The Issue Whether Petitioner should have received a passing grade on the Firefighter Minimum Standards Retest taken on November 30, 1998.
Findings Of Fact Respondent, Department of Insurance and Treasurer (Department), through its Division of State Fire Marshall, certifies all paid firefighters. Applicants for firefighters must complete a 360-hour minimum standards training course and pass a written and practical examination. If the applicant fails the examination, the applicant may retake the examination within six months after taking the initial examination. If the applicant does not pass the retest, the applicant must complete the minimum standards training course before additional retesting will be allowed. The examination has two parts, a written and a practical part. The written examination consists of 100 multiple choice questions. The practical portion tests the applicant on skills dealing with breathing apparatus, hose and nozzle operation, and the 24-foot extension ladder. The applicant must receive a score of 70 percent on both portions of the examination in order to pass the examination. In the breathing apparatus section of the practical examination, the applicant is timed during the donning of the equipment. If the applicant does not don the equipment within one minute and thirty seconds, points are deducted from the applicant's score. The number of points deducted increases in proportion to the amount of time it takes to don the equipment. If the applicant dons the equipment in more than one minute and thirty seconds but not more than two minutes, five points are deducted. In the hose and nozzle operation portion of the practical examination, the applicant is timed. If the applicant fails to perform the operation in two minutes or less, points are deducted from the applicant's score. Five points are deducted if the applicant takes greater than two minutes but not over two minutes and thirty seconds. Ten points are deducted if the applicant takes greater than two minutes and thirty seconds but not more than three minutes. The ladder operation portion of the examination is timed. If the applicant takes more than two minutes and thirty seconds but not more than three minutes, five points are deducted. During the practical examination, applicants are required to demonstrate their skills in tying knots and hitches. The applicant is required to tie one of a number of knots or hitches. Applicants are also required to show their proficiency in dealing with fire hoses, hose appliances and various fittings by performing one of a number of functions. Applicants must demonstrate their knowledge of the North American Emergency Response Guidebook by answering three questions using the guidebook a reference. On January 20, 1998, Petitioner, Michelle M. McCue (McCue), applied for certification as a firefighter. She completed the Minimum Standards Course. On July 30, 1998, McCue took the minimum standards examination. She received a score of 81 on the written portion and 55 on the practical examination. She was notified by memorandum dated August 12, 1998, of her scores. By memorandum dated September 3, 1998, McCue was notified that she was scheduled to retake the examination on September 22, 1998. She did not take the examination on that date. By memorandum dated October 5, 1998, McCue was notified that she was rescheduled to retake the practical examination on November 30, 1998. She retook the practical portion on the day scheduled. On the retake examination, five points were deducted from McCue's score because her donning time for the breathing apparatus portion was one minute and fifty-one seconds. She took three minutes during the timed portion of the hose and nozzle operation; thus, ten points were deducted from her score. Five points were deducted from her score because she took two minutes and thirty-five seconds to perform the ladder operation. Five points were deducted from McCue's score for failure to correctly tie a Becket Bend knot. Another five points were deducted from her score for failing to properly connect a supply line into a female pumper intake. Five points were deducted for her failure to properly answer a question using the North American Emergency Response Guidebook. McCue received a final score of 65 on the retake of the practical examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Michelle M. McCue failed the retake of the practical portion of the Minimum Standards Test and that she shall be required to repeat the Minimum Standards Course before taking any further examinations. DONE AND ENTERED this 8th day of October, 1999, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1999. COPIES FURNISHED: Bill Nelson, State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Shiv Narayan Persaud, Esquire Department of Insurance Division of Legal Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Michelle M. McCue 4801 Northwest 26th Avenue Tamarac, Florida 33309
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 September 26, 2011, and included four practical components: self-contained breathing apparatus ("SCBA"), hose operation, ladder operation, and fireground skills.2/ 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. For instance, the ladder operation consists of 15 skills——e.g., maintaining contact with the ladder, 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. 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 and securing the "dogs"3/ properly. 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 15 evaluative components. It is undisputed that Petitioner achieved passing scores on the fireground skills, SCBA, and hose components of the retention examination; Petitioner was unable, however, to complete the ladder evaluation within the prescribed time limit, which resulted in an automatic failure. Petitioner, like all candidates who fail the retention examination on the first attempt, was offered one retest opportunity.4/ Petitioner's retest was administered on November 15, 2011, at the Ocala Fire College, during which he passed the SCBA and hose portions of the examination. (For reasons not explained during the final hearing, Petitioner was not required to re-take the fireground skills component.) Once again, however, Petitioner failed the ladder evaluation, as established by the final hearing testimony of Tuffy Dixon, the field examiner on that occasion.5/ Mr. Dixon explained, credibly, that Petitioner scored an automatic failure because he neglected to lock one of the ladder's "dogs"——one of the ladder evaluation's ten mandatory components.6/ Accordingly, the evidence demonstrates that Petitioner failed the November 15, 2011, retention examination 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 25th day of July, 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 25th day of July, 2012.
The Issue The issue for determination is whether Petitioner successfully completed the Practical Examination for Retention of Firefighter Retest.
Findings Of Fact Mr. Pointon is a candidate for re-certification as a firefighter in the State of Florida. In 2004, Mr. Pointon obtained his Firefighter Minimum Standards Training Certification. A certification is valid for three years. Since 2004, he has been unable to find gainful employment as a firefighter. In 2007, Mr. Pointon obtained re- certification. He has been working two jobs, unrelated to firefighting, and has been unable to volunteer as a firefighter. To maintain certification, a certified firefighter, within the three-year period, must either be employed as a firefighter in a career status position or a volunteer firefighter for at least six consecutive months. If a certified firefighter fails to fit within either of the two statuses within the three-year period, the certified firefighter must take the practical portion of the Firefighter Minimum Standards examination, i.e., the Firefighter Minimum Standards Practical Examination (Practical Examination) to retain certification as a firefighter. The Practical Examination includes a written examination, as well as four practical components. The four practical components include (a) Self-Contained Breathing Apparatus (SCBA); (b) Hose Operations; (c) Ladder Operations; and (d) Fireground Skills. In order to pass the Practical Examination, a candidate must achieve a score of at least 70 percent on each of the four components. Pertinent to the instant case, the SCBA component is scored using a form listing five mandatory steps, which the candidate must pass, and ten "evaluative component" steps worth ten points each. During the SCBA portion of the examination, a candidate is required to follow the mandatory criteria; the mandatory criteria are required to be completed correctly, including completion of all protective equipment, which includes pulling on the candidate's hood that protects the skin from flash fire; and (c) a candidate is required to complete the mandatory criteria within the maximum allotted time. A candidate, who successfully completes the five mandatory steps, receives a total score of the sum of the points from the ten "evaluative component" steps. A candidate's failure to comply with the mandatory criteria is considered a critical failure. A critical failure is grounds for an automatic failure. A candidate is able to take the re-certification test twice. If a candidate fails the first time, the candidate is automatically afforded an opportunity for a retest. On May 25, 2010, Mr. Pointon took his initial Practical Examination for the re-certification. He completed the SCBA in two minutes and 45 seconds, which was beyond the maximum allowed time of one minute and 35 seconds. Therefore, the Department determined that Mr. Pointon failed to successfully complete that component and, as a result, failed that section of the Practical Examination. Mr. Pointon contends that, on May 25, 2010, during his inspection of the equipment, bottle and air pack, to make sure that it was functioning properly, he discovered that the equipment was not functioning properly. Further, he contends that he made two exchanges of equipment before he obtained properly functioning equipment. Mr. Pointon's testimony is found to be credible. The field representative who administered the initial Practical Examination testified. The field representative did nothing different with Mr. Pointon than he did with any of the other candidates. Furthermore, Mr. Pointon was the eleventh candidate to undergo testing and, by being the eleventh candidate, Mr. Pointon had ample opportunity to test his equipment and ensure that the necessary preparation was conducted before his (Mr. Pointon's) exam began. The field representative's testimony is found to be credible and more persuasive. Therefore, the evidence demonstrates that Mr. Pointon failed to successfully complete the SCBA component within the maximum allotted time. Hence, the evidence demonstrates that, on May 25, 2010, Mr. Pointon failed the SCBA section of the Practical Examination. On September 23, 2010, Mr. Pointon took a retest of the SCBA component. The Department determined that he failed the retest for failure to don all Personal Protective Equipment (PPE), in particular his NOMEX hood. Failure to don all PPE is grounds for automatic failure. As to the retest, Mr. Pointon contends that he was wearing his NOMEX hood. The field representative who administered the retest testified. The field representative observed the NOMEX hood around Mr. Pointon's neck; Mr. Pointon was not wearing the NOMEX hood. The field representative's testimony is more persuasive. Therefore, the evidence demonstrates that, on September 23, 2010, Mr. Pointon failed to don all the PPE by failing to don his NOMEX hood. Hence, the evidence demonstrates that, on September 23, 2010, Mr. Pointon failed the 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 Mark Pointon failed to successfully complete the Practical Examination for Retention of Firefighter Retest; and Denying Mark Pointon's application for recertification as a firefighter in the state of Florida. DONE AND ENTERED this 1st day of August, 2011, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2011.
The Issue The issue is whether Respondent properly denied Petitioner's application for certification as a firefighter after Petitioner failed to successfully pass the practical portion of the Minimum Standards Examination pursuant to Sections 633.34 and 633.35, Florida Statutes, and Rules 4A-37.056 and 4A-37.062, Florida Administrative Code.
Findings Of Fact Petitioner has served as a voluntary firefighter in Bay County, Florida, for approximately nine years. He first applied for certification as a firefighter in October 2001. In order to be certified, Petitioner was required to successfully complete the Minimum Standards Course. The course consists of taking a minimum of 360 hours of training at an approved school or training facility. After completing the training course, Petitioner was required to take the Minimum Standards Examination, which is structured in two parts: a written portion and a practical portion. The practical portion consists of four sections including the Self-Contained Breathing Apparatus (SCBA), the hose pull, the ladder operation, and the fire ground skills. The purpose of the practical portion of the exam is to simulate real fire ground scenarios. To pass the four practical evolutions, an applicant must achieve a score of at least 70 percent on each one. Each evolution of the practical exam has certain steps that are mandatory. Failure to complete a mandatory step results in automatic failure of that portion of the exam. The mandatory steps for the SCBA evolution include the following: (a) complete the procedure in not more than one minute and forty-five seconds; and (b) activate the PASS device in the automatic position. After completing the Minimum Standards Course, Petitioner took the Initial Minimum Standards Examination on May 1, 2002. He was well rested on the day of the test, having slept approximately eight hours the night before. Petitioner passed the written portion of the exam but failed the practical portion of the initial exam because it took him one minute and fifty-nine seconds to complete the SCBA evolution. In a memorandum dated May 7, 2002, Respondent formally advised Petitioner that he had failed the SCBA portion of the practical exam because he exceeded the maximum time for the procedure. The memorandum also stated as follows in pertinent part: Important information about retesting and certification renewal is enclosed. Please read it carefully. You have automatically been scheduled for the next available examination, and written notification indicating your test date and location is enclosed. You are not required to call the Bureau for scheduling. Thank you. (Emphasis provided) In another memorandum dated May 7, 2002, Respondent advised Petitioner that he was scheduled to re-take the SCBA portion of the practical examination at the Florida State Fire College in Ocala, Florida, on May 24, 2002, at 8:00 a.m. The memorandum included the following relevant information: If you are unable to take the examination on the assigned date, please advise the Bureau and we will reschedule you for the next examination. Note: You must retest within six (6) months of the original test date. All an applicant has to do to reschedule a retest exam is to call Respondent's Bureau of Fire Standards and Training and request to be rescheduled. Respondent does not require applicants to provide a justifiable reason in order to be rescheduled. It is a routine and standard practice for Respondent to reschedule exams. Some applicants fail to show up for their retest exam without calling Respondent. In that case, Respondent automatically reschedules the retest. Applicants must take their retest exams within six months of their initial exam dates. Applicants that fail to meet this requirement must repeat the training course. Respondent reminds applicants of these requirements when they call to reschedule retests or fail to show up for retest, and the next retest exam date falls outside of the six-month window. If applicants still wish to reschedule retests outside the six-month window, Respondent will accommodate the requests. The next exam date that Petitioner could have taken his retest was in September 2002, which would have been within the six-month window. Petitioner testified that he called Respondent on May 16, 2002, to reschedule his retest because May 24, 2002, was not convenient with his work schedule. Petitioner also testified that an unidentified female in Respondent's office told him that he could not change the date of his retest. Petitioner's testimony in this regard is not persuasive. Petitioner's job involved working the "graveyard shift" at the Panama City Airport, loading and unloading planes. On May 23, 2002, Petitioner began working at 2:00 a.m. He finished his shift at approximately 1:00 p.m. Petitioner then immediately loaded his gear and began the trip to Ocala, Florida. The trip took about six hours, due to a traffic jam in Tallahassee, Florida. He arrived in Ocala at approximately 8:00 p.m. EST, located the testing site, and checked into a motel. Petitioner reported to the testing site the next morning. He did not tell any officials at the testing site that he was too tired to take the test. Petitioner failed the retest of the SCBA portion of the exam. Petitioner's time for the retest of the SCBA evolution was two minutes and twelve seconds. Additionally, Petitioner had point deductions for failing to complete the "seal check" and failing to properly don and secure all personal protective equipment correctly. In a letter dated May 26, 2002, Petitioner alleged that Respondent had denied his request for a different test date. Petitioner claimed that fatigue had prevented him from succeeding at the test. He requested another opportunity to retest the SCBA evolution within the required six-month period. Shortly thereafter, Fire Chief Tim McGarry from the Thomas Drive Fire Department on Panama City Beach, Florida, called Respondent's Field Representative Supervisor, Larry McCall. During that conversation, Mr. McCall told Chief McGarry that Petitioner could have decided not to show up for the retest. In a letter dated June 3, 2002, Mr. McCall responded to Petitioner's letter. In the letter, Mr. McCall stated that the question of whether Respondent erroneously denied Petitioner's request to reschedule the retest would be closed unless Petitioner could provide more specific details. In a memorandum dated June 6, 2002, Respondent formally advised Petitioner that he had failed the retest. In a letter dated June 6, 2002, Petitioner stated that he could not remember the name of the person he spoke to when he requested a change in his retest date. Once again, Petitioner requested an opportunity to take the retest. Mr. McCall spoke to Petitioner in a telephone call on June 18, 2002. During that conversation, Petitioner indicated that he would file his Election of Rights form, requesting an administrative proceeding.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order denying Petitioner's application. DONE AND ENTERED this 10th day of April, 2003, in Tallahassee, Leon County, Florida. _ SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 2003. COPIES FURNISHED: Elenita Gomez, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0330 Mark D. Dreyer, Esquire 747 Jenks Avenue, Suite G Panama City, Florida 32401 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issue for determination is whether Petitioner successfully completed the Firefighter Minimum Standards Practical Examination or the Practical Examination Retest for certification as a firefighter in the State of Florida.
Findings Of Fact Petitioner 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 (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 October 15, 2012, Petitioner initially took the Practical Examination at Daytona State Fire College in Daytona, Florida. The Practical Examination consists of four parts, or evolutions: self-contained breathing apparatus (SCBA), hose operation, ladder operation, and fireground skills. 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. Petitioner received more than a minimum of 70 points on the SCBA and hose evolutions, but did not achieve a passing score on either the ladder evolution or the fireground skills evolution. 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. Petitioner’s time on the ladder evolution was four minutes and 50 seconds, which was 20 seconds more than the maximum time allowed. Petitioner admitted that he exceeded the maximum time allowed to complete the ladder evolution. He blames that failure on the testing instructor, Mr. Johnson, for not being located where Petitioner could hand off a halligan to him in order to complete the test. A halligan is a tool used by firefighters to sound the floor of a burning building for safety. During the ladder evolution, a candidate is required to pick up the halligan prior to ascending a pre-positioned 24-foot extension ladder, sound the floor with the halligan, enter the second floor, descend a set of stairs to the first floor, locate a mannequin, and execute a “rescue” by dragging or carrying the mannequin out of a doorway. When a candidate clears the doorway threshold with the mannequin, the ladder evolution is complete. During testing, Petitioner understood he would be handing the halligan off to Mr. Johnson. However, Mr. Johnson was not there, and, as Petitioner explained, “I had my halligan in my hand and I was looking around for him, but he was nowhere to be found. . . . Well, the time that it took me to look for my instructor, which I am not supposed to do, he was supposed to be there, my time went over –- my time went over.” Because of his failure to pass the ladder evolution and fireground skills evolution, Petitioner failed to successfully complete the Practical Examination. On November 6, 2012, Petitioner took a Practical Examination Retest (Retest) at Florida State Fire College in Ocala, Florida. The Retest consisted of the same four 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 Retest. On the Retest, Petitioner received a perfect score of 100 points on the SCBA and hose evolutions. He received 90 points on the fireground skills evolution, but received no points on the ladder evolution. Petitioner exceeded the maximum time allowed on the ladder evolution. As on the original examination, the maximum time allowed is four minutes and 30 seconds and exceeding the maximum time allowed is an automatic failure of the ladder evolution. Petitioner’s time was four minutes and 38 seconds, which is 8 seconds more than the maximum time allowed. He received zero points on the ladder evolution for exceeding the maximum time allowed. As a result of his failing to pass the ladder evolution, Petitioner failed to successfully complete the Retest. Because Petitioner failed the Retest, the Department denied his certification as a firefighter. In support of his challenge to the Department's determination that he exceeded the maximum time allowed on the ladder evolution, Petitioner testified that his wife was present at the Retest and recorded his time on the ladder evolution as four minutes and 17 seconds, 13 seconds faster than the maximum time allowed. Petitioner explained that his wife was positioned in an automobile at the grounds with a “straight-shot” view of the ground skills course, then drove to the other side of the course to observe and time the ladder evolution. Petitioner introduced into evidence a photocopy of a sheet of notebook paper on which was written “Ricky’s time 3:58” on one line and “4:17” on the next line. Petitioner’s wife neither testified to overcome the hearsay nature of the evidence, nor did she authenticate the evidence. Further, Petitioner admitted that the time his wife recorded was likely not exact, but rather gave him a “ballpark figure of not going over the four minutes and 30 seconds that I had.” Petitioner stated his wife’s recorded time would not be the same as the field representative’s because the field representative started the stopwatch when Petitioner touched the ladder, as per protocol. Petitioner’s wife started her clock when Petitioner gave her the “thumbs up.” Dennis Hackett, Interim Standards Supervisor, testified that it would be impossible for a third party to accurately time a candidate during the ladder evolution at Florida State Fire College. Mr. Hackett explained: There’s just too many obstructions. If they were –- the tower, where the ladder evolution starts, is on the opposite side of where [third party observers] have to stay. Or they could go to another roadway that they could see the ladder evolution started, but there’s a burn building in the way to see the ascension of the ladder to the second floor. You can’t see that. They would have to be a marathon runner to get from where they could see to the second portion where they would come out of the building. [T.53:18 through T.54:2] The time of four minutes and 17 seconds recorded by Petitioner’s wife for Petitioner’s completion of the ladder evolution is not accepted as competent substantial evidence of the actual time in which Petitioner completed the ladder evolution on the Retest. Tuffy Dixon is the Department’s field representative who administered the Retest to Petitioner in Ocala. Petitioner argues that Mr. Dixon may have failed to reset the stopwatch to zero prior to Petitioner beginning the ladder evolution. Petitioner testified that he had been told by unnamed instructors at Daytona State Fire College that mistakes like that had been made. Petitioner failed to present any evidence as to the inaccuracy of the stopwatch used to time the ladder evolution or as to the inaccuracy of the Mr.Dixon’s use of the stopwatch at the Retest. He presented only assumptions or speculation as to the inaccuracy of Mr. Dixon’s use of the stopwatch. Mr. Dixon has administered approximately 500 practical examinations in the two years he has served the Department. He testified that he is certain his stopwatch was functioning correctly on the day of Petitioner’s Retest and that he reset the stopwatch to zero prior to Petitioner beginning the ladder evolution. Mr. Dixon’s testimony is accepted as credible. In further support of his arguments, Petitioner also testified that he never exceeded the maximum time allowed for the ladder evolution during practice runs at the facility. He maintained that the course in Daytona is longer than the course in Ocala, so it does not make sense that he would not complete the ladder evolution within the maximum time allowed. Despite the fact that Petitioner submitted with his petition in this case a list of names and telephone numbers of Daytona State Fire College classmates who could attest to his time on practice runs of the ladder evolution, Petitioner did not present the testimony of any of those candidates. Nor did he introduce any other evidence to corroborate his testimony that he never exceeded the maximum time allowed for the ladder evolution during practice. Further, no evidence was offered as to the comparable length of the two courses. The evidence fails to demonstrate that the amount of time in which Petitioner completed the ladder evolution, as determined by the Department, was incorrect or inaccurate. Therefore, the evidence demonstrates that Petitioner failed to successfully complete the ladder evolution within the maximum time allowed. Hence, the evidence demonstrates that Petitioner failed the 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 Ricardo Francois failed to successfully complete the Practical Examination Firefighter Retest; and Denying Ricardo Francois’ application for certification as a firefighter in the State of Florida. DONE AND ENTERED this 3rd day of April, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 3rd day of April, 2013. COPIES FURNISHED: Linje E. Rivers, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 Ricardo Francois 778 Jimmy Ann Drive, No. 1011 Daytona Beach, Florida 32114 Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399
Findings Of Fact Thomas R. Felts applied to the City of Hollywood, Florida for appointment as a firefighter. He took and passed the Civil Service examination, the physical examination and physical agility test used by the City of Hollywood to qualify firefighter applicants. Following successful completion of the tests above noted two things only stood between Felts and employment as a firefighter. First, he had to complete the firefighter training school and second, receive certification from the State Fire Marshal's office. Prior to entering the four weeks training program Felts was advised by Respondent that, because of the condition of his hands, he could not meet the State's physical requirements for certification even if he successfully completed the training program. Felts was born May 28, 1949. In 1969 he was involved in an industrial accident which severely damaged both hands. Upon his discharge from further treatment in 1972 Felts' hands are described in the attachment to Dr. Angelides' deposition as follows: Examination of the right hand re vealed a reconstituted thumb, extending to the level of the IP joint. The patient's index finger was totally absent having undergone a ray amputation. The long finger was amputated at the level of the PIP joint. The ring finer was amputated through the level of the DIP joint. There was a well-healed skin graft over the ulnar border of the finger, and the ulnar half of the finger was anesthetic. The fifth finger was normal. There were multiple well-healed lacerations of the right hand. Examination of the left hand revealed an amputation of the left thumb, through the level of the MP joint. The index ray was absent and the patient's long finger was amputated through the level of the PIP joint. The ring and fifth finger were normal. There were multiple well-healed scars and skin grafts of the left hand. There was a flexion deformity of forty degrees at the MP joint of the left long finger. In lay language Petitioner has one-half thumb (reconstituted) on the right hand, no thumb on the left, no index finger on either hand, one half middle finger on each hand, and the tip of the ring finger missing on the right hand. Subsequent to his accident Petitioner has worked as a life guard and as a building contractor. In the latter capacity he has wielded a hammer, climbed scaffolding, operated power tools and handled hoses for spraying and pouring concrete. After his release from further medical treatment Petitioner started a physical therapy program including weight lifting. This program had been ongoing for some seven years at the time Petitioner applied for the firefighter's position. As a result of this program and Petitioner's dedication he has developed a powerful body on a 182-pound frame capable of bench pressing 385 pounds and doing one-handed pull-ups (chins) with either hand. When tested by the City of Hollywood Petitioner passed the Minimum Physical Fitness Requirements in National Fire Protection Association's Fire Fighter Professional Qualifications, NFPA No. 1001, plus a ten-foot rope climb and swimming tests not contained in NFPA No. 1001. Prior to 1979 Respondent used the Minimum Physical Fitness Requirements of NFPA No. 1001 as a condition for certification. These requirements were abandoned as a result of a suit brought by EEOC alleging that these physical requirements, which test strength, endurance and agility, were unfair to female applicants who did not have sufficient upper body strength to perform those tasks. Although the physical fitness requirements were abandoned, Respondent retained the physical standards contained in NFPA No. 1001 and adopted those standards in Rule 4A-37.05(3), Florida Administrative Code. These rules provide for rejection of a candidate for firefighter when the medical examination reveals any of the following conditions: 2-2.6.1.2 Hand and Fingers. The causes for rejection for appointment shall be: Absence (or loss) of more than 1/3 of the distal phalanx of either thumb. Absence (or loss) of distal and middle phalanx of an index, middle or ring finger of either hand irrespec tive of the absence (or loss) of little finger. Absence of more than the distal phalanx of any two of the following fingers, index, middle finger or ring finger, of either hand. Respondent is disqualified on each of these three grounds.
The Issue The issue for determination is whether Petitioner’s application for certification should be approved as a result of her successfully completing the Firefighter Minimum Standards MIN. STD. PRACTICAL RETEST retest.
Findings Of Fact Ms. Evans is a candidate for certification as a firefighter in the State of Florida. Ms. Evans attended the Coral Springs Fire Academy (Fire Academy), as a student, from July 11, 2009, through January 9, 2010. During her training at the Fire Academy, she was chosen as the squad leader. A candidate for the certification examination must pass a written and practical examination, with a minimum score of 70 on both the written and practical parts. Pertinent hereto, a candidate must pass the Firefighter Minimum Standards Practical Examination (Practical Examination) in order to become certified as a firefighter. The Practical Examination consists of four components: the Self Contained Breathing Apparatus (SCBA); the Hose Operation (a/k/a Hose Evolution); the Ladder Operation (a/k/a Ladder Evolution); and the Fireground Skills. The Practical Examination is replicated at the Fire Academy, and students at the Fire Academy must pass the four components. The Fire Academy adopted the State standards for passing the Practical Examination, except that at the Fire Academy the standards for the Ladder Evolution are more strict. Also, pertinent hereto, for the Ladder Evolution, the State’s passing score is 70, but the Fire Academy’s passing score is 80; and the maximum time allowed by the State to successfully complete the Ladder Evolution is two minutes and 20 seconds, but the Fire Academy’s maximum time is two minutes and 10 seconds. Additionally, pertinent hereto, for the Ladder Evolution, the State’s established testing protocol is to permit a candidate to perform a safety inspection of the ladder prior to beginning the timing of the Ladder Evolution, and the timing begins after the candidate touches the ladder again. Consequently, State testing protocol dictates that, during the safety inspection, no timing occurs, but, when the candidate touches the ladder again, the timing begins. The Fire Academy uses this same protocol at testing for the Ladder Evolution. The time limit placed on the Ladder Evolution is designed to replicate actual fire fighting conditions, producing a certain degree of stress upon candidates. At the Fire Academy, Ms. Evans successfully completed the Ladder Evolution on November 11, 2009, receiving a score of 80 and a time of two minutes and three seconds. Again, on January 5, 2010, she successfully completed the Ladder Evolution with a score of 100 and a time of one minute and 53 seconds. Ms. Evans graduated from the Fire Academy and was eligible to sit for the certification examination. On January 10, 2010, Ms. Evans took the Ladder Evolution part of the State Practical Examination in Coral Springs, Florida. A wind gust caused her to lose control of the ladder. She received a score of zero, due to losing control, and, therefore, did not successfully complete the Ladder Evolution. Ms. Evans took a re-test of the Ladder Evolution part of the State Practical Examination on January 28, 2010, in Ocala, Florida. She completed the Ladder Evolution in two minutes and 50 seconds, which was beyond the maximum allowed time of two minutes and 20 seconds. She received a score of zero and, therefore, failed to successfully complete the Ladder Evolution on the re-test. Ms. Evans contends that, on January 28, 2010, the State’s Field Representative began the time during her safety inspection of the ladder. The more persuasive evidence supports this contention. As a result, a finding of fact is made that, on January 28, 2010, the State’s Field Representative began the timing of Ms. Evans’ Ladder Evolution during her safety inspection, which was contrary to the State’s testing protocol. The evidence fails to demonstrate what Ms. Evans’ time on the Ladder Evolution would have been had the timing begun in compliance with the State’s established testing protocol.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order directing the re-testing of Melanie Evans on the Ladder Operation (a/k/a Ladder Evolution) of the Firefighter Minimum Standards Practical Examination. DONE AND ENTERED this 29th day of July, 2010, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2010. COPIES FURNISHED: Robert J. Slotkin, Esquire 600 South Andrews Avenue, Suite 600 Fort Lauderdale, Florida 33309 Nic Thornton, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Alex Sink, Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Benjamin Diamond, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Julie Jones, Agency Clerk Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0390
The Issue Whether Petitioner should be allowed to retake the Minimum Standards Certification Examination for a firefighter without repeating the Minimum Standards Course.
Findings Of Fact Petitioner, Laurie J. Rudock (Rudock), failed the practical portion of the initial Minimum Standards Certification Examination for firefighters given on August 12, 1997. Petitioner retook the Minimum Standards Certification Examination on October 13, 1997, and failed that examination. After being duly noticed of the final hearing in this proceeding, Petitioner did not appear at the final hearing and failed to present any evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Petitioner, Laurie J. Rudock, is not entitled to retake the Minimum Standards Certification Examination without first retaking the Minimum Standards Course. DONE AND ENTERED this 23rd day of March, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 23rd day of March, 1998. COPIES FURNISHED: Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level 26 Tallahassee, Florida 32399-0300 Karuna P. Rao, Esquire Department of Insurance and Treasurer 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0300 Laurie J. Rudock, pro se 1819 North Victoria Park Road Fort Lauderdale, Florida 33305
The Issue The issue in this case is whether Petitioner, Marlene Serrano ("Serrano"), should be awarded certification as a firefighter or, in the alternative, whether Serrano should be allowed to re-take the hose operation and ladder operation portions of the Firefighter Minimum Standards Written and Practical Examination.
Findings Of Fact Serrano was a candidate for certification as a firefighter in the State of Florida. The Department is the state agency responsible for testing all candidates for certification as a firefighter, for conducting such tests, and for issuing a certification upon successful completion of minimum requirements by a candidate. One such examination administered by the Department is the Firefighter Minimum Standards Written and Practical Examination ("Firefighter examination"). The Firefighter examination has a written portion, as well as three practical components: Self-Contained Breathing Apparatus, Hose Operations, and Ladder Operations. In order to meet the minimum requirements for certification, a candidate must obtain at least a 70-percent score on each component of the Firefighter examination. If a candidate fails the test, he or she is afforded one chance to take a re-test. The ladder component of the Firefighter examination is scored using a form listing five mandatory steps which the candidate must pass and ten evaluative component steps worth ten points each. A candidate taking the ladder component, who successfully passes the five mandatory steps, receives a total score of the sum of the scores from the ten evaluative component steps. A candidate who does not successfully complete one or more of the mandatory steps automatically fails the ladder component section and receives a score of zero out of 100 points. Serrano initially took the Firefighter examination on December 22, 2010. That test was administered at the Firefighter Academy, a more controlled environment. She failed to obtain a passing grade on two components of the examination, the hose operations component and the ladder operation component. Specifically, she failed to successfully complete the components within the required time limit of two minutes, 20 seconds; and one minute, 25 seconds, respectively. Her times were two minutes, 40 seconds; and one minute, 41 seconds, respectively. As allowed by law, Serrano was given the opportunity to re-take those components of the examination one time only. On February 15, 2011, Serrano went to a training facility in Ocala, Florida, to re-take the examination. The Ocala site was more open than the Academy site; there were other non-firefighter personnel engaged in activities in close proximity. Thomas Johnson and Kenneth Harper were the examiners assigned to administer the examination to Serrano. Serrano received a score of 100 on the hose operation component of the examination. She completed that portion of the test in one minute and 25 seconds, within the prescribed time. When Serrano finished the hose operation component, she was going to begin the ladder operation section. However, one of the examiners "yelled" at her that her protective face shield was not in place. That is, the shield had been raised to the top of her helmet, rather than being in the lowered position required during testing. The instructor yelled for her to "put your shield down." Serrano interpreted that instruction as a sign that she had failed the prior (hose operation) test. She began to walk toward the examiners, but they pointed her back in the direction of the ladder test. Serrano was confused, but undertook the ladder operation component of the examination anyway. Her concentration was somewhat broken by the examiner's comments, and she was flustered. Then she heard loud noises coming from the field next to the testing site. Apparently, there were military maneuvers of some type going on at the adjacent field. Furthermore, there was a four-wheeler driving around the training ground, creating more distraction for Serrano. However, the Department's field representative said he had administered over 1,000 tests in the same conditions as were present for Serrano's test. During the test, ten points were deducted from Serrano due to her inability to maintain the ladder in a vertical position. Further, Serrano did not complete the ladder operation component of the examination within the prescribed time frame for that section of the test. Her recorded time was two minutes and 49 seconds, some 29 seconds longer than allowed. The examiner also noted that Serrano almost lost control of the ladder twice during the examination and struggled with the halyard and safety lines. There are numerous events going on at the training site during testing. The training grounds are intentionally somewhat hectic in order to simulate real "fire ground" conditions. There is no attempt made by the examiners to keep the testing site quiet. Conversely, at the Firefighter Academy where firefighters are initially trained, there is less noise and distraction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Financial Services, dismissing the Petition of Marlene Serrano, in full. DONE AND ENTERED this 7th day of July, 2011, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 2011.
Findings Of Fact On September 3, 1992, petitioner, James Cardova, filed an application for certification as a firefighter with respondent, Department of Insurance and Treasurer, Division of State Fire Marshal (Department). Such application included a report of medical examination which reflected that petitioner was without vision in his left eye. Indeed, the proof at hearing confirmed that due to a childhood injury, petitioner had lost the use of his left eye, and it had been replaced by a glass prosthesis. By letter of September 21, 1992, the Department notified petitioner that his application was denied because he did not meet the medical standards established by the National Fire Protection Association (NFPA) in its pamphlet NFPA No. 1001, adopted by reference in Rule 4A-37.037(4), Florida Administrative Code. Specifically, Section 2 of NFPA pamphlet No. 1001 provides: 2-2 Medical Requirements for Fire Department Candidates. The candidate shall be rejected when the medical examination reveals any of the following conditions: * * * 2-2.7.1.9 Miscellaneous Defects and Disease. The causes for rejection of appointment shall be: * * * (b) Absence of an eye. In response to the Department's letter of denial, petitioner filed a timely request for formal hearing to contest the Department's decision. Here, the gravamen of petitioner's case is his contention that, notwithstanding the absence of his left eye, he is qualified to perform the duties of a firefighter and, therefore, under the provisions of the Americans with Disabilities Act, 42 USC 12101, et seq., the Department is obligated to grant his request for certification. Regarding petitioner's abilities, the proof demonstrates that petitioner has reasonably compensated for the absence of his left eye such that its absence does not significantly limit any of his major life activities. Moreover, petitioner has satisfactorily completed all of the basic firefighting school requirements, as well as the written and practical state examination. Indeed, among the firefighting instructors who know of him, petitioner's ability to perform the skills required of a firefighter is not deemed to be adversely affected by his loss of vision in one eye.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered denying petitioner's application for certification as a firefighter. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of April 1993. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of April 1993.
