The Issue Whether the Petitioner is entitled to a certificate of compliance as a fire fighter under the provisions of Rule 4A-37.0515, Florida Administrative Code.
Findings Of Fact Petitioner completed 240 hours of firefighter minimum standards training at the Orlando/Orange County Fire Training Academy in 1982 and was issued a certificate of completion at the end of the course. Between 1982 and 1985, Petitioner served as a reserve firefighter with the Winter Park Fire Department. From 1985 to June 1989, Petitioner was on inactive status. From June 1989 until March 1990, Petitioner completed technical training in American Sign Language. From 1990 through 1993, Petitioner completed a Bachelor of Science degree, with a double major in business and marketing. Between 1996 and February 1997, Petitioner was re-certified and also became a fire inspector. In February 1997, Petitioner was awarded an Associate of Science degree in Fire Science. Petitioner has served as a contract fire inspector with the Orange County Fire Department and has been a principal in a private arson investigation company for the past thirteen or fourteen years in Orange County, Florida. Florida law was amended in 1989 to require that a person pass an examination as prescribed by the Department, in addition to completing the firefighter minimum standards training program and being qualified for employment to be issued a certificate of compliance. Promulgated in 1991 and amended in 1995, a Florida administrative rule granted those persons that had been issued a certificate of completion by the opportunity to upgrade their certificate of completion to a certificate of compliance by June 30, 1995, without having to comply with the current requirements of the law. Petitioner did not upgrade her certificate of completion to a certificate of compliance by June 30, 1995. During the years 1991 through 1995, Petitioner made no effort to keep informed about the current requirements of becoming certified as a firefighter. Petitioner had a total of four years in which to upgrade her certificate of completion into a certificate of compliance. More than 11,000 certificates of completion were upgraded to certificates of compliance by June 30, 1995; 2,900 were not. Eighty percent of those certificates of completion that had been issued by the State, since certificates of completion were first issued in 1969, were upgraded to certificates of compliance by June 30, 1995. Petitioner's first inquiry into the status of her certificate of completion and request for a certificate of compliance was made by letter dated August 12, 1997, to the Fire Marshall's office. Respondent responded to Petitioner's August 12, 1997, letter with a letter dated October 3, 1997, which informed Petitioner that any certificate of completion not upgraded by June 30, 1995, was revoked. Respondent's October 3, 1997, letter also informed Petitioner that failure to follow the procedures outlined in Rule 4A-37.0515, Florida Administrative Code, for upgrading certificates of completion would require the individual to meet the current requirements of the law, which include having to complete 360 hours of firefighter minimum standards training, passing the Minimum Standards Certification Examination, and being qualified for employment according to Section 633.34, Florida Statutes, in order to be issued a certificate of compliance. There are no provisions in the rule for an extension after the cutoff date of June 30, 1995. There is no firefighter minimum standards training program consisting of 120 hours of instruction for the Petitioner to take which would enable Petitioner to meet the current requirements of Section 633.35, Florida Statutes, which require a total of 360 hours of firefighter minimum standards training, as Petitioner had completed only 240 hours of firefighter minimum standards training in 1982. Prior to 1984, a person needed both a certificate of completion and a certificate of compliance to become a firefighter. At that time, to be qualified for a certificate of compliance, a person had to successfully complete firefighter minimum standards training and satisfy the qualifications for employment found in Section 633.34, Florida Statutes. Section 633.35, Florida Statutes, was amended in 1984 with the result that the Respondent no longer issued certificates of completion, which had been issued since 1969, for the successful fulfillment of the firefighter minimum standards training program. Rule 4A-37.56 Florida Administrative Code, was amended in order to implement the amendments made in 1989 to Section 633.35, Florida Statutes. Rule 4A-37.056, Florida Administrative Code, was amended to establish the Minimum Standards Certification Examination, as required by the 1989 amendments to Section 633.35, Florida Statutes. Rule 4A-37.0515, Florida Administrative Code, was promulgated in order to implement the amendments made in 1989 to Section 633.35, Florida Statutes. In order to upgrade a certificate of completion to a certificate of compliance, Rule 4A-37.0515, Florida Administrative Code, provided that a person who had been issued a certificate of completion was required to make application to the Respondent for certification as a firefighter. Rule 4A-37.0515, Florida Administrative Code, as initially promulgated in 1991, stated that certificates of completion had to be upgraded to certificates of compliance by June 30, 1993. Respondent published a Notice of Changes to Rule Chapter 4A-37, Florida Administrative Code, including the promulgation of Rule 4A-37.0515, in the Florida Administrative Weekly on March 15, 1991. Respondent keeps a mailing list, which includes every fire department and training center in the State of Florida, to facilitate mailing out notices of anything that effects the fire service, including changes in the statutes and rules governing the fire service. Respondent sent a copy of the Notice of Changes to Rule Chapter, 4A-37, Florida Administrative Code, including the promulgation of Rule 4A-37.0515, to every fire department and training center in the State of Florida on July 26, 1991. Respondent sent a copy of the Notice of Changes to Rule Chapter 4A-37, Florida Administrative Code, including the promulgation of Rule 4A-37.0515, to every fire department and training center in Orange County, Florida appearing on the Department's mailing list. Petitioner has lived and worked in Orange County, Florida, all of her life. Individual notices were not sent to certificate holders. Rule 4A-37.0515, Florida Administrative Code, became effective on June 30, 1991. Petitioner did not upgrade her certificate of completion to a certificate of compliance by June 30, 1993. Section 633.35, Florida Statutes, was amended in 1993 to require that firefighter minimum standards training would be composed of at least 360 hours of instruction. Respondent published a Notice of Changes to Rule Chapter, 4A-37, Florida Administrative Code, including the Rule 4A-37.0515, in the Florida Administrative Law Weekly on December 2, 1994. Respondent also sent a copy of the Notice of Changes to Rule Chapter, 4A-37, Florida Administrative Code, including the amendment of Rule 4A-37.0515, to every fire department and training center in the State of Florida on April 24, 1995. Respondent sent a copy of the Notice of Changes to Rule Chapter, 4A-37, Florida Administrative Code, including the amendment of Rule 4A-37.0515, to every fire department and training center in Orange County, Florida appearing on the Department's mailing list on April 24, 1995. Notice of Changes to the rule were not sent to individuals who held certificates. On March 20, 1995, Rule 4A-37.0515, Florida Administrative Code, was amended, extending the deadline by which certificates of completion could be upgraded to certificates of compliance from June 30, 1993, to June 30, 1995. Rule 4A-37.0515, Florida Administrative Code, was further amended to state that those individuals who held certificates of completion but did not upgrade them by June 30, 1995, would be required to meet the current requirements of Section 633.35, Florida Statutes, which included having to complete 360 hours of firefighter minimum standards training, passing the Minimum Standards Certification Examination, and being qualified for employment according to Section 633.34, Florida Statutes, in order to be issued a certificate of compliance. Certificates of completion which were not upgraded to certificates of compliance by June 30, 1995, were revoked that same day.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered denying the Petitioner's request for a certificate of compliance by the Department's Bureau of Fire Standards and Training of the Division of the State Fire Marshal. DONE AND ENTERED this 13th day of July, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1998. COPIES FURNISHED: Kathleen Mohr 4702 Abaca Street Orlando, Florida 32808 M. Joel Prather, Esquire Department of Insurance 200 East Gaines Street Tallahassee, Florida 32399 Daniel Y. Sumner, Esquire Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Bill Nelson, Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issue in this case is whether Petitioner’s application for certification as a firesafety inspector should be granted.
Findings Of Fact The Department is the state agency responsible for the certification of firesafety inspectors in the State of Florida pursuant to Chapter 633, Florida Statutes (2009).1 In September 2008, Mr. Bates completed his coursework for certification as a firesafety inspector. In November 2008, Mr. Bates submitted an application for certification as a firesafety inspector. Sometime between November 19, 2008, and December 5, 2008, the Department notified Mr. Bates that the Department did not have a copy of his high school diploma and the certificate showing that course work for the building construction for the fire service had been completed. On December 5, 2008, the Department received documentation showing that Mr. Bates had graduated from high school and had completed the course work for the building construction for the fire service. Scheduling a time to take the firesafety inspector examination can be done online by going to the Pearson Vue testing center website and entering the ID and password provided by the Bureau. Mr. Bates attempted to schedule the examination by telephone and was unsuccessful, but he did not attempt to schedule the examination online. Sometime during January or February 2009, Mr. Bates was able to obtain a date for the examination. Mr. Bates took the examination for firesafety inspector certification for the first time on February 13, 2009. A passing score on the examination was 70 percent. The Bureau sent a notice to Mr. Bates that his score was 56 percent. The notice of the test results advised that he could retake the examination within six months of his test date of February 13, 2009, and that he could review his test questions by contacting the Promissor at www.promissor.com. On April 3, 2009, Mr. Bates contacted Charles Brush, who was the standards supervisor for the Bureau, to schedule a review of his examination taken in February. Mr. Brush was responsible for the testing for certifications and renewals issued by the Bureau. Due to miscommunications with the Bureau, Pearson Vue testing center, and Mr. Bates, Mr. Bates was not scheduled for a review of his examination until May 2009. Mr. Bates reviewed his examination in May 2009; however, after he had gone through the examination one time, he was not allowed to again review the examination. This restriction on the review process is designed to prevent applicants from memorizing questions from the examination. Many of the questions on the examination may be used again in another examination. Because of the communication issues concerning the test review, Mr. Brush gave Mr. Bates an open-ended time extension to retake the examination. Sometime between February 13, 2009, and June 27, 2009, Mr. Bates took a weekend course to practice for the examination. On June 27, 2009, Mr. Bates retook the firesafety inspector examination and again scored 56 percent, which was a failing score. The notice of the test results provided that “[s]hould you fail the retest or waive your right to a retest, the only way to obtain certification is retake the course(s) required, submit a new application for approval, and pass the certification examination.” Mr. Bates does not contest the scores that he received on the examinations. He contends that he should be entitled to be certified as a firesafety inspector due to the amount of time that passed between the completion of his coursework in September 2008 and the taking of the examinations in February and June 2009. He was not able to retain coursework information from September 2008, when he completed his courses, until February 2009, when he first took the test.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Mr. Bates’ request that he be certified as a firesafety inspector. DONE AND ENTERED this 20th day of April, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 2010.
The Issue The issue for determination is whether Petitioner successfully completed the Minimum Standards Practical Examination for Retention of Firefighter Certification Retest.
Findings Of Fact Petitioner was certified as a Florida firefighter by Respondent on June 27, 1991, being issued certificate number C- 62497. During the period 1991 through 1994, Petitioner was not active as a firefighter, either in a paid or volunteer role. He maintained his certification by completion of a 40-hour continuing education class in vehicle extrication in 1994. During the period 1994 through 2000, Petitioner was not active as a firefighter, either in a paid or volunteer role. His primary income was derived from being a painting contractor. Effective July 1995, Florida's law, regarding certification of firefighters, changed to require firefighters to take and pass the Examination when they have not been active as a firefighter, either paid or as a volunteer, for a period of three years. The Florida law was Section 633.352, Florida Statutes. As a result, in order for Petitioner to retain his certification, he was required to take the Examination. On September 8, 2000, Petitioner made application to take the Examination, which consisted of four areas--SCBA, Hose Operations, Ladder Operations, and Fireground Skills. Petitioner's primary preparation for the Examination was a private refresher course offered by the Marion County School Board. The refresher course consisted of a 24-hour class, spread over three days. The refresher course reviewed the four areas on the Examination. During the refresher course, approximately 20 hours were devoted to practicing the four areas. As to practicing the SCBA skill, under the supervision of an instructor, two to three hours on the first day were devoted to timed conditions and one to two hours on the second and third day were devoted to timed conditions. The instructor of the course taught and explained to the attendees, including Petitioner, that time was an issue in the Examination and that completing the timed skills within the maximum time allotted is pass/fail. On September 25, 2000, Petitioner took the Examination. None of the candidates taking the Examination were identified by name but were given numbers for identification. Prior to March 1, 2000, the scoring system for the Examination consisted of initially giving each candidate 100 points and thereafter, subtracting points for things done incorrectly. On and after March 1, 2000, the scoring system changed and consisted of each candidate starting with zero points and being awarded points for things done correctly. Three of the four skilled areas on the Examination were being timed. The timed skills were SCBA, Hose Operations, and Ladder Operations and mandatory steps existed for each skill. Each mandatory step for each skill was required to be successfully completed and, if not, the candidate received an automatic failing score for the skill. Examiners for the Examination, during orientation, reviewed the timed skills with the candidates and explained the grading for each of the skills. Furthermore, the examiners explained to the candidates that time was pass/fail for the SCBA and the Ladder Operations skills. The minimum score required to pass the Examination was 70 on each of the four skills. Petitioner received a score of zero on each of the SCBA and the Ladder Operations skills, which was failing for both. The maximum time allotted for SCBA was one minute and forty-five seconds, but Petitioner took one minute and fifty seconds; and for Ladder Operations was two minutes and forty-five seconds, but Petitioner took three minutes and twenty-five seconds. Petitioner exceeded the maximum time allotted for both skills. On November 29, 2000, Petitioner took the Examination Retest. He was only required to re-take the SCBA and the Ladder Operations skills; both again being timed. For the Examination Retest, Petitioner did not take a refresher course. He arrived at the Examination Retest early and was present for the orientation given by the examiners. Again, during the orientation, the examiners reviewed the timed skill with the candidates and explained the grading for each of the skills. Furthermore, the examiners again explained to the candidates that time was pass/fail on SCBA and Ladder Operations. On the Examination Retest, Petitioner passed the Ladder Operations skill. However, Petitioner failed the SCBA skill, having received a score of zero. The maximum time allotted for SCBA was one minute and forty-five seconds, but Petitioner took two minutes and twenty-six seconds. Petitioner exceeded the maximum time allotted for the SCBA skill. By letter dated December 7, 2000, Respondent notified Petitioner, among other things, that he had not successfully completed the Examination Retest and that, therefore, his application to retain his certification was denied. Applicants for retention of their certification are permitted to take the Examination Retest only once. An applicant for retention of certification, who fails the Examination and the Examination Retest, must take and successfully complete the Minimum Standards Course before being allowed to take the Examination again. Having unsuccessfully completed the Examination Retest, Petitioner cannot take the Examination again until he takes and successfully completes the Minimum Standards Course.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance enter a final order finding that Jeffrey M. Williams is not entitled to retention of his firefighter certification and that his certification has expired. DONE AND ENTERED this 15th day of June, 2001, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2001. COPIES FURNISHED: Jeffrey M. Williams 3241 Arthur Street Hollywood, Florida 33021 James Morrison, Esquire Department of Insurance 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
The Issue Is Petitioner entitled to be certified as a Firefighter based upon examination results through an examination administered by Respondent? See Section 633.35, Florida Statutes.
Findings Of Fact Petitioner applied for certification as a Firefighter on June 19, 1998. Subsequently he completed the Firefighter training program administered at Volusia County Fire Science Institute commensurate with the requirements set forth in Section 633.35(1), Florida Statutes. On December 15, 1998, Petitioner took the state examination following completion of the "Minimum Standards Course." The state examination was administered by the Bureau of Fire Standards and Training. That examination was constituted of a written and practical portion with the expectation that a minimum score of 70% was required in both aspects of the examination. See Rule 4A-37.056(6)(b), Florida Administrative Code. When the December 15, 1998 examination was graded, the Petitioner passed the practical with a score of 90. Petitioner did not pass the written, receiving a score of 66. Officials within the Respondent's agency were persuaded that some portions of the examination given on December 15, 1998, were arguably beyond the abilities of a beginning Firefighter. This decision was arrived at recognizing that material on the test had been presented in the "Minimum Standards Course." Nonetheless, adjustments were made to the scores of the candidates in recognition of the difficulty of some of the examination questions. The re-scoring improved Petitioner's written score from 66 to 67. On February 9, 1999, Petitioner retook the written portion of the state examination and received a score of 59. That score was adjusted on the same basis as has been described in relation to the December 15, 1998, examination session. With the adjustment Petitioner received a score of 62. Petitioner took a third written examination on May 12, 1999. This examination was given, having purged the examination instrument of the more difficult questions that had been presented on the occasion of the December 15, 1998, and the February 9, 1999, examinations. In the instance of the May 12, 1999 examination, Petitioner received a 66 on the written portion. Petitioner has failed to demonstrate that the nature of the examinations, taking into account the adjustments in the scoring, were beyond the expectation of the competence of a candidate who had undergone the "Minimum Standards Course" in preparation for this state examination or that Respondent failed to appropriately administer and grade the examinations given Petitioner.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered upholding the examination results in the several examinations administered to Petitioner in relation to the written portion, as adjusted, and finding that Petitioner has exhausted his opportunities for examination in this cycle. DONE AND ENTERED this 23rd day of December, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 23rd day of December, 1999. COPIES FURNISHED: Elenita Gomez, Esquire Department of Insurance 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Anthony Robert Shuta, II 3043 Pine Tree Drive Edgewater, Florida 32141 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Bill Nelson, State Treasurer and Insurance Commissioner The Capital, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issue posed for decision herein is whether or not the Respondent properly denied Petitioner's request to be certified as a fire fighter.
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, Ronald J. Pastuch, is employed as a fire fighter by the City of Palm Bay. Petitioner was denied certification as a fire fighter by the State Fire Marshal because he has a history of diabetes which is being controlled by insulin medication. Petitioner was hired by the Chief of the Palm Bay Fire Department, David P. Green. Chief Green was unaware of the requirement that candidates for the fire-fighter classification were required to take and pass a physical examination prior to being employed. Chief Green is now aware of the requirement and acknowledged that an applicant in the fire-fighter classification cannot be certified if said applicant has diabetes. (See Respondent's Exhibit No. l.) Several of Petitioner's coworkers appeared and testified that they had acknowledged no inability on the part of Petitioner's on-the-job performance as a fire fighter. (Testimony of Chief David P. Green; Captain Tom Knecht; Captain Arthur Fawcett; Lieutenant Jim R. Green, Training Officer and Shift Manager, and Lieutenant Robert Erario, all employees of the Palm Bay Fire Department.) Dennis "Buddy" Dewar, Chief of the Fire Fighting Standards Commission, was received as an expert herein in the qualifications for certification of a fire fighter. Diabetes Mellitus is not considered a disease, but rather a metabolic disorder. Diabetes is a major contributor to cardiovascular disorders. According to Chief Dewar, diabetes is a bona fide occupational qualification (bfoq) and, in his opinion, to certify a diabetic, compounds the existing problems related to a diabetic's cardiovascular disorders. Chief Dewar unequivocally stated that an insulin dependent diabetic, as Petitioner, should not be certified as a fire fighter based on the standards and pertinent rules and regulations which do not permit such an applicant to he certified. Moreover, Chief Dewar noted that the tasks of a fire fighter were demanding, unpredictable and stressful. He, therefore, concluded that an insulin dependent candidate should not be certified due to the stress and uncertainties connected with fire fighting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Petitioner's request for State certification as a fire fighter by the State Fire Marshal, be DENIED. DONE and ENTERED this 10th 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 10th day of September, 1981. COPIES FURNISHED: Ronald J. Pastuch Palm Bay Fire Department 175 North West Palm Bay Road Palm Bay, Florida 32905 L. Terrye Coggin, Esquire Department of Insurance Room 428-A, Larson Building Tallahassee, Florida 32301
The Issue The issue for determination is whether Petitioner’s application for certification should be approved as a result of her successfully completing the Firefighter Minimum Standards MIN. STD. PRACTICAL RETEST retest.
Findings Of Fact Ms. Evans is a candidate for certification as a firefighter in the State of Florida. Ms. Evans attended the Coral Springs Fire Academy (Fire Academy), as a student, from July 11, 2009, through January 9, 2010. During her training at the Fire Academy, she was chosen as the squad leader. A candidate for the certification examination must pass a written and practical examination, with a minimum score of 70 on both the written and practical parts. Pertinent hereto, a candidate must pass the Firefighter Minimum Standards Practical Examination (Practical Examination) in order to become certified as a firefighter. The Practical Examination consists of four components: the Self Contained Breathing Apparatus (SCBA); the Hose Operation (a/k/a Hose Evolution); the Ladder Operation (a/k/a Ladder Evolution); and the Fireground Skills. The Practical Examination is replicated at the Fire Academy, and students at the Fire Academy must pass the four components. The Fire Academy adopted the State standards for passing the Practical Examination, except that at the Fire Academy the standards for the Ladder Evolution are more strict. Also, pertinent hereto, for the Ladder Evolution, the State’s passing score is 70, but the Fire Academy’s passing score is 80; and the maximum time allowed by the State to successfully complete the Ladder Evolution is two minutes and 20 seconds, but the Fire Academy’s maximum time is two minutes and 10 seconds. Additionally, pertinent hereto, for the Ladder Evolution, the State’s established testing protocol is to permit a candidate to perform a safety inspection of the ladder prior to beginning the timing of the Ladder Evolution, and the timing begins after the candidate touches the ladder again. Consequently, State testing protocol dictates that, during the safety inspection, no timing occurs, but, when the candidate touches the ladder again, the timing begins. The Fire Academy uses this same protocol at testing for the Ladder Evolution. The time limit placed on the Ladder Evolution is designed to replicate actual fire fighting conditions, producing a certain degree of stress upon candidates. At the Fire Academy, Ms. Evans successfully completed the Ladder Evolution on November 11, 2009, receiving a score of 80 and a time of two minutes and three seconds. Again, on January 5, 2010, she successfully completed the Ladder Evolution with a score of 100 and a time of one minute and 53 seconds. Ms. Evans graduated from the Fire Academy and was eligible to sit for the certification examination. On January 10, 2010, Ms. Evans took the Ladder Evolution part of the State Practical Examination in Coral Springs, Florida. A wind gust caused her to lose control of the ladder. She received a score of zero, due to losing control, and, therefore, did not successfully complete the Ladder Evolution. Ms. Evans took a re-test of the Ladder Evolution part of the State Practical Examination on January 28, 2010, in Ocala, Florida. She completed the Ladder Evolution in two minutes and 50 seconds, which was beyond the maximum allowed time of two minutes and 20 seconds. She received a score of zero and, therefore, failed to successfully complete the Ladder Evolution on the re-test. Ms. Evans contends that, on January 28, 2010, the State’s Field Representative began the time during her safety inspection of the ladder. The more persuasive evidence supports this contention. As a result, a finding of fact is made that, on January 28, 2010, the State’s Field Representative began the timing of Ms. Evans’ Ladder Evolution during her safety inspection, which was contrary to the State’s testing protocol. The evidence fails to demonstrate what Ms. Evans’ time on the Ladder Evolution would have been had the timing begun in compliance with the State’s established testing protocol.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order directing the re-testing of Melanie Evans on the Ladder Operation (a/k/a Ladder Evolution) of the Firefighter Minimum Standards Practical Examination. DONE AND ENTERED this 29th day of July, 2010, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2010. COPIES FURNISHED: Robert J. Slotkin, Esquire 600 South Andrews Avenue, Suite 600 Fort Lauderdale, Florida 33309 Nic Thornton, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Alex Sink, Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Benjamin Diamond, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Julie Jones, Agency Clerk Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0390
The Issue Whether Petitioner's second failed Firesafety Examination should be invalidated because of faulty examination questions, and, if so, the relief to which Petitioner is entitled.
Findings Of Fact Petitioner is an applicant for certification as a firesafety inspector in the State of Florida. As an applicant for certification as a firesafety inspector, Petitioner was required to complete an approved Inspector Training Course before sitting for the Firesafety Exam. In March 2012, Petitioner successfully completed an approved Inspector Training Course. The Department establishes general curriculum parameters for firesafety inspector training courses taught throughout the State of Florida. Approximately two years before Petitioner commenced his Inspector Training Course, the Department informed entities offering training courses that the textbook, Brannigan's Building Construction for the Fire Service (4th edition), should no longer be used as a reference source when preparing students for the Firesafety Exam due to the limited availability of the textbook. The Brannigan textbook had been recognized by the Department for many years as an approved training guide. Petitioner, after completing his Inspector Training Course, spent several months studying for the Firesafety Exam. On August 30, 2012, Petitioner took the Firesafety Exam for the first time and answered 57 of 100 questions correctly. Petitioner failed this examination. Approximately three weeks later, Petitioner, on September 18, 2012, took the Firesafety Exam a second time. Petitioner answered 63 of 100 questions correctly. Petitioner once again failed the Firesafety Exam. By letter dated September 21, 2012, the Department informed Petitioner that because "you failed both the initial and retake examinations, it will be necessary for you to repeat the Inspect[or] Training [Course], and you will be required to submit a new application." Petitioner does not wish to repeat the Inspector Training Course. When Petitioner took his retake examination on September 18, 2012, he encountered several questions that, in his opinion, presented information that was different from what he learned from his Inspector Training Course. Upon post-exam investigation, Petitioner, after having met with a representative from the Department, identified nine questions from the retake examination that he believes were derived from the Brannigan textbook. Of the nine "Brannigan" questions identified by Petitioner, he provided correct answers to six of the questions during his retake examination. According to the Department, even if Petitioner received credit for the additional "Branningan" questions (as identified by Petitioner) that he answered incorrectly, he would have only achieved an exam score of 66 out of 100, which is still a failing score. The Department disagrees with Petitioner's assertion that there were nine "Brannigan" questions on the retake examination. The Department concedes, however, that there was one question on the retake examination that was taken directly from the Brannigan textbook. Petitioner answered correctly on his retake examination the one Brannigan question identified by the Department. Petitioner did not prove that there were nine "Brannigan" questions on the examination, but he did prove the existence of one "Brannigan" question on the examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order denying Petitioner's challenge to the failing score he received on the September 2012 Firesafety Inspector Certification Examination and dismiss the petition in this proceeding. DONE AND ENTERED this 26th day of March, 2013, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 2013.
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 issue posed for decision herein is whether or not the Petitioner is physically qualified to be certified as a firefighter.
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, Melvyn D. Clapp, is an applicant for certification as a fire-fighter. Petitioner has served as a volunteer fire-fighter since approximately November of 1973. To become eligible to be employed as a paid full-time fire-fighter, it is necessary for the candidate to be certified as professionally qualified as having met all standards established by the Bureau of Fire Standards and Training. In satisfying this requirement, candidates are given a thorough medical examination by a physician or surgeon licensed to practice medicine in the State of Florida pursuant to Chapters 458 or 459, Florida Statutes, and passage of the two-hundred (200) hour minimum standards course offered by the Bureau of Fire Standards and Training, Office of the State Fire Marshal. On June 14, 1979, Petitioner was certified as having satisfactorily completed the two-hundred (200) hour minimum recruit training course administered by the Division of State Fire Marshal, Bureau of Fire Standards and Training. (Petitioner's Exhibit No. 1.) However, by letter dated July 1, 1980, the program coordinator for the Bureau of Fire Standards and Training advised Petitioner that he would not be certified as a fire-fighter, in that he "did not meet the qualifications set forth in Section 633.34(5), Florida Statutes," which 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." Pre-employment medical examination and subsequent reports submitted on behalf of Petitioner indicate that he suffered from hypertension and a hearing loss which was abnormal and fell outside the required parameters for certification as a fire-fighter. In this regard, the evidence reveals that Petitioner is deaf in the right ear and his blood pressure, which is being controlled by the drug commonly referred to as "Minipress", is 180/140. It is true that Petitioner has served as a volunteer fire-fighter in the past without difficulty. However, evidence herein reveals that fire- fighters are called upon to perform satisfactorily in stressful situations where background noises are often prevalent and the working area is usually heat intensified. As a fire-fighter, Petitioner, much like other fire fighters, is not given any special consideration. Fire-fighters must maintain satisfactory performance in strenuous conditions and must respond quickly and be able to hear background noises. Fire-fighters are called upon to be calm and carry victims up and down stairs in smoke-filled rooms. (Testimony of expert witnesses, Dennis R. Dewor and Chief Holman.) Based thereon and the medical reports submitted which show that Petitioner's EKG is erratic and the audiologist's report of March, 1980, which shows that Petitioner is deaf in his right ear compels the conclusion that Petitioner was properly denied certification as a fire-fighter based on his failure to meet the minimum qualifications required of a fire-fighter. I shall so recommend.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent's failure to certify Petitioner as eligible as a fire- fighter in the State of Florida be UPHELD. RECOMMENDED this 26th day of November, 1980, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1980.
