month, students attend a day on site blended learning instruction where students can collaborate and complete and present projects. Given that the owners are brother fire fighters, there is a genuine feeling of camaraderie and collegiality. It is apparent to the Team that the Ricky Rescue Training Academy is an ideal institutional opportunity to obtain classes for firefighter training and certification classes. … The school has embraced the continuous improvement model to insure that they continue to deliver high quality online educational programs with rigor, relevance, and fidelity. Two Different Views Petitioner and Respondent approached the proposed rule amendment, both at the workshops and public hearing conducted by the Department and at the hearing in this proceeding, from different perspectives. Ricky Rescue focused on the needs and opinions of students seeking to take the courses. Its witnesses testified that the blended courses had significant substantive content; that the in-person component gave the necessary opportunity for completion of group projects and hands-on instruction or field trips; and that the ability to complete the course at any time during a 30-day period was essential in terms of both costs and scheduling for the student, and completing the classes while managing job and family responsibilities. For example, Ryan Russell has worked for over ten years in the fire service and is a battalion chief for the Haines City Fire Department. He has a variety of certifications and oversaw the training division for his department. Mr. Ryan has taken five courses from Ricky Rescue, and speaks highly of them. Mr. Ryan agrees that there are some advantages to traditional classroom settings, because they provide more opportunities for engagement, but that ultimately, a class is only as good as the instructor. Similarly, Robert Morgan is also a battalion chief at another fire department, and took Documents and Plans Review from Ricky Rescue. Mr. Morgan believed that the online blended course is just as good as a traditional classroom setting, and believes that in the blended setting, a student has to work harder than just sitting at the back of the classroom. Both men spoke of the convenience and accessibility that online learning provides that a traditional classroom does not. Matthew Trent also testified in favor of the availability of online and blended courses. Mr. Trent has a master’s degree in public administration and is a Ph.D. student in public policy administration. He is also a certified state firefighter II; pump operator; Fire Officer I, II, III, and IV; fire inspector I and II; fire investigator I; and fire life safety educator I. About half of Mr. Trent’s certifications have been based on classes taken online, and all of his classes for his masters’ and doctoral degrees have been online. Mr. Trent felt both courses at issue could be taught in an online format, and stated that both as a student and as an instructor, it is up to the student to choose the delivery method by which they want to learn. If not for online learning, he would not have been able to accomplish nearly as much in his professional life, because distance learning gives the student the ability to work around other responsibilities. The Department, on the other hand, was influenced more heavily by (and sought information from) the fire safety officials across the state who employ fire safety inspectors. Many of those officials spoke at the public workshops and some testified at hearing. The major concern voiced by these officials was that new fire safety inspectors certified by the state were not really prepared to do their job. Although most acknowledged that some on the job training would always be necessary to deal with local codes and ordinances that are not part of the state curriculum, they felt that new inspectors did not have a good grasp of the concepts necessary to be effective, especially with respect to the skills taught in the classes at issue in this case. For example, Anthony Apfelbeck is the Director of the Building and Fire Safety Department for the City of Altamonte Springs. He has worked in that department for approximately 20 years and served as Fire Marshal for a significant portion of his tenure there, and served in other cities as well. Mr. Apfelbeck has an impressive array of certifications and currently supervises approximately eight fire safety inspectors. He attended almost all of the workshops and was an active participant. Mr. Apfelbeck testified that he concurred with the State Fire Marshal’s Association that both classes should be offered only in a traditional classroom environment. He stated that there is a limited period of time to get someone trained and certified as a fire safety inspector, and he has seen some of the deficiencies in the current training. In his view, requiring these two classes to be given in a traditional classroom environment allows the instructor to keep the student engaged, and to get into critical thinking with probing questions and real-life examples. Instructors can have interactions with students that address issues the students may be having in the students’ jurisdictions, and read the body language of the students to gauge involvement. He also spoke of the ability to develop relationships with other individuals in the class and develop a peer group within that body. Mr. Apfelback has used the virtual environment extensively during the COVID-19 pandemic, and does not feel that it has the spontaneity and free- flow of information that a traditional classroom affords. Mr. Apfelbeck has not taken any of Ricky Rescue’s classes, and does not know what it has done to make sure its students get 200 hours of education. Likewise, he is not aware of the review Ricky Rescue went through to get its courses approved. He stated, correctly, that the rule is not written specifically about Ricky Rescue’s programs. It is written for all educational programs that are provided pursuant to this rule. Michael Tucker is the assistant superintendent for the State Fire Marshal’s Office. His experience includes serving as battalion chief for the Reedy Creek Improvement District (i.e., Disney) for 13 years, and serving as the Chief of the Fire Department for the Villages for 13 years. He has taught fire safety classes both in the classroom setting and online. While at Reedy Creek, he was the training officer responsible for providing training to fire inspectors, firefighters, paramedics, and EMTs. Mr. Tucker believes that the two classes addressed in the proposed rule are very intricate classes with a lot of detail. He believes that the traditional environment gives more opportunity for students to get hands-on instruction and have more interaction with the instructor. He acknowledged that there is a possibility that fees could increase under the proposed rule, but thinks that the increased cost is outweighed by the value that employers would get when they hire people trained in a classroom setting. Cheryl Edwards is the Fire Marshal for the City of Lakeland, and her views regarding traditional versus online learning are similar to those already expressed. She believes that the traditional classroom environment promotes collaborative learning and enhances critical thinking skills, through live discussions, and the need to think on your feet. She also felt that in person, an instructor is better able to gauge students’ learning styles and provide activities and modalities for all to learn, regardless of learning style. Ms. Edwards believes that the traditional classroom setting allows for more “teachable moments,” and guided practice before a student has to put that knowledge into use. Finally, David Abernathy is the Fire Chief of the City of Satellite Beach and has worked with the City for 35 years. Mr. Abernathy has an impressive list of certifications and has taught all five of the courses necessary for fire safety inspector certification, but has never taught them in an online or blended learning format. Mr. Abernathy believes that for these two courses there is a benefit to the traditional classroom setting. He believes that both classes need a hands-on approach to be the most effective. Mr. Abernathy also believes that requiring these two courses to be taught in a traditional classroom setting will cost more, but as an employer is more willing to pay for it than for online classes. Mark Harper testified that during the workshops, the Department wanted to hear from everyone, because all would be impacted by the changes. However, he believes that there is a heavier weight of responsibility on employers as opposed to students, because they are the ones trying to fill positions, and they are the ones having to deal with additional costs occasioned by failures in training. As a practical matter, employers are more cognizant of the potential liability jurisdictions face when a fire safety inspector, who looks at everything from mom and pop businesses to industrial sites with large containers of hazardous materials, is not adequately trained. The decision to go forward with the proposed rule amendment requiring a traditional classroom delivery method with respect to Codes and Standards and Construction Documents and Plans Review is based on the feedback received through the workshop process. It is not based on data. The Department does not track how students who took certification classes online or in a blended format score on the certification examination as opposed to students who took the same classes in a traditional setting. It would be difficult to collect that type of data, because there is no requirement that a student take all five courses the same way. In preparation for the hearing in this case, the Department conducted a survey of employers regarding their views on traditional versus distance learning. The Florida Fire Marshals and Inspectors Association distributed the survey to its members, and of the 358 addressees, 114 responded. There was no evidence to indicate that the Department attempted to survey people taking the classes. The questions asked in the survey were quite limited, and frankly, provide no guidance because they provide only two alternatives, and do not address blended learning formats at all. There are three questions, and they are as follows, with the responses in parentheses: Is there is current need to increase the proficiency of newly certified Firesafety Inspectors in Florida? Yes (59.65%) No (16.67%) Neutral opinion (12.68%) When a prospective Firesafety Inspector attends a Codes and Standards class, which class setting would produce a more proficient inspector? Traditional classroom delivery method (71.17%) Online (distance learning ) delivery method (9.91%) Neutral opinion (18.92%) When a prospective Firesafety Inspector attends a Construction Documents and Plans Review Class, which class setting would produce a more proficient instructor? Traditional classroom (76.32%) Online (7.02%) Neutral opinion (16.67%) Questions two and three assume that one format must be better than the other, rather than allowing for the possibility of equivalency. Had there been some recognition of a blended learning format, the answers might be different. The survey was informative in terms of the comments that were provided by the respondents. Similar to the views expressed at the workshops, there were strong opinions both in favor of limiting the classes to the traditional setting, and strong opinions advocating for the option of online learning. Petitioner presented information related to the increased costs that will be incurred should the rule go in effect. Those costs include the need for space rental for five-day periods in order to teach in multiple locations; the costs related to conversion of the material to a classroom setting versus online; and the need to pay instructors for more days each time the course is taught. It does not appear from the evidence presented that Ricky Rescue would experience increased costs of $200,000 in one year. However, Ricky Rescue is just one provider, and section 120.54 speaks in terms of an increase in costs in the aggregate, meaning as a whole. It is not known whether the other approved providers who teach these two courses will continue to do so should the rule be amended to require a classroom setting. It is also unknown what types of costs would be borne by state colleges and universities in order to recast the courses for traditional classroom settings. Finally, the litigants to this proceeding were well aware that this rule was being developed and was noticed as a proposed rule before the world began to deal with the COVID-19 pandemic. It is open to speculation whether some of the impetus to require a traditional classroom setting would have changed in light of the changes society has had to make over the last six months. Department employees were questioned regarding the Fire College’s response to the pandemic, and both Mark Harper and Michael Tucker testified about the precautions being taken on the campus to insure safety, such as taking temperatures, having students complete a questionnaire regarding possible exposure, limiting the number of students per class, and spacing people six feet apart to maintain effective social distancing. Mr. Tucker testified that they would be ready to postpone some classes until they could be taught safely in person. When asked whether Respondent would consider postponing the effective date of the proposed rule, he indicated “that would be something we would have to take into consideration, and again, the feedback from our constituents, but if it became necessary, then we would consider it.”
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
The Issue The issue is whether Petitioner is entitled to a passing grade on the Hose and Nozzle Operations part of the Minimum Standards Examination for firefighter certification.
Findings Of Fact Certification as a firefighter requires, among other things, that an applicant successfully complete a Minimum Standards Course and then pass the Minimum Standards Examination. The Minimum Standards Examination comprises a written test and a practice test, each of which an applicant must pass. The practical test comprises four parts, including Hose and Nozzle Operations. An applicant must pass each of the four parts, and a passing score is 70. On October 3, 2003, Petitioner first took the Minimum Standards Examination. She passed three parts, but failed the Hose and Nozzle Operations part. She was entitled to one retest, without having to retake the Minimum Standards Course, which she has already passed. On November 20, 2003, Petitioner retook the Hose and Nozzle Operations part of the Minimum Standards Examination. Petitioner received a score of 60 on the retest, and she challenges this score in the present case. Petitioner lost points for four reasons: she failed to have all of her protective gear donned and properly secured, she opened the hose nozzle too quickly, she closed the hose nozzle too quickly, and she ran with the hose. The Hose and Nozzle Operations part of the test is timed, and Petitioner previously had failed it because she had taken too long to complete the tasks within this part. Petitioner was a candid witness. At the end of the hearing, she essentially withdrew her challenge to the points that she had lost for operating the nozzle improperly. She instead focused on running with the hose and leaving her face shield up during part of the examination. In fact, the examiner testified without doubt that Petitioner had misoperated the nozzle during two tasks. Clearly, Petitioner failed to prove that the examiner's scoring of these two tasks was incorrect. As for running, Petitioner testified that she ran, but, consistent with the test rules, received a shouted warning from the examiner and did not run again. If so, she should not have lost points for running. However, the examiner again is clear that Petitioner ran after the warning. Aware that she had failed the same test previously for not completing this part of the test within the allotted time, Petitioner probably felt a sense of urgency to complete this part of the test. Petitioner's testimony about running is vague at times and even contradictory. Much of Petitioner's early testimony on this point disputes the clarity of the shouted warning not to run, suggesting that she may have run through a large portion of this part of the test. Later, though, Petitioner concedes that the shout was probably a warning not to run. On balance, Petitioner has failed to prove that the examiner improperly deducted points for running. The last issue in dispute is whether Petitioner performed part of the test with her face shield improperly raised. Petitioner testified that her face shield was always in the proper position, and, on this issue, Petitioner produced a fellow student who testified that he saw Petitioner's face shield in the proper position. However, the other student did not see the whole test and presumably was not observing Petitioner as closely as was the examiner. The examiner was most definite in his testimony on the issue of the face shield. He saw Petitioner engage in the awkward task of unloading the heavy hose, and he saw that a section of hose bumped the face shield from its down position into a partial up position. The examiner watched to see if Petitioner would immediately lower the face shield, but she did not. At that point, the examiner properly deducted points for failing to keep the gear properly secured.
Recommendation It is RECOMMENDED that the Department of Financial Services enter a final order dismissing Petitioner's challenge to the scoring of the Hose and Nozzle Operations part of the Minimum Standards Examination that took place on November 20, 2003. DONE AND ENTERED this 30th day of June, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 30th day of June, 2004. COPIES FURNISHED: 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 Ruth Gutierrez 1585 Northeast 110th Terrace Miami, Florida 33161 Casio R. Sinco Assistant General Counsel Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333
The Issue The issue for determination is whether Petitioner’s application for certification should be approved as a result of her successfully completing the Firefighter Minimum Standards MIN. STD. PRACTICAL RETEST retest.
Findings Of Fact Ms. Evans is a candidate for certification as a firefighter in the State of Florida. Ms. Evans attended the Coral Springs Fire Academy (Fire Academy), as a student, from July 11, 2009, through January 9, 2010. During her training at the Fire Academy, she was chosen as the squad leader. A candidate for the certification examination must pass a written and practical examination, with a minimum score of 70 on both the written and practical parts. Pertinent hereto, a candidate must pass the Firefighter Minimum Standards Practical Examination (Practical Examination) in order to become certified as a firefighter. The Practical Examination consists of four components: the Self Contained Breathing Apparatus (SCBA); the Hose Operation (a/k/a Hose Evolution); the Ladder Operation (a/k/a Ladder Evolution); and the Fireground Skills. The Practical Examination is replicated at the Fire Academy, and students at the Fire Academy must pass the four components. The Fire Academy adopted the State standards for passing the Practical Examination, except that at the Fire Academy the standards for the Ladder Evolution are more strict. Also, pertinent hereto, for the Ladder Evolution, the State’s passing score is 70, but the Fire Academy’s passing score is 80; and the maximum time allowed by the State to successfully complete the Ladder Evolution is two minutes and 20 seconds, but the Fire Academy’s maximum time is two minutes and 10 seconds. Additionally, pertinent hereto, for the Ladder Evolution, the State’s established testing protocol is to permit a candidate to perform a safety inspection of the ladder prior to beginning the timing of the Ladder Evolution, and the timing begins after the candidate touches the ladder again. Consequently, State testing protocol dictates that, during the safety inspection, no timing occurs, but, when the candidate touches the ladder again, the timing begins. The Fire Academy uses this same protocol at testing for the Ladder Evolution. The time limit placed on the Ladder Evolution is designed to replicate actual fire fighting conditions, producing a certain degree of stress upon candidates. At the Fire Academy, Ms. Evans successfully completed the Ladder Evolution on November 11, 2009, receiving a score of 80 and a time of two minutes and three seconds. Again, on January 5, 2010, she successfully completed the Ladder Evolution with a score of 100 and a time of one minute and 53 seconds. Ms. Evans graduated from the Fire Academy and was eligible to sit for the certification examination. On January 10, 2010, Ms. Evans took the Ladder Evolution part of the State Practical Examination in Coral Springs, Florida. A wind gust caused her to lose control of the ladder. She received a score of zero, due to losing control, and, therefore, did not successfully complete the Ladder Evolution. Ms. Evans took a re-test of the Ladder Evolution part of the State Practical Examination on January 28, 2010, in Ocala, Florida. She completed the Ladder Evolution in two minutes and 50 seconds, which was beyond the maximum allowed time of two minutes and 20 seconds. She received a score of zero and, therefore, failed to successfully complete the Ladder Evolution on the re-test. Ms. Evans contends that, on January 28, 2010, the State’s Field Representative began the time during her safety inspection of the ladder. The more persuasive evidence supports this contention. As a result, a finding of fact is made that, on January 28, 2010, the State’s Field Representative began the timing of Ms. Evans’ Ladder Evolution during her safety inspection, which was contrary to the State’s testing protocol. The evidence fails to demonstrate what Ms. Evans’ time on the Ladder Evolution would have been had the timing begun in compliance with the State’s established testing protocol.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order directing the re-testing of Melanie Evans on the Ladder Operation (a/k/a Ladder Evolution) of the Firefighter Minimum Standards Practical Examination. DONE AND ENTERED this 29th day of July, 2010, 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 29th day of July, 2010. COPIES FURNISHED: Robert J. Slotkin, Esquire 600 South Andrews Avenue, Suite 600 Fort Lauderdale, Florida 33309 Nic Thornton, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Alex Sink, Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Benjamin Diamond, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Julie Jones, Agency Clerk Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0390
The Issue Whether Petitioner's second failed Firesafety Examination should be invalidated because of faulty examination questions, and, if so, the relief to which Petitioner is entitled.
Findings Of Fact Petitioner is an applicant for certification as a firesafety inspector in the State of Florida. As an applicant for certification as a firesafety inspector, Petitioner was required to complete an approved Inspector Training Course before sitting for the Firesafety Exam. In March 2012, Petitioner successfully completed an approved Inspector Training Course. The Department establishes general curriculum parameters for firesafety inspector training courses taught throughout the State of Florida. Approximately two years before Petitioner commenced his Inspector Training Course, the Department informed entities offering training courses that the textbook, Brannigan's Building Construction for the Fire Service (4th edition), should no longer be used as a reference source when preparing students for the Firesafety Exam due to the limited availability of the textbook. The Brannigan textbook had been recognized by the Department for many years as an approved training guide. Petitioner, after completing his Inspector Training Course, spent several months studying for the Firesafety Exam. On August 30, 2012, Petitioner took the Firesafety Exam for the first time and answered 57 of 100 questions correctly. Petitioner failed this examination. Approximately three weeks later, Petitioner, on September 18, 2012, took the Firesafety Exam a second time. Petitioner answered 63 of 100 questions correctly. Petitioner once again failed the Firesafety Exam. By letter dated September 21, 2012, the Department informed Petitioner that because "you failed both the initial and retake examinations, it will be necessary for you to repeat the Inspect[or] Training [Course], and you will be required to submit a new application." Petitioner does not wish to repeat the Inspector Training Course. When Petitioner took his retake examination on September 18, 2012, he encountered several questions that, in his opinion, presented information that was different from what he learned from his Inspector Training Course. Upon post-exam investigation, Petitioner, after having met with a representative from the Department, identified nine questions from the retake examination that he believes were derived from the Brannigan textbook. Of the nine "Brannigan" questions identified by Petitioner, he provided correct answers to six of the questions during his retake examination. According to the Department, even if Petitioner received credit for the additional "Branningan" questions (as identified by Petitioner) that he answered incorrectly, he would have only achieved an exam score of 66 out of 100, which is still a failing score. The Department disagrees with Petitioner's assertion that there were nine "Brannigan" questions on the retake examination. The Department concedes, however, that there was one question on the retake examination that was taken directly from the Brannigan textbook. Petitioner answered correctly on his retake examination the one Brannigan question identified by the Department. Petitioner did not prove that there were nine "Brannigan" questions on the examination, but he did prove the existence of one "Brannigan" question on the examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order denying Petitioner's challenge to the failing score he received on the September 2012 Firesafety Inspector Certification Examination and dismiss the petition in this proceeding. DONE AND ENTERED this 26th day of March, 2013, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 26th day of March, 2013.
