The Issue The issue in this case is whether Petitioner, Brandon Michael Post (Petitioner or Mr. Post), achieved a passing score on the practical exam for firefighter certification.
Findings Of Fact The Department is the state agency responsible for the regulatory process governing firefighters, including the process by which candidates apply for certification as firefighters in the State of Florida. In addition to meeting certain background and training requirements, candidates must take and attain passing scores on the Firefighter Minimum Standards Written and Practical Examination (firefighter examination) administered by the Department. Mr. Post applied to the Department for firefighter certification. There is no dispute that Mr. Post met the background and training qualifications for certification in all respects. In addition, Mr. Post took and passed the written portion of the firefighter examination. At issue is whether Mr. Post attained a passing score on the practical portion of the firefighter examination (practical exam). The practical exam has four components covering the following subjects: self-contained breathing apparatus (SCBA); hose operations; ladder operations; and fireground scenarios. In order to pass the practical exam, a candidate must obtain a score of at least 70 percent on each component. If a candidate does not pass the practical exam, the candidate is offered the opportunity for a retest. The practical exams are conducted by Bureau field representatives. A field representative evaluates each candidate's performance and records the candidate's scores on a form called "minimum standards exam field notes" (field notes). There is a separate field notes form for each component of the practical exam. The field notes form identifies each of the separate skills or activities tested. Certain items are scored on a pass-fail basis, because they are considered mandatory skills. Thus, the failure to achieve an acceptable result in a mandatory item results in automatic failure for the component. Other tested items are considered evaluative, and the candidate's performance is given a point score. A total of 100 points is possible for all of the evaluative items; a candidate must attain a score of at least 70 to pass the component. Mr. Post took the firefighter examination on June 13, 2012. In the practical exam, Mr. Post received passing scores of 100 percent for the SCBA component; 100 percent for the hose operation component; and 70 percent for the fireground scenarios component. However, Mr. Post failed the ladder operations component. Mr. Harper was the field representative who administered Mr. Post's practical exam on June 13, 2012, and who completed the field notes reflecting how he scored Mr. Post's performance. Mr. Harper has been a Bureau field representative for more than five years, and in that time, he has administered thousands of practical exams. Mr. Harper gave Mr. Post a failing score for not donning and securing all personal protective equipment (PPE) properly. Donning and securing PPE properly is considered a mandatory item that has to be achieved, because of the importance of this skill to a firefighter's safety. To emphasize the safety concern associated with failing to don and secure all PPE properly, Mr. Harper also gave Mr. Post a failing score for committing an unsafe act that could result in serious injury or death. The "unsafe act" scoring category is separate on the field notes form from the mandatory item "donning and securing all PPE properly." However, a failing score in either one of these categories alone required an automatic failure for the ladder operations component. Thus, giving Mr. Post a failing score for an "unsafe act" had no effect on his score; Mr. Post's failing score for not donning and securing his PPE properly required an automatic failure for the ladder operations component. Mr. Harper credibly explained why he judged Mr. Post's donning and securing of his PPE to be improper. He recalled in precise detail how Mr. Post's mask had a five-point harness mechanism that is designed to hold the face piece tight to the face, creating an air-tight seal that will keep out dangerous smoke and fumes. There were two straps at the temple, two straps at the jaw, and one at the top center. To secure the mask, the two jaw straps are supposed to be pulled tight at the same time, then the two temple straps are pulled tight at the same time, then the top strap is pulled last to pull the mask up evenly on the face. Mr. Post did not secure his mask this way. Instead of pulling the two jaw and temple straps at the same time, he held the face piece with one hand, and pulled the straps on one side of his face with his other hand. This pulled the mask to the side, instead of centering it. Mr. Post testified that his face piece was on good enough for him to achieve an air-tight seal, which was maintained throughout the exercise. Therefore, he took issue with the opinion that the way he put on his PPE was unsafe. Mr. Post's statements were inconsistent regarding whether the mask was askew, pulled to one side. At the final hearing, Mr. Post testified at first that Mr. Harper's field notes comment was incorrect when it said that the "face piece was pulled to left side." Mr. Post testified that he disagreed with the field notes comment that his face piece was "pulled to one side." But then Mr. Post acknowledged that "it could have been maybe a little bit to the left, but there was no poor seal at all times." This latter statement was closer to Mr. Post's statement in his hearing request: "I had a seal of my face piece but was failed because the harness wasn't quite centered on my head." Mr. Post essentially admitted that he did not "properly" don and secure all of his PPE; his argument is with the extent to which it was improper, and whether his failure to properly secure the harness actually caused harm. Mr. Harper's testimony that Mr. Post improperly donned and secured his PPE and that this failure was an unsafe act that could result in serious injury or death is accepted. Mr. Harper credibly explained the danger of a mask not being harnessed securely with a centered face piece. Even though it is possible to initially attain a proper seal with an off-centered face piece, as Mr. Post did, the fact that it is not properly secured to be centered on the face means that it is easier to dislodge than a centered, properly-harnessed mask. Anything jarring the head gear, or even an abrupt head movement, could cause the mask to move further off-center and break the critical seal that protects the firefighter from toxic gases and smoke. These serious risks cannot be brushed aside simply because Mr. Post managed to make it through a short simulated exercise without dislodging his off-centered mask. The Bureau notified Mr. Post that he did not achieve a passing score on his practical exam because of his failed score on the ladder operations component. As provided by statute, Mr. Post was advised that he was allowed one opportunity to retake the practical exam. Mr. Post took the practical exam retest on September 18, 2012. Once again, Mr. Harper was the field representative who administered the practical exam to Mr. Post. Mr. Post admitted that his retest "was pretty sloppy." On the hose operations component, once again, Mr. Post had problems donning and securing all of his PPE. This time, the problems were with the gear that was supposed to protect his torso. As Mr. Post acknowledged, "my shoulder strap was twisted and . . . my high-pressure hose [was] under [the] strap. That is true. I remember that." His jacket was pulled up in the back, and his shirt was exposed. Based on these problems, Mr. Post received an automatic failure under the mandatory category for failing to don and secure all PPE properly. Mr. Post admitted that he failed to don and secure all of his protective equipment properly. The protective jacket is not supposed to be pulled up in the back, exposing one's shirt. Shoulder straps are not supposed to be twisted, with the high-pressure hose caught under a strap. Mr. Post testified that he did not think he should have been failed for these admitted problems with putting on his protective gear, because no skin was exposed. However, he offered no legitimate challenge to the reasonableness of the exam itself, which makes the proper donning and securing of all of one's PPE a mandatory step. As described, it was entirely reasonable to give Mr. Post an automatic failure on this retest component for his improper donning and securing of his protective gear. Mr. Post also received an automatic failure in the ladder operations component. There were two separate problems with this exercise. One problem was Mr. Post's failure to fully secure the ladder's "dogs" or locking devices that secure the separate sections of a multi-section ladder. The dogs are like clamps that are activated by a spring mechanism; when employed properly, they clamp around a rung at the joinder point of the ladder's separate sections. In Mr. Post's ladder exercise, he failed to properly employ the dogs; they were not fully secured in place around the rung. Instead, they were balanced on the tips, sitting on top of the rung, instead of locked around the rung. Mr. Post attempted to argue that it was not possible for him to have failed to properly employ the dogs in this manner because if the dogs were not locked, the ladder would have fallen down and his stayed upright. However, as Mr. Harper credibly explained, the dogs were sitting on top of the rung (instead of clamped around it). As such, the ladder could remain upright, albeit, in a precarious state that depended on the dogs keeping their balance on top of a rung, instead of in a secure state with the dogs locked in place around the rung. Mr. Harper's testimony is credited; Mr. Post did not effectively rebut the testimony regarding his improper employment of the dogs. The second problem Mr. Post had in the ladder operations component of his retest came in the part of the exercise in which Mr. Post was supposed to exit the building carrying the "victim" and retreat to safety. According to the field notes, Mr. Post received an automatic failure for committing an unsafe act that could result in serious injury or death, because he was running backwards with the victim. Mr. Post did not take issue with this aspect of his retest scoring, admitting that the field notes were accurate: "When you're carrying the victim out of a building, that's the only time you're allowed to go backwards, but I guess I was running where I should have been walking. But I don't really--I don't really testify against that." Mr. Post expressed some generalized concern with the fact that the same field representative--Mr. Harper--administered Mr. Post's initial examination and the retest. However, no evidence was offered to suggest that Mr. Harper's administration of the practical exam or the retest was improper or unfair to Mr. Post in any respect. Indeed, Mr. Post essentially conceded that Mr. Harper fairly and reasonably assessed Mr. Post's admittedly sloppy performance on the retest. Mr. Post's concession in this regard puts to rest any implication that Mr. Post might not have failed the retest if a different field representative had been assigned. Instead, the evidence established that Mr. Post's performance in the practical exam retest earned three different automatic failures, any one of which would have resulted in an overall failing grade on the retest.
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, denying the application of Petitioner, Brandon Michael Post, for certification as a firefighter in the State of Florida. DONE AND ENTERED this 9th day of April, 2013, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 9th day of April, 2013.
The Issue Whether Respondent's renewal facilities licensure application for a group home contained a falsified fire inspection report, as alleged in the Administrative Complaint; and, if so, what is the appropriate penalty?
Findings Of Fact APD is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, residential habitation centers, and comprehensive transitional education programs pursuant to sections 20.197 and 393.067, Florida Statutes. Rivero is an applicant for renewed licensure of a group home facility in Dania Beach, Florida. At all times material to the Administrative Complaint, Yitzhak Rivero was a corporate officer of Rivero. Mr. Rivero, was a psychiatrist in Cuba treating patients with mental and intellectual disabilities before he moved to the United States and became a citizen. He became a licensed mental health counselor, and for the past ten years has operated group homes in an effort to serve disabled persons, owning as many as seven group homes, employing 30 people at one time, and currently owning and operating three licensed group homes. On June 20, 2019, Sally Vazquez, then administrator for Rivero, submitted a license renewal application on behalf of Rivero’s Dania Beach group home to APD by hand delivering it to APD employee Patricia White, who was on the premises. On that same day, fire inspectors were also at the Dania Beach property to conduct an inspection. Prior to submitting the renewal application and supporting documents to APD on June 20, 2019, Ms. Vazquez prepared the application and compiled or prepared the supporting documents in the renewal application. The handwriting on pages 1 through 11 of the renewal application is that of Ms. Vazquez. Ms. Vazquez is listed as backup manager supervisor for Rivero on page 7 of the renewal application. After Ms. Vazquez prepared the renewal application and compiled the supporting documents, Mr. Rivero, as the group home owner, did a brief review of the application and supporting documents before he signed it. Before he signed it, Mr. Rivero identified nothing unusual in the application packet. When Mr. Rivero signed the attestation on the renewal application, which read, “Under penalty of perjury…all information contained in and submitted with application is true and accurate to the best of my knowledge,” he believed that the information in the application and supporting documents was true and correct. Unbeknownst to Mr. Rivero, the renewal application contained a document purporting to be a fire inspection report dated May 1, 2019, that was falsified. Mr. Rivero did not know the fire inspection was false when he reviewed the renewal application and signed it on June 7, 2019, or when Ms. Vazquez submitted it to APD on behalf of Rivero on June 20, 2019. In fact, the only email or communication Mr. Rivero received about the Dania Beach group home in regard to fire safety was a June 20, 2019, email sent by Fire Inspector Braun at 12:49 p.m., stating it was “From: Broward Sheriff’s Office Fire Rescue,” identified by the subject, “Inspection Report,” which contained an attachment related to the Dania Beach home from “Broward Sheriff’s Office Fire Rescue” bearing the agency’s logo that stated: “An annual fire inspection of your occupancy revealed no violations at the time of this inspection. Thank you for your commitment to maintaining a fire safe occupancy.” On August 21, 2019, when asked in an email from APD representative Kimberly Carty to provide the fire inspection report for Rivero, Mr. Rivero forwarded the email he had received from the Broward Sheriff’s Office Fire Rescue indicating no violations, the only fire inspection report for this home he had ever received, and the only fire inspection report regarding this property of which he was aware. On August 23, 2019, Ms. Carty sent Mr. Rivero a fire inspection report showing violations noted from the June 20, 2019, fire safety inspection of the Dania Beach group home. The report notes six, of what fire safety inspector Craig Braun described as less serious, non “critical-life” violations. Rivero was given 30 days to correct the violations.1 The day after he was sent the full fire inspection report for the Rivero Dania Beach group home, Mr. Rivero corrected the “easily corrected,” relatively minor violations in approximately three hours. Mr. Rivero then contacted the fire department to re-inspect the facility. When no fire inspector came to re-inspect for over a month, on September 30, 2019, Mr. Rivero sent an email to Mr. Zipoli, the fire inspector who had signed the inspection report showing the minor violations. Nevertheless, the fire department has never re-inspected the facility. Fire Prevention Officers Braun and Zipoli testified unequivocally and without contradiction that the document Mr. Rivero forwarded to APD’s Kimberly Carty on August 23, 2019 (the document indicating, “An annual fire inspection of your occupancy revealed no violations at the time of this inspection”), was a genuine and authentic document. Further, Officer Braun indicated that on June 20, 2019, he was Officer Zipoli’s supervisor, and that on that date Officer Braun and Zipoli “went together to inspect the Rivero Group Home.” “[U]sually…just [one] fire safety inspector goes,” and it was “not the norm” for two fire safety inspectors to go together. In this unusual situation, Fire Safety Inspector Zipoli wrote the report of the June 20, 2019, inspection, and Fire Safety Inspector Braun “wrote a report,” a separate report, indicating that he “assisted him [Zipoli] on another 1 These violations included: front and rear door of the group home (two doors) had a key lock instead of a “simple thumb turn or something that does not require special knowledge”; a fire alarm needed to be updated with its annual fire inspection from a private contractor; a fire extinguisher needed to be mounted on its mounting on the wall instead of placed on the ground beneath the mounting; the fire extinguisher needed to have its annual certification updated for 2019; the smoke detector located in the kitchen needed to be moved to a different location. form.” It was this other form that Officer Braun completed--this fire safety “Inspection Assist” for--that was emailed to Mr. Rivero on June 20, 2019. It was this form that stated, “[a]n annual fire inspection of your occupancy revealed no violations at the time of this inspection.” Officers Braun and Zipoli confirmed that the Broward Sheriff’s electronic streamline system “had a ‘glitch,’” “a default problem at that time,” the period including June 20, 2019, that caused the “template of an assist” ( i.e., an Inspection Assist form) to generate the statement indicating, “[a]n annual fire inspection of your occupancy revealed no violations at the time of this inspection,” and the system gave fire safety inspectors no option or ability to remove this statement. When APD’s Kimberly Carty requested that Mr. Rivero send the most recent fire inspection report for the Rivero Dania Beach group home, Mr. Rivero forwarded to Ms. Carty the document he received on June 20, 2019, from Broward Sheriff’s Office Fire Rescue without altering or changing the document in any way. The first time Mr. Rivero was notified that the fire inspection report submitted with the renewal application at issue here was false was when he received the Administrative Complaint in this case on October 23, 2019. In addition to the June 20, 2019, document Mr. Rivero received from Broward Sheriff’s Office Fire Rescue that indicated “no violations,” and the fire inspection report indicating six violations that was sent to Mr. Rivero by APD on August 23, 2019, this case involves a document dated May 1, 2019, purporting to be a Broward Sheriff’s Office Fire Rescue fire inspection that was fabricated (“the false fire inspection report”). The false fire inspection report was submitted to APD by Ms. Vazquez during APD’s June 20, 2019, inspection of the Rivero’s Dania Beach group home. At the time she submitted the application with the false fire inspection report, Ms. Vazquez had worked for Rivero for at least six years, and for at least two years as an administrator for between four and seven group homes. At the time she submitted the application at issue in this case to APD, Ms. Vazquez had prepared more than 20 APD renewal applications for Mr. Rivero’s group homes. In short, Ms. Vazquez was a “trusted employee,” whom Mr. Rivero relied on to accurately prepare applications and the documents submitted with the applications, and to handle the inspections conducted by APD. After Mr. Rivero learned, by receiving the Administrative Complaint in this case on October 23, 2019, that an altered or falsified document had been submitted as a fire inspection report with Rivero’s Dania Beach group home’s annual renewal application to APD, he conducted an investigation to determine how it had happened. When Mr. Rivero determined Ms. Vazquez was to blame for the false fire inspection report being submitted with the application, he fired her. The evidence presented indicates Ms. Vazquez created and submitted the falsified fire inspection report in violation of her job duties and professional obligations, and without the knowledge or consent of Mr. Rivero or Rivero.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons With Disabilities enter a final order dismissing the Administrative Complaint filed against Respondent. DONE AND ENTERED this 17th day of April, 2020, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 2020. COPIES FURNISHED: Sean Michael Ellsworth, Esquire Ellsworth Law Firm, P.A. 1000 5th Street, Suite 223 Miami Beach, Florida 33139 (eServed) Trevor S. Suter, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Anthony Vitale, Esquire The Health Law Offices of Anthony C. Vitale, P.A. 2333 Brickell Avenue, Suite A-1 Miami, Florida 33129 (eServed) Daniel Ferrante, Esquire Health Law Offices Of Anthony C. Vitale, P.A. 2333 Brickell Avenue, Suite A-1 Miami, Florida 33129 (eServed) Danielle Thompson Senior Attorney/Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 309 Tallahassee, Florida 32399-0950 (eServed) Francis Carbone, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue The issue is whether Petitioner's apparent failure to achieve a passing score on the written portion of the Firefighter Minimum Standards retest resulted from improper administration or grading of the examination by Respondent.
Recommendation Based on the foregoing, it is RECOMMENDED that the Department enter a final order dismissing Cruz's petition and denying his application for certification as a Florida firefighter. DONE AND ENTERED this 4th day of June, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 4th day of June, 2001. COPIES FURNISHED: Hipolito Cruz, Jr. 1214 Southwest 46 Avenue Deerfield Beach, Florida 33442 James Morrison, Esquire Department of Insurance 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333 Honorable Tom Gallagher State Treasurer and 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 32399-0300
The Issue The issue in this case is whether Respondent, Department of Financial Services, Division of State Fire Marshal (the Department), properly administered and graded the Firefighter Minimum Standards practical examination taken by Petitioner, Catalina Williams (hereinafter Williams).
Findings Of Fact The Department is the state agency charged with the responsibility for testing, monitoring and certifying firefighters. The Department conducts certification examinations at the Florida State Fire College in Ocala, Florida, and some thirty-plus other sites around the State. Those sites are located on college campuses, training facilities, fire stations, and other locales. The test at issue in this proceeding was administered at the Fire College site. Catalina Williams is an Hispanic woman who desires to become a certified firefighter. Her interest in firefighting began when she worked as a photographer covering fire-related events for a magazine and thought it would be exciting and interesting to be on “the front line.” Williams has also served as a caregiver, giving her experience in providing assistance to others, and is a certified lifeguard. In order to accomplish her goal of becoming a firefighter, Williams entered into schooling to learn the trade. Williams first attended First Coast Technological College (First Coast) in 2009. She completed the Firefighter Minimum Basic Standards Course (Firefighter I) that year. In 2010, she enrolled at the school for the summer semester to begin training in the advanced (Firefighter II) curriculum. That school term was shorter and more compressed than a regular semester. Despite her best efforts, Williams did not successfully complete the Firefighter II course. Rochford was one of her instructors during her first unsuccessful enrollment at First Coast. In 2012, Williams entered First Coast again. At that time, she was working as a paid volunteer firefighter for Volusia County. The county paid her tuition costs at First Coast when Williams entered the school for the Firefighter II course work. The second time, Williams was able to successfully complete the course material and pass her final examination. Passing the final examination was a prerequisite to taking the State certification exam. While attending First Coast, Williams took hundreds of practice exams, especially on the practical portions of the tests. She took exams as part of her classes, took exams voluntarily with someone timing her, and took exams just to practice. The State Certification Exam There are four primary segments of the State certification exam: A written examination of 100 multiple choice questions; A hose evolution involving a self- contained breathing apparatus (SCBA) and personal protection equipment (PPE); A ladder/search and rescue evolution; and A skills portion, involving ropes and knots, two fire ground skills, and a short test on the emergency response guide (ERG). The ladder/search and rescue evolution is a practical portion of the exam; it is the singular portion of the test at issue in this proceeding and will be referred to as the ladder evolution. The ladder evolution portion consists of the following tasks and assignments: The candidate inspects ladders hanging on a simulated fire truck. He or she then takes a 24-foot ladder from the truck and extends it against the wall of a building up to the second floor. Once that ladder is properly hoisted, the candidate confirms that a ladder guard (another candidate acting as a spotter) has control of the ladder. The candidate then initiates radio contact and then walks quickly around the building to another ladder that is already in place. He/she must ascend the ladder to the second floor, test the floor inside the building to make sure it is safe, and enter the building through a window. Upon entry the candidate must find a “victim” (a 125-pound mannequin) on the lower floor, secure the victim in an approved manner, and then exit the building with the mannequin. Upon exit, the candidate must safely deposit the victim on the ground and provide notice by way of radio contact that he/she and the victim are outside the building. The radio transmission is something along the lines of: “PAR 2 [Personnel Accountability Reporting, two people]. Firefighter No. “X” and victim have safely exited the building.” The entire ladder evolution sequence must be done within four minutes and 30 seconds although, as will be discussed below, there are differences of opinion as to when the timed portion of the evolution ends. It is necessary for candidates taking the test to pass each of the four sections. Failure of any one portion would result in failure overall. Should a candidate fail the examination, they must reschedule their retest within six months of the failed test. All retest examinations are administered at the Fire College. On test day, there may be dozens of applicants taking the test at the same time. The procedure dictates that candidates arrive at the test facility in time to process paperwork prior to the 7:30 a.m., test commencement. Candidates must first provide identification to an instructor and be assigned a candidate number. They then fill out paperwork, including a waiver should any injuries occur during testing. Candidates will have their gear inspected to make sure it is in compliance with State standards. Prior to commencement of testing, one of the instructors or examiners will read a document called the “Minimum Standards Pre-Exam Orientation” (the Orientation) to the candidates. During the reading of the Orientation, which may take 45 minutes to an hour or more, candidates are allowed and encouraged to ask questions. Unless a question is asked, the Orientation will be read verbatim, word for word, with no additional comment. After the Orientation is read, candidates are walked through the facility so they can familiarize themselves with the test site. Once the test commences, candidates are not allowed to ask any questions. Williams’ Test Experience In October 2012, after successful completion of the Firefighter II course at First Coast, Williams applied for and was approved to take the State certification examination. The exam was conducted at First Coast on the school’s training grounds. The test was conducted by certified employees of the Department. Williams did not pass the examination. One of her shortcomings in that test was a failure in the ladder evolution. Her timed completion of that evolution was in excess of the required time of four minutes and 30 seconds. Williams had been confident she would pass the certification exam because it was similar to the final exam she had passed at First Coast during her schooling. She believes she failed because she was too nervous when she took the exam when it was administered as the actual State certification test. After failing the exam, Williams then applied for a retest which would be held at the Fire College on February 7, 2013. That re-test is the focus of the instant proceeding. On the morning of the retest, Williams arrived well in advance of the 7:30 a.m., start time. As she inspected her gear in anticipation of the start of the exam, she found that the SCBA regulator she was supposed to use did not properly fit the face mask on her helmet. There were extra regulators behind one of the tables being used to process applicants for that day’s test. Examiner Harper was sitting at that table and was providing paperwork to applicants who had already signed in at the first processing station. Williams went to Harper’s table and was allowed to obtain a new regulator. Inasmuch as she was already at Harper’s table getting her replacement regulator before going to the first processing station, Williams went ahead and filled out the paperwork Harper was providing to candidates at his processing station. That is, she filled out the paperwork before actually checking in at the first station. Williams then went to the first check-in table which was manned by Examiner Rochford. She provided her identification to Rochford and was assigned candidate number 37. Rochford then told Williams to go to Harper’s table to fill out the paperwork at that station. Williams told Rochford she had already done so and walked away. (At that point, Williams remembers Rochford yelling at her, asking whether she understood his order and telling her in a harsh manner to obey him. Rochford does not remember talking to Williams at all. Neither version of this alleged confrontation is persuasive. Inasmuch as the conversation was not verified one way or another by a third person -- although there were probably a number of other people around, it will not be considered to have happened for purposes of this Recommended Order.) The Orientation was then read to the candidates. The various portions of the test were addressed in the Orientation. The ladder evolution contained the following language, which Rochford read verbatim to the candidates without anything added or deleted: “Time starts when you touch anything. Time ends when the candidate and victim fully exit the building.” There is no evidence that any of the candidates asked a question concerning this part of the Orientation. Rochford’s timing policy regarding the ladder evolution differs from what he read to the candidates. He takes the position that time stops when the candidate exits the building with the victim, places the victim on the ground in an appropriate manner, and issues a verbal statement into the radio indicating that the firefighter and victim are out of the building. By his own admission, Rochford could not speak to how other examiners handle this timing issue. Harper, who was Williams’ assigned examiner on the test, also seemed to require candidates to lay the victim down and make radio contact before stopping the time. Neither Rochford nor Harper satisfactorily explained why their timing policy was different from what was stated in the orientation. The testimony concerning the correct way of timing the evolution was, at best, confusing. The following statements from the record provide contradictory and disparate opinions by various examiners: Rochford: “As soon as they lay the mannequin on the ground [and] announce they have exited the building . . . the time stops.” Tr. p. 45, lines 9-18 “The mannequin’s feet have got to be outside the plane from the door opening. That’s when the time stops.” Id. Lines 23- 25. “Until they talk on the radio is – - when they finish talking on the radio is when the time would stop.” Tr. p. 255, lines 7-9. Johnson: “At that point, they’ll use one of the prescribed methods for rescue to take the victim and themselves past the threshold out to the fresh air. At that point, the time stops.” Tr. p. 111, lines 11-14 “I read [the Orientation] word for word.” Tr. p. 114, line 23 “On the ladder rescue evolution . . . we [examiners] all stop when they pass the threshold.” Harper: “Then they’re told to lay the victim down, make radio contact you’re out of the building. Time stops.” Tr. p. 138, lines 7-8 “After they make radio contact.” Tr. p. 147, line 3 “[Orientation] says time starts when they touch anything, time ends when the candidate and the victim fully exit the building.” Tr. P. 148, lines 15-17 Hackett: “It stops when the victim comes out of the building.” Tr. p. 222, lines 7-8 [If the victim was thrown out of the building by the firefighter] “I think they would stop the clock.” Id., lines 9-11 “It is part of the timed part that they have to designate that they’re out of the building safely and lay down the victim.” Tr. pp. 222, line 24 through 223, line 1 Question to Hackett: “If [Williams] is coming out and she dropped the victim and picked up -- and presumably picked it up or whatever and then radioed, would that add time?” Answer: “No.” Tr. p. 246, lines 5- 10 Williams was timed by Harper when she took the ladder evolution portion of the exam. According to Harper’s (deposition) testimony, he subscribes to the version of timing that requires the victim to be laid down on the ground and the firefighter to make radio contact. Using that version of timing, Williams received a time of four minutes and 35 seconds for the entire ladder evolution portion of the test. In March, the Department mailed out notices to all the candidates that had tested on February 7. Notices of failure were sent by registered mail, return receipt requested. Williams’ letter was returned to the Department as unclaimed. Williams at some point in time found out from Chief McElroy, head of the Fire Academy, that she had purportedly failed the exam. She began calling examiner Harper in March seeking to find out what portion of the exam she had not successfully completed. She had at least two telephone conversations with Harper in March 2013. On April 4, 2013, the Department re-sent the failure letter to Williams, again by certified mail. This time, the letter was claimed by Williams and she became officially aware that she had not passed the exam. The basis given for Williams’ failure was that she did not complete the ladder evolution within the prescribed time parameters. She was timed at four minutes and 35 seconds, just five seconds beyond the allowable limit. It is her contention that she exited the building with the victim within the four minute/30 second time frame. The basis for her belief is that she has done the test so many times that she knows when she is behind schedule. During the test she did not stumble, drop any equipment, or have any other problem that would have added to her time. So, she concludes, she must have completed the evolution timely. Her personal feelings on the matter, without further corroboration or support, are not persuasive. Harper did not testify at final hearing. The transcript of his deposition taken in this case was admitted into evidence. In that transcript, Harper talks about his policy regarding timing of the evolution. His policy is the same as Rochford’s and is discussed above. He does not specifically say if he employed that policy when timing Williams during her test on February 7, 2013. He does not explain the difference between the Orientation statement about timing and his personal policy. The most persuasive evidence at final hearing established that it would have taken ten to 15 seconds after exiting the building to lay the victim down and make radio contact. The radio contact itself would have taken about four seconds. If Harper had stopped his timing when Williams and the victim broke the threshold of the building, her time would have likely been less than four minutes and 30 seconds. If he used his personal timing policy, then the time of four minutes/35 seconds was probably accurate. Harper deducted points from Williams’ score because of other minor mistakes. The totality of those points would not have caused Williams to fail the test. It was the ladder evolution time that caused the failure. In fact, Williams successfully completed all portions of the re-test except for the timing issue in the ladder evolution portion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Financial Services, Division of State Fire Marshal, rescinding the failing score on the State Firefighter Certification Examination for Catalina Williams and certifying her as a Firefighter. DONE AND ENTERED this 19th day of November, 2013, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 2013. COPIES FURNISHED: Seth D. Corneal, Esquire The Corneal Law Firm 904 Anastasia Boulevard St. Augustine, Florida 32080 Michael Davidson, Esquire Department of Financial Services Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Julie Jones, CP, FRP, Agency Clerk Department of Financial Services Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0390
The Issue The central issue in this case is whether Respondent is guilty of the violations alleged in the administrative complaint dated July 23, 1992; and, if so, what penalty should be imposed.
Findings Of Fact The Respondent filed an application for fire safety inspector certification on or about March 4, 1992. One of the questions on the application for fire safety inspector certification posed the following: Have you ever been convicted of a felony, or a misdemeanor involving moral turpitude? Respondent answered the foregoing question by marking the space before "NO." On or about March 8, 1989, Respondent was charged by information issued through the State Attorney's Office in Lake County, Florida, with aggravated assault. Aggravated assault is a felony. On or about June 2, 1989, the information referenced above was amended but continued to allege aggravated assault. On June 8, 1989, the Respondent entered a plea of nolo contendere to the offense of aggravated assault and was placed on probation for a period of three years. Adjudication of guilt was withheld at that time. Subsequently, the Respondent was discharged from probation and the proceedings in the criminal case were terminated. Respondent had completed his probation at the time his application for certification as a firesafety inspector was made. Respondent is currently certified as a firesafety inspector, certificate number FI-66318. Additionally, Respondent is employed as a firefighter with the Reedy Creek Fire Department. Subsequent to the receipt of Respondent's application for certification, the Department requested information from the Florida Department of Law Enforcement and the Federal Bureau of Investigation regarding Respondent's criminal record. The information received from those sources led to the discovery of the facts addressed in paragraphs 3, 4, 5, and 6 above and the initiation of these proceedings.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Insurance and Treasurer enter a final order revoking Respondent's certification as a firesafety inspector. DONE AND RECOMMENDED this 27th day of January, 1993, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 27th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4921 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 11 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: None submitted. COPIES FURNISHED: Joseph Egan, Jr. EGAN, LEV & SIWICA, P.A. Post Office Box 2231 Orlando, Florida 32802 Daniel T. Gross Division of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Tom Gallagher, Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil, General Counsel Department of Insurance and Treasurer The Capitol, PL-11 Tallahassee, Florida 32399-0300
The Issue The issues are: (1) whether Respondent properly scored Petitioner's retake of the Practical Examination for Firefighter Retention; and (2) whether Petitioner's application for firefighter recertification was properly denied.
Findings Of Fact Petitioner has worked in the fire service for almost 28 years. During that time, Petitioner served as the assistant fire marshal and the fire marshal for the City of Orlando. After Petitioner retired from the City of Orlando, he served as fire chief, building official, and code enforcer officer of Eatonville, Florida. After more than a three-year time period of not working as a firefighter or in the fire service field, Petitioner accepted a job as fire marshal in Hillsborough County, Florida. Although there is no legal requirement that a fire marshal be certified as a firefighter, a condition of Petitioner's employment with Hillsborough County was that he be recertified as a firefighter. In Florida, a firefighter retains his firefighter certification if he remains an active firefighter with an organized fire department. However, a firefighter who has not been active for a period of three years must successfully complete the Retention Examination in order to retain his certification. The Retention Examination is the practical portion of the examination given to new applicants. Because Petitioner has not been an active firefighter for the past three years, in order to be recertified as a firefighter, he was required to successfully complete the Retention Examination. The Retention Examination consists of the following four parts: Self-Contained Breathing Apparatus ("SCBA"), Hose Operations, Ladder Operations, and Fireground Skills. To pass the Retention Examination, a candidate must achieve a score of at least 70 percent on each part. Petitioner applied for and took the Retention Examination that was given on May 16, 2007. He successfully completed the Fireground Skills part, but did not earn a passing score on the SCBA, the Hose Operations, and the Ladder Operations parts.2/ Petitioner applied for and took the September 13, 2007, Retention Examination re-test. During this re-test, Petitioner took only the SCBA, the Hose Operations, and the Ladder Operations parts, the ones that he had not successfully completed in May 2007. Petitioner passed the Hose Operations part of the Retention Examination re-test, but did not successfully complete the SCBA and the Ladder Operations parts, because he did not complete those components within the maximum allotted time. Each part of the Retention Examination has certain elements or skills that are graded. The SCBA and the Ladder Operations parts of the Retention Examination are each comprised of eleven skills or steps that the examinee must complete within the specified time. Ten of the 11 skills or steps for each part of the Retention Examination are assigned a point value of ten.3/ The other skill (the 11th skill or step) under each part is designated as a "mandatory step" for which the examinee is awarded a score of either "pass" or "fail".4/ Under the scoring system described in paragraph 10, an examinee receives ten points for each of the ten skills he successfully completes and a passing score for the one skill designated as mandatory. The SCBA and Ladder Operations parts of the Retention Examination have an established maximum time allotted for the examinee to complete a minimum of 70 percent of the skills. The time requirements are a mandatory criterion/requirement. In order to successfully complete the Retention Examination, an individual must not only complete a minimum of 70 percent of the ten skills or steps for each part, but he must also successfully complete the two mandatory criteria for that part. If an examinee completes a minimum of 70 percent of the skills in a particular part, but fails to do so within the maximum allotted time specified for that part, he has not met the mandatory time requirement and, thus, is not awarded any points for that part. The Division established the minimum time requirements for completing the various parts of the practical examination for firefighters after consulting the NFPA standards and soliciting input from fire departments, fire chiefs, and other individuals in firefighter profession. Among the factors that were considered in establishing the minimum time frames were the nature of fires (i.e., how quickly they spread) and the need for firefighters to perform their job duties both safely and quickly. The Division uses these time requirements in testing the 3,500 to 3,800 firefighters a year that go through the testing process. On the September 13, 2007, re-test, Petitioner exceeded the maximum time allotted for the SCBA and the Ladder Operations parts. The maximum time allotted for completion of the SCBA part of the Retention Examination is one minute and 45 seconds. Petitioner's completion time on the September 2007 Retention Examination re-test was three minutes and ten seconds. The maximum time allotted on the Ladder Operations part of the Retention Examination is two minutes and 45 seconds. Petitioner's completion time on the September 2007 Retention Examination re-test was three minutes and ten seconds. Because Petitioner failed to complete a minimum of 70 percent of the skills in the SCBA and the Ladder Operations parts of the Retention Examination within the maximum time allotted, the Bureau properly awarded him no points. Therefore, Petitioner did not earn a passing score on the Retention Examination re-test. As a result of Petitioner's failing to pass the Retention Examination, his Firefighter Certificate of Compliance No. 3381 expired as of September 13, 2007. The Division's Bureau of Fire Standards and Training ("Bureau of Standards") employs field representatives to administer the Retention Examination to examinees in accordance with the applicable rules and procedures. Philip D. Oxendine is and has been a field representative with the Bureau of Standards for four years. As a field representative, Mr. Oxendine administers and scores the minimum standards examination for firefighters, including the Retention Examination. Prior to being employed as a field representative, Petitioner worked as a firefighter for 27 years, having retired as a lieutenant. He also has ten years of experience as an instructor in the fire science division of the then South Technical Institution in Palm Beach County, Florida. Mr. Oxendine administered and scored the three parts of the Retention Examination re-test that Petitioner took on September 13, 2007, in accordance with the Division's procedures. All examinees at the September 17, 2007, Retention Examination re-test location, were assigned a number. In an effort to avoid bias, throughout the testing process, examinees' assigned numbers were used instead of their names. On the day of the Retention Examination re-test, Petitioner was assigned a number by which he was identified. When Mr. Oxendine administered and scored Petitioner's re-test, he did not know Petitioner's name or anything about him. Prior to Petitioner's starting the Retention Examination re-test, Mr. Oxendine took Petitioner and other examinees to each station and told them what they had to do at that station. Mr. Oxendine also told the examinees, including Petitioner, how each part of the Retention Examination would be graded.5/ Mr. Oxendine's usual practice is to instruct examinees to touch the apparatus when they are ready for time to begin on a particular part of the examination. He also gives specific instructions to the examinees regarding how they should indicate that they have completed each part. Once an examinee touches the apparatus and says he is ready to begin, Mr. Oxendine starts the stop watch. Mr. Oxendine instructed the examinees to indicate that they had completed the SCBA part by standing up and clapping their hands. The examinees were told that the Ladder Operations part was considered completed when they were behind the ladder and holding it and when they announced that the ladder was ready to be climbed. Mr. Oxendine used the procedures described in paragraph 30 in timing Petitioner on the three parts of the Retention Examination re-test. Mr. Oxendine timed Petitioner's performance on each part of the Retention Examination re-test using a stop watch. This is the method that Mr. Oxendine was trained to use when timing the examinees' performances on the practical portion of the examination. An individual is allowed to re-take the Retention Examination one time. If the person does not pass the re-test, he must repeat the Firefighter Minimum Recruit Training Program before he is eligible to re-take the Retention Examination. See § 633.352, Fla. Stat., and Fla. Admin. Code R. 69A-37.0527. As noted above, Petitioner did not pass the SCBA and the Ladder Operations parts of the Retention Examination re- test. Therefore, before he is eligible to re-take that examination, he must repeat the Firefighter Minimum Recruit Training Program. Petitioner failed to establish that he was entitled to a passing grade for his performance on the Retention Examination re-test. The greater weight of the credible evidence established that Petitioner's performance on the Retention Examination re-test was appropriately and fairly graded.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying Petitioner's application to retain his certification as a firefighter in the State of Florida. DONE AND ENTERED this 20th day of May, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2008.
The Issue The issue 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
Findings Of Fact By addition to Section 633.081(2), Florida Statutes, in 1981, the Florida Legislature required the State Fire Marshal to renew, on a triennial basis, the certification of fire inspectors in the State of Florida and to, by January 1, 1982, establish procedures to do so by rule. This statute and the 1979 edition thereof stipulated that all required fire inspections be conducted by a person certified as having met the inspection training requirements set by the State Fire Marshal and charged that individual with maintaining current files on all certified inspectors. Consistent with that mandate, on October 16, 1981, a representative of the Bureau of Fire Standards and Training of the State Fire Marshal, by memorandum to all "Incumbent Fire Safety Inspectors," forwarded the procedures established by the Bureau to initiate the required certification process. The memorandum clearly indicated the test to be given during December, 1981, at various locations throughout the state would be to any "qualified' inspector. The term "qualified" was defined in the attachment to the memo as being: ndividuals who are currently functioning as fire inspectors provided they meet the requirements specified below. Have a minimum of one year of experience as a full-time fire safety inspector as of January 1, 1982, and have successfully completed a 40 hour course of instruction in Codes and Standards; or Have a minimum of five years experience as a full-time fire safety inspector as of January 1, 1982. This incumbent test was an open-book examination in all sections, and was not to be used to test new inspectors who had not been serving in that job. The test for new inspectors is open book in only one of five sections. On November 9, 1981, Respondent, John M. McCarthy, then serving as Fire Chief for the Fort Myers Beach (Florida) Fire Control District (FMBFCD), submitted his request to take the Incumbent Fire Safety Inspector examination. The application form Respondent submitted, verifying he had served as a full- time fire inspector for four years beginning September 11, 1977, to the date the application was signed by Respondent, as fire chief, as the certifying agent. Respondent contends he was advised to do just that by a representative of Petitioner in a phone call to Petitioner's Ocala office prior to the application. Mr. Stark, currently the bureau chief, was not serving in that capacity at that time. The then-incumbent is no longer at that office and did not testify. On the basis of Respondent's application and the verification of status appearing thereon, he was permitted to take the incumbent exam, which he passed, and was subsequently certified as a fire safety inspector. In early April, 1983, John Dahlgren, Jr., Vice Chairman of the Board of Fire Commissioners, FMBFCD, in the company of Mr. Robert J. Weatherbee, then lieutenant in the Fort Myers Beach Fire Department, came to Mr. Frederick C. Stark, Bureau Chief, Bureau of Fire Standards and Training, Office of the State Fire Marshal, and presented a letter to him to the effect that it was the majority opinion of the members of the Board, FMBFCD, that Respondent was not qualified to take the incumbents' fire inspector examination when he did because he had not had the required one year experience as a full-time fire inspector and, therefore, his certification as such was in error. A letter to that effect, dated April 7, 1983, was also delivered. The following day, April 8, 1983, Mr. Stark wrote to Respondent, informing him of this allegation and offering him the opportunity to refute the allegation. Apparently, that same date, Mr. Stark sent a similar letter to Mr. Keith Hiatt, Chairman of the FMBFCD; and on April 12, 1983, Mr. Hiatt responded by letter, indicating that Respondent was, at the time of taking the exam, the full-time paid inspector, as well as full-time paid fire chief, citing the training that Respondent and another fire official gave to Mr. Weatherbee to qualify him for the position of fire marshal. Similar sentiments were contained in a letter, same date, from Mr. Frederick Bruchner, member of the Board, to Mr. Stark. Also on April 12, 1983, Respondent responded by letter to Mr. Stark, outlining his experience in fire prevention and detailing that his position as fire chief gives him final review and decision-making authority on the operation of the department's fire inspector, Mr. Weatherbee. Shortly thereafter, on April 29, 1983, Mr. Weatherbee and Charles Mulac, former Fire Marshal and acting Fire Chief, signed affidavits which subsequently got to Mr. Stark on May 2, 1983, which indicated that during their tenure in their respective offices, going back to June, 1979, Respondent had not served that department as a full-time inspector. Prior to signing his affidavit, Mr. Weatherbee personally went through all the inspection files, including approximately 180 residentials, 100 Businesses, 100 mercantiles, 5 schools, and some industrials. He recalls that Respondent was with him on some of his inspections, but does not recall any cases where Respondent did the inspection alone. During this period, Respondent called Mr. Stark and told him there were documents in the department files which showed he had done fire inspections, so on May 2, 1983, Mr. Stark wrote to Mr. Mulac, as acting Chief, and requested he search the department's fire inspection records for the period 1977-1980 for any documentation, such as inspection records, surveys, or the like, to indicate inspections done by Respondent. On May 5, Mulac responded in writing, indicating that a thorough search of the records in question disclosed no documentation on inspections by Respondent, nor did the records show Respondent was ever a part-time or full-time, paid or nonpaid, inspector during the period 1977-1980. In addition to the lack of full-time inspector employment, the Bureau also concluded that Respondent's training records did not reflect the required training in that it is felt he did not have training in: Blueprint reading and plan examination; Inspection procedures; (a) Private protection systems (sprinklers, alarms); and (d) Causes and origins of fires. Without this background, the Bureau concluded Respondent could not function as an inspector, as all are pertinent to that operation, especially in light of current building methods. Further, concerning the experience requirement, this was considered to be imperative because there are many aspects of fire safety which are learned only through experience. Without the experience, even the training would not, in Stark's opinion, make an individual a qualified inspector. Respondent's duties as fire chief, which required him to oversee inspections done by others, was not, in Stark's opinion, sufficiently connected to the inspection process to allow him to sit for the incumbents' examination. Therefore, on May 11, 1983, Mr. Stark, as Bureau Chief, voided Respondent's Municipal Fire Inspector certificate and advised him of that fact by letter. Respondent contends that Mr. Stark's action was taken without adequate investigation and was based on irrelevant matters. As to the latter issue, Mr. Stark admits that the discussion he had in his office with Dahlgren and Weatherbee related to the rules and procedures as they applied to Respondent. Mr. Stark assured these two gentlemen only that he would look into their allegations. Prior to this visit, he had no indication there was anything wrong with Respondent's certification or that of Mr. Taylor, also from the Fort Myers Beach Fire Department. About a week after this visit, Mr. Stark received a package in the mail that consisted mostly of newspaper clippings concerning Respondent and alleged improprieties in the District, but, he contends, he read only one, and none of this had any bearing on the decision to decertify Respondent as a fire inspector. He also received numerous phone calls from individuals in Fort Myers regarding Respondent's status, and he referred them all to the Fire Marshal's Office in Tallahassee. Without concluding at this point whether that decision was appropriate or not, it is clear there is no reason to disbelieve Mr. Stark in this regard or to conclude the decision was based on any improperly considered evidence. As to the adequacy of the investigation into the allegations, it is also clear that Mr. Stark could have improved little on what he did. He could have, himself, examined the department's records and, in light of the fact that at the time in question Respondent had been suspended as chief and was barred from the department offices (he could not, therefore, get to the files to secure copies of his inspection reports, if any existed), perhaps should have done so. However, at no time did Respondent contend he had done inspections himself, but instead, in his response to Mr. Stark's initial letter, relied solely on his supervisory position, the responsibility that went with it, and his efforts on behalf of the Interlocal Agreement. In light of the evidence presented to him, Mr. Stark had no requirement to go further, and it is clear his inquiry into the matter was adequate. At the time of the test, no rule had been promulgated for the certification process. The Fire Marshal's Office took the statutory language calling for "certification" of inspectors as the authority to give the test to incumbents to certify them. It is the opinion of Mr. Stark that some of the 400 to 500 individuals who took the incumbent test, out of the 23,000 inspectors working in this state, had very little fire inspection training or experience at all. However, since the Training Bureau has only two individuals to do the checking for the entire state, he had to rely on the integrity of the individual who verified the experience claimed on the application form. If, however, the Bureau received information that someone was not qualified, it decertified that individual, utilizing the same procedure as done in the instant case; that is, to decertify after investigation, but without hearing prior to the decertification action. In fact, to the best of Mr. Stark's knowledge, there were five other cases where certificates were looked into because of alleged irregularities such as here. Respondent applied for employment with the FMBFCD on May 15, 1976. Prior to coming to Florida, he worked as a fire fighter in New York since 1965 and while there took numerous fire fighting courses and officers' training. After coming to Florida, he enrolled in St. Petersburg Junior College and Edison Community College by which latter institution he was awarded the Associate of Science Degree in Fire Administration. During the course of study, he took courses in: Introduction to Fire Protection; Fire Protection Systems; (a) Fire Company Leadership; Fire Fighting I; Fire Company Management; Fire Codes; Protection Organizations; Fire Prevention Investigation; Hazard Material; Fire Fighting II; and graduated in the winter of 1983 from Edison Community College with an overall grade point average of 3.22 out of a possible 4. Respondent submitted extensive documentation in the form of memoranda, notations, calendar memos, and newspaper articles to show that he was actively engaged in fire inspection. However, careful review of these documents reveals that while he was frequently embroiled in controversy over the inspections of various commercial and residential establishments in Fort Myers Beach, and while he may, from time to time, have actually been personally involved in inspections, for the most part he was the upper echelon supervisor who was called upon to resolve disputes over inspections conducted by others, on the basis of policy or whatever other concern was pertinent to the issue. Whatever else he did, it is clear Respondent was not a full-time fire inspector. In fact, Respondent admits that though he has personally participated in many inspections in the field, assisting Mr. Weatherbee, who was, at the time, the Fire Inspector (Marshal) for the FMBFCD, and bringing to his attention various aspects of the fire codes, he did not do the actual inspection and has never done one by himself. However, because of the periodic friction between Weatherbee and Mulac, then the Assistant Fire Chief, he found himself going out into the field with both, frequently to do inspections. Respondent contends that the area of fire prevention and code enforcement, into which fire safety inspection falls, is the biggest part of his job, which also entails fire suppression and rescue. During the period in question, Fort Myers Beach did more building in general than the rest of the county. As a result, he was always out at the site looking at plans and consulting with the builder. In that regard, however, he has, by his own admission, taken no course work in blueprint reading or plans review that was certified by the State Fire Marshal. Finally, concerning this particular subject, when Respondent was temporarily suspended from his job as fire chief in April, 1983, he was contacted by a reporter from the local paper who read to him, over the phone, from the long list of charges laid against him, of which, prior to that moment, he had no knowledge and had not seen. In response to the reporter's question about inspections, 1/ Respondent is quoted as having denied participating in fire inspections and indicating he had nothing to do with fire codes.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED THAT: Respondent's certification as a fire safety inspector be rescinded. RECOMMENDED this 22nd day of May, 1984, in Tallahassee, Florida. ARNOLD H. POLLOCK Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1984.
The Issue Whether Petitioner is entitled to additional credit for his answer to Item 264 on the "Principles and Practice" part of the October 1993 Fire Protection Engineer Examination.
Findings Of Fact Petitioner applied for licensure as a Fire Protection Engineer with Respondent, the state agency responsible for the licensure of Fire Protection Engineers in Florida. Petitioner was required to successfully complete an examination administered by the Respondent to become licensed as a Fire Protection Engineer. Petitioner sat for the licensing examination for Fire Protection Engineer administered by Respondent on October 29 and 30, 1993. A score of 70 is required to pass the "Principles and Practice" part of the licensure examination. Petitioner received a score of 66.30 on that part of the examination, which is a failing grade. Item 264 is a question for which a completely correct answer would have been awarded 10 points. Item 264 contained a diagram of a building and required the applicants to properly space heat or smoke detectors in the building and to justify the type of detection device used in a particular area. Petitioner was awarded a total of four points for his partially correct answer to Item 264. Petitioner would have passed the "Principles and Practice" portion of the examination had he been awarded eight or more points for his answer to Item 264. At Petitioner's request, his response to Item 264 was regraded by the National Council of Examiners for Engineering and Surveying (NCEES), a consulting firm utilized by Respondent to develop and score licensure examinations. When Petitioner's response to the exam was initially scored, he received a score of 4 points. The regrading of the examination did not change that score. The report prepared by NCEES in conjunction with the regrading of Petitioner's answer to Item 264 stated the following 1/ in explaining the score awarded for Petitioner's answer: The examinee did not reference the NFPA 72 A, D, and E standards 2/ to answer the question. The lounge area requires heat detectors rather than smoke detectors. The smoke detectors would be sending false alarms and they would be disconnected to stop the alarms. The heat detectors would be more reliable. The examinee's solution did not show detectors in the corridor, locker room, and boiler room; all of which are required. The examinee's solution did not space the detectors according to NFPA 72. According to the NCEES approved scoring plan, the examinee's solution demonstrates less than minimum competence (score of 4 points). Pursuant to the scoring standards that have been adopted, a score of four represents a borderline unqualified response, which is explained as being: Applicant has failed to demonstrate adequate knowledge in one or more categories. For example, approach may be correct but the solution is unreasonable. Significant constraints may have been overlooked. Solution is unacceptable, but marginally so. Petitioner's answer to Item 264 failed to properly space detectors in his answer, failed to place detectors in the corridor, locker room, and boiler room, and incorrectly placed smoke detectors in the lounge area instead of heat detectors. Petitioner did not establish that the standards used to score the examination were arbitrary, capricious, or devoid of logic. Petitioner did not establish that the application of those scoring standards to Petitioner's response to Item 264 was arbitrary, capricious, or devoid of logic. Item 264 is a reliable and valid test item. Respondent established that Petitioner's response to Item 264 was fairly graded. Petitioner is not entitled to additional credit for his response to Item 264.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order that adopts the findings of fact and the conclusions of law contained herein and which DENIES Petitioner's challenge to the scoring of his answer to Item 264 of the October 1993 Fire Protection Engineer Examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of November 1994. CLAUDE B. ARRINGTON 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 10th day of November 1994.
