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 issue in this case is whether the Department of Financial Services, Division of State Fire Marshal can revoke Respondent's certification as a firefighter because Respondent failed to timely complete the requirements to maintain his Firefighter Certificate of Compliance prior to September 30, 2011, pursuant to section 633.352, Florida Statutes (2010).
Findings Of Fact The Department is the state agency charged with the responsibility for certifying firefighters in the State of Florida, pursuant to chapter 633, Florida Statutes. On June 30, 2006, Respondent also obtained certification as a fire Instructor III. On October 9, 2006, Pointu obtained his Firefighter II Certificate of Compliance ("certification"). On September 30, 2008, Respondent stopped volunteering with Lauderdale-By-The-Sea Volunteer Fire Department ("Lauderdale-By-The-Sea"). Prior to July 1, 2010, state certified fire instructors were able to maintain their firefighter certification as long as their fire instructor certification was current. On July 1, 2010, the statutory requirements for firefighters changed. Section 633.352 was amended to require a certified firefighter be a full-time fire instructor or a full- time fire inspector to maintain certification. The 2010 statutory change retained a three-year period for firefighters to complete the requirements to maintain certification. It is undisputed that between September 30, 2008, and September 30, 2011, Pointu did not perform any of the necessary requirements to maintain his certification in section 633.352, such as retake the Minimum Standards Examination; maintain employment as a firefighter or volunteer firefighter; or work full time as an instructor or firesafety inspector. On April 6, 2012, the Department distributed an informational bulletin titled "Firesafety Instructors & Maintenance of Firefighter Certification." The bulletin stated in bold "The 3-year period begins on July 1, 2010 for persons who held an active instructor certification and an active firefighter certification as of June 30th, 2010." Question 7 of the bulletin also provided: 7. Is the Division of the State Fire Marshal attempting to amend the State Statute to reflect the previous language that does not require "full-time employment as a fire instructor"? The Division has attempted to amend or reinstate this language, however, the Statute remains unchanged, and the Division may not be successful in amending the language to its previous form. Pointu received the 2012 bulletin and determined that since he held an active instructor certification and active firefighter certification as of June 30, 2010, his firefighter certification period started July 1, 2010, and expired July 1, 2013. On July 1, 2013, section 633.352 was revised amended and renumbered legislature as section 633.414. The statutory amendment also changed the three-year recertification cycle to a four-year cycle and removed the full-time instructor requirement. Respondent used the 2013 statutory change to calculate his certification validation date until 2018. In 2014, Pointu contacted the Department regarding his certification after being told by a county official that his certification was not valid. Thereafter, over an approximate two-year period, Respondent was informed various and conflicting information regarding his certification status and expiration dates. The Department does not have a statutory requirement to provide notice to certified individuals of requirements to maintain certification. The Fire College Department of Insurance Continuing Education ("FCDICE") database monitors and manages all firefighters' certifications. Department's interim chief, Michael Tucker ("Tucker"), made the final decision regarding Pointu's certification. Tucker reviewed FCDICE and did not find any records which demonstrated Pointu's renewal of certification prior to September 29, 2011. Tucker correctly determined that the 2010 version of the statute applied to Pointu's certification because Respondent left his employment at Lauderdale-By-The-Sea on September 30, 2008, which made his three-year period for renewal deadline September 30, 2011, pursuant to section 633.352. Tucker also established that Pointu did not fulfill the minimum requirements to renew his certification prior to September 30, 2011, because he did not become employed again, volunteer with a fire department, become a full-time fire inspector or a full-time instructor, or retake the practical portion of the examination. After evaluating Respondent's certification history, Tucker concluded Respondent failed to meet the minimum firefighter requirements and therefore Pointu's certification is not valid and should be revoked. At hearing, Tucker acknowledged that he was not familiar with the issuance of the April 6, 2012, bulletin, but, after reviewing it, he determined there were misstatements in the bulletin regarding requirements for certification because the Department did not have the authority to waive any statutes. On June 3, 2011, Petitioner issued an amended Notice that it intended to revoke Pointu's certification for failure to renew his certification within three years of employment termination from an organized fire department pursuant to section 633.352. Pointu contested the notice and requested a hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of State Fire Marshal, enter a final order finding that Respondent, Patrick Pointu, violated section 633.252, Florida Statutes. It is further RECOMMENDED that Respondent's Firefighter Certificate of Compliance be revoked. DONE AND ENTERED this 31st day of August, 2016, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2016. COPIES FURNISHED: Melissa E. Dembicer, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 (eServed) Merribeth Bohanan, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 (eServed) Patrick Pointu (Address of Record-eServed) Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
The Issue The issue is whether Respondent properly denied Petitioner's application for certification as a firesafety inspector.
Findings Of Fact Petitioner is an applicant for certification as a firesafety inspector. In order to be certified, Petitioner was required to successfully complete the Firesafety Inspector Training Course and pass a firesafety inspector certification examination. Petitioner successfully completed his required coursework at the Florida State Fire College and Daytona State College. To pass the written examination, an applicant must achieve a score of at least 70 percent. Petitioner took the exam the first time and did not receive a passing score. After a month or so, Petitioner took a "retest." He received a score of 68 on the retest, which is below the minimum passing score of 70. By letter dated October 11, 2011, Respondent notified Petitioner that he did not receive a passing grade on the retest. The notice also informed Petitioner that because he failed both the initial and retake examinations, it would be necessary for him to repeat the Inspection Training Program before any additional testing can be allowed. The notice further informed Petitioner that if he enrolled in another training program, he would have to submit a new application. Petitioner submitted a letter which was received by the Department on September 27, 2011, in which he raised concerns about the quality of instruction he received at Florida State Fire College. Petitioner asserted that in two classes he took, the instructors had not taught the class before. He also asserted that the books used for class were not always the books used for testing, and that he believed that some of the state inspector test questions were irrelevant to how or what he would need to know in performing an actual inspection. Attached to this letter were five questions which had been marked as being answered incorrectly on the examination. Petitioner's letter and attachments were treated as a request for administrative hearing, which was forwarded to the Division of Administrative Hearings, which resulted in this proceeding. Marshall Shoop took classes with Petitioner at the Florida State Fire College. It was also Mr. Shoop's understanding that at least one instructor had never taught the class before. Karl Thompson is the Standard Supervisor for the Bureau of Fire Standards and Training. At hearing, Mr. Thompson reviewed each question offered by Petitioner and the answer Petitioner thought to be correct. Mr. Thompson concluded that Petitioner answered each of the five questions incorrectly. Mr. Thompson explained that the firesafety test is a secure document and, pursuant to a contract with a third party, persons who take the test and later review their incorrect answers are not allowed to write down the questions or copy anything from the test. The test must remain secure so that it is not compromised. The test questions and answers are not in evidence. Petitioner has been shadowing a part-time fire inspector for the City of Flagler Beach. Martin Roberts is the Fire Chief for the City of Flagler Beach. Chief Roberts would feel comfortable with Petitioner taking on the role of fire inspector despite Petitioner's grades on the fire safety inspector certification examination. While attending Daytona State College, Petitioner earned an "A" in a building construction course and a "B+" in a course in "construction codes and materials rating."
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department enter a final order denying Petitioner's application for certification as a Firesafety Inspector, and permitting Petitioner to repeat the required coursework before retaking the Firesafety Inspector certification examination. DONE AND ENTERED this 16th day of February, 2012, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2012.
The Issue The issue for determination is whether Petitioner’s application for certification should be approved as a result of her successfully completing the Firefighter Minimum Standards MIN. STD. PRACTICAL RETEST retest.
Findings Of Fact Ms. Evans is a candidate for certification as a firefighter in the State of Florida. Ms. Evans attended the Coral Springs Fire Academy (Fire Academy), as a student, from July 11, 2009, through January 9, 2010. During her training at the Fire Academy, she was chosen as the squad leader. A candidate for the certification examination must pass a written and practical examination, with a minimum score of 70 on both the written and practical parts. Pertinent hereto, a candidate must pass the Firefighter Minimum Standards Practical Examination (Practical Examination) in order to become certified as a firefighter. The Practical Examination consists of four components: the Self Contained Breathing Apparatus (SCBA); the Hose Operation (a/k/a Hose Evolution); the Ladder Operation (a/k/a Ladder Evolution); and the Fireground Skills. The Practical Examination is replicated at the Fire Academy, and students at the Fire Academy must pass the four components. The Fire Academy adopted the State standards for passing the Practical Examination, except that at the Fire Academy the standards for the Ladder Evolution are more strict. Also, pertinent hereto, for the Ladder Evolution, the State’s passing score is 70, but the Fire Academy’s passing score is 80; and the maximum time allowed by the State to successfully complete the Ladder Evolution is two minutes and 20 seconds, but the Fire Academy’s maximum time is two minutes and 10 seconds. Additionally, pertinent hereto, for the Ladder Evolution, the State’s established testing protocol is to permit a candidate to perform a safety inspection of the ladder prior to beginning the timing of the Ladder Evolution, and the timing begins after the candidate touches the ladder again. Consequently, State testing protocol dictates that, during the safety inspection, no timing occurs, but, when the candidate touches the ladder again, the timing begins. The Fire Academy uses this same protocol at testing for the Ladder Evolution. The time limit placed on the Ladder Evolution is designed to replicate actual fire fighting conditions, producing a certain degree of stress upon candidates. At the Fire Academy, Ms. Evans successfully completed the Ladder Evolution on November 11, 2009, receiving a score of 80 and a time of two minutes and three seconds. Again, on January 5, 2010, she successfully completed the Ladder Evolution with a score of 100 and a time of one minute and 53 seconds. Ms. Evans graduated from the Fire Academy and was eligible to sit for the certification examination. On January 10, 2010, Ms. Evans took the Ladder Evolution part of the State Practical Examination in Coral Springs, Florida. A wind gust caused her to lose control of the ladder. She received a score of zero, due to losing control, and, therefore, did not successfully complete the Ladder Evolution. Ms. Evans took a re-test of the Ladder Evolution part of the State Practical Examination on January 28, 2010, in Ocala, Florida. She completed the Ladder Evolution in two minutes and 50 seconds, which was beyond the maximum allowed time of two minutes and 20 seconds. She received a score of zero and, therefore, failed to successfully complete the Ladder Evolution on the re-test. Ms. Evans contends that, on January 28, 2010, the State’s Field Representative began the time during her safety inspection of the ladder. The more persuasive evidence supports this contention. As a result, a finding of fact is made that, on January 28, 2010, the State’s Field Representative began the timing of Ms. Evans’ Ladder Evolution during her safety inspection, which was contrary to the State’s testing protocol. The evidence fails to demonstrate what Ms. Evans’ time on the Ladder Evolution would have been had the timing begun in compliance with the State’s established testing protocol.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order directing the re-testing of Melanie Evans on the Ladder Operation (a/k/a Ladder Evolution) of the Firefighter Minimum Standards Practical Examination. DONE AND ENTERED this 29th day of July, 2010, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2010. COPIES FURNISHED: Robert J. Slotkin, Esquire 600 South Andrews Avenue, Suite 600 Fort Lauderdale, Florida 33309 Nic Thornton, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Alex Sink, Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Benjamin Diamond, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Julie Jones, Agency Clerk Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0390
Findings Of Fact At all times, material to this case, Petitioner has been licensed by the Department to operate an adult congregate living facility (ACLF) which is located at 6200 West Fairfield Drive, Pensacola, Florida, and is known as the Warrington House. Francis Cooper is the sole shareholder and operator of the Warrington House. Prior to 1984, the Warrington House was known as the Heritage House and was owned by a Mr. Mitchell. Sometime in 1984, Mr. Mitchell was criminally charged with elderly abuse on his residents and the Heritage House went into receivership. Another branch of HRS who was represented by Esther Ward, asked Ms. Francis Cooper to take over the facility. HRS was apparently well satisfied with Ms. Cooper's qualifications in running an ACLF since she had another such facility. When Ms. Cooper took over the Heritage House the electrical power to the facility was about to be turned off. Only by Ms. Cooper's pleading with Gulf Power was that circumstance forestalled. There were only thirteen (13) patients at the facility out of the sixteen (16) that were supposed to have been there. Three (3) of the patients had been mysteriously removed during the night. The residents that were at the house could not identify themselves and very few resident records were at the facility. The building was infested with roaches, there was raw sewage in the yard and the sewage system was completely blocked to the extent that sewage came up through the showers when a toilet was flushed. There was urine in every carpet. None of the appliances in the house worked. There were no air conditioners, fans or plastic dishes. The floors were in bad shape. In fact, Ms. Cooper fell through two of the bathroom floors. When Ms. Cooper questioned HRS representatives about the appalling conditions of the facility, she received no responsive answer. After Ms. Cooper had taken over the facility, she discovered that Mr. Mitchell had absconded with three months advance rent from the residents. Ms. Cooper, therefore, had to operate the premises for three months without income from the residents that were there. She used her own money. Ms. Cooper started with the air conditioning, flooring and carpeting. All these items were replaced. The bathrooms were tiled and additional bathrooms were added. She put in a $6,000.00 sewage system, a lift station and paid $1,000.00 to hook the building onto city sewage. She also brought in an exterminator to get rid of the bugs. All of this took place over a period of two years wherein Ms. Cooper worked diligently to bring the building up to "snuff." In fact, in the time since she has had the facility she has accomplished wonders in improving conditions at the house. These conditions clearly did not appear overnight, but over several years and were apparently overlooked by Respondent until the crisis with Mr. Mitchell had occurred. Ms. Cooper went into the house with the understanding that the corporation would eventually build another facility and close what had become the Warrington House. The reason for the new construction was that the current building, regardless of the amount of repair, was still an old building not worth maintaining and which was allowed to deteriorate badly prior to her stewardship. However, due to a falling out with her brother, who was then a co- shareholder of the corporation, Ms. Cooper was unable to complete her plans for moving the residents of the Warrington House to a new facility. She continues to attempt to obtain financing to build a new facility. At least once a year, HRS does a full survey on a ACLF like the Warrington House. A full survey is simply an inspection of the property in order to determine the degree of compliance with HRS rules and regulations. Upon completing the inspection, the inspector goes through an exit briefing with the ACLF's management. During the exit briefing, the inspector will go over any deficiencies he or she has discovered and attempt to establish mutually agreeable correction dates. The inspector also explains that these time periods are the best estimates that they can come up with at that point to allow a reasonable amount of time for the required corrections to be made. If any problems should arise, the inspector requests that the manager communicate with his or her office and ask for an extension. Extensions are not always forthcoming. After the full survey inspection is done, a follow-up visit is normally scheduled to determine whether the earlier cited deficiencies have been corrected. If, after the follow-up survey there are items that are still not corrected, the inspector will explain to the person in charge that they are subject to administrative action and that he or she will report he facility's noncompliance to his or her office. Whether or not administrative action is taken is determined at a level above the inspector. However, it appears that the customary practice of the office is to pursue an administrative fine for any noncompliance after the correction date has been passed. After the first follow-up survey has been made it depends on the particular factual situation whether or not further follow-up surveys are made until compliance is achieved. If there are efforts being made to correct the problems further follow-up surveys will be made. If not, further follow-up surveys may not be made. In this case, James Temkin, an HRS Fire Protection Specialist, performed a full survey fire safety inspection on the Warrington House on September 24, 1986. During that survey, he cited 11 deficiencies. Various compliance dates were established for the deficiencies. A follow-up survey was conducted by Mr. Temkin on January 14, 1987. During that survey, he noted that 6 of the previously cited deficiencies had not been corrected. He recommended administrative action on all the uncorrected deficiencies. The six remaining uncorrected deficiencies were as follows: No up to date fire plan and the July 7th fire drills were not documented; No fire alarm test since July 1986 and fire alarm zones were not shown on the actuator panel; Smoke detectors not working in four (4) rooms; Exit sign lights burned out at the front and center exits, emergency lights not working at the front, rear and upstairs exit halls; Sleeping rooms had hollow core doors; and There was no documentation of fire safety on the wood paneling and tile ceilings on the first and second floors. All other deficiencies cited during the September 24, 1986 full survey were corrected. As to the alleged deficiencies contained in the latter half of (b) and (c)-(f) above, none appear at any point in HRS' rules governing ACLF's. Supposedly, these deficiencies are cited in the NFPA life safety code, which is incorporated by reference in the Fire Marshal's rule on ACLF's, Rule 4A-40, Florida Administrative Code. The 1984 version of Rule 4A-40, Florida Administrative Code is incorporated by reference in HRS' rule, Rule 10A-5, Florida Administrative Code. Both HRS' rule and the Fire Marshal's rule are contained in the Florida Administrative Code. However, the 1984 version of NFPA is nowhere to be found in the Administrative Code. The current Fire Marshal's rule adopts portions of the 1985 NFPA life safety code. However, the HRS' rule adopts the 1984 version of the Fire Marshal's rule. No showing was made by Respondent as to what the 1984 version of the NFPA code contained. The HRS inspector's testimony regarding a particular deficiency's inclusion in the NFPA cannot be relied on since both inspectors apparently used the 1985 version of the NFPA which is not the 1984 version included in HRS's rule. Without proof of the contents of the NFPA, HRS has failed to prove any deficiencies for which it may take administrative actions. As to the other deficiencies, attempts to comply were in fact made by the Warrington House. The facility's personnel in fact thought they had complied with HRS' desires based upon previous inspections. However, for one reason or another, these attempts were rejected by the HRS inspector and the deficiency was cited again, but because of another reason. The lack of an up- to-date fire plan (cited in (a) above) was met by the Warrington House when they obtained a fire plan prior to the established correction date from another arm of HRS responsible for devising such plans. However, upon the January 14th follow-up inspection, the plan obtained from HRS by Petitioner was considered insufficient in that it did not outline staff responsibilities during a fire. The same thing occurred with the lack of fire alarm tests, cited in the latter part of (a) and the first part of (b) above. The Warrington House obtained the testing document and test from another branch of HRS responsible for such testing. However, the inspector at the follow up survey did not deem his own agency's testing documents sufficient since it did not show a different type sending unit was being tested at least once a year. 1/ These are simply not repeat deficiencies since in each instance the earlier grievance had been met and it was another grievance which cropped up. On July 9, 1987, a second follow-up survey to the Temkin September 24, 1986, full survey was performed by O.B. Walton, an HRS fire safety inspector. The evidence was not clear as to any remaining uncorrected deficiencies, if any, he found. Therefore, Respondent failed to establish any repetitive deficiencies as a result of the July 9 follow-up survey. Apparently, however, Mr. Walton, did perform another full survey on July 9, 1987. Several additional deficiencies were cited by him. A follow-up visit was conducted by Mr. Walton on October 23, 1987. Four alleged deficiencies remained uncorrected as follows: Ceiling not repaired in hot water heater closet, i.e. not taped; Kitchen fire door latch was jammed open so it would not latch, but it would stay closed; Plug by hot water heater had no cover; No documentation that drapes were fire retardant. Again, none of the above alleged deficiencies appear in HRS' rules or in the fire marshal's rule and a reasonable person could not glean from any of the other provisions contained in HRS' rules that the above conditions might be included in these provisions. The lack of clarity or uniformity in interpretation of HRS' rules is especially born out in this case since two different inspectors while inspecting the same building cited different deficiencies under their respective interpretation of the rules. When the experts differ it is difficult to see how a reasonable lay person could even begin to know or understand the contents of HRS or the Fire Marshal's rules. This lack is especially true since the relevant contents of the 1984 NFPA life safety code are not contained in the Florida Administrative Code and were not demonstrated by HRS. HRS, therefore, failed to prove any repeat deficiencies from the October 23, 1987 follow-up survey. A third fire safety follow-up visit was conducted by Pat Reid, a human services program analyst, on January 21, 1988. She has no expertise or license to perform fire safety inspections. She found all of the earlier cited uncorrected deficiencies corrected except for the documentation on the drapes. That alleged deficiency was partially corrected since Petitioner was replacing the drapery with metal blinds. However, as indicated earlier the lack of documentation for fire retardant drapes was not proven to be a violation by Respondent. Ms. Reid had previously conducted a full survey of Petitioner on August 17 and 18, 1987 in her area of expertise operation and general maintenance of an ACLF. Several deficiencies were cited and correction dates were established. Ms. Reid conducted a follow-up survey to the August 17 and 18 full survey on October 23, 1987. The following alleged deficiencies had not been corrected: Facility staff do not have documentation of being free of communicable diseases; The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable disease; Broken or cracked window panes in windows of second floor exit door, both first floor bathrooms nearest kitchen, and resident rooms identified as C. W., W. S., and W. L.; Shower tile missing in second floor bathroom nearest exit door; Linoleum of first floor bathroom is loose as well as badly stained with cigarette burns; Hole in wall next to sink and toilet of second floor bathroom nearest exit door and square hole in wall of second floor blue bathroom; Faucet of first floor bathroom is loose; Carpeting in first floor resident room (#7) is badly stained; Three vinyl chairs in dining room have tears, exposing foam padding; Second floor bathroom faucet nearest exit does not clearly distinguish between hot and cold water taps. As to the alleged deficiency contained in (a) above, the regulations do not contain a requirement that any documentation be kept regarding staff members being free of communicable disease. The regulations only require that the facility administrator assure that staff is free of communicable disease. The evidence showed that Petitioner had in fact assured that the staff was free of communicable disease. Therefore, no violation occurred. The alleged deficiency cited in (b) above does constitute a violation of Rules 10-5.081(1)(b), (2)(a)4.d., and (2)(b), Florida Administrative Code. However, in this instance, there are several mitigating circumstances. Foremost is the fact that Petitioner attempted on several occasions to obtain this information from another arm of HRS who had M. B. under its care prior to his admission to Petitioner's facility and had actually failed to complete M. B.'s Health Assessment form properly. Petitioner received many assurances from HRS that it would obtain and forward the information. HRS failed to do so. Moreover, after several years of M. B. living at the Warrington House and after several years of HRS care prior to his admission, common sense would dictate that M. B. is free of communicable diseases. Petitioner has in fact received confirmation of that fact from an examining physician who certified M. B. free of communicable diseases. 2/ As to (c) above, the evidence showed that the windows were only cracked and not broken. No evidence was presented as to the severity of the cracks. Cracked windows are not included in Rule 10A-5.022(a), Florida Administrative Code, which only addresses broken window panes. Moreover, cracked windows without proof of the severity of the cracks is not sufficient evidence of the lack of good repair or other hazardous conditions similar to those listed in Rule 10A-5.022(a), Florida Administrative Code. The Rule requires proof of the hazardous nature of such a condition. Cracked windows are not hazardous in and of themselves and no showing was made that these cracked panes constituted a hazard. Nor do cracked window panes standing alone constitute a violation of Rule 10A-5.022(d). The rule requires evidence that such cracked panes are unreasonably unattractive and no showing was made that the cracks were unreasonably unattractive. Likewise, the missing shower tile in (d) above fails to constitute a violation of Rule 10A-5.022(a) since the deficiency is not listed, and no showing was made that the missing tile constituted a hazardous condition. Similarly, the missing tile, by itself, does not constitute a violation under Rule 10A-5.022(d) since no showing was made that the missing tile was unreasonably unattractive. The same failure of proof occurs with the alleged deficiencies listed in (e), (f), (g), (h) and (i). See Rules 10A-5.022(c), (e) and (i). The alleged deficiency cited in (j) above does constitute a violation of 10A-5.023(9)(e). However, the violation was not repeated after October 1, 1987, the effective date of Section 400.414(2)(d), Florida Statutes. Ms. Reid conducted a second follow-up survey to the August 17 and 18 full survey when she performed the fire safety follow-up on January 21, 1988. All previously cited deficiencies had been corrected except for: Facility staff do not have documentation of being free of communicable diseases. The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable diseases. The following maintenance problems exist: broken or cracked window panes in windows of second floor exit door, both first floor bathrooms and resident room identified as W. S. A third follow-up was conducted by Ms. Reid on April 15, 1988. All the previously cited deficiencies had been corrected except for: The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable disease. Broken or cracked window panes in windows of second floor exit door, both first floor bathrooms nearest kitchen, and resident rooms identified as C. W., W. S., and W. L.; Shower tile missing in second floor bathroom nearest exit door; Linoleum of first floor bathroom is loose as well as badly stained with cigarette burns; Hole in wall next to sink and toilet of second floor bathroom nearest exit door and square hole in wall of second floor blue bathroom. All of the alleged deficiencies cited in the January 21, 1988 follow- up and the April 15, 1988 follow-up survey were carried forward from the alleged deficiencies discussed above, cited in the October 23, 1987 follow-up survey. The same findings are made as to the alleged deficiencies which were carried forward. Only the physical health assessment of M. B. was cited by Respondent and shown to be a repeated deficiency since the information was not obtained by the established correction dates occurring after October 1, 1987. By the date of the hearing all the above alleged deficiencies had been corrected. Respondent notified Petitioner that it proposed to deny renewal of Petitioner's license to operate the Warrington House on December 23, 1987. The basis for the denial was Section 400.414(1) and (2)(d) which states: 400.414 Denial, revocation, or suspension of license; imposition of administrative fine; grounds. The department may deny, revoke or suspend a license or impose an administrative fine in the manner provided in chapter 120. Any of the following actions by a facility or its employee shall be grounds for action by the department against a licensee: * * * (d) Multiple and repeated violations of this part or of minimum standards or rules adopted pursuant to this part. The language of Subsection (d) was added to Section 400.414 F.S. on October 1, 1987. Prior to that date Respondent had no authority to take punitive action against the license of an ACLF licensee for multiple and repeated violations of Respondent's statutes and rules. The only action Respondent could take against a facility for such violations was in the form of a civil fine the amount of which could be raised if the violation was repetitive. Section 400.426, Florida Statutes. No multiple violations were shown by the evidence through the April 15, 1988 follow-up survey. More importantly, however, no multiple violations were shown by Respondent after October 1, 1987, the effective date of the statutory language at issue in this case. No showing was made by Respondent as to any legislative intent that the statute operate retrospectively. The statute operates only prospectively. Therefore, any alleged deficiencies cited prior to October 1, 1987 are irrelevant for purposes of imposing the punishment contemplated under Section 400.414, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services renew Petitioner's license. DONE and ENTERED this 9th day of November, 1988, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1988.
The Issue The issue for determination is whether Petitioner successfully completed the Firefighter Minimum Standards Practical Examination Retest.
Findings Of Fact Mr. Berejuk is a candidate for certification as a firefighter in the state of Florida. To be certified as a firefighter, a candidate is required to successfully complete the Firefighter Minimum Standards Written and Practical Examination. A candidate is able to take the certification test twice. If a candidate fails the first time, the candidate is automatically afforded an opportunity for a retest. On April 11, 2012, Mr. Berejuk took the original examination of the Firefighter Minimum Standards Written and Practical Examination at Miami, Florida. To successfully complete the Minimum Standards Written Examination (Written Examination), a candidate is required to receive a minimum of 70 points on the Written Examination. Mr. Berejuk received more than the minimum of 70 points. As a result, he passed the Written Examination. The Minimum Standards Practical Examination (Practical Examination) consists of four evolutions. To successfully complete the Practical Examination, a candidate is required to receive a minimum of 70 points on each evolution and to complete all mandatory steps. Mr. Berejuk received more than a minimum of 70 points in each evolution, except the ladder search and rescue evolution (Ladder Evolution). During the Ladder Evolution, Mr. Berejuk failed to complete a mandatory step. He failed to don a hood on his head, and because of that failure he received zero points for the Ladder Evolution. As a result, he failed to pass the Ladder Evolution. Also, pertinent to the instant case, the maximum time allowed on the Ladder Evolution is four minutes and 30 seconds. Exceeding the maximum time allowed is an automatic failure of the Ladder Evolution. Mr. Berejuk's time on the Ladder Evolution was three minutes and 20 seconds, which was one minute and 10 seconds, or 70 seconds, less than the maximum allowable time. Because of his failure to pass the Ladder Evolution, Mr. Berejuk failed to successfully complete the Practical Examination. On May 15, 2012, Mr. Berejuk completed a retest of the Practical Examination at Ocala, Florida. The Practical Examination Retest consisted of three evolutions. He was required to receive a minimum of 70 points on each evolution and to complete all mandatory steps in order to successfully complete the Practical Examination Retest. On the Practical Examination Retest, Mr. Berejuk received more than a minimum of 70 points, receiving a perfect score of 100 points, on all of the evolutions, except the Ladder Evolution on which he received zero points. He exceeded the maximum time allowed on the Ladder Evolution. As on the original examination, the maximum time allowed is four minutes 30 seconds and exceeding the maximum time allowed is an automatic failure of the Ladder Evolution. Mr. Berejuk's time was four minutes 42 seconds, which is 12 seconds more than the maximum allowable time. He received zero points on the Ladder Evolution for exceeding the maximum allowable time. As a result of his failing to pass the Ladder Evolution, Mr. Berejuk failed to successfully complete the Practical Examination Retest. Because Mr. Berejuk failed the Practical Examination Retest, the Department denied his certification as a firefighter. As support for his challenge to the Department's determination that he exceeded the maximum allowable time on the Ladder Evolution, Mr. Berejuk relies upon his performance on the practice ladder evolution at the Coral Springs Fire Academy (Academy). He completed his training at the Academy in 2012. His time on the practice ladder evolution was three minutes and 49 seconds, which is 41 seconds less than the maximum allowable time. The Ladder Evolution's footprint at the Practical Examination Retest in Ocala is different from the footprint at the Academy (the practice site) in Coral Springs and at the original examination site in Miami. At the practice, Mr. Berejuk's time for the Ladder Evolution was three minutes and 49 seconds, 41 seconds less than the maximum allowable time; at the original examination, his time was three minutes and 20 seconds, 70 seconds less than the maximum allowable time; and at the Practical Examination Retest, a little over 30 days after the first test, his time was four minutes and 42 seconds, 12 seconds more than the maximum allowable time. Even though the difference in the times recorded for the Ladder Evolution at the original examination and the Practical Examination Retest are markedly different, Mr. Berejuk presented insufficient evidence addressing the difference in order to make a finding of fact or draw an inference. Also, he did not present any evidence detailing his specific performance on the Ladder Evolution at the Practical Examination Retest, such as his not stumbling or hesitating at any point during the Ladder Evolution. Mr. Berejuk failed to present any evidence as to the inaccuracy of the instrument, a stopwatch, used to time the Ladder Evolution or as to the inaccuracy of the field representative recording the time at the Practical Examination Retest. He presented only assumptions or conjectures as to the inaccuracy of the instrument or the recording of the field representative. The field representative did not testify at hearing. The evidence fails to demonstrate that the amount of time determined by the Department for Mr. Berejuk to complete the Ladder Evolution was incorrect or inaccurate. Therefore, the evidence demonstrates that Mr. Berejuk failed to successfully complete the Ladder Evolution within the maximum allotted time. Hence, the evidence demonstrates that Mr. Berjuk failed the Practical Examination Retest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order: Finding that Daniel Berejuk failed to successfully complete the Practical Examination Firefighter Retest; and Denying Daniel Berejuk's application for certification as a firefighter in the state of Florida. DONE AND ENTERED this 20th day of December, 2012, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 2012.
The Issue 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 The issue for consideration in this proceeding is whether the Respondent’s license as an adult living facility should be subject to an administrative fine in the amount of five hundred dollars ($500.00) for repeated class III deficiencies.
Findings Of Fact The Respondent is the owner/operator of San Juan Retirement Home. The home is licensed to operate a 6-bed assisted living facility in Jacksonville, Florida. On March 5, 2003, AHCA conducted a survey of Respondent's facility. During that survey, Respondent did not have a fire safety inspection report within 365 days from an earlier fire safety inspection report. Because of the lack of a timely report the facility was cited for violating Tag A209, a Class III deficiency. Tag A209 requires that all licensed facilities have an annual fire inspection conducted by the local fire marshal or authorities having jurisdiction. In this instance the Agency interprets the word annual to mean 365 days from the last inspection report. Respondent had the facility inspected by the Fire Marshal on March 12, 2003. She received the report the same day. A follow-up survey was conducted on April 15, 2003. Tag A209 was noted as corrected in a timely manner by Respondent. Since this was the first Class III deficiency regarding the timeliness of the inspection report, no penalties were imposed by Petitioner on Respondent. On April 23, 2004, AHCA again inspected Respondent's facility. During the inspection, Respondent again did not have a fire safety inspection report completed within 365 days of the earlier inspection report of March 12, 2003. Because of the lack of the report, the facility was cited for a class III deficiency under Tag A209. Respondent admitted that she twice did not have a timely fire safety inspection report completed for her facility. The evidence demonstrated that, prior to the April 2004 inspection by AHCA, Respondent had called the Fire Marshal’s office to schedule an inspection for the facility. However, the call was not made until the expiration of the March 12, 2003, fire safety inspection report. For some unknown reason the Fire Marshal’s office did not schedule the fire safety inspection until after the April 2004 inspection. However, the Fire Marshal’s failure to schedule the inspection does not excuse Respondent’s lack of a timely inspection and report since Respondent remains responsible for obtaining the inspection and report in a timely manner and did not call the Fire Marshal’s office until the expiration of the earlier report. To her credit, Respondent obtained a new fire safety inspection report on May 4 or 5, 2004, after AHCA had inspected the facility.
Recommendation Based on the foregoing Finding of Facts and Conclusions of Law, it is RECOMMENDED: That AHCA enter a final order imposing a $500.00 administrative fine for repeatedly failing to timely conduct or obtain an annual fire safety inspection report. DONE AND ENTERED this 9th day of November, 2004, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 9th day of November, 2004. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3408D Mail Stop 3 Tallahassee, Florida 32308 Elvira C. Demdam San Juan Retirement home 6561 San Juan Avenue Jacksonville, Florida 32210 Alan Levine, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issue is whether the Bureau of Fire Standards and Training of the Division of State Fire Marshall properly denied Petitioner's application for certification as a firefighter.
Findings Of Fact On December 8, 1995, Petitioner submitted his application for certification as a firefighter. He later passed the written portion of the minimum standards examination for certification as a firefighter. However, he failed the practical portion of the examination. As permitted by law, Petitioner retook the practical portion of the examination on October 14, 1996. He failed the examination a second time and challenges his grade in this proceeding. William George DePauw, Jr., administered the practical examination on October 14, 1996. Mr. DePauw is a certified firefighter with over 25 years’ experience. He has administered firefighter certification exams since 1994. A passing score on the practical portion of the examination is 70 points. Mr. DePauw correctly scored Petitioner’s practical portion of the examination at 45 points. For part one of the practical examination, Petitioner properly lost five points for failing to complete the breathing apparatus section within the assigned time, five points for failing to carry the 1 3/4 inch hose properly on his shoulder at all times during the advance, ten points for failing to control the extension ladder, five points for failing to extend fully the extension ladder, and ten points for failing to complete the extension ladder section within the assigned time. For part two of the practical examination, Petitioner properly lost five points for failing to tie clove hitch and half hitch knots and five points for incorrectly breaking a plate glass door at the bottom of the pane. As a result of these deficiencies, Petitioner failed the practical examination.
Recommendation It is RECOMMENDED that the Division of State Fire Marshall enter a final order denying Petitioner’s request a determination that he passed the practical portion of the minimum standards examination for certification as a firefighter. DONE AND ENTERED this 3rd day of September, 1997, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1997. COPIES FURNISHED: Jason Wayne Parker 8260 Collins Road Jacksonville, Florida 32244 Elizabeth Arthur Division of Legal Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Daniel Y. Sumner General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300
