The Issue The issue is whether Petitioner is entitled to a passing grade on the Self-Contained Breathing Apparatus ("SCBA") part of the Firefighter Minimum Standards Examination for firefighter certification.
Findings Of Fact Petitioner applied for certification as a firefighter in August 2004. In order to be certified, Petitioner was first required to successfully complete the Minimum Standards Course, which consists of a minimum of 360 hours of training at an approved school or training facility. After completing the training course, Petitioner was required to take the Minimum Standards Examination, which is structured in two parts: a written portion and a practical portion. The practical portion consists of four sections or "evolutions," including the SCBA, the hose pull, the ladder operation, and the fireground skills section. To pass the four practical evolutions, an applicant must achieve a score of at least 70 percent on each one. Each evolution of the practical exam has certain elements or skills that are graded. The SCBA test contains 11 skills related to checking, donning, and properly activating the SCBA that enables a firefighter to breathe in a hostile environment, such as a burning building. The SCBA test must be completed in not more than one minute and 45 seconds. After completing the Minimum Standards Course, Petitioner took the initial Minimum Standards Examination on December 8, 2004. Petitioner passed the written portion of the exam, but did not pass the practical portion of the initial exam because he exceeded the maximum time for the SCBA test. In a memorandum dated December 21, 2004, the Department formally advised Petitioner that he had failed the SCBA portion of the practical exam. The memorandum also informed Petitioner that he had been automatically scheduled to retake the SCBA test. In another memorandum dated December 21, 2004, the Department advised Petitioner that he was scheduled to retake the SCBA portion of the practical examination at the Florida State Fire College in Ocala, Florida, on February 24, 2005. Petitioner took the retest of the SCBA portion of the practical examination as scheduled. Petitioner again failed the SCBA test. Though he completed each of the 11 skills with no deduction of points, he again exceeded the maximum time of one minute and 45 seconds. Petitioner's time was one minute and 50 seconds. Larry McCall is a field representative with the Department. Mr. McCall described "field representative" as a "glorified name for an examiner." Mr. McCall was the examiner who tested Petitioner on the retake of the SCBA portion of the practical exam on February 24, 2005. He observed Petitioner perform the 11 skills, and he timed Petitioner with a stopwatch. Mr. McCall has been an examiner for 15 years. He is a certified firefighter and a certified fire service instructor. He retired from the City of Jacksonville Fire Department after 30 years. Mr. McCall estimated that he has administered 10,000 SCBA tests. Petitioner testified that before taking the retest, he practiced the SCBA test upwards of 50 times and never exceeded the time limit. Petitioner testified that he was certain that he completed the test within the time limit on February 24, 2005. Petitioner is currently a volunteer at the Isle of Capri Fire and Rescue Department. The chief of that department, Emilio Rodriguez, testified that he administered the SCBA test to Petitioner in practice situations over a dozen times, and Petitioner never went over one minute and ten seconds. Keith Perry, a veteran firefighter working for the Isle of Capri Fire and Rescue Department, testified that he has timed Petitioner many times and that Petitioner has never exceeded the time limit, averaging between one minute and five seconds and one minute and ten seconds. Neither of Petitioner's witnesses was present when he took the SCBA retest on February 24, 2005, and, thus, could not testify as to whether he passed the test on that day. Petitioner's subjective feeling that he passed the test based on the many times he practiced, is necessarily less persuasive than the time actually recorded by Mr. McCall. The students are assigned an applicant number on the day of the test. The examiners refer to the students by this number, rather than their names, during the testing process. After the test has been administered, the examiners coordinate the names with the numbers and assign final scores. At the hearing, Petitioner suggested that a mistake had been made in coordinating the names and numbers and that he had mistakenly been assigned the failing score of another candidate. Petitioner offered no evidence for this speculative suggestion, which, therefore, cannot be credited. Petitioner also noted that Mr. McCall had recorded a time of 20 seconds for Petitioner's performance on the "seal check," an exercise to ensure that the face piece of the SCBA equipment is securely sealed such that the firefighter is breathing only from his air tank. The candidate must perform the seal check for at least ten seconds. Petitioner persuasively contended that 20 seconds is an extraordinarily long time for the seal check, because the candidate must hold his breath for the duration of the check. Further, Petitioner noted that candidates are trained to count off the required ten seconds, making it unlikely that he would inadvertently take twice the required time to complete the check. Petitioner's theory was that Mr. McCall's mistaken recording of 20 seconds was enough to account for the five seconds by which Petitioner failed the overall SCBA test. However, Mr. McCall testified that he used a stopwatch with a split timer to record Petitioner's time for the SCBA test. A split timer independently records a span of time within the overall time being measured. When Petitioner commenced the seal check portion, Mr. McCall triggered the split timer, and he stopped the split timer when Petitioner completed the seal check. The split timer has no effect on the total time. Whether the split for the seal check had been ten seconds, 20 seconds, or more, Petitioner's overall time would have been one minute and 50 seconds. The greater weight of the credible evidence established that Petitioner's performance on the SCBA section of the practical examination was appropriately and fairly graded. Petitioner failed to establish that he was entitled to a passing grade for his performance on the SCBA section. Respondent established that Mr. McCall appropriately administered the subject SCBA section pursuant to the applicable provisions of Florida Administrative Code Chapter 69A-37, which set forth guidelines for the practical examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding that Petitioner failed the SCBA section of the practical portion of the Firefighter Minimum Standard Examination administered February 24, 2005. DONE AND ENTERED this 29th day of August, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2005. COPIES FURNISHED: Casia R. Sinco, Esquire Department of Financial Services 200 East Gaines Street, Room 612 Tallahassee, Florida 32399-0333 Adam J. Oosterbaan, Esquire Adam J. Oosterbaan, P.A. 2500 Airport Road South, Suite 306 Naples, Florida 34112 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muñiz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
The Issue Whether Respondent was arbitrary, capricious, or unlawful in examining Petitioner.
Findings Of Fact On or about October 30, 1998, Petitioner applied for certification as a firefighter with the Department under the provision relating to equivalency as a firefighter certified in another state. Petitioner met the requirements for equivalency and on November 3, 1998, was informed by letter from the Department of an Equivalency Examination. On November 23, 1998, Petitioner took the Examination, scoring a 15 percent on the practical portion. Points were deducted from Petitioner's score for the following items: Part I Breathing apparatus inhalation 5 Donning time over time limit 10 Hose and nozzle Operation 5 (Protective clothing not worn properly) Operation of nozzle 20 (poor control, closing nozzle too fast, nozzle not fully opened, nozzle opened when water arrives) Hose and nozzle operation over time limit 10 24' ladder extension 20 (did not check for overhead obstructions, lost control of ladder, did not tie a clove hitch) 24' ladder extension operation over time limit 5 Part II Improper tying on roof ladder 5 Failed to correctly demonstrate the advancing 5 and uncharged 1 3/4" hoseline up a ladder __ Total points deducted 85 A score of at least 70 percent is required to pass the Practical Examination. The Department sent Petitioner a letter on December 3, 1998, notifying him of his score on the Practical Examination and informing him that he failed. Petitioner was notified by letter dated December 10, 1998, from the Department of a retest on February 22, 1999. On February 22, 1999, Petitioner took the retest of the Practical Examination. Points were deducted from Petitioner's score for the following items: Part I a) Breathing apparatus inhalation 5 b) Donning time over time limit 5 c) Hose and nozzle operation over time limit 10 f) 24' ladder extension 5 g) (fly section not fully extended) 24' ladder extension operation over time limit 10 Part II Retied bowline 5 Unable to find requested material in guidebook 5 __ Total points deducted 45 Petitioner's score on the retest was 55. The Department sent Petitioner a letter on March 3, 1999, notifying him of his score and informing him that he failed. On March 4, 1999, the Department issued a letter of intent to deny, denying his certification as a firefighter for failure to meet the certification requirements. There are four events on the Practical Examination that are timed: testing the seal on the breathing apparatus, donning the apparatus, deploying and using the hose and nozzle, and extending and placing the 24-foot ladder. The inhalation test requires a check of the face seal after donning and fitting the mask of not less than 10 seconds. The Petitioner received a 5-point deduction for not maintaining the seal for the full 10 seconds. The total donning operation must be completed in not more than one minute and twenty-nine seconds. Examinees receive a 5-point penalty for each thirty-second increment they exceed the allowable time up to a maximum of 40 points. The Petitioner exceeded the allowable time by two seconds and received a 5-point deduction. The deployment and operation of the hose and nozzle requires an examinee to pull a water-filled hose a given distance, then turn the hose on and direct it properly on a specified type of fire. The examinee must complete the task in not more than one minute and fifty-nine seconds. For each thirty-second increment over the allowable time, 5-points are deducted from the examinee's score up to a maximum of 35 points. The Petitioner exceeded the allowable time by forty- five seconds, and received a 10-point deduction. The raising of the extension ladder requires the examinee to carry a 24-foot extension ladder to the side of a building, extend the ladder fully, and place the ladder against the wall of the building using proper procedures within a maximum allowable time of two minutes and twenty-nine seconds. For each thirty-second increment an examinee exceeds the allowable time, the examinee receives a deduction of 5-points, up to a maximum of 35 points. In each of the listed tasks above, as well as the other un-timed portions of the examination, the examinee can lose additional points for using the wrong technique or procedure. The total number of points that can be deducted from an examinee's score is 450 points. Mr. McCall from the Fire College testified concerning how the times on the examination were normed. The times of various examinees taking the examination before timing was required were taken and their times averaged. An additional increment of time was added to the average time required to complete each event. For each thirty-second increment an examinee exceeded the set time, 5 points are deducted. The method of arriving at the mean time for the events is sound; however, Mr. McCall reported that the data upon which the time standards were based had been destroyed. There was no evidence presented on the manner in which the point deductions schedules were established. They are uniformly linear in terms of the time limits imposed and points deducted. That is to say, that for every thirty seconds in excess of the allowable time, an additional 5 points is deducted. The Fire Colleges data reveals that only 35 percent of out-of-state applicants are able to qualify for certification by equivalency. This, at fact value, appears to be a low number for individuals who have already been examined and re frequently experienced firefighters. However, many of the tasks on the practical test require physical agility and prowess which may be affected by age or injury. No information is maintained regarding the demographic data of equivalency examinees regarding age and sex; however, it is noted that the statutes provide a special exemption for out-of-state firefighters hired to fill top positions within department. During the course of the hearing, it became evident that the number of points which potentially could be deducted totaled 450 points. It also became evident that the deduction of points was directly from 100 points with which each examinee started. This deduction was direct and was not scaled, weighed, or converted to arrive at a final score. The practical examination has a possible 450 points which can be deducted from 100 points. An examinee's score is the result of subtracting the points he or she loses from 100 points. The statute and rule provides that passing on the written and practical portions of the examination will be 70 percent. The Petitioner had a total of 45 points deducted on his performance examination from a total of 450 possible points that could be deducted. He missed 10 percent of the possible points which could be deducted, or conversely made a score of 90 percent. By deducting up to 450 points from 100 points to arrive at a final score, the Respondent has adopted a scoring system which is arbitrary, capricious, and contrary to the statute and rules. The fact that the Respondent has done this for a long time does not validate the process. Contrary to the suggestion by Respondent that looking at the number of possible deductions is a "red Herring," it is precisely the number of possible points "available." If the Respondent uses a 30 percent error rate when the base is 450, an applicant could lose up to 135 points. The Petitioner lost 45 points, only a third of the allowable points using the Respondent's method. Petitioner passed the written examination with a score of 86. The Petitioner should receive a score of 90 on his practical examination based upon the number of points on the examination and the statutory guidance. Based upon the foregoing the Petitioner's grade should be entered as a 90.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Petitioner be licensed. DONE AND ENTERED this 8th day of December, 1999, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1999. COPIES FURNISHED: Kurt P. Larson 2225 Inverness Drive Pensacola, Florida 32503 Shiv Narayan Persaud, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Honorable Bill Nelson, State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level 01 Tallahassee, Florida 32399-0300
The Issue The issue is whether the Department properly denied Petitioner's application for certification as a Florida firefighter due to his not achieving a passing score of 70% on the written portion of the required Firefighter Minimum Standards Examination.
Findings Of Fact Mr. Notkin filed his application for certification as a Florida firefighter on February 4, 2000. As an applicant, Mr. Notkin was required to and did take a state-approved Minimum Standards Course. Upon successful completion of the Florida Minimum Standards Course, applicants must thereafter sit for the Minimum Standards Examination. The examination consists of a written part and a practical part, and applicants must pass each part with a score of 70% or better in order to be eligible for certification. Approximately one-half (180 hours) of the 360 hours of the Minimum Standards Course is dedicated to preparation for the written portion of the Minimum Standards Examination, with the balance of the time devoted to matters to be covered on the practical field work portion of the Minimum Standards Examination. There are 100 questions on the written portion of the Minimum Standards Examination and applicants are able to miss up to 30 questions and still achieve a passing score of 70%. At all times material to this case there were three required texts for students taking the Minimum Standards Course: The Essentials of Fire Fighting, 4th edition, published by Oklahoma State University's Fire School; Medical First Responder, 5th edition, authored by J. David Bergeron; and Initial Response to Hazardous Materials published by the National Fire Academy. Mr. Notkin and his classmates were instructed to study the required text materials and informed that anything found in the text materials could be on the written portion of the Minimum Standards Examination. Students were advised that where information provided in the textbook conflicts with information provided by the instructor, the instructor's interpretation should be followed. Most questions on the Minimum Standards Examination are featured prominently in the required course textbooks. Mr. Notkin successfully completed his Firefighters Minimum Standards course with a score of 85%. He thereafter took his initial written and practical portions of the Minimum Standards Examination on June 13, 2000, at which time Mr. Notkin passed the practical examination with the minimum allowable score of 70%. However, he scored a 67% on the written portion, which is three points below the minimum passing score of 70%. Applicants are permitted two chances to achieve a passing score on the Minimum Standards Examination written portion. If an applicant fails both the initial and retest examinations, that applicant has to retake and successfully complete the 360-hour Minimum Standards Course before being permitted to retake the Minimum Standards Examination. Mr. Notkin re-tested for the written portion of the Minimum Standards Examination on or about August 2, 2000. A score of 70% would have allowed him to be certified as a firefighter without the necessity of taking a second practical examination, or repeating the Minimum Standards Course. Mr. Notkin scored 60% on the August 2, 2000, written examination, ten points below the required minimum for a passing score and certification as a firefighter. Mr. Notkin's examinations were properly graded.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance, Division of the State Fire Marshal, enter a final order denying Petitioner's application for certification as a Florida firefighter. DONE AND ENTERED this 24th day of January, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 24th day of January, 2001. COPIES FURNISHED: Michael Ian Notkin 10809 Northwest 46 Drive Coral Springs, Florida 33076 James B. Morrison, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333 The Honorable Tom Gallagher State Treasurer/Insurance Commissioner The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
The Issue The issue in this case is whether Petitioner is entitled to credit for his failure to timely complete the ladder evolution of the Firefighter Minimum Standards practical examination because he was allegedly distracted by an examiner.
Findings Of Fact Based on the evidence and the testimony of witnesses presented and the entire record in this proceeding, the following findings of fact are made: Respondent, Department of Insurance, through its Division of State Fire Marshall, certifies all paid firefighters and establishes a course of instruction and Minimum Standards written and practical examinations for certification. An individual ("candidate") who desires to become a firefighter must take a 360-hour Minimum Standards course of instruction and pass a Minimum Standards written and practical examination. If the candidate fails the examination, the candidate is given one opportunity to retake the portions of the examination which were not passed. If the candidate does not pass the retest, the candidate must again complete the Minimum Standards training course before additional retesting will be allowed. Petitioner completed the Minimum Standards course of instruction at Hillsborough Community College in June 2001. He took the Minimum Standards written and practical examination in December 2001. The Minimum Standards practical examination consists of four evolutions: (1) self-contained breathing apparatus; (2) inch and three-quarter hose pull and operation; (3) 24-foot ground ladder carry; and (4) other fire ground skills. On the December 2001 Minimum Standards practical examination, Petitioner did not obtain a passing score on the self-contained breathing apparatus and the 24-foot ground ladder carry evolutions. Petitioner was retested on the self-contained breathing apparatus and the 24-foot ground ladder carry evolutions on February 28, 2002, at the State Fire College in Ocala, Florida. Petitioner obtained a passing score on the self-contained breathing apparatus evolution; he again failed to obtain a passing score on the 24-foot ground ladder carry evolution. Each evolution of the Minimum Standards practical examination has a value of 100 points. The examiner deducts points for deficiencies that occur throughout the examination. Each candidate is required to achieve a score of 70 points in each evolution to pass the Minimum Standards practical examination. The 24-foot ground ladder carry evolution involves multiple sequenced tasks testing a candidate's ability to safely lift, maneuver, and deploy a 24-foot ladder; the maximum time allowed to complete all tasks required in the 24-foot ground ladder carry evolution is two minutes and 45 seconds. Failure to complete all required tasks of the evolution within the maximum time results in failure of the evolution. As Petitioner proceeded to perform the 24-foot ground ladder carry evolution, he experienced difficulty with some of the required tasks, and, as a result, time was running out as he neared completion of the required tasks. While testimony differs as to the exact words that were spoken, the examiner, noting that time was running out, spoke to Petitioner advising him to hurry to complete the tasks, or words to that effect. While an examiner speaking to a candidate during testing is not a common occurrence, nothing prohibits an examiner from speaking to a candidate while the testing progresses. Petitioner completed the 24-foot ground ladder carry evolution in two minutes and 48 seconds, exceeding the maximum time by three seconds and failing the retest. Petitioner maintains that he was distracted by the examiner's spoken words, lost his focus, and, as a result, exceeded the maximum allowable time for the 24-foot ground ladder carry evolution. While Petitioner's contention is plausible, it is not supported by the evidence presented. His previous failure of the same evolution demonstrates the difficulty he had with it; he acknowledged this difficulty. Petitioner did not appear to react to the examiner's spoken words in any way that evidenced shock or distraction. One of the ladder guards recalls Petitioner's performance on the 24-foot ground ladder carry evolution as "a weak performance all around." "I recall him taking a lot of time, an excessive amount of time, " ". . . he wasn't performing it as well, so it took him longer to do it since he wasn't doing it well." The ladder guard's observations were essentially confirmed by the examiner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered confirming Petitioner’s examination score and dismissing his challenge. DONE AND ENTERED this 12th day of November, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 12th day of November, 2002. COPIES FURNISHED: Sherwood S. Coleman, Esquire Kwall, Showers, and Coleman, P.A. 133 North Fort Harrison Avenue Clearwater, Florida 33755 Mechele R. McBride, Esquire Elentia Gomez, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300
The Issue The issue is whether Respondent should deny an application for certification as a Firefighter II on the alleged grounds that Petitioner failed the Firefighter Minimum Standards Equivalency Examination.
Findings Of Fact Respondent is the state agency responsible for the certification of firefighters in the State of Florida, pursuant to Chapter 633, Florida Statutes (2009).1 At a date not disclosed in the record, Petitioner applied for a certification as a Firefighter II. On September 21, 2009, Petitioner took the Firefighter Minimum Standards Equivalency Examination (“initial examination”). Petitioner failed to pass the Ladder, Hose, and Self Contained Breathing Apparatus (SCBA) components of the practical portion of the initial examination. On November 17, 2009, Petitioner took the Firefighter Minimum Standards Equivalency Examination Re-test (“examination re-test”) for the Ladder, Hose, and SCBA components. Petitioner failed to pass the Ladder component of the examination re-test. By Notice of Denial dated November 20, 2009, Respondent notified Petitioner that Petitioner had failed the Firefighter Minimum Standards Equivalency Examination. Petitioner requested an administrative hearing. Petitioner alleges that, during her initial examination on September 21, 2009, there was an equipment malfunction during the Ladder component of the practical portion of the examination. Petitioner bases her allegations on the Ladder component score sheet for the initial examination (“score sheet”) that was received by Petitioner after she completed the initial examination and examination re-test. The score sheet for the initial examination states that Petitioner failed the Ladder component of the initial examination because Petitioner exceeded the time period to complete the ladder evolution and failed to fully extend the ladder with the dogs locked. In the “Comments Required for Failure” section, the score sheet listed, “Safety latch on dawgs [sic] stuck in top of rung. Unsafe act. Over time.” Petitioner alleges that the statement that a piece of equipment was "stuck" is proof of an equipment malfunction. Two experts testified during the hearing that the "stuck" equipment was caused by operator error rather than an equipment malfunction. The testimony of the two experts was credible and persuasive. Petitioner, as the examinee, could have remedied the "stuck" equipment by raising the ladder to release the finger and then lowering the ladder to allow the dogs to lock onto the rung. The failure to do so was an "unsafe act” that created a safety hazard in which the fly section of the ladder could have fallen down to the ground. A preponderance of the evidence does not show that Petitioner failed the Ladder component of the initial examination because of an equipment malfunction. Rather, the preponderance of evidence shows that Petitioner failed to have the dogs locked, which is required by the examination. A preponderance of the evidence also shows that Petitioner did not complete the ladder evolution within the required time during the re-take examination. The excessive time resulted in an automatic failure of the re-take examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order denying Kim Lashawn Edmonds’ application for certification as a Firefighter II. DONE AND ENTERED this 16th day of April, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 16th day of April, 2010.
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 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 should have received a passing score on the SCBA (Self Contained Breathing Apparatus) section of the Bureau of Fire Standards and Training's Minimum Standards Practical Examination re-test administered on March 1, 2001.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: On November 15, 2000, after completing a training course at the Broward Fire Academy (where Lawrence Burns was his lead instructor), Petitioner took the Bureau of Fire Standards and Training's Minimum Standards Written and Practical Examinations. He received a passing score on the Written Examination and all sections of the Practical Examination, except for the SCBA section. On March 1, 2001, Petitioner re-took the SCBA section of the Practical Examination. The re-test was administered at the State Fire College in Ocala, Florida. Ralph Chase, a field representative with the Bureau of Fire Standards and Training, was Petitioner's examiner. Mr. Chase has been employed as a field representative with the Bureau of Fire Standards and Training for five years. Prior to coming to work for the Bureau of Fire Standards and Training, he was a firefighter with the City of Titusville for 21 years. He was a suppression lieutenant at the time he left the city's employ. Petitioner borrowed from the Broward Fire Academy the equipment that he needed for the re-test: two air tanks, a regulator, a harness, and a PASS device. A PASS device is a safety device worn by firefighters entering a hostile environment. When the device is activated in the automatic mode, it will emit a continuous, piercing sound if the firefighter is immobilized for longer than 30 seconds. To place the device in the automatic mode, a plastic switch must be moved into the appropriate position. When properly positioned in the automatic mode, the device makes a brief, chirping sound. It was emphasized to Petitioner during his training at the Broward Fire Academy that it was the responsibility of the student, before leaving the Academy with borrowed equipment, to inspect the equipment to make sure that the equipment was in good working order. Before leaving the Academy with the equipment that he borrowed for the re-test, Petitioner twice inspected the equipment and ascertained that it was in good working order. At the re-testing site, he re-inspected the borrowed equipment. The re-inspection revealed that all of the equipment was in good working order, except for the regulator. Petitioner obtained another regulator, along with a harness, at the re-testing site. He attached the PASS device that he had borrowed from the Broward Fire Academy to the harness and ascertained that "[e]verything was working properly." Before the re-test began, Mr. Chase advised Petitioner that "exceeding the maximum allotted time and/or failure to wear and activate the PASS device in the automatic mode w[ould] constitute an automatic failure for the SCBA evaluation." He further advised Petitioner to "speak loudly and clearly" if Petitioner wanted to tell Mr. Chase "anything during the testing." After Petitioner indicated that he was ready, the re- test began. Throughout the re-test, Mr. Chase stood "only a few feet" in front of Petitioner and watched him intently, focusing upon his hands. Petitioner signaled that he was "done" by clapping his hand. He finished the re-test in one minute and 16 seconds, well within the allotted time. At no time during the re-test, however, did Petitioner make an effort to place the PASS device in the automatic mode. Because he had neither seen Petitioner make such an effort, nor heard the chirping sound that is made when a PASS device is activated in the automatic mode, Mr. Chase walked up to Petitioner after Petitioner had signaled that he was "done" and confirmed that the PASS device switch was in the "off" position. Mr. Chase did not say anything to Petitioner about it. He simply told Petitioner to take off his mask. Shortly thereafter, Petitioner walked up to Mr. Chase and stated, "You know I turned my alert, my PASS alert off." Mr. Chase responded that he did not know what Petitioner meant, to which Petitioner replied, "I wanted you to know that I turned it . . . on and then I turned it off again." After telling Petitioner that he could not discuss the matter with him, Mr. Chase walked away. Petitioner did not at any time during the re-test tell Mr. Chase that he had placed the PASS device in the automatic mode. At no time at the re-testing site, either before, during, or after the re-test, did Petitioner tell Mr. Chase that there was any problem with the PASS device. Petitioner justifiably received a failing score of zero on the re-test because he had not make any effort to place the PASS device in the automatic mode. Petitioner did not report that there was any problem with the PASS device when he returned it to the Broward Fire Academy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rejecting Petitioner's challenge to the failing score he received on the SCBA (Self Contained Breathing Apparatus) section of the Bureau of Fire Standards and Training's Minimum Standards Practical Examination re-test he took on March 1, 2001. DONE AND ENTERED this 25th day of September, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 2001.
The Issue The 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.
