The Issue The issue is whether Respondent properly denied Petitioner's application for certification as a firefighter after Petitioner failed to successfully pass the practical portion of the Minimum Standards Examination.
Findings Of Fact Petitioner applied for certification as a firefighter in October 2002. In order to be certified, Petitioner was required to successfully complete the Minimum Standards Course. The course consists of taking a minimum of 360 hours of training at one of 30 certified centers in Florida. After completing the training course, Petitioner was required to take the Minimum Standards Examination, which is structured in two parts: a written portion and a practical portion. The practical portion consists of four sections or evolutions including the Self-Contained Breathing Apparatus (SCBA), the hose pull, the ladder operation, and the fire skills section. To pass the four practical evolutions, an applicant must achieve a score of at least 70 percent on each one. Each evolution of the practical exam has certain elements or skills that are graded. The ladder test contains eleven skills and requires that the test be completed in not more than two minutes and forty-five seconds. The eleven skills for the ladder evolution include but are not limited to the following: ladder properly lifted, carried, (50 feet) and positioned for raise; maintains control of ladder during entire operation; extremities in safe position during entire operation; ladder halyard properly secured and proper safety applied; fly section extended without utilizing the wall; and fly section out and positioned correctly. After completing the Minimum Standards Course, Petitioner took the initial Minimum Standards Examination on February 19, 2003. Petitioner passed the written portion of the exam but did not pass the practical portion of the initial exam because he made a score of 60 on the ladder operations evolution of the practical examination. In a memorandum dated March 5, 2003, the Department formally advised Petitioner that he had failed the ladder portion of the practical exam for failure to maintain control of ladder. The memorandum also informed Petitioner that he was scheduled for a retake of the minimum standards practical retest of the ladder evolution. In another memorandum dated March 5, 2003, the Department advised Petitioner that he was scheduled to retake the ladder portion of the practical examination at the Florida State Fire College in Ocala, Florida, on May 22, 2003, at 8:00 a.m. Petitioner took the retest of the ladder portion of the practical examination as scheduled on May 22, 2003, in Ocala, Florida. Petitioner did not successfully complete the retest, losing points on three skills and not completing the test in the requisite amount of time. However, there was a problem with the ladder used by Petitioner on the retest in that the "fly" was not locked on the ladder. Ralph Chase is a field representative with the Division of State Fire Marshall of the Department. Mr. Chase was the examiner who tested Petitioner on the retake of the ladder portion of the practical exam on May 22, 2003. Mr. Chase is an experienced examiner. Because of the problem with the ladder on Petitioner's initial attempt on the ladder retest, Mr. Chase allowed Petitioner a second attempt to pass the ladder retest on May 22, 2003, although it is unusual to do so. On the second retest, Petitioner finished the test within the required amount of time but points were counted off for the following skills: ladder properly lifted, carried, (50 feet) and positioned for raise; extremities in safe position during entire operation; ladder halyard properly secured and proper safety applied; and fly section out and positioned correctly. Mr. Chase also made a notation that Petitioner had "poor control" but nonetheless gave Petitioner a passing score on the mandatory skill of maintaining control of ladder during the entire operation. Petitioner made a score of 60 on his second attempt of the retest which is below the required passing score of 70. Phillip Hershman was present at the retest in Ocala on May 22, 2003. Mr. Hershman was there to retake the hose pull portion of the practical exam. At the time of the hearing, he had been employed by the Suwannee County Fire Department for two months. Mr. Hershman was about 50 feet away from Petitioner during Petitioner's ladder retest. There was considerable noise near Mr. Hershman because the self-contained breathing apparatus test was also being conducted nearby. Mr. Hershman had a side view of Petitioner during the ladder retest. He could not see everything that was going on during the ladder retest. Mr. Hershman saw Petitioner look over the ladder and say something to Mr. Chase but could not hear what was said. He saw Mr. Chase speaking to Petitioner. When Petitioner picked up the ladder for the retest, Mr. Hershman saw the rungs of the ladder slide open. He saw Petitioner adjust the ladder and pick it up again. He did not see the ladder touch the wall until final resting of the ladder. Petitioner maintains that the ladder he used on the second retest attempt on May 22, 2003, was defective in the same manner as the first. However, Mr. Chase examined the ladder used in the second test to make sure it was in the correct position. Upon examining the ladder Petitioner used in the second retest, Mr. Chase found it to be "normal." It is unclear from the record whether Mr. Hershman witnessed both of Petitioner's attempts at the ladder retest on May 22, 2003. In any event, in instances where Mr. Hershman's testimony and Mr. Chase's testimony are in conflict, Mr. Chase's testimony of the events regarding Petitioner's retest is more persuasive. He is an experienced examiner, he was the person testing Petitioner, and he has a clear recollection of the events that occurred. While Mr. Hershman's testimony is credible, he was not in the same position, neither physically nor through experience, as Mr. Chase to determine how Petitioner should have been graded on the retake tests. In the First Amended Denial Letter dated August 15, 2003, Respondent informed Petitioner that since he passed the written portion of the Firefighter Minimum Standards Examination, a Firefighter I certificate was enclosed. Further, the August 15, 2003, letter informed Petitioner that he did not achieve a passing score on the 24" Ladder Carry, Raise and Extension evolution of the Firefighter Minimum Standards practical retest. He was informed that it will be necessary to either repeat the entire Minimum Standards Course or complete the Firefighter II Course before retaking the Firefighter Minimum Standards Examination.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department enter a final order denying Petitioner's application and that Petitioner be permitted to either repeat the Minimum Standards Course or complete the Firefighter II course before retaking the Firefighter Minimum Standards Examination. DONE AND ENTERED this 31st day of October, 2003, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2003. COPIES FURNISHED: Casia R. Belk, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0330 William Glenn Cone, Esquire 1530 Ryar Road, No. 7 Jacksonville, Florida 32216 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issues in this case are whether Respondent’s participation in the John M. McKay Scholarships for Students with Disabilities Program (McKay Scholarships) and the Corporate Income Tax Credit Scholarship Program (CTC Scholarships) should have been suspended, and whether Respondent’s eligibility to participate in the programs should be revoked.
Findings Of Fact CHC is a private school located in Merritt Island, Florida. Lara Nichilo is the owner and head administrator of CHC. Ms. Nichilo was also the owner and head administrator of another private school located in Cocoa, Florida. For the purposes of this proceeding, the school located in Cocoa, Florida, will be referred to as CHC 2.2 CHC and CHC 2 had participated in the McKay Scholarships and CTC Scholarships programs. Section 1002.39, Florida Statutes, authorizes the McKay Scholarships program, which affords a disabled student an opportunity to receive a scholarship to defray the cost of attending a private school of choice. Section 220.187, Florida Statutes, authorizes the CTC Scholarships program, which enables taxpayers to make private, voluntary contributions so that students who qualify for free or reduced-price school lunches under the National School Lunch Act may receive a scholarship to defray the cost of attending a private school of choice. The Department of Education has the responsibility to annually verify the eligibility of a private school to participate in these scholarship programs. Private schools participating in the McKay Scholarships and CTC Scholarships programs are required to comply with Section 1002.421, Florida Statutes, and must meet applicable state and local health, safety, and welfare laws, codes, and rules, including laws, codes, and rules relating to firesafety and building safety. If a private school participating in the McKay Scholarships and CTC Scholarships programs desires to renew its participation in the programs, the school must file a signed, notarized Form IEPC SCF-1 affidavit with the Department of Education by March 1 of each year for participation in the subsequent school year. The Form IEPC SCF-1 affidavit contains a list of requirements to which the private school must certify that it meets or does not meet. If the school certifies that it does not meet a requirement, such certification constitutes an outstanding compliance issue, which must be resolved by the school prior to May 1 of each year for the school to remain eligible to participate in the scholarship programs. Specifically, the signature page of the Form IEPC SCF-1 affidavit states in part: “I understand that in answering ‘No’ to any requirement in Section 9: School Facility, the provision of a reason for answering ‘No’ shall not make the school compliant with the reporting requirement and will be considered an outstanding compliance issue for resolution as described in State Board of Education Rules 6A-6.03315, 6A-6.0960, and 6A- 6.0970, Florida Administrative Code.” Florida Administrative Code Rule 6A-6.03315(2) requires that every third year a school applies for renewal of eligibility for the scholarship programs there must be a review of compliance documentation. This means that the school must submit documentation to support its eligibility along with the affidavit. For the renewal of eligibility for the 2009-2010 school year, CHC had to submit compliance documentation for review. On November 6, 2008, Ms. Nichilo executed and mailed the Form IEPC SCF-1 affidavit for CHC for renewal of CHC’s eligibility to participate in the McKay Scholarships and CTC Scholarships programs for the 2009-2010 school year. Subsection 1 of Section 9 of the Form IEPC SCF-1 affidavit requires the school to answer the following question: Does the school facility possess a current, violation free or satisfactory Fire Code Inspection and compliance report in accordance with Section 1002.421(2)(g)1., Florida Statutes, State Finance Services Rule 69A-58.004, Florida Administrative Code, and county and/or municipal ordinance? Ms. Nichilo answered “Yes” to the question. CHC submitted a fire inspection certificate for CHC with a date of February 22, 2008. At the time Ms. Nichilo executed and submitted the Form IEPC SCF-1 affidavit in November 2008, CHC did not have a current Fire Code Inspection and compliance report. The last fire inspection certificate was dated February 22, 2006, and had expired on February 22, 2007. Ms. Nichilo executed and submitted a Form IEPC SCF-1 affidavit for the 2007-2008 school year, certifying that CHC had a current, violation-free fire inspection report. The certificate affidavit which Ms. Nichilo signed stated: I have read the applicable scholarship program rules and understand that by signing this form I am certifying that the school is currently in compliance and agrees [sic] to remain in compliance with all scholarship program rules and reporting requirements. If at any point, the school is not in compliance with scholarship rules, or if there is a change in the status of any reporting requirement, the school will have 15 days to notify the Department of Education and will provide all information necessary to document its continued compliance with program rules and requirements. At the time the certification was submitted on January 11, 2007, CHC did have a current, violation-free fire inspection report; however, CHC did not have a current, violation-free fire inspection report that was valid for the entire 2007-2008 school year. CHC did not notify the Department of Education that it was not in compliance with the fire safety inspections during the 2007-2008 school year. On December 5, 2007, Ms. Nichilo executed and submitted a Form IEPC SCF-1 affidavit for the 2008-2009 school year, certifying that CHC had a current, violation-free fire inspection report. At the time of submission of the affidavit, CHC did not have a current, violation-free fire inspection report, and, from the beginning of the 2008-2009 school year until December 23, 2008, CHC did not maintain a current, violation-free fire inspection report nor did CHC notify the Department of Education as late as December 11, 2008, that CHC was not in compliance with the fire inspection requirement. On November 19, 2008, Assistant Fire Marshall Doug Carter of Brevard County Fire Rescue (BCFR) received a complaint concerning CHC and CHC 2 from an anonymous caller. It is the policy of BCFR to follow up on all complaints. On November 20, 2008, Lead Fire Inspector William Morissette, following up on the anonymous complaint, went to CHC for the purpose of performing a fire inspection. On November 20, 2008, Mr. Morissette performed a fire inspection on CHC and noted some violations. During the inspection on November 20, 2008, Mr. Morissette noticed that the fire inspection certificate that was posted at CHC was partially obscured, and he could not see the school’s address. On November 20, 2008, Mr. Morissette performed a fire inspection of CHC 2 and noted some violations. He observed the posted fire certificate at CHC 2 during his inspection. The fire certificate had an account number 23832 and was dated February 22, 2008. The font used in the printing of the certificate did not appear to be the same type as used by BCFR. While at CHC 2, Mr. Morrissette called Assistant Fire Marshall Carter and learned that account number 23832 was for CHC and not CHC 2 and that no fire certificate had been issued to CHC 2 on February 22, 2008. The last fire certificate that had been issued to CHC 2 was on December 15, 2005, and had expired on December 16, 2006. On November 6, 2008, CHC sent a copy of the fire inspection certificate dated February 22, 2008, to the Department of Education as part of the documentation supplied to verify CHC’s eligibility for renewal. The fire inspection certificate was a forgery. Ms. Nichilo testified that she did not send the forged certificate to the Department of Education and that some disgruntled former employee who had access to CHC’s files must have sent the certificate to the Department of Education or must have put the forged certificate in the envelope containing the renewal information that was sent to the Department of Education. Ms. Nichilo’s testimony is not credible. The certificate came in the same envelope as the other material which CHC submitted in November 2008. Ms. Nichilo signed and mailed the renewal information on November 6, 2008. Her testimony that the envelope must have been in the mail room a couple of days before it was mailed, thereby allowing the disgruntled employee an opportunity to slip the forged certificate in the envelope, is not credible. After the renewal package was sent to the Department of Education, Ms. Nichilo asked her secretary to contact BCFR to schedule a fire inspection. Ms. Nichilo knew that she needed a fire inspection because she knew that she did not have a current fire inspection certificate when she sent the renewal submittal to the Department of Education. Based on the clear and convincing evidence presented, it can only be concluded that Ms. Nichilo knew the fire inspection certificates, which she included with the renewal submittals, were forgeries. On or about December 5, 2008, Mr. Carter contacted the Department of Education and informed the Department of Education that he had concerns about CHC’s and CHC 2’s fire inspection certificates. Mr. Carter sent a memorandum dated December 9, 2008, to Riley Hyle with the Department of Education, explaining BCFR’s observations and concerns relating to the fire inspection certificates. After learning from Mr. Carter that CHC’s and CHC 2’s fire inspection certificates were in question, Mr. Hyle checked the Department of Education’s renewal files on CHC and CHC 2. Mr. Hyle found forged fire inspection certificates in both files. When CHC’s and CHC 2’s submittals arrived on November 10, 2008, in the same envelope, Mr. Hyle reviewed the submittals and verified that both submittals contained fire inspection certificates. He received no further documentation from CHC or CHC 2 from November 10, 2008, and the time he talked to Mr. Carter on December 5, 2008. On December 8, 2008, Mr. Morrissette returned to CHC 2 to do a follow-up inspection. CHC 2 had not corrected all its violations. Mr. Morrissette was advised by the principal at CHC 2 that CHC also had not corrected all of its violations. One of the violations CHC had was a broken lockbox. On December 7, 2008, CHC had called BCFR and requested an application for a lockbox. Thus, on December 8, 2008, CHC would still have not corrected its lockbox violation. On December 11, 2008, Ms. Nichilo signed a revised version of the Form IEPC SCF-1 affidavit3 for CHC for the 2009- 2010 school year. The question posed in the affidavit submitted in November 2008 concerning whether the facility had a current, violation-free fire code inspection remained the same in the revised affidavit. Again, CHC stated that it did have a current, violation-free Fire Code Inspection and compliance report. The revised affidavit also contained the same language as the November 2008 affidavit that answering a question in the negative in Section 9 would result in an out-of-compliance issue. Both the November affidavit and the revised affidavit contained the following language: I have read the applicable scholarship program rules and understand that by signing the form I am certifying that the school is currently in compliance and agrees [sic] to remain in compliance with all scholarship program rules and reporting requirements. If at any point, the school is not in compliance with the scholarship rules, or if there is a change in the status of any reporting requirement, the school shall have 15 days to notify the Department of Education and will provide all information necessary to document its continued compliance with program rules and requirements. The revised affidavit was submitted to the Department of Education, which received the affidavit on December 16, 2008. At the time CHC submitted the affidavit, it did not have a current, violation-free Fire Code Inspection and compliance report. On December 23, 2008, the BCFR re-inspected CHC and found that the violations had been corrected. After its inspection on December 23, 2008, BCFR issued a fire inspection certificate backdated to November 20, 2008, which was the date of the original inspection. On December 17, 2008, the Agency issued an Administrative Complaint, suspending CHC’s eligibility for the McKay Scholarships and CTC Scholarships programs for failure to have a current fire inspection report. By letter dated December 23, 2008, and received by the Department of Education on December 29, 2008, CHC advised that the school had been re- inspected and now had a current fire code inspection certificate. On January 2, 2009, CHC sent a 12-page facsimile transmission to the Department of Education. One of the pages of the transmission was a copy of a facsimile transmission coversheet dated December 31, 2008, with the BCFR letterhead concerning inspection reports. The comments section of the coversheet read “Please read letter.” The second page of the transmission was an unsigned to-whom-it-may-concern letter dated December 30, 2008. At the top of the letter, printed in large, bold type was the following: “Brevard County Fire Rescue.” The letter stated: To whom it may concern, In reviewing and trying to figure out what happen with the 2007 inspection reports this is the conclusion we have come to. If you review the two reports on both CHC-1 and CHC-2 the visiting inspection times over lap each other making it seem like a 2007 inspection was done when in reality it was not. CHC-1 inspection has a date on it February 22, 2006 to February 2007. CHC-2 inspection shows January 12, 2006 (re-inspection) January 2007. I believe that this was just an over site on both our parts due to the fact that the fire department does come in regularly every year even without an appointment. Lara Nichilo did notify us to come in ASAP when the reports could not be found. But as of November 20, 2008 all her inspections were done and her follow up correction reports have been completed putting her in good standing with the fire and inspections department. CHC-1 and CHC-2 (inspection reports provided to you with this letter) For more information you may contact us at 321-455-6383 Thank you for your time, The telephone number given in the letter was the telephone number for CHC. The original letter submitted at the final hearing by CHC was written on stationary bearing the CHC watermark. The letter received by the Department of Education had no visible watermark. The facsimile transmission coversheet that accompanied the letter was a coversheet which BCFR had sent to CHC on December 31, 2008. The statements in the comments section that BCFR sent had been deleted and replaced with “Please read letter.” The following are the comments which BCFR had written: There are no reports or certificates for 690 Range Road for 2006 or 2007. There are no inspection reports or certificates for 55 McLeod for 2007. Certificates will be issued upon receipt of payment. Laura Harrison, the director of the McKay Scholarships and CTC Scholarships programs at the Department of Education, transmitted a copy of the letter to BCFR and asked if the letter had originated from BCFR. Mr. Carter advised Ms. Harrison that the letter did not come from BCFR. Ms. Nichilo wrote the letter. A person reading the letter would be led to believe that the letter came from BCFR. The letter was accompanied by a facsimile transmission coversheet bearing the BCFR letterhead and the coversheet comments said “Please read letter.” The letter refers to Ms. Nichilo in the third person and uses first person plural pronouns to refer to BCFR. The letter purports to bear the letterhead of BCFR. It must be concluded that Ms. Nichilo intended the Department of Education to rely on the letter as a letter transmitted by BCFR to Ms. Nichilo to explain the situation. If Ms. Nichilo had intended the Department of Education to treat the letter as a letter written by her, she would have written the letter using CHC letterhead, signed the letter, not referred to herself in the third person, not referred to BCFR in the first person, and not used a transmission coversheet from BCFR in which the comments section had been altered. In a conversation on December 30, 2008, Ms. Nichilo advised Mr. Hyle that she was sending him a letter that would explain everything and would resolve the situation concerning the fire inspections. Ms. Nichilo testified that she told Mr. Hyle that she was writing the letter. Mr. Hyle did not recall whether Ms. Nichilo said that she was writing a letter. Jade Quinif, who was Ms. Nichilo’s administrative assistant on December 30, 2008, listened to the conversation between Mr. Hyle and Ms. Nichilo on speakerphone. She recalls Ms. Nichilo asking Mr. Hyle if he would like her to write a letter regarding Ms. Nichilo’s conversations with BCFR. Mr. Hyle said that would be fine. Ms. Nichilo typed a letter and asked Ms. Quinif to send it to the Department of Education. Ms. Quinif sent a letter to the Department of Education dated December 30, 2008. Based on the evidence presented, the letter that Ms. Quinif sent was a letter dated December 30, 2008, written on CHC letterhead and signed by Ms. Nichilo.4 It was not the letter dated December 30, 2008, which appeared to be from BCFR (purported BCFR letter). The only evidence of receipt of the purported BCFR letter by the Department of Education is in a 12-page facsimile transmittal, which was transmitted twice on January 2, 2009. Ms. Quinif credibly testified that she did not send a 12-page transmission and that she did not send the doctored transmission coversheet from BCFR. She also credibly testified that the letter that she sent was a few days after Christmas and was not more than a week after Christmas. Ms. Nichilo testified that Ms. Quinif did sent the transmittal coversheet from the BCFR on December 30, 2008; however, Ms. Nichilo’s testimony is not credible given that the transmittal coversheet from BCFR was dated December 31, 2008, and showed a transmission date of December 31, 2008, to CHC. The clear and convincing evidence is that Ms. Nichilo wrote and sent the purported letter from BCFR and the doctored transmittal coversheet from BCFR in an attempt to make it appear that BCFR was taking some of the blame for CHC not having maintained current fire inspection certificates. BCFR does not automatically do an annual inspection of schools. If a school desires to have a fire inspection, the school must notify BCFR and arrange for a fire inspection. The failure to have current, violation-free fire inspection reports rests with CHC and not with BCFR. The bogus letter was an effort by CHC to seek mitigation for its failure to adhere to the requirements for eligibility for the scholarships programs. After learning that the letter transmitted on January 2, 2009, was not from BCFR, the Agency issued an Amended Administrative Complaint on January 23, 2009, which superseded the December 17, 2008, Administrative Complaint. The Amended Administrative Complaint deleted the allegations concerning the failure to have a current, violation-free fire inspection report and added allegations involving fraud and failure to maintain current, violation-free fire inspection reports.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining the suspension of CHC’s eligibility for the McKay Scholarships and CTC Scholarships programs and revoking CHC’s eligibility for the McKay Scholarships and CTC Scholarships programs. DONE AND ENTERED this 4th day of May, 2009, 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 4th day of May, 2009.
The Issue Whether Petitioner's challenge to the failing score he received on the Practical Examination for Retention of Firefighter Retest he took on May 17, 2012, should be sustained.
Findings Of Fact Because no evidence was offered at the final hearing held in the instant case, no findings of fact are made.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services, Division of the State Fire Marshall, enter an order denying Petitioner's challenge to the failing score he received on the Practical Examination for Retention of Firefighter Retest he took on May 17, 2012. S DONE AND ENTERED this 17th day of August, 2012, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 2012. COPIES FURNISHED: Jesse Beauregard 10731 Northwest 18th Court Coral Springs, Florida 33071 Linje E. Rivers, Esquire Department of Financial Services 200 East Gaines Street, Sixth Floor Tallahassee, Florida 32399-0333 Julie Jones, CP, FRP, Agency Clerk Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0390
The Issue The issue in this case is whether Orange County Fire Rescue (Respondent) committed an act of unlawful employment discrimination against Marlene Serrano (Petitioner) in violation of the Florida Civil Rights Act of 1992.
Findings Of Fact The Petitioner is a Puerto Rican-born Hispanic female. At all times material to this case, the Petitioner was employed by the Orange County Fire Rescue Department (FRD), a unit of the Orange County government. In order to increase the number of firefighters available to the Respondent, the FRD posted a job advertisement in July 2008 ("Job Req. #007931"), seeking to hire state- certified paramedics who were capable of becoming state-certified firefighters. The advertisement clearly indicated that applicants should be state-certified paramedics who were "[c]apable of successfully completing and maintaining the Florida State Firefighter certification after three (3) years of being hired." Employees hired into the new paramedic-firefighter positions were identified as "paramedics." Employees hired as paramedics only were identified as "PMOs." On September 8, 2008, the FRD officially hired four paramedics for the positions advertised by Job Req. #007931. The group included the Petitioner, two Caucasian females (Sarah Wilson and Jennifer Massey) and a Caucasian male (Shane Doolittle). It was commonly understood by those hired, including the Petitioner, that they were required to obtain state certification as firefighters by September 18, 2011, the third anniversary of their employment. Pursuant to the advertised job requirements, the paramedics were required to pass a physical ability test (referred to as the "CPAT") and complete the Orange County firefighter orientation program. The Petitioner passed the CPAT on her second attempt and completed the orientation program. Candidates seeking to be certified by the State of Florida as firefighters are required to complete a 450-hour firefighter training course (commonly referred to as Firefighter I and II Minimum Standards classes) and to pass a firefighter certification exam. The Petitioner had completed the Firefighter I and II Minimum Standards classes as of December 17, 2010. On December 22, 2010, the Petitioner took the firefighter certification exam at the Central Florida Firefighter Academy and failed the hose and ladder components of the exam. When the Petitioner failed to pass the exam, the Respondent placed her in a fire station with a ladder truck company so that she could improve her ladder skills. On February 22, 2011, the Petitioner retook the firefighter certification exam at a training facility in Ocala, Florida, where she successfully completed the hose component of the exam, but again failed the ladder component. A candidate for firefighter certification is permitted to take the exam twice. A candidate who twice fails the exam is required to retake the Firefighter II Minimum Standards class before being permitted to retake the certification exam. On March 8, 2011, the Petitioner met with FRD officials to assess her progress towards obtaining the firefighter certification. The Petitioner had received notice of the meeting on March 1, 2011, from Assistant Fire Chief Brian Morrow. Similar meetings occurred with the other paramedics employed by the Respondent. During the meeting, the Petitioner advised the FRD officials that she intended to dispute the results of her second test. The Petitioner was aware that she could not retake the certification exam without retaking the Firefighter II Minimum Standards class. Although the Petitioner contacted a training facility to inquire about course schedules, she did not attempt to retake the training course. The March 8 meeting and discussion was memorialized in a letter to the Petitioner dated March 14, 2011. The letter contained an assessment of her progress towards certification. The letter also noted that she was required to obtain her state certification prior to September 18, 2011, and that failure to obtain certification by that date could result in termination of her employment. The Petitioner received the letter on March 16, 2011. In an email dated March 22, 2011, to FRD Lieutenant John Benton, the Petitioner advised that she was trying to determine how she would be able to go to class and maintain her work schedule. Lt. Benton forwarded the email to Assistant Fire Chief Morrow. Assistant Fire Chief Morrow replied to the Petitioner's email on March 29, 2011, wherein he advised her that the FRD had met its obligation to fund the certification training. He asked the Petitioner to advise him of the status of her appeal, to identify the class she was planning to take, and to outline her schedule and specify the hours she would use as vacation time and as "time trades." He asked for a response "as soon as possible" and invited the Petitioner to contact him directly to resolve any questions. The Petitioner received Assistant Fire Chief Morrow's March 29 email, but did not respond to it. Assistant Fire Chief Morrow subsequently contacted the Petitioner by telephone to inquire as to the issues noted in the email, but received little additional information from the Petitioner regarding her plans. After receiving the official notice that she had failed her second attempt at the certification exam, the Petitioner filed an administrative appeal (DOAH Case No 11-1556) to dispute the scoring of the exam. A hearing was conducted before an Administrative Law Judge (ALJ) on May 24, 2011. On July 7, 2011, the ALJ issued a Recommended Order finding that the Respondent failed the exam and recommending that the appeal be denied. By Final Order dated August 20, 2011, the State of Florida, Department of Financial Services, Division of State Fire Marshall, adopted the findings and recommendation of the ALJ and denied the Petitioner's appeal of the exam grading. The Final Order specifically noted that the Petitioner's certification was denied until she obtained a passing score on the exam. The Petitioner made no further efforts to become a state-certified firefighter. She did not register to retake the Firefighter II Minimum Standards class. As of September 17, 2011, the Petitioner was not a certified firefighter and was not actively engaged in seeking certification. Because the Petitioner did not meet the published job requirements and was making no effort to meet them, the Respondent terminated the Petitioner from employment on September 17, 2011. The Respondent offered to permit the Petitioner to resign from her employment rather than be terminated, but she declined the offer. At the hearing, the Petitioner testified that, after she twice failed to pass the certification exam and was unsuccessful in challenging the scoring of the second attempt, she had no further interest in obtaining the certification. There is no evidence that the Petitioner requested an extension of the applicable three-year certification deadline. Nonetheless, the Petitioner has asserted that the Respondent provided deadline extensions to other paramedics and that the Respondent's actions, in not providing an extension to her and in terminating her employment, were based on her race or national origin. There is no evidence to support the assertion. The March 14, 2011, letter specifically referenced the published job requirements set forth in Job Req. #007931, as well as the applicable provisions of the Collective Bargaining Agreement (CBA) governing the Petitioner's employment by the Respondent. The Petitioner was a member of the Orange County Professional Fire Fighters Association. Her employment by the Respondent was subject to a CBA dated December 14, 2010, between the Respondent and the Orange County Professional Fire Fighters Association, Local 2057, International Association of Fire Fighters. Section IV, Article 60, of the CBA provided as follows: ARTICLE 60 - PARAMEDIC PROMOTIONS/STATUS CHANGE Employees in the Paramedic classification agree to, upon reaching three (3) years of employment [sic] to meet the requirements of the Firefighter classification. Either upon reaching three (3) years of employment, or upon the desire of the department, the employee shall be moved from the Paramedic pay plan to Step 1 of the Firefighter pay step plan or to the higher nearest step to the employee's Paramedic current rate of pay. Nothing in this Agreement shall prohibit the Orange County Fire/Rescue Department from terminating the employment of a Paramedic when upon reaching three (3) years employment the minimum requirements for the position of Firefighter have not been met. Employees not meeting the minimum qualifications by the three (3) year employment anniversary may be separated from county employment without a predetermination hearing (PDH) and without access to Article 17 - Grievance and Arbitration Procedure of this contract. It is the sole discretion of Fire Rescue Management to extend the three (3) year time frame limitation due to case-by-case circumstances and/or operational need. The evidence establishes that certification deadlines have rarely been extended by FRD officials. The evidence fails to establish that FRD officials have considered race or national origin in making decisions related to deadline extensions. Sarah Wilson, a Caucasian female, was hired at the same time as the Petitioner and the deadline by which she was required to have obtained firefighter certification was September 18, 2011. Ms. Wilson completed the training course on September 15, 2011. She was scheduled to sit for the certification exam on October 4 and 5, 2011. The scheduling of the exam was the responsibility of the training facility. Neither Ms. Wilson nor the Respondent had any control over the testing date or the scheduling of the exam. The Respondent permitted Ms. Wilson to remain employed beyond the certification deadline and through the dates of the exam, an extension of 17 days. The extension granted to Ms. Wilson was the only time that the Respondent has allowed a paramedic more than 36 months of employment in which to obtain the required certification. Ms. Wilson passed the firefighter exam on October 4 and 5, 2011, and became a state-certified firefighter. Had Ms. Wilson not passed the exam on October 4 and 5, 2011, her employment would have been terminated by the Respondent. At the time of the hearing, Ms. Wilson retained all required certifications and remained employed as a firefighter paramedic with the FRD. In contrast to Ms. Wilson, the Petitioner was making no effort to obtain the required certification when the certification deadline passed. There was no evidence that the Respondent's extension of Ms. Wilson's certification deadline was based upon race or national origin. Jennifer Massey, a Caucasian female who was hired at the same time as the Petitioner, left her employment with the Respondent prior to the certification deadline. Shane Doolittle, a Caucasian male, was hired at the same time as the Petitioner, and the deadline by which he was required to have obtained firefighter certification was originally September 18, 2011. However, Mr. Doolittle was called to active military duty for three months during the three-year certification period. In order to provide Mr. Doolittle with the full 36 months of employment prior to the certification deadline, the Respondent extended Mr. Doolittle's certification deadline by three months, to December 18, 2011. In contrast to Mr. Doolittle, the Petitioner was employed and present with the FRD throughout the three-year period and had a full 36 consecutive months in which to obtain the required certification. There was no evidence that the Respondent's extension of Mr. Doolittle's certification deadline was based upon race or national origin. Mr. Doolittle did not become certified by the extended deadline, and the Respondent terminated his employment on December 18, 2011. There is no evidence that the Respondent was not invested in each paramedic successfully completing their training and meeting the requirements set forth in Job Req. #007931. The Respondent hired 12 paramedics in 2008. The Respondent paid the tuition and equipment costs for each paramedic who sought state certification as a firefighter. Additionally, the Respondent paid the salaries and benefits for the paramedics while in classes or exams, as well as the costs of the employees who covered the shifts of such paramedics. The Petitioner received the same training and benefits as all other employees seeking certification. The Respondent anticipated that the Petitioner would ultimately complete the training and exam requirements for certification, and she participated in the recruit training graduation ceremony with her colleagues. The 2008 hires included a Puerto Rican-born Hispanic male who obtained his firefighter certification prior to the deadline, and a Caucasian male who resigned from employment in lieu of termination because he had not obtained the firefighter certification by the deadline and was making no progress towards doing so. During the termination meeting with the Petitioner, FRD Chief Michael Howe advised the Petitioner that she was eligible for re-employment with the FRD if she obtained the firefighter certification. About a week after the termination meeting, Chief Howe called the Petitioner and left a voice message, offering to loan equipment to the Petitioner and to sponsor her for a discount on tuition costs, should she choose to retake the required course and become re-eligible for the certification exam. Chief Howe received no response from the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the complaint filed by the Petitioner against the Respondent in this case. DONE AND ENTERED this 8th day of February, 2013, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 8th day of February, 2013. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Susan T. Spradley, Esquire Gray Robinson, P.A. Post Office Box 3068 Orlando, Florida 32802 Scott Christopher Adams, Esquire LaBar and Adams, P.A. 1527 East Concord Street Orlando, Florida 32803 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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 Whether Petitioner was wrongfully denied certification as a fire fighter due to his visual problems.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Petitioner, Louis C. Decker, is currently employed as a paid fire fighter in the City of Palm Bay, Florida. Additionally, Petitioner serves as a volunteer fire fighter in the town of Micco, Florida. Petitioner has served as a fire fighter in both a paid and/or volunteer status for approximately two and one-half (2 1/2) years. By letter dated April 9, 1981, Respondent, Office of the State Fire Marshal, advised Petitioner that he would not be certified as a fire fighter in Florida based on "pre-employment paper work submitted to the Bureau of Fire Standards and Training [which] reflect that [Petitioner] does not meet the qualifications set forth in Section 633.34(5), Florida Statutes." That statute provides in pertinent part that "any person initially employed as a fire fighter must be in good physical condition as determined by a medical examination as prescribed by the Division." That letter added that a pre-employment medical examination of Petitioner indicates a condition other than normal which is outside the parameters of the visual acuity medical standards for fire fighters. Dr. Andrew Zorbis, an ophthalmologist, was received as an expert in ophthalmology herein. Dr. Zorbis examined Petitioner on July 15, 1981. The results thereof reveal that Petitioner's uncorrected visual acuity with the right eye was 20/50 minus 2 and the uncorrected visual acuity with Petitioner's left eye was 20/50 plus 1, with the total uncorrected visual acuity in both eyes being 20/50 plus 2. During the examination, Petitioner was "squinting" severely, which provided him with the best possible uncorrected visual acuity. That is, without squinting, Petitioner's visual acuity would have been much worse and most probably would have been within the range of 20/200 to 20/100. Dr. Zorbis concluded that Petitioner could not be certified based on the NFPA booklet which sets forth the State's Fire-Fighter Standards 2/ and provides that the cause for rejection for an appointment shall be standard visual acuity without correction less than 20/40 in one eye and 20/100 in the other eye. That rule also provides that the corrected vision must be less than 20/20 in one eye and 20/40 in the other eye. Dr. Zorbis also examined Petitioner with his current prescription glasses which reveal a visual acuity of 20/40 in the left eye and 20/30 in the right eye, with corrected vision in both eyes of 20/30 plus Based on the current standards of required visual acuity, Petitioner, therefore, failed to meet either the uncorrected or the corrected visual acuity standards. Dr. Zorbis added that Petitioner was examined under optimum circumstances under a variety of targets. Accordingly, the above test results of Petitioner's vision are the best that Dr. Zorbis could obtain. Dennis "Buddy" Dewar, Chief of the Bureau of Fire Standards and Training, was received as an expert in fire fighter certification standards and qualifications. The task of a fire fighter requires excellent visual acuity. Fire fighters perform a variety of arduous functions under stress, both mental and physical and in so-called "smoky" conditions. Fire fighters are called upon to safely drive vehicles despite glare from light, road moisture or wetness. Fire fighters usually work in smoke-filled rooms and buildings. The permissible visual acuity parameters are 20/40 in one eye and 20/100 in the other eye, uncorrected; correctable to 20/20 in one eye and 20/40 in the other eye. A fire fighter suffering from a visual acuity problem worse than 20/40 puts himself in a position whereby he would have difficulty seeing through smoke and thereby jeopardized his life, the safety of himself, his peers and the safety of the citizens that he is charged with protecting. Chief Dewar indicated that fire fighters often find themselves disoriented in darkened, smoke-filled rooms. With the normal emotional and psychological stresses involved in a fire fighting activity, a fire fighter suffering uncorrected vision outside the Prescribed parameters compounds the stressful duties under which a fire fighter must perform. Finally, Chief Dewar examined the breathing mask used by Petitioner which has an insert for a corrective lens. Chief Dewar credibly testified that the particular mask used by Petitioner, with the breathing apparatus and corrective lens insert intact, has not been approved by the National Institute of Safety and Occupational Health or the American National Standards Institute. Petitioner, Louis C. Decker, as previously stated herein, has been employed as a fire fighter for approximately two and one-half (2 1/2) years. During this period, Petitioner has worked approximately twenty (20) fires as a volunteer fire fighter. Petitioner was denied certification and was not permitted to enroll in the certification and standards school based on certain pre-enrollment documents submitted which indicated that he suffered from a visual acuity problem. Petitioner has had hose-line and ladder training. Additionally, Petitioner has undergone emergency medical services training, salvage training, and hydraulics training. Petitioner has also fought "fake" fires. Petitioner uses a device called a Scott air mask which is a device used to enter a burning structure. According to Petitioner, with his corrective lens inserted in the Scott air mask, his visual acuity is 20/20. 3/ It was noted that Petitioner was told to refrain from driving a vehicle due to a problem he was experiencing with his vision. Several of Petitioner's coworkers appeared and testified as to his satisfactory performance in fighting fires. (Testimony of Captain Green, Lieutenant Samuel Evans and Bryon Williams Varn.) 4/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That Petitioner's request for State certification as a fire fighter by the State Fire Marshal, be DENIED. RECOMMENDED this 11th day of September, 1981, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer 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 11th day of September, 1981.
The Issue The issues are: (1) whether Petitioner passed the Practical Examination for Firefighter Retention test; and (2) whether Petitioner's application for firefighter recertification was properly denied.
Findings Of Fact Petitioner completed his minimum standards training and took the standardized state test in 2004 and Respondent issued him a Firefighter Certificate that year. Florida law requires Petitioner to be employed by a fire agency within a three year period after passing the state examination to keep his minimum standards credentials active. Petitioner is a full-time employee at American Medical Response. Because Petitioner has not been active as a firefighter during the past three years, Petitioner made application to the Department to take the Retention Examination. The practical portion consists of four sections or "evolutions" including the SCBA,1 the hose pull, the ladder operation, and the fire ground skills section. To pass the four practical evolutions, an applicant must achieve a score of at least 70 percent on each component. Each evolution of the practical exam has certain elements or skills that are graded. The SCBA portion of the test contains skills related to checking, donning, and properly activating the SCBA that enables a firefighter to breathe in a hostile environment, such as a burning building. The SCBA portion of the Retention Examination also has an established maximum time allotted for the examinee to complete a minimum of 70 percent of the skills. The time limitation is a mandatory requirement. If an examinee completes a minimum of 70 percent of the skills in a particular part, but fails to do so within the maximum allotted time specified for that part, the examinee has not met the mandatory time requirement and, thus, is not awarded any points for that part. Petitioner took the initial Retention Examination in May 2009. Petitioner did not pass the SCBA and fire ground skills components of the practical portion of the initial exam. On September 24, 2009, Petitioner took the Retention Examination re-test for the SCBA and fire skills components. Petitioner passed the fire skills component. The maximum time allotted for completion of the SCBA part of the Retention Examination is two minutes. Petitioner's completion time on the September 2009 Retention Examination re- test was two minutes and 30 seconds. Because Petitioner failed to complete a minimum of 70 percent of skills in the SCBA portion of the Retention Examination within the maximum time allotted, the Bureau properly awarded him zero points. It is an automatic failure if an examinee does not complete the exam in time. Therefore, Petitioner did not earn a passing score on the Retention Examination re-test. As a result of Petitioner's failing to pass the Retention Examination, his Firefighter Certificate of compliance expired. The Division employs field representatives to administer the Retention Examination to examinees in accordance with the applicable rules and procedures. Dennis Hackett is and has been a field representative with the Bureau of Fire Standards and Training for six years. As a field representative, Mr. Hackett administers and scores the minimum standards examination for firefighters, including the Retention Examination. Mr. Hackett has administered well over a thousand SCBA tests. Mr. Hackett was the examiner who tested Petitioner on the September 24, 2009, for re-test of the SCBA portion of the practical exam. Mr. Hackett timed Petitioner at two minutes and 30 seconds. Petitioner testified that before taking the retest, he practiced the SCBA test and had completed it within the time limit. Petitioner first learned SCBA skills in 2004 at the Coral Springs Fire Academy. At the academy, Petitioner took a three month, 450-hour course of fundamental firefighter skills. On or about September 16, 2009, Petitioner took a refresher course in Ocala, Florida. The course was two days and taught the SCBA skills in a manner different from how Petitioner had been taught at Coral Springs Fire Academy. Petitioner testified that the refresher course wasn't fair because he didn't have enough time to learn the new method. He asserted that the two day course was too short to learn the new method and techniques to compensate for errors. Petitioner admitted that a minor hiccup slowed him down while taking the re-test on September 24, 2009. Petitioner said, "It's not like I can't do it because I could do it, it's just I went over the time limit. I didn't have ample enough time to learn the new way of doing it or to overcome any minor obstacles." In a memorandum dated September 25, 2009, the Department formally advised Petitioner that he had failed the SCBA portion of the Minimum Standards Practical Retention Retest. The memorandum also informed Petitioner that, "Because you did not pass the retest, your Firefighter Certificate of compliance #117349, has expired as of 09/24/2009. It will be necessary for you to repeat the firefighter Minimum Recruit Training Program and submit a new application before any additional testing can be allowed." An individual is allowed to re-take the Retention Examination one time. If the person does not pass the re-test, he must repeat the Firefighter Minimum Recruit Training Program before he is eligible to re-take the Retention Examination. See § 633.352, Fla. Stat., and Fla. Admin. Code R. 69A-37.0527. As noted above, Petitioner did not pass the SCBA portion of the Retention Examination re-test. Therefore, before he is eligible to re-take that examination, he must repeat the Firefighter Minimum Recruit Training Program. Petitioner failed to establish that he was entitled to a passing grade for his performance on the Retention Examination re-test. The greater weight of the credible evidence established that Petitioner's performance on the Retention Examination re-test was appropriately and fairly graded.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that the Department enter a final order denying Petitioner's application to retain his certification as a firefighter in the State of Florida. DONE AND ENTERED this 25th day of March, 2010, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 2010.
Findings Of Fact Based upon the documentary evidence received, the following findings of fact are made: At all times material to the issue in this case, Petitioner, Jorge L. Barreto, has been employed as a firefighter with the City of Miami, Fire, Rescue & Inspection Services Department (City). Petitioner has attained the rank of Fire Lieutenant with the City. Petitioner's primary function with the City is that of firefighter. During the period March 10, 1986 until January 31, 1987, Petitioner was assigned to Rescue 2B. For that same period, a firefighter named George T. Gross was also assigned to Rescue 2B. Mr. Gross' request for supplemental compensation was approved by the Department on April 17, 1986. Mr. Gross' entry into the Firefighter Supplemental Compensation Program was deemed appropriate under the requirements of Section 633.382, Florida Statutes, and Rule 4A-37.76, Florida Administrative Code. Mr. Gross' field of major study as specified in his transcript indicated the degree, bachelor of business administration major- finance" from Florida Atlantic University. On September 30, 1988, Patrick J. Regan, a member of the City's fire department, was approved for supplemental compensation. On August 12, 1988, Mr. Regan was awarded a bachelor of business administration with a major in finance. On April 10, 1987, Robert D. Martinez, a firefighter with the City, was approved for entry into the Firefighter Supplemental Compensation Program. Pursuant to Statute 633.382, Florida Statutes, and Rule 4A-37.76, Florida Administrative Code, Mr. Martinez was deemed to have qualified. Mr. Martinez' transcript from the University of South Florida indicated "Latest college: Business Administration Latest Major: Finance." On April 17, 1986, Andrew L. Huntington, a firefighter with the City's department, was approved for entry into the Firefighter Supplemental Compensation Program. Mr. Huntington possessed a bachelor of business administration degree with a major field of study in accounting. On August 29, 1986, Edward Pidermann, a firefighter with the City's department, was approved for entry into the Firefighter Supplemental Compensation Program. Mr. Pidermann's notification letter specified he had qualified under the requirements "for possession of a/an B/A degree of Accounting." On June 27, 1986, Daniel G. Meadows, a firefighter with the City's department, was approved for entry into the Firefighter Supplemental Compensation Program. Mr. Meadows' transcript specified that he had been awarded "Bachelor of Business Administration Major: Marketing School of Business and Organization Sci" from Florida International University. Effective July 1, 1981, Donald P. Pilger was accepted foil entry into the Firefighter Educational Incentive Program established by Section 633.382, Florida Statutes. Mr. Pilger's transcript from St. Edward's University provided: "College ARTS and SCIENCES Major Subject Accounting Degree B.B.A." On April 16, 1986, Bruce A. Oestreich, a member of the City's fire department, was authorized to receive supplemental compensation. Mr. Oestreich was awarded a bachelor of arts in political science on December 17, 1977. Mr. Oestreich's duties with the City are not a part of the record in this case. On or about May 11, 1989, Petitioner executed a form entitled "Bureau of Fire Standards and Training Firefighter Educational Incentive Program Transcript Request." The purpose of the form was to secure a transcript which would verify Petitioner's eligibility for entrance into the Educational Incentive Program. On June 19, 1989, the transcript was received by the Department. On or about April 21, 1989, Petitioner was awarded a bachelor's degree in business administration from Florida International University, College of Business Administration. His major field of study was finance. Prior to the award of this degree, Petitioner had received an associate in arts degree (A.A.) in general education on July 30, 1982. The A.A. degree course of study had included 46 semester hours in fire-related subjects. On June 27, 1989, the Department advised Petitioner that it had determined that he did not possess an appropriate major study concentration to qualify for the firefighters supplemental compensation program. Thereafter, on July 18, 1989, Petitioner filed a letter requesting a formal proceeding regarding the denial of eligibility. The Department did not contest the accuracy of Petitioner' s transcripts.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Office of the Treasurer, Department of Insurance, Division of State Fire Marshal, enter a final order granting the application of Petitioner for the Firefighter Supplemental Compensation Program. DONE and ENTERED this 29 day of January, 1990, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1990. APPENDIX RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: The Petitioner in this case submitted a narrative which was not in a form sufficient to address rulings; consequently, the narrative as been deemed argument or comment not requiring specific rulings. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 3 are accepted. While finance is not listed specifically among the areas, business administration (which Petitioner received a degree in) is listed. Apparently, the subarea of specialty is finance but the degree is business administration. The first sentence of paragraph 4 is accepted. The second sentence of paragraph 4 is rejected as irrelevant. COPIES FURNISHED: Lisa S. Santucci Office of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Jorge L. Barreto 1717 North Bayshore Drive #2737 Miami, Florida 33132 Hon. Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell General Counsel Department of Insurance The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Frederick C. Stark Bureau Chief Bureau of Fire Standards & Training 1501 W. Silver Springs Boulevard Ocala, Florida 32675-6499 =================================================================
The Issue The issue for determination is whether Petitioner successfully completed the Firefighter Minimum Standards Practical Examination Retest.
Findings Of Fact Mr. Berejuk is a candidate for certification as a firefighter in the state of Florida. To be certified as a firefighter, a candidate is required to successfully complete the Firefighter Minimum Standards Written and Practical Examination. A candidate is able to take the certification test twice. If a candidate fails the first time, the candidate is automatically afforded an opportunity for a retest. On April 11, 2012, Mr. Berejuk took the original examination of the Firefighter Minimum Standards Written and Practical Examination at Miami, Florida. To successfully complete the Minimum Standards Written Examination (Written Examination), a candidate is required to receive a minimum of 70 points on the Written Examination. Mr. Berejuk received more than the minimum of 70 points. As a result, he passed the Written Examination. The Minimum Standards Practical Examination (Practical Examination) consists of four evolutions. To successfully complete the Practical Examination, a candidate is required to receive a minimum of 70 points on each evolution and to complete all mandatory steps. Mr. Berejuk received more than a minimum of 70 points in each evolution, except the ladder search and rescue evolution (Ladder Evolution). During the Ladder Evolution, Mr. Berejuk failed to complete a mandatory step. He failed to don a hood on his head, and because of that failure he received zero points for the Ladder Evolution. As a result, he failed to pass the Ladder Evolution. Also, pertinent to the instant case, the maximum time allowed on the Ladder Evolution is four minutes and 30 seconds. Exceeding the maximum time allowed is an automatic failure of the Ladder Evolution. Mr. Berejuk's time on the Ladder Evolution was three minutes and 20 seconds, which was one minute and 10 seconds, or 70 seconds, less than the maximum allowable time. Because of his failure to pass the Ladder Evolution, Mr. Berejuk failed to successfully complete the Practical Examination. On May 15, 2012, Mr. Berejuk completed a retest of the Practical Examination at Ocala, Florida. The Practical Examination Retest consisted of three evolutions. He was required to receive a minimum of 70 points on each evolution and to complete all mandatory steps in order to successfully complete the Practical Examination Retest. On the Practical Examination Retest, Mr. Berejuk received more than a minimum of 70 points, receiving a perfect score of 100 points, on all of the evolutions, except the Ladder Evolution on which he received zero points. He exceeded the maximum time allowed on the Ladder Evolution. As on the original examination, the maximum time allowed is four minutes 30 seconds and exceeding the maximum time allowed is an automatic failure of the Ladder Evolution. Mr. Berejuk's time was four minutes 42 seconds, which is 12 seconds more than the maximum allowable time. He received zero points on the Ladder Evolution for exceeding the maximum allowable time. As a result of his failing to pass the Ladder Evolution, Mr. Berejuk failed to successfully complete the Practical Examination Retest. Because Mr. Berejuk failed the Practical Examination Retest, the Department denied his certification as a firefighter. As support for his challenge to the Department's determination that he exceeded the maximum allowable time on the Ladder Evolution, Mr. Berejuk relies upon his performance on the practice ladder evolution at the Coral Springs Fire Academy (Academy). He completed his training at the Academy in 2012. His time on the practice ladder evolution was three minutes and 49 seconds, which is 41 seconds less than the maximum allowable time. The Ladder Evolution's footprint at the Practical Examination Retest in Ocala is different from the footprint at the Academy (the practice site) in Coral Springs and at the original examination site in Miami. At the practice, Mr. Berejuk's time for the Ladder Evolution was three minutes and 49 seconds, 41 seconds less than the maximum allowable time; at the original examination, his time was three minutes and 20 seconds, 70 seconds less than the maximum allowable time; and at the Practical Examination Retest, a little over 30 days after the first test, his time was four minutes and 42 seconds, 12 seconds more than the maximum allowable time. Even though the difference in the times recorded for the Ladder Evolution at the original examination and the Practical Examination Retest are markedly different, Mr. Berejuk presented insufficient evidence addressing the difference in order to make a finding of fact or draw an inference. Also, he did not present any evidence detailing his specific performance on the Ladder Evolution at the Practical Examination Retest, such as his not stumbling or hesitating at any point during the Ladder Evolution. Mr. Berejuk failed to present any evidence as to the inaccuracy of the instrument, a stopwatch, used to time the Ladder Evolution or as to the inaccuracy of the field representative recording the time at the Practical Examination Retest. He presented only assumptions or conjectures as to the inaccuracy of the instrument or the recording of the field representative. The field representative did not testify at hearing. The evidence fails to demonstrate that the amount of time determined by the Department for Mr. Berejuk to complete the Ladder Evolution was incorrect or inaccurate. Therefore, the evidence demonstrates that Mr. Berejuk failed to successfully complete the Ladder Evolution within the maximum allotted time. Hence, the evidence demonstrates that Mr. Berjuk failed the Practical Examination 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 Daniel Berejuk failed to successfully complete the Practical Examination Firefighter Retest; and Denying Daniel Berejuk's application for certification as a firefighter in the state of Florida. DONE AND ENTERED this 20th day of December, 2012, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 2012.
The Issue The issue is whether Respondent properly denied Petitioner certification as a Florida firefighter.
Findings Of Fact Petitioner, a resident of Ohio, requested to qualify for the Florida Minimum Standards Equivalence Examination, based on his experience, to become a Florida firefighter. Petitioner's request effectively "challenged" the exam and requested an exemption from attending the Florida Minimum Standards Course. Petitioner could have taken the Florida Minimum Standards Course. If he had taken the course, he may have had an opportunity to review video tapes and other instructional materials which are available but not a required part of the basic curriculum. Instead, Petitioner elected to furnish Respondent with his out-of-state firefighter credentials. Subsequently, Respondent granted Petitioner the requested exemption. Prior to taking the examination, Respondent's staff accurately informed Petitioner about the scope, structure and subject matter of the test during numerous telephone calls. On at least ten occasions, Respondent's staff described the test to Petitioner and told him how to prepare for it. Respondent's staff specifically told Petitioner that he should study the International Fire Service Training Association Manual (IFSTA Manual). As to part one of the practical portion of the exam, Petitioner knew that Respondent would test him on the breathing apparatus, the one and three quarter-inch hose and nozzle operation, and the twenty-four foot ladder evolution. Respondent told Petitioner that he needed to know how to perform all skills set forth in the IFSTA Manual because Respondent randomly selects six different sections of tasks to test on part two of the practical examination. The six skill sections which are picked for part two remain unknown to anyone in advance of the test regardless of whether he is out-of-state or in-state applicants. These skills are chosen by Respondent's Field Representatives in their offices at the Florida State Fire College prior to going to a testing site or for testing at the Florida State Fire College. The two parts of the practical examination are of equal worth. An examinee begins with 100 points and points are deducted for deficiencies throughout the exam. Candidates are required to achieve a score of at least seventy (70) points in order to pass the practical examination. Petitioner took his Minimum Standards Equivalency Practical Examination on April 28, 1997, at the Florida State Fire College in Ocala, Florida. Petitioner's final score on the April 28, 1997, Minimum Standards Equivalency Practical Examination was twenty-five (25) points, which was not a passing score. Candidates are allowed one retest of the Minimum Standards Equivalency Practical Retest if they are not successful on their initial test. Petitioner chose to take the test again on July 28, 1997, at the Florida State Fire College in Ocala, Florida. Respondent's Field Representative administered part one of the Minimum Standards Equivalency Practical Retest to Petitioner. Petitioner did not take part two of the Minimum Standards Equivalency Practical Retest. He chose to quit after realizing that his score on part one was so low that he could not pass the retest as a whole. After deciding not to take part two in the Minimum Standards Equivalency Practical Retest, Petitioner approached Field Representative Bill DePauw to tell him that he was quitting. Petitioner was not attired in the mandatory minimum safety gear, but in civilian clothes. At that time, Mr. DePauw was in the process of testing another examinee. Mr. DePauw told the Petitioner he needed to talk to Larry McCall, Field Representative Supervisor. Petitioner then approached Mr. McCall and informed him that he would not be taking part two of the retest. Mr. McCall asked Petitioner to leave the testing grounds because Petitioner was being loud and disruptive to the applicants testing or waiting to be tested. Further, once an applicant decides not to continue, he is no longer allowed in the testing area. Petitioner informed Mr. McCall, both on the field and in Mr. McCall's office, that the Florida exam and the process were "chicken." Petitioner lost seventy-five (75) points on part one of the Minimum Standards Equivalency Practical Retest. The maximum allowable deduction for part one of fifty (50) points was deducted from Petitioner's part one score. Therefore, Petitioner's final score on the Minimum Standards Equivalency Practical Retest administered on July 28, 1997, was fifty (50) points, which is not a passing score. Applicants are assigned a number during orientation. From that time on, the applicants are referred to only by that number to ensure impartiality. The applicant's name is attached to the number after the exam, sometimes several days later. The examiner makes up a package of exams, numbers the packets, and then circles six (6) skills at random in each packet. No names are applied to the packets and the numbers are not assigned to the examinees until the day of testing. The Field Representatives are required to give an orientation prior to each Minimum Standards Equivalency Examination on the day of the exam. The orientation consists of walking the applicants through each section of part one. The Field Representatives use the same form check-off sheet during each orientation to ensure that each candidate is given the same orientation. The Field Representatives use a scoresheet to grade the applicants which is a guide to simplify the scoring process. The numeric values on the scoresheet are negative points deducted from an applicant's raw score of 100 points. The Field Representatives only make deductions when the applicant does not follow the required procedure for performing the evolution. Petitioner admits that the point deduction is correct for exceeding the required time on the breathing apparatus evolution. Petitioner admits that he had to go back to the loop during the hose and nozzle evolution to fix the kinks in the hose line. Additionally, he took a couple of steps backwards while he was pulling the hose line. Walking backwards occurs when a candidate takes two steps or more backwards, walking in the opposite direction from where he is looking. There are no warnings issued for walking backwards during the certification examination. Petitioner admits that the deduction for exceeding time during the hose and nozzle evolution was correct. The greater weight of the evidence indicates that Petitioner struggled during the ladder evolution. He lacked control of the ladder at all times during the demonstration. All of the deficiencies which Petitioner admits to amount to a total of 35 negative points as the least possible point deduction. That equals a score of 65 without Petitioner even having taken part two. A score of 65 is not a passing score.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Bill Nelson in his capacity as State Fire Marshal enter a Final Order denying Petitioner's request for a Certification of Compliance as a Florida Firefighter. DONE AND ORDERED this 20th day of August, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1998. COPIES FURNISHED: Elenita Gomez, Esquire Division of Legal Services Department of Insurance and Treasurer 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Paul Appleton 13500 Shaker Boulevard, No. 102 Cleveland, Ohio 44120 Bill Nelson, Commissioner Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
