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 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 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 Whether Petitioner is entitled to a passing grade on the practical portion of the Florida Minimum Standards Examination for firefighters taken May 22, 2002.
Findings Of Fact At times pertinent to this proceeding, Petitioner held certification as a firefighter (Firefighter Certificate of Completion #81191) issued by the State Fire Marshal. For at least three years prior to December 5, 2001, Petitioner had not been active as a firefighter or as a volunteer firefighter with an organized fire department. Pursuant to Section 633.352, Florida Statutes, Petitioner was required to successfully complete the practical portion of the Florida Minimum Standards Examination for firefighters to retain his certification. 1/ The practical examinations at issue in this proceeding consisted of four sections: the Self Contained Breathing Apparatus (SCBA) section, the Hose and Nozzle Operation section, the Ladder Operation section, and the Fireground Skills section. A candidate must pass each section to pass the practical examination. On November 16, 2001, Petitioner applied to sit for the practical examination scheduled for December 5, 2001. Petitioner sat for and failed all four sections of the practical examination administered December 5. Respondent's Rule 4A- 37.0527(6), Florida Administrative Code, permits a candidate to retake the practical examination once without further training. Petitioner thereafter applied to retake the examination, which was scheduled for May 22, 2002. Petitioner passed the Hose and Nozzle Operation and the Ladder Operation sections of the practical examination on May 22, and the scoring on those sections are not at issue in this proceeding. At issue in this proceeding is whether Petitioner failed the SCBA section and/or the Fireground Skills section of the practical examination administered May 22, 2002. The SCBA section of the practical examination consisted of questions for which a candidate was awarded credit and certain items that a candidate was required to successfully complete (fatal items). If a candidate missed a fatal item, the candidate failed the SCBA section of the examination and, consequently, the entire practical examination. The Firegrounds Skills section of the examination tests a candidate on a variety of skills a firefighter is expected to demonstrate while fighting a fire, and the candidate is awarded a score for his or her performance. To pass each part of the practical examination, including the SCBA and the Fireground Skills sections, a candidate must achieve a score of 70 points and must not miss a fatal item. The SCBA section of the practical examination requires the candidate to properly don certain protective gear in 1 minute and 45 seconds. The failure to complete the exercise in the allotted time is a fatal item. In addition, the candidate must activate and check a personal alarm system as part of the exercise. The failure of the candidate to properly wear and activate the alarm system is also a fatal item. 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 timely complete the exercise, which is a fatal item. Petitioner failed to properly activate the personal alarm system, which is also a fatal item. Petitioner was awarded no points for 5 of 10 items for which points could be awarded (each item was worth 10 points). Even if he had passed the fatal items noted above, Petitioner would have failed the SCBA section because he failed to achieve a passing score of 70 on that section of the examination. Petitioner failed to establish that he was entitled to additional credit for the SCBA section of the practical examination. Petitioner received a failing score on the Firegrounds Skills section of the practical examination administered May 22, 2002. The greater weight of the credible evidence established that Petitioner's performance on the Firegrounds Skills section of the practical examination administered May 22, 2002, was appropriately and fairly graded. Of the 100 points available for this section of the examination, Respondent established that Petitioner deserved no credit for the following: 20 points on the forcible entry part of the section; 12 points on the ladders and fire service tools part of the section; and 4 points on the hazardous materials part of the section. Consequently, Respondent established that Petitioner was entitled to a total of 64 points on the Firegrounds Skills section of the practical examination administered May 22 2002, which is a failing grade. Petitioner failed to establish that he was entitled to additional credit for the Firegrounds Skills section of the practical examination administered May 22, 2002. Respondent established that the administration and grading of the subject exams were consistent with the provisions of Chapter 4A-37, Florida Administrative Code, which set forth by rule applicable guidelines for the practical examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Facts and Conclusions of Law set forth herein. It is further RECOMMENDED that the final order deny Petitioner's application for re-certification as a firefighter. DONE AND ENTERED this 14th day of January, 2003, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 14th day of January, 2003.
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.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner passed the "Hose Operation" portion of the initial and the re-test firefighters examinations and whether she was given a fair opportunity to pass the test.
Findings Of Fact On January 13, 2001, the Petitioner, Josephine Louise Ramsey, applied for certification to become a firefighter in the State of Florida. The Respondent is the agency regulating licensure and enforcing practice standards for firefighters in the State of Florida. On May 9, 2001, the Petitioner took the Minimum Standard Written and Practical Examination, a passing score on which would qualify her for firefighter certification. She did not achieve a passing score on the practical portion of the examination because she failed the Hose Operation portion of the examination. The Petitioner began taking the practical Hose Operation evolution portion of the examination with a broken shoulder strap on the "airpack" she was required to wear. She contended that this was an "unsafe act" and that Mr. Begley, the proctor for the examination, should have stopped her testing time and allowed her to correct the equipment malfunction and then resume the test. The Petitioner contended that this caused her a tremendous distraction while she was performing the Hose Operation evolution. She also contended that Mr. Begley should have stopped her test time from running further as soon as he noticed the broken airpack. The Petitioner testified that she changed airpacks after the Hose Operation evolution portion of her examination and was told to proceed on to the ladder portion of the examination. After the Petitioner had completed the ladder portion of the examination, the Petitioner was allowed to again take the Hose Operation evolution that same day. She took the second Hose Operation evolution test after five other applicants had been tested on that portion of the examination. The Petitioner failed the Hose Operation portion of the initial examination because she exceeded the maximum time allotted for that exercise. The Petitioner contends that she was never told of any recourse she might have if she failed her initial examination and was only told that she could schedule a re-test examination. On September 27, 2001, the Petitioner took the Minimum Standards Practical Examination Re-test which consisted, in her case, of only the Hose Operation portion of the examination. She received point deductions in four different categories on the re-test examination. She received point deductions for (1) failure to properly stop and call for water; (2) failure to slowly and fully open and close the hose nozzle while bleeding the hose line; (3) failure to slowly and fully open and close the nozzle during the cone operation; and (4) failure to maintain control of the hose and nozzle during the entire operation. The Petitioner thus received a total score of 60, which is below the minimum, acceptable, passing score of 70, and thus failed the re-test examination. The Petitioner claims that she was charged with point deductions twice for the same violation or deficiency, which in this case was improperly opening and closing the hose nozzle at the front of the truck bumper and during the cone operation. However, according to the Department's score sheet and scoring method, the opening and closing of the hose nozzle are two different skills at two locations, which are scored separately, based upon the location of the hose. The Department is thus attempting to assess how an applicant will handle the hose nozzle when the line is initially charged with water (at the front of the truck bumper) and also when the line is fully charged with water during the cone operation. In her testimony the Petitioner attempted to analogize the opening and closing of the hose operation with running during the exercise. According to the Department's scoring sheet and method, completing the task without running, or walking backwards, would entitle an applicant to 10 points. Before an applicant is deducted any points, an examiner must warn the applicant that they are running or walking backwards. Running during the exercise and properly opening and closing the hose nozzle, however, are two different skills and are scored separately and differently. The Department's policy is that it is an important skill for applicants to be able to properly maintain control of a fire hose and know how to properly open and close the hose in order to prevent injury to firefighters. In any event, the Petitioner received notice of a denial of her certification effective October 5, 2001.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered denying the Petitioner's application for certification as a firefighter in the State of Florida. DONE AND ENTERED this 29th day of April, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 29th day of April, 2002. COPIES FURNISHED: Ladasiah Jackson, Esquire Department of Insurance 200 East Gaines Street Tallahassee, Florida 32399-0333 Josephine Louise Ramsey 1906 St. John's Bluff Road North Jacksonville, Florida 32225 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
The Issue The issue is whether Respondent properly denied Petitioner certification as a Florida firefighter.
Findings Of Fact Petitioner, a resident of Ohio, requested to qualify for the Florida Minimum Standards Equivalence Examination, based on his experience, to become a Florida firefighter. Petitioner's request effectively "challenged" the exam and requested an exemption from attending the Florida Minimum Standards Course. Petitioner could have taken the Florida Minimum Standards Course. If he had taken the course, he may have had an opportunity to review video tapes and other instructional materials which are available but not a required part of the basic curriculum. Instead, Petitioner elected to furnish Respondent with his out-of-state firefighter credentials. Subsequently, Respondent granted Petitioner the requested exemption. Prior to taking the examination, Respondent's staff accurately informed Petitioner about the scope, structure and subject matter of the test during numerous telephone calls. On at least ten occasions, Respondent's staff described the test to Petitioner and told him how to prepare for it. Respondent's staff specifically told Petitioner that he should study the International Fire Service Training Association Manual (IFSTA Manual). As to part one of the practical portion of the exam, Petitioner knew that Respondent would test him on the breathing apparatus, the one and three quarter-inch hose and nozzle operation, and the twenty-four foot ladder evolution. Respondent told Petitioner that he needed to know how to perform all skills set forth in the IFSTA Manual because Respondent randomly selects six different sections of tasks to test on part two of the practical examination. The six skill sections which are picked for part two remain unknown to anyone in advance of the test regardless of whether he is out-of-state or in-state applicants. These skills are chosen by Respondent's Field Representatives in their offices at the Florida State Fire College prior to going to a testing site or for testing at the Florida State Fire College. The two parts of the practical examination are of equal worth. An examinee begins with 100 points and points are deducted for deficiencies throughout the exam. Candidates are required to achieve a score of at least seventy (70) points in order to pass the practical examination. Petitioner took his Minimum Standards Equivalency Practical Examination on April 28, 1997, at the Florida State Fire College in Ocala, Florida. Petitioner's final score on the April 28, 1997, Minimum Standards Equivalency Practical Examination was twenty-five (25) points, which was not a passing score. Candidates are allowed one retest of the Minimum Standards Equivalency Practical Retest if they are not successful on their initial test. Petitioner chose to take the test again on July 28, 1997, at the Florida State Fire College in Ocala, Florida. Respondent's Field Representative administered part one of the Minimum Standards Equivalency Practical Retest to Petitioner. Petitioner did not take part two of the Minimum Standards Equivalency Practical Retest. He chose to quit after realizing that his score on part one was so low that he could not pass the retest as a whole. After deciding not to take part two in the Minimum Standards Equivalency Practical Retest, Petitioner approached Field Representative Bill DePauw to tell him that he was quitting. Petitioner was not attired in the mandatory minimum safety gear, but in civilian clothes. At that time, Mr. DePauw was in the process of testing another examinee. Mr. DePauw told the Petitioner he needed to talk to Larry McCall, Field Representative Supervisor. Petitioner then approached Mr. McCall and informed him that he would not be taking part two of the retest. Mr. McCall asked Petitioner to leave the testing grounds because Petitioner was being loud and disruptive to the applicants testing or waiting to be tested. Further, once an applicant decides not to continue, he is no longer allowed in the testing area. Petitioner informed Mr. McCall, both on the field and in Mr. McCall's office, that the Florida exam and the process were "chicken." Petitioner lost seventy-five (75) points on part one of the Minimum Standards Equivalency Practical Retest. The maximum allowable deduction for part one of fifty (50) points was deducted from Petitioner's part one score. Therefore, Petitioner's final score on the Minimum Standards Equivalency Practical Retest administered on July 28, 1997, was fifty (50) points, which is not a passing score. Applicants are assigned a number during orientation. From that time on, the applicants are referred to only by that number to ensure impartiality. The applicant's name is attached to the number after the exam, sometimes several days later. The examiner makes up a package of exams, numbers the packets, and then circles six (6) skills at random in each packet. No names are applied to the packets and the numbers are not assigned to the examinees until the day of testing. The Field Representatives are required to give an orientation prior to each Minimum Standards Equivalency Examination on the day of the exam. The orientation consists of walking the applicants through each section of part one. The Field Representatives use the same form check-off sheet during each orientation to ensure that each candidate is given the same orientation. The Field Representatives use a scoresheet to grade the applicants which is a guide to simplify the scoring process. The numeric values on the scoresheet are negative points deducted from an applicant's raw score of 100 points. The Field Representatives only make deductions when the applicant does not follow the required procedure for performing the evolution. Petitioner admits that the point deduction is correct for exceeding the required time on the breathing apparatus evolution. Petitioner admits that he had to go back to the loop during the hose and nozzle evolution to fix the kinks in the hose line. Additionally, he took a couple of steps backwards while he was pulling the hose line. Walking backwards occurs when a candidate takes two steps or more backwards, walking in the opposite direction from where he is looking. There are no warnings issued for walking backwards during the certification examination. Petitioner admits that the deduction for exceeding time during the hose and nozzle evolution was correct. The greater weight of the evidence indicates that Petitioner struggled during the ladder evolution. He lacked control of the ladder at all times during the demonstration. All of the deficiencies which Petitioner admits to amount to a total of 35 negative points as the least possible point deduction. That equals a score of 65 without Petitioner even having taken part two. A score of 65 is not a passing score.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Bill Nelson in his capacity as State Fire Marshal enter a Final Order denying Petitioner's request for a Certification of Compliance as a Florida Firefighter. DONE AND ORDERED this 20th day of August, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1998. COPIES FURNISHED: Elenita Gomez, Esquire Division of Legal Services Department of Insurance and Treasurer 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Paul Appleton 13500 Shaker Boulevard, No. 102 Cleveland, Ohio 44120 Bill Nelson, Commissioner Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue Whether the Petitioner is entitled to a certificate of compliance as a fire fighter under the provisions of Rule 4A-37.0515, Florida Administrative Code.
Findings Of Fact Petitioner completed 240 hours of firefighter minimum standards training at the Orlando/Orange County Fire Training Academy in 1982 and was issued a certificate of completion at the end of the course. Between 1982 and 1985, Petitioner served as a reserve firefighter with the Winter Park Fire Department. From 1985 to June 1989, Petitioner was on inactive status. From June 1989 until March 1990, Petitioner completed technical training in American Sign Language. From 1990 through 1993, Petitioner completed a Bachelor of Science degree, with a double major in business and marketing. Between 1996 and February 1997, Petitioner was re-certified and also became a fire inspector. In February 1997, Petitioner was awarded an Associate of Science degree in Fire Science. Petitioner has served as a contract fire inspector with the Orange County Fire Department and has been a principal in a private arson investigation company for the past thirteen or fourteen years in Orange County, Florida. Florida law was amended in 1989 to require that a person pass an examination as prescribed by the Department, in addition to completing the firefighter minimum standards training program and being qualified for employment to be issued a certificate of compliance. Promulgated in 1991 and amended in 1995, a Florida administrative rule granted those persons that had been issued a certificate of completion by the opportunity to upgrade their certificate of completion to a certificate of compliance by June 30, 1995, without having to comply with the current requirements of the law. Petitioner did not upgrade her certificate of completion to a certificate of compliance by June 30, 1995. During the years 1991 through 1995, Petitioner made no effort to keep informed about the current requirements of becoming certified as a firefighter. Petitioner had a total of four years in which to upgrade her certificate of completion into a certificate of compliance. More than 11,000 certificates of completion were upgraded to certificates of compliance by June 30, 1995; 2,900 were not. Eighty percent of those certificates of completion that had been issued by the State, since certificates of completion were first issued in 1969, were upgraded to certificates of compliance by June 30, 1995. Petitioner's first inquiry into the status of her certificate of completion and request for a certificate of compliance was made by letter dated August 12, 1997, to the Fire Marshall's office. Respondent responded to Petitioner's August 12, 1997, letter with a letter dated October 3, 1997, which informed Petitioner that any certificate of completion not upgraded by June 30, 1995, was revoked. Respondent's October 3, 1997, letter also informed Petitioner that failure to follow the procedures outlined in Rule 4A-37.0515, Florida Administrative Code, for upgrading certificates of completion would require the individual to meet the current requirements of the law, which include having to complete 360 hours of firefighter minimum standards training, passing the Minimum Standards Certification Examination, and being qualified for employment according to Section 633.34, Florida Statutes, in order to be issued a certificate of compliance. There are no provisions in the rule for an extension after the cutoff date of June 30, 1995. There is no firefighter minimum standards training program consisting of 120 hours of instruction for the Petitioner to take which would enable Petitioner to meet the current requirements of Section 633.35, Florida Statutes, which require a total of 360 hours of firefighter minimum standards training, as Petitioner had completed only 240 hours of firefighter minimum standards training in 1982. Prior to 1984, a person needed both a certificate of completion and a certificate of compliance to become a firefighter. At that time, to be qualified for a certificate of compliance, a person had to successfully complete firefighter minimum standards training and satisfy the qualifications for employment found in Section 633.34, Florida Statutes. Section 633.35, Florida Statutes, was amended in 1984 with the result that the Respondent no longer issued certificates of completion, which had been issued since 1969, for the successful fulfillment of the firefighter minimum standards training program. Rule 4A-37.56 Florida Administrative Code, was amended in order to implement the amendments made in 1989 to Section 633.35, Florida Statutes. Rule 4A-37.056, Florida Administrative Code, was amended to establish the Minimum Standards Certification Examination, as required by the 1989 amendments to Section 633.35, Florida Statutes. Rule 4A-37.0515, Florida Administrative Code, was promulgated in order to implement the amendments made in 1989 to Section 633.35, Florida Statutes. In order to upgrade a certificate of completion to a certificate of compliance, Rule 4A-37.0515, Florida Administrative Code, provided that a person who had been issued a certificate of completion was required to make application to the Respondent for certification as a firefighter. Rule 4A-37.0515, Florida Administrative Code, as initially promulgated in 1991, stated that certificates of completion had to be upgraded to certificates of compliance by June 30, 1993. Respondent published a Notice of Changes to Rule Chapter 4A-37, Florida Administrative Code, including the promulgation of Rule 4A-37.0515, in the Florida Administrative Weekly on March 15, 1991. Respondent keeps a mailing list, which includes every fire department and training center in the State of Florida, to facilitate mailing out notices of anything that effects the fire service, including changes in the statutes and rules governing the fire service. Respondent sent a copy of the Notice of Changes to Rule Chapter, 4A-37, Florida Administrative Code, including the promulgation of Rule 4A-37.0515, to every fire department and training center in the State of Florida on July 26, 1991. Respondent sent a copy of the Notice of Changes to Rule Chapter 4A-37, Florida Administrative Code, including the promulgation of Rule 4A-37.0515, to every fire department and training center in Orange County, Florida appearing on the Department's mailing list. Petitioner has lived and worked in Orange County, Florida, all of her life. Individual notices were not sent to certificate holders. Rule 4A-37.0515, Florida Administrative Code, became effective on June 30, 1991. Petitioner did not upgrade her certificate of completion to a certificate of compliance by June 30, 1993. Section 633.35, Florida Statutes, was amended in 1993 to require that firefighter minimum standards training would be composed of at least 360 hours of instruction. Respondent published a Notice of Changes to Rule Chapter, 4A-37, Florida Administrative Code, including the Rule 4A-37.0515, in the Florida Administrative Law Weekly on December 2, 1994. Respondent also sent a copy of the Notice of Changes to Rule Chapter, 4A-37, Florida Administrative Code, including the amendment of Rule 4A-37.0515, to every fire department and training center in the State of Florida on April 24, 1995. Respondent sent a copy of the Notice of Changes to Rule Chapter, 4A-37, Florida Administrative Code, including the amendment of Rule 4A-37.0515, to every fire department and training center in Orange County, Florida appearing on the Department's mailing list on April 24, 1995. Notice of Changes to the rule were not sent to individuals who held certificates. On March 20, 1995, Rule 4A-37.0515, Florida Administrative Code, was amended, extending the deadline by which certificates of completion could be upgraded to certificates of compliance from June 30, 1993, to June 30, 1995. Rule 4A-37.0515, Florida Administrative Code, was further amended to state that those individuals who held certificates of completion but did not upgrade them by June 30, 1995, would be required to meet the current requirements of Section 633.35, Florida Statutes, which included having to complete 360 hours of firefighter minimum standards training, passing the Minimum Standards Certification Examination, and being qualified for employment according to Section 633.34, Florida Statutes, in order to be issued a certificate of compliance. Certificates of completion which were not upgraded to certificates of compliance by June 30, 1995, were revoked that same day.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered denying the Petitioner's request for a certificate of compliance by the Department's Bureau of Fire Standards and Training of the Division of the State Fire Marshal. DONE AND ENTERED this 13th day of July, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1998. COPIES FURNISHED: Kathleen Mohr 4702 Abaca Street Orlando, Florida 32808 M. Joel Prather, Esquire Department of Insurance 200 East Gaines Street Tallahassee, Florida 32399 Daniel Y. Sumner, Esquire Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Bill Nelson, Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue 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
