The Issue The issue in this case is whether Respondent, Department of Financial Services, Division of State Fire Marshal (the Department), properly administered and graded the Firefighter Minimum Standards practical examination taken by Petitioner, Catalina Williams (hereinafter Williams).
Findings Of Fact The Department is the state agency charged with the responsibility for testing, monitoring and certifying firefighters. The Department conducts certification examinations at the Florida State Fire College in Ocala, Florida, and some thirty-plus other sites around the State. Those sites are located on college campuses, training facilities, fire stations, and other locales. The test at issue in this proceeding was administered at the Fire College site. Catalina Williams is an Hispanic woman who desires to become a certified firefighter. Her interest in firefighting began when she worked as a photographer covering fire-related events for a magazine and thought it would be exciting and interesting to be on “the front line.” Williams has also served as a caregiver, giving her experience in providing assistance to others, and is a certified lifeguard. In order to accomplish her goal of becoming a firefighter, Williams entered into schooling to learn the trade. Williams first attended First Coast Technological College (First Coast) in 2009. She completed the Firefighter Minimum Basic Standards Course (Firefighter I) that year. In 2010, she enrolled at the school for the summer semester to begin training in the advanced (Firefighter II) curriculum. That school term was shorter and more compressed than a regular semester. Despite her best efforts, Williams did not successfully complete the Firefighter II course. Rochford was one of her instructors during her first unsuccessful enrollment at First Coast. In 2012, Williams entered First Coast again. At that time, she was working as a paid volunteer firefighter for Volusia County. The county paid her tuition costs at First Coast when Williams entered the school for the Firefighter II course work. The second time, Williams was able to successfully complete the course material and pass her final examination. Passing the final examination was a prerequisite to taking the State certification exam. While attending First Coast, Williams took hundreds of practice exams, especially on the practical portions of the tests. She took exams as part of her classes, took exams voluntarily with someone timing her, and took exams just to practice. The State Certification Exam There are four primary segments of the State certification exam: A written examination of 100 multiple choice questions; A hose evolution involving a self- contained breathing apparatus (SCBA) and personal protection equipment (PPE); A ladder/search and rescue evolution; and A skills portion, involving ropes and knots, two fire ground skills, and a short test on the emergency response guide (ERG). The ladder/search and rescue evolution is a practical portion of the exam; it is the singular portion of the test at issue in this proceeding and will be referred to as the ladder evolution. The ladder evolution portion consists of the following tasks and assignments: The candidate inspects ladders hanging on a simulated fire truck. He or she then takes a 24-foot ladder from the truck and extends it against the wall of a building up to the second floor. Once that ladder is properly hoisted, the candidate confirms that a ladder guard (another candidate acting as a spotter) has control of the ladder. The candidate then initiates radio contact and then walks quickly around the building to another ladder that is already in place. He/she must ascend the ladder to the second floor, test the floor inside the building to make sure it is safe, and enter the building through a window. Upon entry the candidate must find a “victim” (a 125-pound mannequin) on the lower floor, secure the victim in an approved manner, and then exit the building with the mannequin. Upon exit, the candidate must safely deposit the victim on the ground and provide notice by way of radio contact that he/she and the victim are outside the building. The radio transmission is something along the lines of: “PAR 2 [Personnel Accountability Reporting, two people]. Firefighter No. “X” and victim have safely exited the building.” The entire ladder evolution sequence must be done within four minutes and 30 seconds although, as will be discussed below, there are differences of opinion as to when the timed portion of the evolution ends. It is necessary for candidates taking the test to pass each of the four sections. Failure of any one portion would result in failure overall. Should a candidate fail the examination, they must reschedule their retest within six months of the failed test. All retest examinations are administered at the Fire College. On test day, there may be dozens of applicants taking the test at the same time. The procedure dictates that candidates arrive at the test facility in time to process paperwork prior to the 7:30 a.m., test commencement. Candidates must first provide identification to an instructor and be assigned a candidate number. They then fill out paperwork, including a waiver should any injuries occur during testing. Candidates will have their gear inspected to make sure it is in compliance with State standards. Prior to commencement of testing, one of the instructors or examiners will read a document called the “Minimum Standards Pre-Exam Orientation” (the Orientation) to the candidates. During the reading of the Orientation, which may take 45 minutes to an hour or more, candidates are allowed and encouraged to ask questions. Unless a question is asked, the Orientation will be read verbatim, word for word, with no additional comment. After the Orientation is read, candidates are walked through the facility so they can familiarize themselves with the test site. Once the test commences, candidates are not allowed to ask any questions. Williams’ Test Experience In October 2012, after successful completion of the Firefighter II course at First Coast, Williams applied for and was approved to take the State certification examination. The exam was conducted at First Coast on the school’s training grounds. The test was conducted by certified employees of the Department. Williams did not pass the examination. One of her shortcomings in that test was a failure in the ladder evolution. Her timed completion of that evolution was in excess of the required time of four minutes and 30 seconds. Williams had been confident she would pass the certification exam because it was similar to the final exam she had passed at First Coast during her schooling. She believes she failed because she was too nervous when she took the exam when it was administered as the actual State certification test. After failing the exam, Williams then applied for a retest which would be held at the Fire College on February 7, 2013. That re-test is the focus of the instant proceeding. On the morning of the retest, Williams arrived well in advance of the 7:30 a.m., start time. As she inspected her gear in anticipation of the start of the exam, she found that the SCBA regulator she was supposed to use did not properly fit the face mask on her helmet. There were extra regulators behind one of the tables being used to process applicants for that day’s test. Examiner Harper was sitting at that table and was providing paperwork to applicants who had already signed in at the first processing station. Williams went to Harper’s table and was allowed to obtain a new regulator. Inasmuch as she was already at Harper’s table getting her replacement regulator before going to the first processing station, Williams went ahead and filled out the paperwork Harper was providing to candidates at his processing station. That is, she filled out the paperwork before actually checking in at the first station. Williams then went to the first check-in table which was manned by Examiner Rochford. She provided her identification to Rochford and was assigned candidate number 37. Rochford then told Williams to go to Harper’s table to fill out the paperwork at that station. Williams told Rochford she had already done so and walked away. (At that point, Williams remembers Rochford yelling at her, asking whether she understood his order and telling her in a harsh manner to obey him. Rochford does not remember talking to Williams at all. Neither version of this alleged confrontation is persuasive. Inasmuch as the conversation was not verified one way or another by a third person -- although there were probably a number of other people around, it will not be considered to have happened for purposes of this Recommended Order.) The Orientation was then read to the candidates. The various portions of the test were addressed in the Orientation. The ladder evolution contained the following language, which Rochford read verbatim to the candidates without anything added or deleted: “Time starts when you touch anything. Time ends when the candidate and victim fully exit the building.” There is no evidence that any of the candidates asked a question concerning this part of the Orientation. Rochford’s timing policy regarding the ladder evolution differs from what he read to the candidates. He takes the position that time stops when the candidate exits the building with the victim, places the victim on the ground in an appropriate manner, and issues a verbal statement into the radio indicating that the firefighter and victim are out of the building. By his own admission, Rochford could not speak to how other examiners handle this timing issue. Harper, who was Williams’ assigned examiner on the test, also seemed to require candidates to lay the victim down and make radio contact before stopping the time. Neither Rochford nor Harper satisfactorily explained why their timing policy was different from what was stated in the orientation. The testimony concerning the correct way of timing the evolution was, at best, confusing. The following statements from the record provide contradictory and disparate opinions by various examiners: Rochford: “As soon as they lay the mannequin on the ground [and] announce they have exited the building . . . the time stops.” Tr. p. 45, lines 9-18 “The mannequin’s feet have got to be outside the plane from the door opening. That’s when the time stops.” Id. Lines 23- 25. “Until they talk on the radio is – - when they finish talking on the radio is when the time would stop.” Tr. p. 255, lines 7-9. Johnson: “At that point, they’ll use one of the prescribed methods for rescue to take the victim and themselves past the threshold out to the fresh air. At that point, the time stops.” Tr. p. 111, lines 11-14 “I read [the Orientation] word for word.” Tr. p. 114, line 23 “On the ladder rescue evolution . . . we [examiners] all stop when they pass the threshold.” Harper: “Then they’re told to lay the victim down, make radio contact you’re out of the building. Time stops.” Tr. p. 138, lines 7-8 “After they make radio contact.” Tr. p. 147, line 3 “[Orientation] says time starts when they touch anything, time ends when the candidate and the victim fully exit the building.” Tr. P. 148, lines 15-17 Hackett: “It stops when the victim comes out of the building.” Tr. p. 222, lines 7-8 [If the victim was thrown out of the building by the firefighter] “I think they would stop the clock.” Id., lines 9-11 “It is part of the timed part that they have to designate that they’re out of the building safely and lay down the victim.” Tr. pp. 222, line 24 through 223, line 1 Question to Hackett: “If [Williams] is coming out and she dropped the victim and picked up -- and presumably picked it up or whatever and then radioed, would that add time?” Answer: “No.” Tr. p. 246, lines 5- 10 Williams was timed by Harper when she took the ladder evolution portion of the exam. According to Harper’s (deposition) testimony, he subscribes to the version of timing that requires the victim to be laid down on the ground and the firefighter to make radio contact. Using that version of timing, Williams received a time of four minutes and 35 seconds for the entire ladder evolution portion of the test. In March, the Department mailed out notices to all the candidates that had tested on February 7. Notices of failure were sent by registered mail, return receipt requested. Williams’ letter was returned to the Department as unclaimed. Williams at some point in time found out from Chief McElroy, head of the Fire Academy, that she had purportedly failed the exam. She began calling examiner Harper in March seeking to find out what portion of the exam she had not successfully completed. She had at least two telephone conversations with Harper in March 2013. On April 4, 2013, the Department re-sent the failure letter to Williams, again by certified mail. This time, the letter was claimed by Williams and she became officially aware that she had not passed the exam. The basis given for Williams’ failure was that she did not complete the ladder evolution within the prescribed time parameters. She was timed at four minutes and 35 seconds, just five seconds beyond the allowable limit. It is her contention that she exited the building with the victim within the four minute/30 second time frame. The basis for her belief is that she has done the test so many times that she knows when she is behind schedule. During the test she did not stumble, drop any equipment, or have any other problem that would have added to her time. So, she concludes, she must have completed the evolution timely. Her personal feelings on the matter, without further corroboration or support, are not persuasive. Harper did not testify at final hearing. The transcript of his deposition taken in this case was admitted into evidence. In that transcript, Harper talks about his policy regarding timing of the evolution. His policy is the same as Rochford’s and is discussed above. He does not specifically say if he employed that policy when timing Williams during her test on February 7, 2013. He does not explain the difference between the Orientation statement about timing and his personal policy. The most persuasive evidence at final hearing established that it would have taken ten to 15 seconds after exiting the building to lay the victim down and make radio contact. The radio contact itself would have taken about four seconds. If Harper had stopped his timing when Williams and the victim broke the threshold of the building, her time would have likely been less than four minutes and 30 seconds. If he used his personal timing policy, then the time of four minutes/35 seconds was probably accurate. Harper deducted points from Williams’ score because of other minor mistakes. The totality of those points would not have caused Williams to fail the test. It was the ladder evolution time that caused the failure. In fact, Williams successfully completed all portions of the re-test except for the timing issue in the ladder evolution portion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Financial Services, Division of State Fire Marshal, rescinding the failing score on the State Firefighter Certification Examination for Catalina Williams and certifying her as a Firefighter. DONE AND ENTERED this 19th day of November, 2013, in Tallahassee, Leon County, Florida. S 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 19th day of November, 2013. COPIES FURNISHED: Seth D. Corneal, Esquire The Corneal Law Firm 904 Anastasia Boulevard St. Augustine, Florida 32080 Michael Davidson, Esquire Department of Financial Services Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Julie Jones, CP, FRP, Agency Clerk Department of Financial Services Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0390
The Issue Whether Respondent's renewal facilities licensure application for a group home contained a falsified fire inspection report, as alleged in the Administrative Complaint; and, if so, what is the appropriate penalty?
Findings Of Fact APD is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, residential habitation centers, and comprehensive transitional education programs pursuant to sections 20.197 and 393.067, Florida Statutes. Rivero is an applicant for renewed licensure of a group home facility in Dania Beach, Florida. At all times material to the Administrative Complaint, Yitzhak Rivero was a corporate officer of Rivero. Mr. Rivero, was a psychiatrist in Cuba treating patients with mental and intellectual disabilities before he moved to the United States and became a citizen. He became a licensed mental health counselor, and for the past ten years has operated group homes in an effort to serve disabled persons, owning as many as seven group homes, employing 30 people at one time, and currently owning and operating three licensed group homes. On June 20, 2019, Sally Vazquez, then administrator for Rivero, submitted a license renewal application on behalf of Rivero’s Dania Beach group home to APD by hand delivering it to APD employee Patricia White, who was on the premises. On that same day, fire inspectors were also at the Dania Beach property to conduct an inspection. Prior to submitting the renewal application and supporting documents to APD on June 20, 2019, Ms. Vazquez prepared the application and compiled or prepared the supporting documents in the renewal application. The handwriting on pages 1 through 11 of the renewal application is that of Ms. Vazquez. Ms. Vazquez is listed as backup manager supervisor for Rivero on page 7 of the renewal application. After Ms. Vazquez prepared the renewal application and compiled the supporting documents, Mr. Rivero, as the group home owner, did a brief review of the application and supporting documents before he signed it. Before he signed it, Mr. Rivero identified nothing unusual in the application packet. When Mr. Rivero signed the attestation on the renewal application, which read, “Under penalty of perjury…all information contained in and submitted with application is true and accurate to the best of my knowledge,” he believed that the information in the application and supporting documents was true and correct. Unbeknownst to Mr. Rivero, the renewal application contained a document purporting to be a fire inspection report dated May 1, 2019, that was falsified. Mr. Rivero did not know the fire inspection was false when he reviewed the renewal application and signed it on June 7, 2019, or when Ms. Vazquez submitted it to APD on behalf of Rivero on June 20, 2019. In fact, the only email or communication Mr. Rivero received about the Dania Beach group home in regard to fire safety was a June 20, 2019, email sent by Fire Inspector Braun at 12:49 p.m., stating it was “From: Broward Sheriff’s Office Fire Rescue,” identified by the subject, “Inspection Report,” which contained an attachment related to the Dania Beach home from “Broward Sheriff’s Office Fire Rescue” bearing the agency’s logo that stated: “An annual fire inspection of your occupancy revealed no violations at the time of this inspection. Thank you for your commitment to maintaining a fire safe occupancy.” On August 21, 2019, when asked in an email from APD representative Kimberly Carty to provide the fire inspection report for Rivero, Mr. Rivero forwarded the email he had received from the Broward Sheriff’s Office Fire Rescue indicating no violations, the only fire inspection report for this home he had ever received, and the only fire inspection report regarding this property of which he was aware. On August 23, 2019, Ms. Carty sent Mr. Rivero a fire inspection report showing violations noted from the June 20, 2019, fire safety inspection of the Dania Beach group home. The report notes six, of what fire safety inspector Craig Braun described as less serious, non “critical-life” violations. Rivero was given 30 days to correct the violations.1 The day after he was sent the full fire inspection report for the Rivero Dania Beach group home, Mr. Rivero corrected the “easily corrected,” relatively minor violations in approximately three hours. Mr. Rivero then contacted the fire department to re-inspect the facility. When no fire inspector came to re-inspect for over a month, on September 30, 2019, Mr. Rivero sent an email to Mr. Zipoli, the fire inspector who had signed the inspection report showing the minor violations. Nevertheless, the fire department has never re-inspected the facility. Fire Prevention Officers Braun and Zipoli testified unequivocally and without contradiction that the document Mr. Rivero forwarded to APD’s Kimberly Carty on August 23, 2019 (the document indicating, “An annual fire inspection of your occupancy revealed no violations at the time of this inspection”), was a genuine and authentic document. Further, Officer Braun indicated that on June 20, 2019, he was Officer Zipoli’s supervisor, and that on that date Officer Braun and Zipoli “went together to inspect the Rivero Group Home.” “[U]sually…just [one] fire safety inspector goes,” and it was “not the norm” for two fire safety inspectors to go together. In this unusual situation, Fire Safety Inspector Zipoli wrote the report of the June 20, 2019, inspection, and Fire Safety Inspector Braun “wrote a report,” a separate report, indicating that he “assisted him [Zipoli] on another 1 These violations included: front and rear door of the group home (two doors) had a key lock instead of a “simple thumb turn or something that does not require special knowledge”; a fire alarm needed to be updated with its annual fire inspection from a private contractor; a fire extinguisher needed to be mounted on its mounting on the wall instead of placed on the ground beneath the mounting; the fire extinguisher needed to have its annual certification updated for 2019; the smoke detector located in the kitchen needed to be moved to a different location. form.” It was this other form that Officer Braun completed--this fire safety “Inspection Assist” for--that was emailed to Mr. Rivero on June 20, 2019. It was this form that stated, “[a]n annual fire inspection of your occupancy revealed no violations at the time of this inspection.” Officers Braun and Zipoli confirmed that the Broward Sheriff’s electronic streamline system “had a ‘glitch,’” “a default problem at that time,” the period including June 20, 2019, that caused the “template of an assist” ( i.e., an Inspection Assist form) to generate the statement indicating, “[a]n annual fire inspection of your occupancy revealed no violations at the time of this inspection,” and the system gave fire safety inspectors no option or ability to remove this statement. When APD’s Kimberly Carty requested that Mr. Rivero send the most recent fire inspection report for the Rivero Dania Beach group home, Mr. Rivero forwarded to Ms. Carty the document he received on June 20, 2019, from Broward Sheriff’s Office Fire Rescue without altering or changing the document in any way. The first time Mr. Rivero was notified that the fire inspection report submitted with the renewal application at issue here was false was when he received the Administrative Complaint in this case on October 23, 2019. In addition to the June 20, 2019, document Mr. Rivero received from Broward Sheriff’s Office Fire Rescue that indicated “no violations,” and the fire inspection report indicating six violations that was sent to Mr. Rivero by APD on August 23, 2019, this case involves a document dated May 1, 2019, purporting to be a Broward Sheriff’s Office Fire Rescue fire inspection that was fabricated (“the false fire inspection report”). The false fire inspection report was submitted to APD by Ms. Vazquez during APD’s June 20, 2019, inspection of the Rivero’s Dania Beach group home. At the time she submitted the application with the false fire inspection report, Ms. Vazquez had worked for Rivero for at least six years, and for at least two years as an administrator for between four and seven group homes. At the time she submitted the application at issue in this case to APD, Ms. Vazquez had prepared more than 20 APD renewal applications for Mr. Rivero’s group homes. In short, Ms. Vazquez was a “trusted employee,” whom Mr. Rivero relied on to accurately prepare applications and the documents submitted with the applications, and to handle the inspections conducted by APD. After Mr. Rivero learned, by receiving the Administrative Complaint in this case on October 23, 2019, that an altered or falsified document had been submitted as a fire inspection report with Rivero’s Dania Beach group home’s annual renewal application to APD, he conducted an investigation to determine how it had happened. When Mr. Rivero determined Ms. Vazquez was to blame for the false fire inspection report being submitted with the application, he fired her. The evidence presented indicates Ms. Vazquez created and submitted the falsified fire inspection report in violation of her job duties and professional obligations, and without the knowledge or consent of Mr. Rivero or Rivero.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons With Disabilities enter a final order dismissing the Administrative Complaint filed against Respondent. DONE AND ENTERED this 17th day of April, 2020, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 2020. COPIES FURNISHED: Sean Michael Ellsworth, Esquire Ellsworth Law Firm, P.A. 1000 5th Street, Suite 223 Miami Beach, Florida 33139 (eServed) Trevor S. Suter, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Anthony Vitale, Esquire The Health Law Offices of Anthony C. Vitale, P.A. 2333 Brickell Avenue, Suite A-1 Miami, Florida 33129 (eServed) Daniel Ferrante, Esquire Health Law Offices Of Anthony C. Vitale, P.A. 2333 Brickell Avenue, Suite A-1 Miami, Florida 33129 (eServed) Danielle Thompson Senior Attorney/Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 309 Tallahassee, Florida 32399-0950 (eServed) Francis Carbone, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
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 At all times material hereto, Francis Edward Neuzil, Jr. (Respondent), was certified as a firefighter and firesafety inspector in the State of Florida, holding certificates 7360 and FI-39965, respectively. Respondent's firefighter certification was issued on or about February 22, 1979, and his firesafety inspector certification was issued on or about January 9, 1985. On or about December 20, 1991, Respondent was charged by Information with one count of grand theft in the Circuit Court, Seventeenth Judicial Circuit, Broward County, Florida, in Case No. 91-23492CF10. On or about May 11, 1992, Respondent plead nolo contendere to grand theft for violating Subsection 812.014(1)(a), Florida Statutes, a third degree felony. Adjudication was withheld, and Respondent was placed on 18 months probation with special conditions of 50 hours of community service and no consumption of drugs or alcohol. On or about January 14, 1993, the court terminated Respondent's probation, approximately 10 months prior to the scheduled time for his probation to end. The incident which led to Respondent's felony charge occurred on or about December 7 or 8, 1991, at a Sam's store in Broward County after 11:00 p.m. A sprinkler system was being installed and was sufficiently completed for inspection by a firesafety inspector. Respondent went to Sam's store acting in the capacity of a firesafety inspector. Originally, he had estimated that only 10 minutes would be needed to accomplish his task--check the water gauges--but the sprinkler installers were behind schedule and it took approximately an hour. Prior to arriving at Sam's, Respondent had consumed approximately 10 beers. While waiting to perform the inspection, Respondent, who was not in uniform, walked around in the store, consuming an unknown quantity of beers that he had brought into the store with him. Respondent was observed by an electrical worker and several of Sam's employees who either saw him drinking beer or smelled the alcohol on his person and who either knew who he was or were told by other workers or employees who he was. These same individuals witnessed Respondent take several items to the rear entrance--through which everyone working that night or morning was coming and going--and out of the store. Respondent did not attempt to conceal the items. None of the individuals questioned Respondent about the items or stopped him. However, one employee contacted a Sam's manager who was present. They discovered store items were missing, went to Respondent's vehicle which was parked at the rear entrance, as was everyone else's vehicle, and saw the items inside his vehicle. Law enforcement was called, and Respondent was arrested. All the people who saw Respondent at Sam's store believe that he was intoxicated. Respondent has little or no recollection of the incident, and what he does recall is vague. He does not recall taking the items, all of which were items that he had seen before in Sam's and wanted for the Boy Scouts with whom he volunteers. However, he does recall picking up a light bulb and an electrical cord with no ends to it. As a result of the incident, Respondent was suspended by the Fire Chief of the City of Miramar and has not acted in the capacity as a firesafety inspector since December 1991. Even though Respondent pled nolo contendere to the felony charge of grand theft, mitigating circumstances exist, both at the time of the incident and subsequent thereto. Medically, Respondent is diagnosed as an alcoholic, having the disease alcoholism. During the incident, he suffered an alcoholic blackout and, as a result, has little or no recollection of taking the items. Furthermore, Respondent was incapable of forming the requisite intent to steal the items. Additionally, immediately after the incident, he sought treatment and checked himself into a rehabilitation center. Respondent is now a recovering alcoholic. He regularly attends meetings of Alcoholics Anonymous and is monitored by a sponsor who is also a professional firefighter (10 years) and a recovering alcoholic (approximately six years). Further, since January 1992, Respondent has been receiving medical assistance with his alcoholism. Even though he needs to remain in a recovery program, he does not pose a threat to his profession. 1/ Moreover, during Respondent's career as a firefighter (almost 15 years) and firesafety inspector (almost nine years), his certifications have never been disciplined and he has been actively participating in his community. Through his community involvement, Respondent established the City of Miramar's Fire Prevention Bureau and raised money to fund the Bureau. Additionally, he has received many job-related commendations and service recognitions and he has volunteered extensively to work with service organizations, such as the Boy Scouts. Petitioner's consistent policy is to not consider mitigating factors in disciplinary action against a firesafety inspector's certification. In matters involving a plea of nolo contendere, the consistent policy is that an applicant for firesafety inspector will not be issued a certification and that, if the individual has been issued a certification, Petitioner will seek revocation of the certification, regardless of mitigating circumstances. Petitioner is not seeking to discipline Respondent's certification as a firefighter since his certification, by statute [Section 633.351(2), Florida Statutes], was revoked until termination of his probation which occurred on January 14, 1993.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order: Suspending Respondent's certification as a firesafety inspector for a period of two years, retroactive to May 11, 1992, the date of Respondent's plea of nolo contendere. Reinstating Respondent's certification at the conclusion of the suspension and thereafter, for a period of one year, placing Respondent's certification on probation under whatever terms and conditions that Petitioner deems just and appropriate. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of December 1993. ERROL H. POWELL 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 16th day of December 1993.
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 is whether Florida Administrative Code Rules 69A- 62.001, 69A-62.003, 69A-62.006, and 69A-62.007, constitute an invalid exercise of delegated legislative authority as defined in Sections 120.52(8)(d), 120.52(8)(e), and 120.52(8)(f), Florida Statutes (2004).
Findings Of Fact Petitioner is and, at all times material to this case, was a volunteer firefighter. The size of the volunteer firefighter population is dependent on the ability of volunteer fire departments to attract and keep volunteers. People are willing to volunteer as firefighters if the experience is rewarding, training is not excessive, and conflict is minimized. However, the greater weight of the evidence indicates that the subject rules do not detract from the volunteer experience, impose excessive training, or create between conflict between professional and volunteer firefighters. Petitioner testified that a reduction in volunteer population will result in increased hazards to volunteers and a reduction in the delivery of services to citizens. This testimony is not persuasive for two reasons. First, there is no persuasive testimony that the subject rules will result in a reduction of the number of volunteer firefighters. Second, the most persuasive evidence indicates that the subject rules will reduce hazards to volunteers without impairing the delivery of services to Floridians. Some labor unions that represent career firefighters discourage their members from volunteering their services with volunteer fire departments. The competition between the unions and the volunteer fire departments is commonly referred to as the "turf-war." There is no persuasive evidence that the subject rules contribute to the tension between the two groups of firefighters. The firefighter labor unions are usually very active in the political arena. It is undisputed that the unions support legislation that benefits their members. However, the subject rules were not promulgated to eliminate or place hardships on volunteer fire departments and volunteer firefighters. The safety needs and concerns of firefighters have evolved over time. Technology has improved firefighting equipment to such an extent that the greatest threat to firefighters is from heart attacks and transportation accidents. Nevertheless, the fact that the subject rules focus on safety enhancement at the scene of a fire instead of firefighter health and transportation safety does not render them invalid. Florida Administrative Code Rule 69A-62.003 provides as follows in pertinent part: (3) With respect to 29 C.F.R. Section 1910.134(g)(4), the two individuals located outside the immediately dangerous to life and health atmosphere may be assigned to an additional role, such as incident commander, pumper operator, engineer, or driver, so long as such individual is able to immediately perform assistance or rescue activities without jeopardizing the safety or health of any firefighter working at an incident. (a)1. Except as provided in subparagraphs 2., 3., and 4., no firefighter or any other person under the authority of the firefighter employer at the scene of a fire is permitted to participate in any operation involving two-in, two-out as one of the two or more persons inside the IDLH atmosphere or as one of the two or more persons outside of the IDLH atmosphere unless such firefighter or other person at the scene of a fire is certified in this state by the division as a Firefighter I or a Firefighter II, as established in subsections (1) and (2) of Rule 69A-37.055, F.A.C. Such training shall consist of the training described in subsection (6) of Rule 69A-37.055, F.A.C. This requirement specifically applies to volunteer fire departments and volunteer firefighters but is also applicable to any other person working under the authority of the Firefighter Employer at the scene of a fire. 2.a. A volunteer firefighter who possesses the State Basic Volunteer certificate previously issued by the division is exempt from the Firefighter I and Firefighter II requirement in subparagraph 1. The training encompassed in the basic volunteer certificate in itself may not meet “trained commensurate to duty” as defined depending upon duties or tasks assigned or undertaken in the exclusionary zone. A volunteer firefighter who provides evidence of having completed curriculum equivalent to the Florida Firefighter I course of study as provided in subsection 69A-37.055(6), F.A.C., prior to January 1, 2004, is exempt from the Firefighter I and Firefighter II requirement in subparagraph 1., if The fire chief or other chief administrative officer of the fire department of which the firefighter is a member files with the State Fire Marshal form DFS-K4-1594, “Firefighter I Training Exemption Application,” which is hereby adopted and incorporated by reference, and The said form is accepted by the State Fire Marshal after confirmation of the evidence provided. Form DFS-K4-1594 may be obtained by writing the Bureau of Fire Standards and Training, 11655 Northwest Gainesville Road, Ocala, Florida 34482-1486. Any volunteer exempted by sub- subparagraph a.or b. is permitted to take the Florida Firefighter I examination until December 31, 2005, upon the completion and filing with the division of form DFS-K4- 1380, “Firefighter I Training Record,” Rev. 03/00, adopted in Rule 69A-37.039, F.A.C., by a Florida certified instructor that verifies equivalent training and demonstration of competency. The above-referenced rule sets forth ways that a firefighter, trained prior to the current regulations, may keep his or her interior-firefighter status without becoming certified as a Firefighter I or Firefighter II. The rule will not disqualify all previously qualified firefighters as long as they are "trained commensurate to duty" for any type of work they are requested to perform. There is no persuasive evidence that Florida Administrative Code Rule 69A-62.003(3)(a) will cause a reduction in the number of volunteer firefighters due to newly created administrative hurtles. The rule, which has its basis in safety enhancement, clearly is not arbitrary or damaging to the safety of volunteers. Florida Administrative Code Rule 69A-62.003(3)(a)4. states as follows: 4. Volunteer firefighters having NWCG S- 130, S-190, and Standards for Survival certification by the Florida Division of Forestry are permitted to participate in wild land fire suppression without the Firefighter I certification. The above-referenced rule allows a volunteer to fight wild-land fires without earning Firefighter I certification. The rule sets forth an exception to the Firefighter I certification requirement; it does not mandate that the NWCG courses are the exclusive means to qualify as a wild-land firefighter. Florida Administrative Code Rule 69A-62.003(3)4. is not invalid or arbitrary because it requires volunteers to pass training courses that are accepted as setting national standards or because the training courses teach firefighting techniques that are applicable across the nation as well as Florida. Petitioner presented no persuasive evidence to the contrary. Florida Administrative Code Rule 69A-62.006 states as follows: 69A-62.006 Requirements for Recognition as a Fire Department. To be recognized as an organized fire department by the division, compliance with the following must be documented: Capability of providing fire protection 24 hours a day, seven days a week; Responsibility for response in an area capable of being depicted on a map; and Staffing with a sufficient number of qualified firefighters who are employed full-time or part-time or serve as volunteers and who shall have successfully completed an approved basic firefighting course recognized by the Bureau of Fire Standards and Training. (2)(a) A fire department shall meet the requirements of the Insurance Services Office (ISO) for Class 9 Protection, the 2003 edition, the Fire Suppression Rating Schedule, effective February, 2003, which is hereby adopted and incorporated by reference and which may be obtained from Insurance Services Office (ISO), 545 Washington Blvd., Jersey City, NJ 07310-1686 or at www.iso.com. If the fire department does not meet the requirements of this section, the fire department shall submit a plan of compliance which provides for meeting these requirements within 90 days of the date of submission of the plan. ISO measures the major elements of a community’s fire-suppression system and develops a numerical grade ranging from 1 to 10. Class 1 represents the best public protection rating and Class 10 indicates no recognized protection. The requirements for ISO 9 may be obtained at the ISO website located at www.iso.com, or it may be obtained by writing to the Division of State Fire Marshal, Bureau of Fire Standards and Training, 11655 Northwest Gainesville Road, Ocala, Florida 34482-1486. Florida Administrative Code Rule 69A-62.006(1)(a) is not invalid because it requires fire departments to document their capability of providing fire protection 24 hours a day/seven days a week. The requirement for full-time availability will provide significant safety enhancement for the communities being served. This is true because some voluntary fire departments in rural communities historically have provided only part-time service. There is no persuasive evidence that requiring full- time fire protection will result in the following: (a) the creation of a fire-suppression performance standard that is unauthorized by law; (b) the closing of some volunteer fire departments; (c) a reduction in services to the public; and (d) uncorrectable rule-violations; an increase in conflict between professional and volunteer firefighters. Florida Administrative Code Rule 69A-62.006(1)(c) requires that each fire department be staffed with a sufficient number of qualified firefighters. The rule is not vague because it uses the word "sufficient" to determine the number of firefighters that are required. One must read the applicable rules in their entirety and consider the needs of each community to determine adequate staffing. There is no persuasive evidence that the staffing requirement fails to establish adequate standards for determining compliance. Florida Administrative Code Rule 69A-62.006(2) requires fire departments to meet certain requirements of the Insurance Services Office (ISO) for Class 9 protection. This requirement determines the minimum equipment that is necessary to safely fight a structure fire. There is no persuasive evidence that requiring a fire department to provide Class 9 protection will make it impossible to start a new voluntary fire department. The rule clearly is not arbitrary in setting this minimum standard. Florida Administrative Code Rule 69A-62.007(1) states as follows in pertinent part: 69A-62.007 Minimum Requirements for Class 9 Protection. To be considered for Class 9 protection, the following minimum facilities must be available: Organization: The fire department shall be organized on a permanent basis under applicable state or local laws. The organization shall include one person responsible for operation of the department, usually with the title of chief. The fire department must serve an area with definite boundaries. If a municipality is not served by a fire department solely operated by or for the governing body of that city, the fire department providing such service shall do so under a contract or resolution. When a fire department’s service area involves one or more jurisdictions, a contract shall be executed with each jurisdiction served. Membership: The department shall have a sufficient number of firefighters/members to assure the response of at least 4 firefighters/members that can assemble at the scene of a fire as contemplated by subsection (1) of Rule 69A-62.003, F.A.C., to be compliant with Rule 69A-62.003, F.A.C., the two-in, two-out rule. The fire chief may be one of the 4 responding firefighters/members. The above-referenced rule does require fire departments to have four "interior-qualified" firefighters at the scene of a structure fire. The requirement is necessary to comply with the longstanding "two-in, two-out" rule. However, the rule does not preclude a fire department from relying on mutual-aid from other fire departments in order to comply with the rule. The rule clearly is not vague. Florida Administrative Code Rule 69A-62.007(4)(a) states as follows in relevant part: (4)(a) The chief of any fire department that includes volunteer firefighters shall annually submit a Roster of Volunteer Firefighters to the State Fire Marshal utilizing form DFS-K4-1581, effective 05/04, which is hereby adopted and incorporated by reference, no later than June 30 of each year. Form DFS-K4-1581 may be obtained by contacting the Division of State Fire Marshal, Bureau of Fire Standards and Training, 11655 Northwest Gainesville Road, Ocala, Florida 34482-1486 or at the division’s website located at http://www.fldfs.com/SFM/. The roster shall include: The fire department name, The fire department identification number (FDID), The complete fire department address, The fire department contact person, telephone number and the fire department fax number, if any, The certification level for each firefighter reported and, if any equivalency exemption has been issued, the number of persons for whom such exemption has been issued, and The firefighter certification number, the issue date of the certification, the status of the certification, i.e., volunteer or career, and the status of each firefighter who has been issued an equivalency exemption, i.e., volunteer or career, if any. The above-referenced rule requires the chief of a fire department to submit an annual roster of volunteer firefighters. Petitioner objects to the rule because some career firefighters volunteer their off-duty hours with the local volunteer fire department. Career firefighters who also perform volunteer work may do so contrary to their union rules. Publication of the roster might keep some professional firefighters from volunteering their services. Nevertheless, there is no persuasive evidence that losing some speculative number of career/volunteer firefighters will undermine the safety of firefighters or the public. The information that the roster contains is a public record. The information is necessary so that Respondent can perform statutorily-mandated studies involving injuries to firefighters. The rule clearly is not arbitrary.
The Issue Whether Petitioner is entitled to additional credit for his answer to Item 264 on the "Principles and Practice" part of the October 1993 Fire Protection Engineer Examination.
Findings Of Fact Petitioner applied for licensure as a Fire Protection Engineer with Respondent, the state agency responsible for the licensure of Fire Protection Engineers in Florida. Petitioner was required to successfully complete an examination administered by the Respondent to become licensed as a Fire Protection Engineer. Petitioner sat for the licensing examination for Fire Protection Engineer administered by Respondent on October 29 and 30, 1993. A score of 70 is required to pass the "Principles and Practice" part of the licensure examination. Petitioner received a score of 66.30 on that part of the examination, which is a failing grade. Item 264 is a question for which a completely correct answer would have been awarded 10 points. Item 264 contained a diagram of a building and required the applicants to properly space heat or smoke detectors in the building and to justify the type of detection device used in a particular area. Petitioner was awarded a total of four points for his partially correct answer to Item 264. Petitioner would have passed the "Principles and Practice" portion of the examination had he been awarded eight or more points for his answer to Item 264. At Petitioner's request, his response to Item 264 was regraded by the National Council of Examiners for Engineering and Surveying (NCEES), a consulting firm utilized by Respondent to develop and score licensure examinations. When Petitioner's response to the exam was initially scored, he received a score of 4 points. The regrading of the examination did not change that score. The report prepared by NCEES in conjunction with the regrading of Petitioner's answer to Item 264 stated the following 1/ in explaining the score awarded for Petitioner's answer: The examinee did not reference the NFPA 72 A, D, and E standards 2/ to answer the question. The lounge area requires heat detectors rather than smoke detectors. The smoke detectors would be sending false alarms and they would be disconnected to stop the alarms. The heat detectors would be more reliable. The examinee's solution did not show detectors in the corridor, locker room, and boiler room; all of which are required. The examinee's solution did not space the detectors according to NFPA 72. According to the NCEES approved scoring plan, the examinee's solution demonstrates less than minimum competence (score of 4 points). Pursuant to the scoring standards that have been adopted, a score of four represents a borderline unqualified response, which is explained as being: Applicant has failed to demonstrate adequate knowledge in one or more categories. For example, approach may be correct but the solution is unreasonable. Significant constraints may have been overlooked. Solution is unacceptable, but marginally so. Petitioner's answer to Item 264 failed to properly space detectors in his answer, failed to place detectors in the corridor, locker room, and boiler room, and incorrectly placed smoke detectors in the lounge area instead of heat detectors. Petitioner did not establish that the standards used to score the examination were arbitrary, capricious, or devoid of logic. Petitioner did not establish that the application of those scoring standards to Petitioner's response to Item 264 was arbitrary, capricious, or devoid of logic. Item 264 is a reliable and valid test item. Respondent established that Petitioner's response to Item 264 was fairly graded. Petitioner is not entitled to additional credit for his response to Item 264.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order that adopts the findings of fact and the conclusions of law contained herein and which DENIES Petitioner's challenge to the scoring of his answer to Item 264 of the October 1993 Fire Protection Engineer Examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of November 1994. CLAUDE B. ARRINGTON 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 10th day of November 1994.
