The Issue The issue is whether Petitioner's apparent failure to achieve a passing score on the written portion of the Firefighter Minimum Standards retest resulted from improper administration or grading of the examination by Respondent.
Recommendation Based on the foregoing, it is RECOMMENDED that the Department enter a final order dismissing Cruz's petition and denying his application for certification as a Florida firefighter. DONE AND ENTERED this 4th day of June, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 2001. COPIES FURNISHED: Hipolito Cruz, Jr. 1214 Southwest 46 Avenue Deerfield Beach, Florida 33442 James Morrison, Esquire Department of Insurance 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333 Honorable Tom Gallagher State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300
The Issue The issues in this case are whether Respondent’s participation in the John M. McKay Scholarships for Students with Disabilities Program (McKay Scholarships) and the Corporate Income Tax Credit Scholarship Program (CTC Scholarships) should have been suspended, and whether Respondent’s eligibility to participate in the programs should be revoked.
Findings Of Fact CHC is a private school located in Merritt Island, Florida. Lara Nichilo is the owner and head administrator of CHC. Ms. Nichilo was also the owner and head administrator of another private school located in Cocoa, Florida. For the purposes of this proceeding, the school located in Cocoa, Florida, will be referred to as CHC 2.2 CHC and CHC 2 had participated in the McKay Scholarships and CTC Scholarships programs. Section 1002.39, Florida Statutes, authorizes the McKay Scholarships program, which affords a disabled student an opportunity to receive a scholarship to defray the cost of attending a private school of choice. Section 220.187, Florida Statutes, authorizes the CTC Scholarships program, which enables taxpayers to make private, voluntary contributions so that students who qualify for free or reduced-price school lunches under the National School Lunch Act may receive a scholarship to defray the cost of attending a private school of choice. The Department of Education has the responsibility to annually verify the eligibility of a private school to participate in these scholarship programs. Private schools participating in the McKay Scholarships and CTC Scholarships programs are required to comply with Section 1002.421, Florida Statutes, and must meet applicable state and local health, safety, and welfare laws, codes, and rules, including laws, codes, and rules relating to firesafety and building safety. If a private school participating in the McKay Scholarships and CTC Scholarships programs desires to renew its participation in the programs, the school must file a signed, notarized Form IEPC SCF-1 affidavit with the Department of Education by March 1 of each year for participation in the subsequent school year. The Form IEPC SCF-1 affidavit contains a list of requirements to which the private school must certify that it meets or does not meet. If the school certifies that it does not meet a requirement, such certification constitutes an outstanding compliance issue, which must be resolved by the school prior to May 1 of each year for the school to remain eligible to participate in the scholarship programs. Specifically, the signature page of the Form IEPC SCF-1 affidavit states in part: “I understand that in answering ‘No’ to any requirement in Section 9: School Facility, the provision of a reason for answering ‘No’ shall not make the school compliant with the reporting requirement and will be considered an outstanding compliance issue for resolution as described in State Board of Education Rules 6A-6.03315, 6A-6.0960, and 6A- 6.0970, Florida Administrative Code.” Florida Administrative Code Rule 6A-6.03315(2) requires that every third year a school applies for renewal of eligibility for the scholarship programs there must be a review of compliance documentation. This means that the school must submit documentation to support its eligibility along with the affidavit. For the renewal of eligibility for the 2009-2010 school year, CHC had to submit compliance documentation for review. On November 6, 2008, Ms. Nichilo executed and mailed the Form IEPC SCF-1 affidavit for CHC for renewal of CHC’s eligibility to participate in the McKay Scholarships and CTC Scholarships programs for the 2009-2010 school year. Subsection 1 of Section 9 of the Form IEPC SCF-1 affidavit requires the school to answer the following question: Does the school facility possess a current, violation free or satisfactory Fire Code Inspection and compliance report in accordance with Section 1002.421(2)(g)1., Florida Statutes, State Finance Services Rule 69A-58.004, Florida Administrative Code, and county and/or municipal ordinance? Ms. Nichilo answered “Yes” to the question. CHC submitted a fire inspection certificate for CHC with a date of February 22, 2008. At the time Ms. Nichilo executed and submitted the Form IEPC SCF-1 affidavit in November 2008, CHC did not have a current Fire Code Inspection and compliance report. The last fire inspection certificate was dated February 22, 2006, and had expired on February 22, 2007. Ms. Nichilo executed and submitted a Form IEPC SCF-1 affidavit for the 2007-2008 school year, certifying that CHC had a current, violation-free fire inspection report. The certificate affidavit which Ms. Nichilo signed stated: I have read the applicable scholarship program rules and understand that by signing this form I am certifying that the school is currently in compliance and agrees [sic] to remain in compliance with all scholarship program rules and reporting requirements. If at any point, the school is not in compliance with scholarship rules, or if there is a change in the status of any reporting requirement, the school will have 15 days to notify the Department of Education and will provide all information necessary to document its continued compliance with program rules and requirements. At the time the certification was submitted on January 11, 2007, CHC did have a current, violation-free fire inspection report; however, CHC did not have a current, violation-free fire inspection report that was valid for the entire 2007-2008 school year. CHC did not notify the Department of Education that it was not in compliance with the fire safety inspections during the 2007-2008 school year. On December 5, 2007, Ms. Nichilo executed and submitted a Form IEPC SCF-1 affidavit for the 2008-2009 school year, certifying that CHC had a current, violation-free fire inspection report. At the time of submission of the affidavit, CHC did not have a current, violation-free fire inspection report, and, from the beginning of the 2008-2009 school year until December 23, 2008, CHC did not maintain a current, violation-free fire inspection report nor did CHC notify the Department of Education as late as December 11, 2008, that CHC was not in compliance with the fire inspection requirement. On November 19, 2008, Assistant Fire Marshall Doug Carter of Brevard County Fire Rescue (BCFR) received a complaint concerning CHC and CHC 2 from an anonymous caller. It is the policy of BCFR to follow up on all complaints. On November 20, 2008, Lead Fire Inspector William Morissette, following up on the anonymous complaint, went to CHC for the purpose of performing a fire inspection. On November 20, 2008, Mr. Morissette performed a fire inspection on CHC and noted some violations. During the inspection on November 20, 2008, Mr. Morissette noticed that the fire inspection certificate that was posted at CHC was partially obscured, and he could not see the school’s address. On November 20, 2008, Mr. Morissette performed a fire inspection of CHC 2 and noted some violations. He observed the posted fire certificate at CHC 2 during his inspection. The fire certificate had an account number 23832 and was dated February 22, 2008. The font used in the printing of the certificate did not appear to be the same type as used by BCFR. While at CHC 2, Mr. Morrissette called Assistant Fire Marshall Carter and learned that account number 23832 was for CHC and not CHC 2 and that no fire certificate had been issued to CHC 2 on February 22, 2008. The last fire certificate that had been issued to CHC 2 was on December 15, 2005, and had expired on December 16, 2006. On November 6, 2008, CHC sent a copy of the fire inspection certificate dated February 22, 2008, to the Department of Education as part of the documentation supplied to verify CHC’s eligibility for renewal. The fire inspection certificate was a forgery. Ms. Nichilo testified that she did not send the forged certificate to the Department of Education and that some disgruntled former employee who had access to CHC’s files must have sent the certificate to the Department of Education or must have put the forged certificate in the envelope containing the renewal information that was sent to the Department of Education. Ms. Nichilo’s testimony is not credible. The certificate came in the same envelope as the other material which CHC submitted in November 2008. Ms. Nichilo signed and mailed the renewal information on November 6, 2008. Her testimony that the envelope must have been in the mail room a couple of days before it was mailed, thereby allowing the disgruntled employee an opportunity to slip the forged certificate in the envelope, is not credible. After the renewal package was sent to the Department of Education, Ms. Nichilo asked her secretary to contact BCFR to schedule a fire inspection. Ms. Nichilo knew that she needed a fire inspection because she knew that she did not have a current fire inspection certificate when she sent the renewal submittal to the Department of Education. Based on the clear and convincing evidence presented, it can only be concluded that Ms. Nichilo knew the fire inspection certificates, which she included with the renewal submittals, were forgeries. On or about December 5, 2008, Mr. Carter contacted the Department of Education and informed the Department of Education that he had concerns about CHC’s and CHC 2’s fire inspection certificates. Mr. Carter sent a memorandum dated December 9, 2008, to Riley Hyle with the Department of Education, explaining BCFR’s observations and concerns relating to the fire inspection certificates. After learning from Mr. Carter that CHC’s and CHC 2’s fire inspection certificates were in question, Mr. Hyle checked the Department of Education’s renewal files on CHC and CHC 2. Mr. Hyle found forged fire inspection certificates in both files. When CHC’s and CHC 2’s submittals arrived on November 10, 2008, in the same envelope, Mr. Hyle reviewed the submittals and verified that both submittals contained fire inspection certificates. He received no further documentation from CHC or CHC 2 from November 10, 2008, and the time he talked to Mr. Carter on December 5, 2008. On December 8, 2008, Mr. Morrissette returned to CHC 2 to do a follow-up inspection. CHC 2 had not corrected all its violations. Mr. Morrissette was advised by the principal at CHC 2 that CHC also had not corrected all of its violations. One of the violations CHC had was a broken lockbox. On December 7, 2008, CHC had called BCFR and requested an application for a lockbox. Thus, on December 8, 2008, CHC would still have not corrected its lockbox violation. On December 11, 2008, Ms. Nichilo signed a revised version of the Form IEPC SCF-1 affidavit3 for CHC for the 2009- 2010 school year. The question posed in the affidavit submitted in November 2008 concerning whether the facility had a current, violation-free fire code inspection remained the same in the revised affidavit. Again, CHC stated that it did have a current, violation-free Fire Code Inspection and compliance report. The revised affidavit also contained the same language as the November 2008 affidavit that answering a question in the negative in Section 9 would result in an out-of-compliance issue. Both the November affidavit and the revised affidavit contained the following language: I have read the applicable scholarship program rules and understand that by signing the form I am certifying that the school is currently in compliance and agrees [sic] to remain in compliance with all scholarship program rules and reporting requirements. If at any point, the school is not in compliance with the scholarship rules, or if there is a change in the status of any reporting requirement, the school shall have 15 days to notify the Department of Education and will provide all information necessary to document its continued compliance with program rules and requirements. The revised affidavit was submitted to the Department of Education, which received the affidavit on December 16, 2008. At the time CHC submitted the affidavit, it did not have a current, violation-free Fire Code Inspection and compliance report. On December 23, 2008, the BCFR re-inspected CHC and found that the violations had been corrected. After its inspection on December 23, 2008, BCFR issued a fire inspection certificate backdated to November 20, 2008, which was the date of the original inspection. On December 17, 2008, the Agency issued an Administrative Complaint, suspending CHC’s eligibility for the McKay Scholarships and CTC Scholarships programs for failure to have a current fire inspection report. By letter dated December 23, 2008, and received by the Department of Education on December 29, 2008, CHC advised that the school had been re- inspected and now had a current fire code inspection certificate. On January 2, 2009, CHC sent a 12-page facsimile transmission to the Department of Education. One of the pages of the transmission was a copy of a facsimile transmission coversheet dated December 31, 2008, with the BCFR letterhead concerning inspection reports. The comments section of the coversheet read “Please read letter.” The second page of the transmission was an unsigned to-whom-it-may-concern letter dated December 30, 2008. At the top of the letter, printed in large, bold type was the following: “Brevard County Fire Rescue.” The letter stated: To whom it may concern, In reviewing and trying to figure out what happen with the 2007 inspection reports this is the conclusion we have come to. If you review the two reports on both CHC-1 and CHC-2 the visiting inspection times over lap each other making it seem like a 2007 inspection was done when in reality it was not. CHC-1 inspection has a date on it February 22, 2006 to February 2007. CHC-2 inspection shows January 12, 2006 (re-inspection) January 2007. I believe that this was just an over site on both our parts due to the fact that the fire department does come in regularly every year even without an appointment. Lara Nichilo did notify us to come in ASAP when the reports could not be found. But as of November 20, 2008 all her inspections were done and her follow up correction reports have been completed putting her in good standing with the fire and inspections department. CHC-1 and CHC-2 (inspection reports provided to you with this letter) For more information you may contact us at 321-455-6383 Thank you for your time, The telephone number given in the letter was the telephone number for CHC. The original letter submitted at the final hearing by CHC was written on stationary bearing the CHC watermark. The letter received by the Department of Education had no visible watermark. The facsimile transmission coversheet that accompanied the letter was a coversheet which BCFR had sent to CHC on December 31, 2008. The statements in the comments section that BCFR sent had been deleted and replaced with “Please read letter.” The following are the comments which BCFR had written: There are no reports or certificates for 690 Range Road for 2006 or 2007. There are no inspection reports or certificates for 55 McLeod for 2007. Certificates will be issued upon receipt of payment. Laura Harrison, the director of the McKay Scholarships and CTC Scholarships programs at the Department of Education, transmitted a copy of the letter to BCFR and asked if the letter had originated from BCFR. Mr. Carter advised Ms. Harrison that the letter did not come from BCFR. Ms. Nichilo wrote the letter. A person reading the letter would be led to believe that the letter came from BCFR. The letter was accompanied by a facsimile transmission coversheet bearing the BCFR letterhead and the coversheet comments said “Please read letter.” The letter refers to Ms. Nichilo in the third person and uses first person plural pronouns to refer to BCFR. The letter purports to bear the letterhead of BCFR. It must be concluded that Ms. Nichilo intended the Department of Education to rely on the letter as a letter transmitted by BCFR to Ms. Nichilo to explain the situation. If Ms. Nichilo had intended the Department of Education to treat the letter as a letter written by her, she would have written the letter using CHC letterhead, signed the letter, not referred to herself in the third person, not referred to BCFR in the first person, and not used a transmission coversheet from BCFR in which the comments section had been altered. In a conversation on December 30, 2008, Ms. Nichilo advised Mr. Hyle that she was sending him a letter that would explain everything and would resolve the situation concerning the fire inspections. Ms. Nichilo testified that she told Mr. Hyle that she was writing the letter. Mr. Hyle did not recall whether Ms. Nichilo said that she was writing a letter. Jade Quinif, who was Ms. Nichilo’s administrative assistant on December 30, 2008, listened to the conversation between Mr. Hyle and Ms. Nichilo on speakerphone. She recalls Ms. Nichilo asking Mr. Hyle if he would like her to write a letter regarding Ms. Nichilo’s conversations with BCFR. Mr. Hyle said that would be fine. Ms. Nichilo typed a letter and asked Ms. Quinif to send it to the Department of Education. Ms. Quinif sent a letter to the Department of Education dated December 30, 2008. Based on the evidence presented, the letter that Ms. Quinif sent was a letter dated December 30, 2008, written on CHC letterhead and signed by Ms. Nichilo.4 It was not the letter dated December 30, 2008, which appeared to be from BCFR (purported BCFR letter). The only evidence of receipt of the purported BCFR letter by the Department of Education is in a 12-page facsimile transmittal, which was transmitted twice on January 2, 2009. Ms. Quinif credibly testified that she did not send a 12-page transmission and that she did not send the doctored transmission coversheet from BCFR. She also credibly testified that the letter that she sent was a few days after Christmas and was not more than a week after Christmas. Ms. Nichilo testified that Ms. Quinif did sent the transmittal coversheet from the BCFR on December 30, 2008; however, Ms. Nichilo’s testimony is not credible given that the transmittal coversheet from BCFR was dated December 31, 2008, and showed a transmission date of December 31, 2008, to CHC. The clear and convincing evidence is that Ms. Nichilo wrote and sent the purported letter from BCFR and the doctored transmittal coversheet from BCFR in an attempt to make it appear that BCFR was taking some of the blame for CHC not having maintained current fire inspection certificates. BCFR does not automatically do an annual inspection of schools. If a school desires to have a fire inspection, the school must notify BCFR and arrange for a fire inspection. The failure to have current, violation-free fire inspection reports rests with CHC and not with BCFR. The bogus letter was an effort by CHC to seek mitigation for its failure to adhere to the requirements for eligibility for the scholarships programs. After learning that the letter transmitted on January 2, 2009, was not from BCFR, the Agency issued an Amended Administrative Complaint on January 23, 2009, which superseded the December 17, 2008, Administrative Complaint. The Amended Administrative Complaint deleted the allegations concerning the failure to have a current, violation-free fire inspection report and added allegations involving fraud and failure to maintain current, violation-free fire inspection reports.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining the suspension of CHC’s eligibility for the McKay Scholarships and CTC Scholarships programs and revoking CHC’s eligibility for the McKay Scholarships and CTC Scholarships programs. DONE AND ENTERED this 4th day of May, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 2009.
The Issue Whether Petitioner achieved a passing score on the Practical Examination for Retention of Firefighter Retest.
Findings Of Fact The Department is the state agency responsible for the certification of firefighters in the State of Florida, pursuant to chapter 633, Florida Statutes. In or around 2009, Petitioner achieved his Firefighter Minimum Standards Training Certification, which was valid for three years. To maintain his certification, it was necessary for Petitioner to either: maintain employment as a firefighter (or serve as a volunteer firefighter) for at least six consecutive months during the three-year period subsequent to his certification; or successfully complete the retention examination, which is identical to the practical examination given to new applicants. Petitioner could not satisfy the first option, and was therefore required to take the retention examination. Petitioner's initial attempt to successfully complete the retention examination occurred on September 21, 2012, and included four practical components: self-contained breathing apparatus ("SCBA"), hose operation, ladder operation, and fireground skills. To pass the retention examination, an examinee must earn a score of at least 70 on all sections. Each portion of the retention examination has certain evaluative components that are graded; the ladder operation, for instance, consists of 15 skills——e.g., maintaining contact with the ladder, lifting and securing the ladder properly, using proper hand position——that the examinee is expected to complete. Significantly, the ladder operation also requires the examinee to fulfill ten mandatory components, which include, among other things, maintaining control of the ladder at all times, donning protective gear appropriately, and finishing the exercise within the time limit of four minutes and 30 seconds. Pertinent to the instant case, noncompliance with respect to any of the mandatory elements results in automatic failure, irrespective of the examinee's performance in connection with the evaluative components. It is undisputed that Petitioner achieved passing scores on the fireground skills, SCBA, and hose components of the retention examination. With respect to the ladder evaluation, however, Petitioner failed to comply with two mandatory elements (he exceeded the time limit and neglected to don his hood properly), which resulted in an automatic failure. Petitioner, like all candidates who fail the retention examination on the first attempt, was offered one retest opportunity.1/ Petitioner's retest was administered on November 8, 2012, at the Ocala Fire College, during which he passed the SCBA and hose portions of the examination. (Petitioner was not required to re-take the fireground skills component.) As for the ladder evaluation, the Department contends, and Petitioner does not dispute, that a time of four minutes and 49 seconds was recorded——a result that exceeds the time limit of four minutes and thirty seconds. Petitioner speculates, however, that the examiner, Thomas Johnson,2/ could have mistakenly started the timer during the safety inspection. While it is true that the timing process should not begin until an examinee completes a safety examination of the ladder, Petitioner has adduced no evidence, persuasive or otherwise, that Mr. Johnson started the clock too soon. Petitioner has therefore failed to show that he achieved a passing score on the ladder evaluation and, consequently, on his retention retest.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services enter an order denying Petitioner's application to retain his certification as a firefighter in the State of Florida. DONE AND ENTERED this 29th day of March, 2013, in Tallahassee, Leon County, Florida. S Edward T. Bauer 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 29th day of March, 2013.
The Issue Whether Petitioner is entitled to additional credit for her responses to Question Nos. 14 and 21 of the Special State Firesafety Inspector Certification Examination administered on November 13, 2003.
Findings Of Fact Based on the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner, Alma Elaine Carlus, is an applicant for certification as a firesafety inspector in the State of Florida. Applicants for certification as firesafety inspectors are required to complete a training course, which consists of 80 hours of training in firesafety inspection and must be completed prior to taking the Special State Firesafety Inspector Certification Examination. The approved textbooks for the Special State Firesafety Inspector Certification Examination training courses are Fire Inspection and Code Enforcement (6th Edition), which is published by the International Fire Service Training Association, and the National Fire Prevention Association Life Safety Code. Petitioner successfully completed the required training program and, thereafter, took the Special State Firesafety Inspector Examination on May 29, 2003. The Special State Firesafety Inspector Examination is a written examination containing 50 multiple choice, objective questions, worth two points each. The candidates are given two hours to complete the exam. In order to obtain a passing score, an applicant must earn a score of at least 70 percent. Petitioner did not pass the examination on May 29, 2003. On November 13, 2003, Petitioner retook the examination and earned a score of 66 percent. Because a minimum score of 70 percent is required to pass the examination, Petitioner needs an additional four points to earn a passing score. Petitioner challenged the scoring of two questions on the Special State Firesafety Inspector Examination, Question Nos. 14 and 21. Question No. 14 required the examinee to identify the "least important" characteristic involved in evaluating storage of flammable and combustible liquids. The answer choices given were: (a) the foundations and supports; (b) size and location of vents; (c) design of the tank; and (d) size of the tank. Question No. 14 is clear and unambiguous and the correct answer is included among the choices provided. The answer to Question No. 14 is found on page 325 of the textbook, Fire Inspection and Code Enforcement (Sixth Edition). The correct answer to Question No. 14 is "(d) size of the tank." Petitioner did not select "d" as the correct response and, thus, is not entitled to any additional points for Question No. 14. Question No. 21 states: In above ground tanks containing liquids classified as Class I, Class II, or Class IIIA, the distance between the tanks must be at least the sum of their diameters. The answer choices given were: a) 3/4; b) 1/2; c) 1/4; and d) 1/6. Question No. 21 is clear and unambiguous and the correct answer is included among the choices provided. The answer to Question No. 21 is found on page 327 of the textbook Fire Inspection and Code Enforcement (Sixth Edition). The correct answer to Question No. 21 is "(d) 1/6." Petitioner did not select "d" as the correct response and, thus, is not entitled to any additional points for Question No. 21. The knowledge tested in the Special State Firesafety Inspector Examination is essential for any firesafety inspector to know in order to properly conduct inspections required of individuals in that position.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order be entered finding that Petitioner is not entitled to additional points for her responses to Question Nos. 14 and 21 of the Special State Firesafety Inspector Examination and denying Petitioner's application for certification as a special state firesafety inspector. DONE AND ENTERED this 21st day of April, 2004, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 2004. COPIES FURNISHED: Casia R. Belk, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Alma Elaine Carlus 2419 Paradise Drive Kissimmee, Florida 34741 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact The Department is the state agency responsible for the certification of firefighters in the State of Florida, pursuant to chapter 633, Florida Statutes. In or around 2008, Petitioner achieved his Firefighter Minimum Standards Training Certification, which was valid for three years. To maintain his certification, it was necessary for Petitioner to either: maintain employment as a firefighter (or serve as a volunteer firefighter) for at least six consecutive months during the three-year period subsequent to his certification; or successfully complete the retention examination, which is identical to the practical examination given to new applicants.1/ Petitioner could not satisfy the first option, and was therefore required to take the retention examination. Petitioner's first attempt to successfully complete the retention examination occurred on May 20, 2011, and included four components: self-contained breathing apparatus ("SCBA"), hose operation, ladder operation, and fireground skills. To pass the retention examination, an examinee must earn scores of at least 70 on each section. Each portion of the retention examination has certain evaluative components that are graded. For instance, the ladder operation consists of 15 skills——e.g., maintaining contact with the ladder at all times, lifting and securing the ladder properly, using proper hand position——that the examinee must complete within the maximum time of four minutes and 30 seconds. A failure to finish the tasks within the allotted time results in an automatic failure and a score of zero, even if the examinee performs each of the 15 skills successfully.2/ Although Petitioner achieved perfect scores of 100 on the ladder operation and fireground skills components, he was unable to achieve scores of 70 or higher on the SCBA or hose portions of the practical examination. Petitioner, like all candidates who fail the retention examination on the first attempt, was offered one retest opportunity.3/ Petitioner's retest was administered on September 22, 2011, at the Ocala Fire College. On that occasion, Petitioner passed the SCBA and hose portions——the sections that he failed during his previous attempt——with scores of 85. Interestingly, however, the Department's field notes indicate that Petitioner exceeded the ladder evaluation's maximum permitted time by 32 seconds, a performance 58 seconds slower than his recorded time just four months earlier, when he achieved a perfect score. The field notes further reflect that Petitioner committed no errors in connection with the 15 ladder skills and that his failing score was entirely attributable to the examiner's conclusion that the time limit had been exceeded. During the final hearing, Respondent called Thomas Johnson, the field representative for the Bureau of Fire Standards and Training that administered Petitioner's retest, who testified that he timed the ladder examination with a stopwatch, and that Petitioner did not complete the evaluation within the prescribed time period. Significantly, however, the Department elicited no detail from Mr. Thomas with respect to the causes——e.g., loss of ladder control, tripping, fumbling, etc.——of Petitioner's purported failure to complete the evaluation within the allotted time.4/ In contrast, Petitioner testified that although he was not permitted to bring a timekeeping device to the examination (the Department forbids examinees from doing so), he is confident that he completed the ladder retest within the prescribed time limit: Mr. Saintilmond: All right. On the date of the retest, I was taking the ladder examination. I've gone through the evolution. I did not fumble around. I did not take any time. I went through the exam as trained. No fumbling around, no waiting, no nothing. And I believe that I completed the evolution on time. And I passed the examination before. I've done it several times. But on this particular day, on my retake, I know I went through this evolution and I passed it with no fumbling around. Final Hearing Transcript, p. 12. Notwithstanding the anecdotal nature of Petitioner's evidence, his description of the evaluation, which was credible and adequately detailed, carries significant persuasive force in light of his perfect completion of the same ladder examination—— with 26 seconds to spare——just four months before the retest. The undersigned therefore accepts Petitioner's version of the events and finds that he did not exceed the maximum time limit of four minutes and 30 seconds during the September 22, 2011, retention examination.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services enter an order granting Petitioner's application to retain his certification as a firefighter in the State of Florida. DONE AND ENTERED this 17th day of May, 2012, in Tallahassee, Leon County, Florida. S Edward T. Bauer Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2012.
The Issue The issue is whether Respondent properly denied Petitioner's application for certification as a firefighter after Petitioner failed to successfully pass the practical portion of the Minimum Standards Examination pursuant to Sections 633.34 and 633.35, Florida Statutes, and Rules 4A-37.056 and 4A-37.062, Florida Administrative Code.
Findings Of Fact Petitioner has served as a voluntary firefighter in Bay County, Florida, for approximately nine years. He first applied for certification as a firefighter in October 2001. In order to be certified, Petitioner was required to successfully complete the Minimum Standards Course. The course consists of taking a minimum of 360 hours of training at 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 including the Self-Contained Breathing Apparatus (SCBA), the hose pull, the ladder operation, and the fire ground skills. The purpose of the practical portion of the exam is to simulate real fire ground scenarios. 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 steps that are mandatory. Failure to complete a mandatory step results in automatic failure of that portion of the exam. The mandatory steps for the SCBA evolution include the following: (a) complete the procedure in not more than one minute and forty-five seconds; and (b) activate the PASS device in the automatic position. After completing the Minimum Standards Course, Petitioner took the Initial Minimum Standards Examination on May 1, 2002. He was well rested on the day of the test, having slept approximately eight hours the night before. Petitioner passed the written portion of the exam but failed the practical portion of the initial exam because it took him one minute and fifty-nine seconds to complete the SCBA evolution. In a memorandum dated May 7, 2002, Respondent formally advised Petitioner that he had failed the SCBA portion of the practical exam because he exceeded the maximum time for the procedure. The memorandum also stated as follows in pertinent part: Important information about retesting and certification renewal is enclosed. Please read it carefully. You have automatically been scheduled for the next available examination, and written notification indicating your test date and location is enclosed. You are not required to call the Bureau for scheduling. Thank you. (Emphasis provided) In another memorandum dated May 7, 2002, Respondent advised Petitioner that he was scheduled to re-take the SCBA portion of the practical examination at the Florida State Fire College in Ocala, Florida, on May 24, 2002, at 8:00 a.m. The memorandum included the following relevant information: If you are unable to take the examination on the assigned date, please advise the Bureau and we will reschedule you for the next examination. Note: You must retest within six (6) months of the original test date. All an applicant has to do to reschedule a retest exam is to call Respondent's Bureau of Fire Standards and Training and request to be rescheduled. Respondent does not require applicants to provide a justifiable reason in order to be rescheduled. It is a routine and standard practice for Respondent to reschedule exams. Some applicants fail to show up for their retest exam without calling Respondent. In that case, Respondent automatically reschedules the retest. Applicants must take their retest exams within six months of their initial exam dates. Applicants that fail to meet this requirement must repeat the training course. Respondent reminds applicants of these requirements when they call to reschedule retests or fail to show up for retest, and the next retest exam date falls outside of the six-month window. If applicants still wish to reschedule retests outside the six-month window, Respondent will accommodate the requests. The next exam date that Petitioner could have taken his retest was in September 2002, which would have been within the six-month window. Petitioner testified that he called Respondent on May 16, 2002, to reschedule his retest because May 24, 2002, was not convenient with his work schedule. Petitioner also testified that an unidentified female in Respondent's office told him that he could not change the date of his retest. Petitioner's testimony in this regard is not persuasive. Petitioner's job involved working the "graveyard shift" at the Panama City Airport, loading and unloading planes. On May 23, 2002, Petitioner began working at 2:00 a.m. He finished his shift at approximately 1:00 p.m. Petitioner then immediately loaded his gear and began the trip to Ocala, Florida. The trip took about six hours, due to a traffic jam in Tallahassee, Florida. He arrived in Ocala at approximately 8:00 p.m. EST, located the testing site, and checked into a motel. Petitioner reported to the testing site the next morning. He did not tell any officials at the testing site that he was too tired to take the test. Petitioner failed the retest of the SCBA portion of the exam. Petitioner's time for the retest of the SCBA evolution was two minutes and twelve seconds. Additionally, Petitioner had point deductions for failing to complete the "seal check" and failing to properly don and secure all personal protective equipment correctly. In a letter dated May 26, 2002, Petitioner alleged that Respondent had denied his request for a different test date. Petitioner claimed that fatigue had prevented him from succeeding at the test. He requested another opportunity to retest the SCBA evolution within the required six-month period. Shortly thereafter, Fire Chief Tim McGarry from the Thomas Drive Fire Department on Panama City Beach, Florida, called Respondent's Field Representative Supervisor, Larry McCall. During that conversation, Mr. McCall told Chief McGarry that Petitioner could have decided not to show up for the retest. In a letter dated June 3, 2002, Mr. McCall responded to Petitioner's letter. In the letter, Mr. McCall stated that the question of whether Respondent erroneously denied Petitioner's request to reschedule the retest would be closed unless Petitioner could provide more specific details. In a memorandum dated June 6, 2002, Respondent formally advised Petitioner that he had failed the retest. In a letter dated June 6, 2002, Petitioner stated that he could not remember the name of the person he spoke to when he requested a change in his retest date. Once again, Petitioner requested an opportunity to take the retest. Mr. McCall spoke to Petitioner in a telephone call on June 18, 2002. During that conversation, Petitioner indicated that he would file his Election of Rights form, requesting an administrative proceeding.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order denying Petitioner's application. DONE AND ENTERED this 10th day of April, 2003, in Tallahassee, Leon County, Florida. _ SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 2003. COPIES FURNISHED: Elenita Gomez, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0330 Mark D. Dreyer, Esquire 747 Jenks Avenue, Suite G Panama City, Florida 32401 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue Whether Petitioner was wrongfully denied certification as a fire fighter due to his visual problems.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Petitioner, Louis C. Decker, is currently employed as a paid fire fighter in the City of Palm Bay, Florida. Additionally, Petitioner serves as a volunteer fire fighter in the town of Micco, Florida. Petitioner has served as a fire fighter in both a paid and/or volunteer status for approximately two and one-half (2 1/2) years. By letter dated April 9, 1981, Respondent, Office of the State Fire Marshal, advised Petitioner that he would not be certified as a fire fighter in Florida based on "pre-employment paper work submitted to the Bureau of Fire Standards and Training [which] reflect that [Petitioner] does not meet the qualifications set forth in Section 633.34(5), Florida Statutes." That statute provides in pertinent part that "any person initially employed as a fire fighter must be in good physical condition as determined by a medical examination as prescribed by the Division." That letter added that a pre-employment medical examination of Petitioner indicates a condition other than normal which is outside the parameters of the visual acuity medical standards for fire fighters. Dr. Andrew Zorbis, an ophthalmologist, was received as an expert in ophthalmology herein. Dr. Zorbis examined Petitioner on July 15, 1981. The results thereof reveal that Petitioner's uncorrected visual acuity with the right eye was 20/50 minus 2 and the uncorrected visual acuity with Petitioner's left eye was 20/50 plus 1, with the total uncorrected visual acuity in both eyes being 20/50 plus 2. During the examination, Petitioner was "squinting" severely, which provided him with the best possible uncorrected visual acuity. That is, without squinting, Petitioner's visual acuity would have been much worse and most probably would have been within the range of 20/200 to 20/100. Dr. Zorbis concluded that Petitioner could not be certified based on the NFPA booklet which sets forth the State's Fire-Fighter Standards 2/ and provides that the cause for rejection for an appointment shall be standard visual acuity without correction less than 20/40 in one eye and 20/100 in the other eye. That rule also provides that the corrected vision must be less than 20/20 in one eye and 20/40 in the other eye. Dr. Zorbis also examined Petitioner with his current prescription glasses which reveal a visual acuity of 20/40 in the left eye and 20/30 in the right eye, with corrected vision in both eyes of 20/30 plus Based on the current standards of required visual acuity, Petitioner, therefore, failed to meet either the uncorrected or the corrected visual acuity standards. Dr. Zorbis added that Petitioner was examined under optimum circumstances under a variety of targets. Accordingly, the above test results of Petitioner's vision are the best that Dr. Zorbis could obtain. Dennis "Buddy" Dewar, Chief of the Bureau of Fire Standards and Training, was received as an expert in fire fighter certification standards and qualifications. The task of a fire fighter requires excellent visual acuity. Fire fighters perform a variety of arduous functions under stress, both mental and physical and in so-called "smoky" conditions. Fire fighters are called upon to safely drive vehicles despite glare from light, road moisture or wetness. Fire fighters usually work in smoke-filled rooms and buildings. The permissible visual acuity parameters are 20/40 in one eye and 20/100 in the other eye, uncorrected; correctable to 20/20 in one eye and 20/40 in the other eye. A fire fighter suffering from a visual acuity problem worse than 20/40 puts himself in a position whereby he would have difficulty seeing through smoke and thereby jeopardized his life, the safety of himself, his peers and the safety of the citizens that he is charged with protecting. Chief Dewar indicated that fire fighters often find themselves disoriented in darkened, smoke-filled rooms. With the normal emotional and psychological stresses involved in a fire fighting activity, a fire fighter suffering uncorrected vision outside the Prescribed parameters compounds the stressful duties under which a fire fighter must perform. Finally, Chief Dewar examined the breathing mask used by Petitioner which has an insert for a corrective lens. Chief Dewar credibly testified that the particular mask used by Petitioner, with the breathing apparatus and corrective lens insert intact, has not been approved by the National Institute of Safety and Occupational Health or the American National Standards Institute. Petitioner, Louis C. Decker, as previously stated herein, has been employed as a fire fighter for approximately two and one-half (2 1/2) years. During this period, Petitioner has worked approximately twenty (20) fires as a volunteer fire fighter. Petitioner was denied certification and was not permitted to enroll in the certification and standards school based on certain pre-enrollment documents submitted which indicated that he suffered from a visual acuity problem. Petitioner has had hose-line and ladder training. Additionally, Petitioner has undergone emergency medical services training, salvage training, and hydraulics training. Petitioner has also fought "fake" fires. Petitioner uses a device called a Scott air mask which is a device used to enter a burning structure. According to Petitioner, with his corrective lens inserted in the Scott air mask, his visual acuity is 20/20. 3/ It was noted that Petitioner was told to refrain from driving a vehicle due to a problem he was experiencing with his vision. Several of Petitioner's coworkers appeared and testified as to his satisfactory performance in fighting fires. (Testimony of Captain Green, Lieutenant Samuel Evans and Bryon Williams Varn.) 4/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That Petitioner's request for State certification as a fire fighter by the State Fire Marshal, be DENIED. RECOMMENDED this 11th day of September, 1981, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1981.
The Issue Whether Petitioner's challenge to the failing score he received on the Practical Examination for Retention of Firefighter Retest he took on May 17, 2012, should be sustained.
Findings Of Fact Because no evidence was offered at the final hearing held in the instant case, no findings of fact are made.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services, Division of the State Fire Marshall, enter an order denying Petitioner's challenge to the failing score he received on the Practical Examination for Retention of Firefighter Retest he took on May 17, 2012. S DONE AND ENTERED this 17th day of August, 2012, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 2012. COPIES FURNISHED: Jesse Beauregard 10731 Northwest 18th Court Coral Springs, Florida 33071 Linje E. Rivers, Esquire Department of Financial Services 200 East Gaines Street, Sixth Floor Tallahassee, Florida 32399-0333 Julie Jones, CP, FRP, Agency Clerk Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0390
Findings Of Fact Petitioner was employed as a firefighter with the Tallahassee Fire Department, Tallahassee, Florida, on September 23, 1963, and continued in employment until May 5, 1979. (The suggestion by Petitioner that he had 24 to 27 days of leave accrued upon the last day of his employment is not utilized in determining the official termination date of employment. Beyond May 5, 1979, Petitioner was entitled to be paid for leave time, but was no longer obligated to perform as a firefighter, having been terminated effective May 5, 1979.) During his service as a firefighter with the Tallahassee Fire Department, Petitioner received a certificate of tenure in 1974, pursuant to Section 633.41, Florida Statutes. This provision has been referred to as the savings clause or grandfather clause and allows firefighters who were employed upon the effective date of that section to be certified without the necessity of complying with provisions of law related to certification through training and examination. Section 633.41, Florida Statutes became effective in 1969, thus Petitioner was certified by the terms and conditions of that provision. Petitioner left his employment with the Tallahassee Fire Department to pursue private business and for reason of family obligations. Having terminated his employment with the Tallahassee Fire Department on a voluntary basis, there was no prohibition against reapplying for employment with the Tallahassee Fire Department at some future date. That eventuality occurred when the petitioner contacted the Fire Chief of the Tallahassee Fire Department in April, 1981 to discuss the possibility of reemployment. The Fire Chief of the Tallahassee Fire Department then and now is one Edwin C. Ragans. Shortly after this discussion with Chief Ragans, and in the same month, April, 1981, Ragans hired Petitioner with the effective date of Petitioner's reemployment being July 21, 1901. The delay between April and July was caused by the petitioner's need to conclude certain business undertakings before assuming his duties as a firefighter. The State of Florida, Bureau of Fire Standards and Training, had been informed of the date of original employment for the Petitioner, September 23, 1963, and the date of termination, May 5, 1979, based upon a notice of termination which was submitted by Chief Ragans in behalf of the Tallahassee Fire Department. A copy of that form may be found as Petitioner's exhibit number 1 admitted into evidence. Likewise, the Bureau of Fire Standards and Training was made aware of the reemployment of the Petitioner through the filing of a form known as Qualification of New Employee. A copy of that form may be found as Petitioner's exhibit number 2 admitted into evidence. That exhibit reflects the date of reemployment or rehiring as being July 21, 1981, and further notes that the initial employment was September 23, 1963. That form does not allude to the date of original termination of employment with the Tallahassee Fire Department which was May 5, 1979. When Petitioner returned to employment in July, 1981, Chief Ragans made mention of the "two year rule", which is a reference to Rule 4A-37.14, Florida Administrative Code, (1976), dealing with the idea that firefighters who had been employed with an employing agency, such as the Tallahassee Fire Department, would not have to reapply for certification in this same fashion as the person seeking initial employment as a firefighter, if that former individual resumed full time paid employment with the employing agency within a period of two years immediately subsequent to termination of the initial employment. In this connection Ragans told the Petitioner at the point of reemploying the Petitioner in 1981, that Petitioner had two options. First, he could challenge the examination related to firefighters and gain certification or if that choice was not made it would be necessary for the Petitioner to go through a minimum standards class before recertification. At the commencement of reemployment, Petitioner was mindful of the existence of the two year provision pertaining to continuing certification for those persons who had not been away from employment as a firefighter for more than two years. Furthermore, this topic had been discussed between Petitioner and some other individuals of the fire department on one occasion. Under these circumstances, Petitioner contacted an official within the training division of the Tallahassee Fire Department and obtained books necessary to study in preparation for standing the examination for certification as a firefighter. Petitioner had commenced preparation for the examination when he happened to see Bobby Presnell a lieutenant within the Tallahassee Fire Department and president of the local firefighters union. In the course of this conversation with Presnell, Petitioner mentioned that he was going to have to be examined through a test before receiving certification. Presnell indicated that he would check into the situation and find out exactly what would be necessary to obtain certification. A couple of weeks after that conversation, Presnell called the Petitioner and told him that he had spoken with Olin Greene the then Director of the Division of State Fire Marshal in the state of Florida. Presnell reported to the Petitioner that in the course of the conversation between Greene and Presnell, Greene had stated that the Petitioner was a certified fireman. These conversations between Petitioner and Presnell occurred some time in August or September, 1981. Presnell testified that the discussion between Presnell and Greene concerned the problem which Petitioner had with the two year requirement for continuing certification without the necessity of testing or schooling. In testimony, Presnell indicated that he told Greene that the Petitioner had been reemployed and everything was "supposed to be okay, and then a month or two or three later the problem arose", meaning a certification problem. Greene, according to Presnell, stated that he would get back in contact with Presnell on this subject. Again, per the testimony of Presnell, some ten days to two weeks later, beyond the initial discussion between Greene and Presnell, Greene called Presnell and told him that as far as he, Greene, was concerned, and the Fire Marshal's office was concerned, that "They didn't have any problem with Mr. Adams' recertification or certification." Greene has no recollection of any conversation with Presnell on the subject of the certification situation related to the Petitioner. Having considered the testimony of Presnell and Greene, the Presnell testimony is accepted as factually correct. Following the occurrence wherein Presnell related remarks attributed to Greene as described before, a few days after those events, Petitioner had a discussion with District Fire Chief Raymond Love of the Tallahassee Fire Department. In this conversation Love describes a discussion which he claims to have taken place between himself and Buddy Dewar, whose actual name is Dennis Dewar, in which Dewar is reported to have said that Petitioner was certified. At that time Dewar was the Bureau Chief of the Bureau of Fire Standards and Training. At present he is the Director of the Division of State Fire Marshal, having been promoted to that position in April 1982. In testimony, Love's account of the Dewar conversation concerning certification of the Petitioner, was that in the course of a fireman's convention in October 1981, Dewar asked Love if he knew Jimmy Adams, and Love replied in the affirmative. Given this opening, Love then related that he was impressed with Adams as a person and in terms of his capabilities as a firefighter. Love then recounts that he began to tell Dewar that there was a problem related to the Adams certification and if there was any help that Dewar could give, it would be most appreciated. To which, according to Love, Dewar replied that "he didn't see any problem with the recertification." Dewar, per Love's comments, did not state that he considered the Petitioner to be certified at the time of that conversation, nor was the two-year requirement pertaining to the return to the employment roles, to remain in a certified position without reapplication for certification mentioned in the Dewar conversation with Love, according to Love. Dewar, in his testimony, denied that the conversation between Love and Dewar concerned the Petitioner. His recollection is that Love asked Dewar how long the retention of certification would be valid for, to which he responded two years. Having considered the testimony and the demeanor of the witnesses, a decision cannot be reached on which of the witnesses Love or Dewar should be believed pertaining to the conversation which took place between them in October, 1981. Following discussion with Chief Love, and particularly on the next morning after that discussion, Petitioner talked to another fire chief within the Tallahassee Fire Department, whose name is Revel. This conversation was instituted by Revel in his inquiry of the petitioner on the subject of whether Petitioner was studying for the examination for certification. In response Petitioner stated that he had been but that he had found out the night before that he was certified. Revel in turn told Chief Ragans of this conversation and Ragans summoned the Petitioner to his office and the conversation between Love and Petitioner on the question of certification was recounted for the benefit of Chief Ragans. Petitioner and Love indicate that in the course of the meeting with Ragans, Ragans made a phone call and having concluded that phone call, stated that Petitioner did not have any problem with certification, or something to that effect, as Love recalls Ragans comments. Petitioner's recollection of the comment after the phone call was that Chief Ragans said, "You are a certified fireman." Ragans, in his testimony, does not relate having phoned someone on the topic of certification of the Petitioner in the presence of Petitioner and Love as previously described. His recollection is to the effect that some time prior to Love having stated in the fleeting between Ragans, Love and the Petitioner, that Dewar had confirmed Petitioner's status as a certified firefighter, he, Ragans, had talked to a Mr. Schaffner, Standards Coordinator, at the State of Florida, Fire College, and Schaffner had indicated that the time which Petitioner had been out of employment as a firefighter in a Florida department, was so close to being within the two years allowed, that Petitioner would not be required to go back through the certification process. At the time this case was placed at issue Schaffner had died. Having considered Ragans comments in the context of the other proof, it is determined that Ragans was sufficiently acquainted with Schaffner's voice to identify Schaffner in the course of the telephone conversation on the topic of the Petitioners certification. It is also concluded that this was the only conversation which Ragans had with officials within the State of Florida, Office of the State Fire Marshal, during 1981. Whether this conversation between Ragans and Schaffner occurred while Petitioner and Love were in Ragans office is uncertain. Benjamin E. Mclin, inspector with the Fire Department, speaks in terms of a conversation which he had with Olin Greene in October 1981, in the course of a seminar. Mclin introduced himself to Greene and, Greene is reputed, according to Mclin, to have asked Mclin if he knew Jimmy Adams, the Petitioner, and to have asked what kind of person Adams was. Mclin reports that he replied that he thought that Petitioner was an outstanding person as well as an impressive fireman, to which Mclin says that Greene stated, "Well, I know I did the right thing." Greene has no recollection of this conversation. Having considered the comment, even if it can be attributable to Greene, it is sufficiently ambiguous that it has no value in resolving the certification issue related to the Petitioner. After the conversation with Chief Ragans and Chief Love, which took place in Ragans office, Petitioner assumed that he was certified without the necessity of standing examination to receive certification. He had received no written indication from Respondent confirming or denying this understanding and had never personally spoken to anyone in the employ of the Respondent, on this subject. Petitioner continued his duties throughout 1981, into the beginning of 1984, serving in the capacity as a firefighter with the Tallahassee Fire Department. At that point, Petitioner had been promoted to Lieutenant within the Fire Department, and in the face of that action, a grievance was filed by another firefighter employed by the Tallahassee Fire Department indicating that Petitioner was not a certified firefighter. Ragans, in response to the grievance contacted Paul R. Steckle who was employed with the Office of the Bureau of Fire Standards and Training as a Field Representative Supervisor. Steckle had been asked by Dewar to check the Petitioner's file to determine the period of time between the termination of initial employment with the Tallahassee Fire Department and reemployment with that employer. Having made this check Steckle believed that the period was beyond the two years and reported this finding to Dewar. In conversation with Ragans, Steckle had asked Ragans when Petitioner had been employed and Ragans had indicated that Petitioner had been rehired in April but did not report to work until July, 1981. Steckle told Ragans that if Petitioner had been hired in April, 1981, and had been granted a leave of absence, allowing Petitioner to start work in July, 1981, that the reemployment would have been within the two year limit. Ragans indicated that the City of Tallahassee had no policy of allowing a leave of absence such as inquired about by Steckle. Nonetheless, Ragans got the impression that petitioner was duly certified based upon remarks made by Steckle. On January 30, 1984, Ragans wrote Steckle verifying that Petitioner had not returned to work in April, in view of commitments which would not allow him to be actually at work until July. (Mention is made of 1979, but it is determined that Ragans is referring to 1981.) This correspondence also mentions the conversation between Ragans and Schaffner. A copy of the correspondence is Respondent's exhibit number 3 admitted into evidence. On February 22, 1984, Steckle wrote to the Petitioner and advised the Petitioner that a review of the records of the Bureau of Fire Standards and Training revealed that the Petitioner had been out of fire service for over two years before reemployment. This correspondence refers to May 5, 1979, as the date of termination and July 21, 1981, as the date of reemployment. It alludes to the fact that Petitioner must regain certification through provisions of Rule 4A-37.52, Florida Administrative Code, (1981) 1/ related to an equivalency examination and encloses a copy of the package related to that examination process. It requests that the examination be taken in April, 1984. Otherwise, it is indicated in the correspondence, the Petitioner would be terminated from employment with the Tallahassee Fire Department upon request from the Bureau of Fire Standards and Training to the Tallahassee Fire Department. A copy of this correspondence may be found as Respondent's exhibit number 14, admitted into evidence. On April 10, 1984, through correspondence from counsel for the Respondent to counsel for the petitioner, the case is discussed and the Petitioner is requested to stand the equivalency examination and it alludes to the fact that in view of the error of the Respondent in failing to note at the time of reemployment that Petitioner had been away from fire fighting for more than two years, Petitioner is given until February 22, 1985, to undergo an equivalency examination for purposes of recertification. In lieu of this disposition, Petitioner is afforded the opportunity for a Section 120.57, Florida Statutes hearing, which he availed himself of, leading to the present Recommended Order. A copy of the April 10, 1984 correspondence may be found as Respondent's exhibit number 15 admitted into evidence. Luther Richter had been employed as a firefighter with the Tallahassee Fire Department and was dismissed from that employment after being arrested on a federal drug smuggling charge. He subsequently pleaded nolo contendere to the charge in the United States District Court for the Southern District of Georgia in 1976 and was given a three year probation. In April of 1979 he applied to the Tallahassee Fire Department to be reemployed. Through the reemployment paperwork, Chief Ragans recommended that Richter not be accepted based upon an alleged lack of good character. In response, Dewar, the then Bureau Chief of the Fire College, wrote Ragans on May 22, 1979 stating that Richter was not eligible for employment because of his drug conviction. Another letter was sent on June 15, 1979, from Dewar to Ragans to the same effect. On July 17, 1979, Dewar requested a legal interpretation of the Richter situation from the point of view of the Respondent's duties in considering the question of Richter's certification as a firefighter in Florida. On September 10, 1979, the City of Tallahassee and Richter entered into an agreement for Richter's reinstatement as an employee with the City of Tallahassee. In the face of the action of the City of Tallahassee, the Respondent accepted Richter for purposes of certification as if he had never been dismissed. As stated in the October 16, 1979 correspondence from Olin Greene to Daniel E. A. Kleman, City Manager of the City of Tallahassee, with Richter's reinstatement as an employee of the City of Tallahassee the Respondent would ". . . have no alternative but to accept the reinstatement order and allow his certification that was in effect prior to September 1, 1975, to come back into effect." The agreement for reinstatement can be found as part of the composite exhibit number 6 of the Petitioner, admitted into evidence. The October 16, 1979 correspondence may also be found within that document. Those items are copies of the originals. In furtherance of Greene's perception, Richter having been reinstated by the City of Tallahassee was deemed by the Respondent never to have left employment. Richter's certification continues from September 1, 1975, the dismissal date, and his initial certification remains valid to this date as established in the correspondence of Olin Greene to Kleman dated January 9, 1980, a copy of which is found in the Petitioner's composite exhibit number 6. In essence, Respondent felt that in view of the reinstatement it could not refuse to recognize Richter's certification as if it had never lapsed between the interim period of his dismissal in 1975 and the agreement for reinstatement in 1979. In early 1984 a minimum standards training course for firefighters in Florida was taught at Indian River Community College. An unusually high failure rate was experienced by those students who took that course and this led to an investigation by the State Fire College. Through the investigation it was learned that one of the instructors in the minimum standards course had not been properly certified. To resolve this problem, all students who attended that course were required to take further training with a certified instructor. Following that additional training session, another examination was given and those persons who passed the second examination, in addition to those persons who had passed the initial examination, were certified. Those who failed the second examination were not accepted for certification. On other occasions where tenured firefighters, as recognized by Section 633.41, Florida Statutes, have gone beyond the two year time period for reemployment and continuing certification without examination, those firefighters have had to stand the examination, without exception.
