The Issue Whether Petitioner achieved a passing score on the Practical Examination for Retention of Firefighter Retest.
Findings Of Fact The Department is the state agency responsible for the certification of firefighters in the State of Florida, pursuant to chapter 633, Florida Statutes. In or around 2009, Petitioner achieved his Firefighter Minimum Standards Training Certification, which was valid for three years. To maintain his certification, it was necessary for Petitioner to either: maintain employment as a firefighter (or serve as a volunteer firefighter) for at least six consecutive months during the three-year period subsequent to his certification; or successfully complete the retention examination, which is identical to the practical examination given to new applicants. Petitioner could not satisfy the first option, and was therefore required to take the retention examination. Petitioner's initial attempt to successfully complete the retention examination occurred on September 21, 2012, and included four practical components: self-contained breathing apparatus ("SCBA"), hose operation, ladder operation, and fireground skills. To pass the retention examination, an examinee must earn a score of at least 70 on all sections. Each portion of the retention examination has certain evaluative components that are graded; the ladder operation, for instance, consists of 15 skills——e.g., maintaining contact with the ladder, lifting and securing the ladder properly, using proper hand position——that the examinee is expected to complete. Significantly, the ladder operation also requires the examinee to fulfill ten mandatory components, which include, among other things, maintaining control of the ladder at all times, donning protective gear appropriately, and finishing the exercise within the time limit of four minutes and 30 seconds. Pertinent to the instant case, noncompliance with respect to any of the mandatory elements results in automatic failure, irrespective of the examinee's performance in connection with the evaluative components. It is undisputed that Petitioner achieved passing scores on the fireground skills, SCBA, and hose components of the retention examination. With respect to the ladder evaluation, however, Petitioner failed to comply with two mandatory elements (he exceeded the time limit and neglected to don his hood properly), which resulted in an automatic failure. Petitioner, like all candidates who fail the retention examination on the first attempt, was offered one retest opportunity.1/ Petitioner's retest was administered on November 8, 2012, at the Ocala Fire College, during which he passed the SCBA and hose portions of the examination. (Petitioner was not required to re-take the fireground skills component.) As for the ladder evaluation, the Department contends, and Petitioner does not dispute, that a time of four minutes and 49 seconds was recorded——a result that exceeds the time limit of four minutes and thirty seconds. Petitioner speculates, however, that the examiner, Thomas Johnson,2/ could have mistakenly started the timer during the safety inspection. While it is true that the timing process should not begin until an examinee completes a safety examination of the ladder, Petitioner has adduced no evidence, persuasive or otherwise, that Mr. Johnson started the clock too soon. Petitioner has therefore failed to show that he achieved a passing score on the ladder evaluation and, consequently, on his retention retest.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services enter an order denying Petitioner's application to retain his certification as a firefighter in the State of Florida. DONE AND ENTERED this 29th day of March, 2013, in Tallahassee, Leon County, Florida. S Edward T. Bauer Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2013.
The Issue The issue 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 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.
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 in this case is whether Petitioner is entitled to credit for his failure to timely complete the ladder evolution of the Firefighter Minimum Standards practical examination because he was allegedly distracted by an examiner.
Findings Of Fact Based on the evidence and the testimony of witnesses presented and the entire record in this proceeding, the following findings of fact are made: Respondent, Department of Insurance, through its Division of State Fire Marshall, certifies all paid firefighters and establishes a course of instruction and Minimum Standards written and practical examinations for certification. An individual ("candidate") who desires to become a firefighter must take a 360-hour Minimum Standards course of instruction and pass a Minimum Standards written and practical examination. If the candidate fails the examination, the candidate is given one opportunity to retake the portions of the examination which were not passed. If the candidate does not pass the retest, the candidate must again complete the Minimum Standards training course before additional retesting will be allowed. Petitioner completed the Minimum Standards course of instruction at Hillsborough Community College in June 2001. He took the Minimum Standards written and practical examination in December 2001. The Minimum Standards practical examination consists of four evolutions: (1) self-contained breathing apparatus; (2) inch and three-quarter hose pull and operation; (3) 24-foot ground ladder carry; and (4) other fire ground skills. On the December 2001 Minimum Standards practical examination, Petitioner did not obtain a passing score on the self-contained breathing apparatus and the 24-foot ground ladder carry evolutions. Petitioner was retested on the self-contained breathing apparatus and the 24-foot ground ladder carry evolutions on February 28, 2002, at the State Fire College in Ocala, Florida. Petitioner obtained a passing score on the self-contained breathing apparatus evolution; he again failed to obtain a passing score on the 24-foot ground ladder carry evolution. Each evolution of the Minimum Standards practical examination has a value of 100 points. The examiner deducts points for deficiencies that occur throughout the examination. Each candidate is required to achieve a score of 70 points in each evolution to pass the Minimum Standards practical examination. The 24-foot ground ladder carry evolution involves multiple sequenced tasks testing a candidate's ability to safely lift, maneuver, and deploy a 24-foot ladder; the maximum time allowed to complete all tasks required in the 24-foot ground ladder carry evolution is two minutes and 45 seconds. Failure to complete all required tasks of the evolution within the maximum time results in failure of the evolution. As Petitioner proceeded to perform the 24-foot ground ladder carry evolution, he experienced difficulty with some of the required tasks, and, as a result, time was running out as he neared completion of the required tasks. While testimony differs as to the exact words that were spoken, the examiner, noting that time was running out, spoke to Petitioner advising him to hurry to complete the tasks, or words to that effect. While an examiner speaking to a candidate during testing is not a common occurrence, nothing prohibits an examiner from speaking to a candidate while the testing progresses. Petitioner completed the 24-foot ground ladder carry evolution in two minutes and 48 seconds, exceeding the maximum time by three seconds and failing the retest. Petitioner maintains that he was distracted by the examiner's spoken words, lost his focus, and, as a result, exceeded the maximum allowable time for the 24-foot ground ladder carry evolution. While Petitioner's contention is plausible, it is not supported by the evidence presented. His previous failure of the same evolution demonstrates the difficulty he had with it; he acknowledged this difficulty. Petitioner did not appear to react to the examiner's spoken words in any way that evidenced shock or distraction. One of the ladder guards recalls Petitioner's performance on the 24-foot ground ladder carry evolution as "a weak performance all around." "I recall him taking a lot of time, an excessive amount of time, " ". . . he wasn't performing it as well, so it took him longer to do it since he wasn't doing it well." The ladder guard's observations were essentially confirmed by the examiner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered confirming Petitioner’s examination score and dismissing his challenge. DONE AND ENTERED this 12th day of November, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 12th day of November, 2002. COPIES FURNISHED: Sherwood S. Coleman, Esquire Kwall, Showers, and Coleman, P.A. 133 North Fort Harrison Avenue Clearwater, Florida 33755 Mechele R. McBride, Esquire Elentia Gomez, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300
The Issue The issue is whether Respondent should deny an application for certification as a Firefighter II on the alleged grounds that Petitioner failed the Firefighter Minimum Standards Equivalency Examination.
Findings Of Fact Respondent is the state agency responsible for the certification of firefighters in the State of Florida, pursuant to Chapter 633, Florida Statutes (2009).1 At a date not disclosed in the record, Petitioner applied for a certification as a Firefighter II. On September 21, 2009, Petitioner took the Firefighter Minimum Standards Equivalency Examination (“initial examination”). Petitioner failed to pass the Ladder, Hose, and Self Contained Breathing Apparatus (SCBA) components of the practical portion of the initial examination. On November 17, 2009, Petitioner took the Firefighter Minimum Standards Equivalency Examination Re-test (“examination re-test”) for the Ladder, Hose, and SCBA components. Petitioner failed to pass the Ladder component of the examination re-test. By Notice of Denial dated November 20, 2009, Respondent notified Petitioner that Petitioner had failed the Firefighter Minimum Standards Equivalency Examination. Petitioner requested an administrative hearing. Petitioner alleges that, during her initial examination on September 21, 2009, there was an equipment malfunction during the Ladder component of the practical portion of the examination. Petitioner bases her allegations on the Ladder component score sheet for the initial examination (“score sheet”) that was received by Petitioner after she completed the initial examination and examination re-test. The score sheet for the initial examination states that Petitioner failed the Ladder component of the initial examination because Petitioner exceeded the time period to complete the ladder evolution and failed to fully extend the ladder with the dogs locked. In the “Comments Required for Failure” section, the score sheet listed, “Safety latch on dawgs [sic] stuck in top of rung. Unsafe act. Over time.” Petitioner alleges that the statement that a piece of equipment was "stuck" is proof of an equipment malfunction. Two experts testified during the hearing that the "stuck" equipment was caused by operator error rather than an equipment malfunction. The testimony of the two experts was credible and persuasive. Petitioner, as the examinee, could have remedied the "stuck" equipment by raising the ladder to release the finger and then lowering the ladder to allow the dogs to lock onto the rung. The failure to do so was an "unsafe act” that created a safety hazard in which the fly section of the ladder could have fallen down to the ground. A preponderance of the evidence does not show that Petitioner failed the Ladder component of the initial examination because of an equipment malfunction. Rather, the preponderance of evidence shows that Petitioner failed to have the dogs locked, which is required by the examination. A preponderance of the evidence also shows that Petitioner did not complete the ladder evolution within the required time during the re-take examination. The excessive time resulted in an automatic failure of the re-take examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order denying Kim Lashawn Edmonds’ application for certification as a Firefighter II. DONE AND ENTERED this 16th day of April, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 2010.
The Issue Whether Petitioner should have received a passing score on the SCBA (Self Contained Breathing Apparatus) section of the Bureau of Fire Standards and Training's Minimum Standards Practical Examination re-test administered on March 1, 2001.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: On November 15, 2000, after completing a training course at the Broward Fire Academy (where Lawrence Burns was his lead instructor), Petitioner took the Bureau of Fire Standards and Training's Minimum Standards Written and Practical Examinations. He received a passing score on the Written Examination and all sections of the Practical Examination, except for the SCBA section. On March 1, 2001, Petitioner re-took the SCBA section of the Practical Examination. The re-test was administered at the State Fire College in Ocala, Florida. Ralph Chase, a field representative with the Bureau of Fire Standards and Training, was Petitioner's examiner. Mr. Chase has been employed as a field representative with the Bureau of Fire Standards and Training for five years. Prior to coming to work for the Bureau of Fire Standards and Training, he was a firefighter with the City of Titusville for 21 years. He was a suppression lieutenant at the time he left the city's employ. Petitioner borrowed from the Broward Fire Academy the equipment that he needed for the re-test: two air tanks, a regulator, a harness, and a PASS device. A PASS device is a safety device worn by firefighters entering a hostile environment. When the device is activated in the automatic mode, it will emit a continuous, piercing sound if the firefighter is immobilized for longer than 30 seconds. To place the device in the automatic mode, a plastic switch must be moved into the appropriate position. When properly positioned in the automatic mode, the device makes a brief, chirping sound. It was emphasized to Petitioner during his training at the Broward Fire Academy that it was the responsibility of the student, before leaving the Academy with borrowed equipment, to inspect the equipment to make sure that the equipment was in good working order. Before leaving the Academy with the equipment that he borrowed for the re-test, Petitioner twice inspected the equipment and ascertained that it was in good working order. At the re-testing site, he re-inspected the borrowed equipment. The re-inspection revealed that all of the equipment was in good working order, except for the regulator. Petitioner obtained another regulator, along with a harness, at the re-testing site. He attached the PASS device that he had borrowed from the Broward Fire Academy to the harness and ascertained that "[e]verything was working properly." Before the re-test began, Mr. Chase advised Petitioner that "exceeding the maximum allotted time and/or failure to wear and activate the PASS device in the automatic mode w[ould] constitute an automatic failure for the SCBA evaluation." He further advised Petitioner to "speak loudly and clearly" if Petitioner wanted to tell Mr. Chase "anything during the testing." After Petitioner indicated that he was ready, the re- test began. Throughout the re-test, Mr. Chase stood "only a few feet" in front of Petitioner and watched him intently, focusing upon his hands. Petitioner signaled that he was "done" by clapping his hand. He finished the re-test in one minute and 16 seconds, well within the allotted time. At no time during the re-test, however, did Petitioner make an effort to place the PASS device in the automatic mode. Because he had neither seen Petitioner make such an effort, nor heard the chirping sound that is made when a PASS device is activated in the automatic mode, Mr. Chase walked up to Petitioner after Petitioner had signaled that he was "done" and confirmed that the PASS device switch was in the "off" position. Mr. Chase did not say anything to Petitioner about it. He simply told Petitioner to take off his mask. Shortly thereafter, Petitioner walked up to Mr. Chase and stated, "You know I turned my alert, my PASS alert off." Mr. Chase responded that he did not know what Petitioner meant, to which Petitioner replied, "I wanted you to know that I turned it . . . on and then I turned it off again." After telling Petitioner that he could not discuss the matter with him, Mr. Chase walked away. Petitioner did not at any time during the re-test tell Mr. Chase that he had placed the PASS device in the automatic mode. At no time at the re-testing site, either before, during, or after the re-test, did Petitioner tell Mr. Chase that there was any problem with the PASS device. Petitioner justifiably received a failing score of zero on the re-test because he had not make any effort to place the PASS device in the automatic mode. Petitioner did not report that there was any problem with the PASS device when he returned it to the Broward Fire Academy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rejecting Petitioner's challenge to the failing score he received on the SCBA (Self Contained Breathing Apparatus) section of the Bureau of Fire Standards and Training's Minimum Standards Practical Examination re-test he took on March 1, 2001. DONE AND ENTERED this 25th day of September, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 2001.
The Issue The issues are: (1) whether Petitioner passed the Practical Examination for Firefighter Retention test; and (2) whether Petitioner's application for firefighter recertification was properly denied.
Findings Of Fact Petitioner completed his minimum standards training and took the standardized state test in 2004 and Respondent issued him a Firefighter Certificate that year. Florida law requires Petitioner to be employed by a fire agency within a three year period after passing the state examination to keep his minimum standards credentials active. Petitioner is a full-time employee at American Medical Response. Because Petitioner has not been active as a firefighter during the past three years, Petitioner made application to the Department to take the Retention Examination. The practical portion consists of four sections or "evolutions" including the SCBA,1 the hose pull, the ladder operation, and the fire ground skills section. To pass the four practical evolutions, an applicant must achieve a score of at least 70 percent on each component. Each evolution of the practical exam has certain elements or skills that are graded. The SCBA portion of the test contains skills related to checking, donning, and properly activating the SCBA that enables a firefighter to breathe in a hostile environment, such as a burning building. The SCBA portion of the Retention Examination also has an established maximum time allotted for the examinee to complete a minimum of 70 percent of the skills. The time limitation is a mandatory requirement. If an examinee completes a minimum of 70 percent of the skills in a particular part, but fails to do so within the maximum allotted time specified for that part, the examinee has not met the mandatory time requirement and, thus, is not awarded any points for that part. Petitioner took the initial Retention Examination in May 2009. Petitioner did not pass the SCBA and fire ground skills components of the practical portion of the initial exam. On September 24, 2009, Petitioner took the Retention Examination re-test for the SCBA and fire skills components. Petitioner passed the fire skills component. The maximum time allotted for completion of the SCBA part of the Retention Examination is two minutes. Petitioner's completion time on the September 2009 Retention Examination re- test was two minutes and 30 seconds. Because Petitioner failed to complete a minimum of 70 percent of skills in the SCBA portion of the Retention Examination within the maximum time allotted, the Bureau properly awarded him zero points. It is an automatic failure if an examinee does not complete the exam in time. Therefore, Petitioner did not earn a passing score on the Retention Examination re-test. As a result of Petitioner's failing to pass the Retention Examination, his Firefighter Certificate of compliance expired. The Division employs field representatives to administer the Retention Examination to examinees in accordance with the applicable rules and procedures. Dennis Hackett is and has been a field representative with the Bureau of Fire Standards and Training for six years. As a field representative, Mr. Hackett administers and scores the minimum standards examination for firefighters, including the Retention Examination. Mr. Hackett has administered well over a thousand SCBA tests. Mr. Hackett was the examiner who tested Petitioner on the September 24, 2009, for re-test of the SCBA portion of the practical exam. Mr. Hackett timed Petitioner at two minutes and 30 seconds. Petitioner testified that before taking the retest, he practiced the SCBA test and had completed it within the time limit. Petitioner first learned SCBA skills in 2004 at the Coral Springs Fire Academy. At the academy, Petitioner took a three month, 450-hour course of fundamental firefighter skills. On or about September 16, 2009, Petitioner took a refresher course in Ocala, Florida. The course was two days and taught the SCBA skills in a manner different from how Petitioner had been taught at Coral Springs Fire Academy. Petitioner testified that the refresher course wasn't fair because he didn't have enough time to learn the new method. He asserted that the two day course was too short to learn the new method and techniques to compensate for errors. Petitioner admitted that a minor hiccup slowed him down while taking the re-test on September 24, 2009. Petitioner said, "It's not like I can't do it because I could do it, it's just I went over the time limit. I didn't have ample enough time to learn the new way of doing it or to overcome any minor obstacles." In a memorandum dated September 25, 2009, the Department formally advised Petitioner that he had failed the SCBA portion of the Minimum Standards Practical Retention Retest. The memorandum also informed Petitioner that, "Because you did not pass the retest, your Firefighter Certificate of compliance #117349, has expired as of 09/24/2009. It will be necessary for you to repeat the firefighter Minimum Recruit Training Program and submit a new application before any additional testing can be allowed." An individual is allowed to re-take the Retention Examination one time. If the person does not pass the re-test, he must repeat the Firefighter Minimum Recruit Training Program before he is eligible to re-take the Retention Examination. See § 633.352, Fla. Stat., and Fla. Admin. Code R. 69A-37.0527. As noted above, Petitioner did not pass the SCBA portion of the Retention Examination re-test. Therefore, before he is eligible to re-take that examination, he must repeat the Firefighter Minimum Recruit Training Program. Petitioner failed to establish that he was entitled to a passing grade for his performance on the Retention Examination re-test. The greater weight of the credible evidence established that Petitioner's performance on the Retention Examination re-test was appropriately and fairly graded.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that the Department enter a final order denying Petitioner's application to retain his certification as a firefighter in the State of Florida. DONE AND ENTERED this 25th day of March, 2010, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 2010.
Findings Of Fact Petitioner was employed as a firefighter with the Tallahassee Fire Department, Tallahassee, Florida, on September 23, 1963, and continued in employment until May 5, 1979. (The suggestion by Petitioner that he had 24 to 27 days of leave accrued upon the last day of his employment is not utilized in determining the official termination date of employment. Beyond May 5, 1979, Petitioner was entitled to be paid for leave time, but was no longer obligated to perform as a firefighter, having been terminated effective May 5, 1979.) During his service as a firefighter with the Tallahassee Fire Department, Petitioner received a certificate of tenure in 1974, pursuant to Section 633.41, Florida Statutes. This provision has been referred to as the savings clause or grandfather clause and allows firefighters who were employed upon the effective date of that section to be certified without the necessity of complying with provisions of law related to certification through training and examination. Section 633.41, Florida Statutes became effective in 1969, thus Petitioner was certified by the terms and conditions of that provision. Petitioner left his employment with the Tallahassee Fire Department to pursue private business and for reason of family obligations. Having terminated his employment with the Tallahassee Fire Department on a voluntary basis, there was no prohibition against reapplying for employment with the Tallahassee Fire Department at some future date. That eventuality occurred when the petitioner contacted the Fire Chief of the Tallahassee Fire Department in April, 1981 to discuss the possibility of reemployment. The Fire Chief of the Tallahassee Fire Department then and now is one Edwin C. Ragans. Shortly after this discussion with Chief Ragans, and in the same month, April, 1981, Ragans hired Petitioner with the effective date of Petitioner's reemployment being July 21, 1901. The delay between April and July was caused by the petitioner's need to conclude certain business undertakings before assuming his duties as a firefighter. The State of Florida, Bureau of Fire Standards and Training, had been informed of the date of original employment for the Petitioner, September 23, 1963, and the date of termination, May 5, 1979, based upon a notice of termination which was submitted by Chief Ragans in behalf of the Tallahassee Fire Department. A copy of that form may be found as Petitioner's exhibit number 1 admitted into evidence. Likewise, the Bureau of Fire Standards and Training was made aware of the reemployment of the Petitioner through the filing of a form known as Qualification of New Employee. A copy of that form may be found as Petitioner's exhibit number 2 admitted into evidence. That exhibit reflects the date of reemployment or rehiring as being July 21, 1981, and further notes that the initial employment was September 23, 1963. That form does not allude to the date of original termination of employment with the Tallahassee Fire Department which was May 5, 1979. When Petitioner returned to employment in July, 1981, Chief Ragans made mention of the "two year rule", which is a reference to Rule 4A-37.14, Florida Administrative Code, (1976), dealing with the idea that firefighters who had been employed with an employing agency, such as the Tallahassee Fire Department, would not have to reapply for certification in this same fashion as the person seeking initial employment as a firefighter, if that former individual resumed full time paid employment with the employing agency within a period of two years immediately subsequent to termination of the initial employment. In this connection Ragans told the Petitioner at the point of reemploying the Petitioner in 1981, that Petitioner had two options. First, he could challenge the examination related to firefighters and gain certification or if that choice was not made it would be necessary for the Petitioner to go through a minimum standards class before recertification. At the commencement of reemployment, Petitioner was mindful of the existence of the two year provision pertaining to continuing certification for those persons who had not been away from employment as a firefighter for more than two years. Furthermore, this topic had been discussed between Petitioner and some other individuals of the fire department on one occasion. Under these circumstances, Petitioner contacted an official within the training division of the Tallahassee Fire Department and obtained books necessary to study in preparation for standing the examination for certification as a firefighter. Petitioner had commenced preparation for the examination when he happened to see Bobby Presnell a lieutenant within the Tallahassee Fire Department and president of the local firefighters union. In the course of this conversation with Presnell, Petitioner mentioned that he was going to have to be examined through a test before receiving certification. Presnell indicated that he would check into the situation and find out exactly what would be necessary to obtain certification. A couple of weeks after that conversation, Presnell called the Petitioner and told him that he had spoken with Olin Greene the then Director of the Division of State Fire Marshal in the state of Florida. Presnell reported to the Petitioner that in the course of the conversation between Greene and Presnell, Greene had stated that the Petitioner was a certified fireman. These conversations between Petitioner and Presnell occurred some time in August or September, 1981. Presnell testified that the discussion between Presnell and Greene concerned the problem which Petitioner had with the two year requirement for continuing certification without the necessity of testing or schooling. In testimony, Presnell indicated that he told Greene that the Petitioner had been reemployed and everything was "supposed to be okay, and then a month or two or three later the problem arose", meaning a certification problem. Greene, according to Presnell, stated that he would get back in contact with Presnell on this subject. Again, per the testimony of Presnell, some ten days to two weeks later, beyond the initial discussion between Greene and Presnell, Greene called Presnell and told him that as far as he, Greene, was concerned, and the Fire Marshal's office was concerned, that "They didn't have any problem with Mr. Adams' recertification or certification." Greene has no recollection of any conversation with Presnell on the subject of the certification situation related to the Petitioner. Having considered the testimony of Presnell and Greene, the Presnell testimony is accepted as factually correct. Following the occurrence wherein Presnell related remarks attributed to Greene as described before, a few days after those events, Petitioner had a discussion with District Fire Chief Raymond Love of the Tallahassee Fire Department. In this conversation Love describes a discussion which he claims to have taken place between himself and Buddy Dewar, whose actual name is Dennis Dewar, in which Dewar is reported to have said that Petitioner was certified. At that time Dewar was the Bureau Chief of the Bureau of Fire Standards and Training. At present he is the Director of the Division of State Fire Marshal, having been promoted to that position in April 1982. In testimony, Love's account of the Dewar conversation concerning certification of the Petitioner, was that in the course of a fireman's convention in October 1981, Dewar asked Love if he knew Jimmy Adams, and Love replied in the affirmative. Given this opening, Love then related that he was impressed with Adams as a person and in terms of his capabilities as a firefighter. Love then recounts that he began to tell Dewar that there was a problem related to the Adams certification and if there was any help that Dewar could give, it would be most appreciated. To which, according to Love, Dewar replied that "he didn't see any problem with the recertification." Dewar, per Love's comments, did not state that he considered the Petitioner to be certified at the time of that conversation, nor was the two-year requirement pertaining to the return to the employment roles, to remain in a certified position without reapplication for certification mentioned in the Dewar conversation with Love, according to Love. Dewar, in his testimony, denied that the conversation between Love and Dewar concerned the Petitioner. His recollection is that Love asked Dewar how long the retention of certification would be valid for, to which he responded two years. Having considered the testimony and the demeanor of the witnesses, a decision cannot be reached on which of the witnesses Love or Dewar should be believed pertaining to the conversation which took place between them in October, 1981. Following discussion with Chief Love, and particularly on the next morning after that discussion, Petitioner talked to another fire chief within the Tallahassee Fire Department, whose name is Revel. This conversation was instituted by Revel in his inquiry of the petitioner on the subject of whether Petitioner was studying for the examination for certification. In response Petitioner stated that he had been but that he had found out the night before that he was certified. Revel in turn told Chief Ragans of this conversation and Ragans summoned the Petitioner to his office and the conversation between Love and Petitioner on the question of certification was recounted for the benefit of Chief Ragans. Petitioner and Love indicate that in the course of the meeting with Ragans, Ragans made a phone call and having concluded that phone call, stated that Petitioner did not have any problem with certification, or something to that effect, as Love recalls Ragans comments. Petitioner's recollection of the comment after the phone call was that Chief Ragans said, "You are a certified fireman." Ragans, in his testimony, does not relate having phoned someone on the topic of certification of the Petitioner in the presence of Petitioner and Love as previously described. His recollection is to the effect that some time prior to Love having stated in the fleeting between Ragans, Love and the Petitioner, that Dewar had confirmed Petitioner's status as a certified firefighter, he, Ragans, had talked to a Mr. Schaffner, Standards Coordinator, at the State of Florida, Fire College, and Schaffner had indicated that the time which Petitioner had been out of employment as a firefighter in a Florida department, was so close to being within the two years allowed, that Petitioner would not be required to go back through the certification process. At the time this case was placed at issue Schaffner had died. Having considered Ragans comments in the context of the other proof, it is determined that Ragans was sufficiently acquainted with Schaffner's voice to identify Schaffner in the course of the telephone conversation on the topic of the Petitioners certification. It is also concluded that this was the only conversation which Ragans had with officials within the State of Florida, Office of the State Fire Marshal, during 1981. Whether this conversation between Ragans and Schaffner occurred while Petitioner and Love were in Ragans office is uncertain. Benjamin E. Mclin, inspector with the Fire Department, speaks in terms of a conversation which he had with Olin Greene in October 1981, in the course of a seminar. Mclin introduced himself to Greene and, Greene is reputed, according to Mclin, to have asked Mclin if he knew Jimmy Adams, the Petitioner, and to have asked what kind of person Adams was. Mclin reports that he replied that he thought that Petitioner was an outstanding person as well as an impressive fireman, to which Mclin says that Greene stated, "Well, I know I did the right thing." Greene has no recollection of this conversation. Having considered the comment, even if it can be attributable to Greene, it is sufficiently ambiguous that it has no value in resolving the certification issue related to the Petitioner. After the conversation with Chief Ragans and Chief Love, which took place in Ragans office, Petitioner assumed that he was certified without the necessity of standing examination to receive certification. He had received no written indication from Respondent confirming or denying this understanding and had never personally spoken to anyone in the employ of the Respondent, on this subject. Petitioner continued his duties throughout 1981, into the beginning of 1984, serving in the capacity as a firefighter with the Tallahassee Fire Department. At that point, Petitioner had been promoted to Lieutenant within the Fire Department, and in the face of that action, a grievance was filed by another firefighter employed by the Tallahassee Fire Department indicating that Petitioner was not a certified firefighter. Ragans, in response to the grievance contacted Paul R. Steckle who was employed with the Office of the Bureau of Fire Standards and Training as a Field Representative Supervisor. Steckle had been asked by Dewar to check the Petitioner's file to determine the period of time between the termination of initial employment with the Tallahassee Fire Department and reemployment with that employer. Having made this check Steckle believed that the period was beyond the two years and reported this finding to Dewar. In conversation with Ragans, Steckle had asked Ragans when Petitioner had been employed and Ragans had indicated that Petitioner had been rehired in April but did not report to work until July, 1981. Steckle told Ragans that if Petitioner had been hired in April, 1981, and had been granted a leave of absence, allowing Petitioner to start work in July, 1981, that the reemployment would have been within the two year limit. Ragans indicated that the City of Tallahassee had no policy of allowing a leave of absence such as inquired about by Steckle. Nonetheless, Ragans got the impression that petitioner was duly certified based upon remarks made by Steckle. On January 30, 1984, Ragans wrote Steckle verifying that Petitioner had not returned to work in April, in view of commitments which would not allow him to be actually at work until July. (Mention is made of 1979, but it is determined that Ragans is referring to 1981.) This correspondence also mentions the conversation between Ragans and Schaffner. A copy of the correspondence is Respondent's exhibit number 3 admitted into evidence. On February 22, 1984, Steckle wrote to the Petitioner and advised the Petitioner that a review of the records of the Bureau of Fire Standards and Training revealed that the Petitioner had been out of fire service for over two years before reemployment. This correspondence refers to May 5, 1979, as the date of termination and July 21, 1981, as the date of reemployment. It alludes to the fact that Petitioner must regain certification through provisions of Rule 4A-37.52, Florida Administrative Code, (1981) 1/ related to an equivalency examination and encloses a copy of the package related to that examination process. It requests that the examination be taken in April, 1984. Otherwise, it is indicated in the correspondence, the Petitioner would be terminated from employment with the Tallahassee Fire Department upon request from the Bureau of Fire Standards and Training to the Tallahassee Fire Department. A copy of this correspondence may be found as Respondent's exhibit number 14, admitted into evidence. On April 10, 1984, through correspondence from counsel for the Respondent to counsel for the petitioner, the case is discussed and the Petitioner is requested to stand the equivalency examination and it alludes to the fact that in view of the error of the Respondent in failing to note at the time of reemployment that Petitioner had been away from fire fighting for more than two years, Petitioner is given until February 22, 1985, to undergo an equivalency examination for purposes of recertification. In lieu of this disposition, Petitioner is afforded the opportunity for a Section 120.57, Florida Statutes hearing, which he availed himself of, leading to the present Recommended Order. A copy of the April 10, 1984 correspondence may be found as Respondent's exhibit number 15 admitted into evidence. Luther Richter had been employed as a firefighter with the Tallahassee Fire Department and was dismissed from that employment after being arrested on a federal drug smuggling charge. He subsequently pleaded nolo contendere to the charge in the United States District Court for the Southern District of Georgia in 1976 and was given a three year probation. In April of 1979 he applied to the Tallahassee Fire Department to be reemployed. Through the reemployment paperwork, Chief Ragans recommended that Richter not be accepted based upon an alleged lack of good character. In response, Dewar, the then Bureau Chief of the Fire College, wrote Ragans on May 22, 1979 stating that Richter was not eligible for employment because of his drug conviction. Another letter was sent on June 15, 1979, from Dewar to Ragans to the same effect. On July 17, 1979, Dewar requested a legal interpretation of the Richter situation from the point of view of the Respondent's duties in considering the question of Richter's certification as a firefighter in Florida. On September 10, 1979, the City of Tallahassee and Richter entered into an agreement for Richter's reinstatement as an employee with the City of Tallahassee. In the face of the action of the City of Tallahassee, the Respondent accepted Richter for purposes of certification as if he had never been dismissed. As stated in the October 16, 1979 correspondence from Olin Greene to Daniel E. A. Kleman, City Manager of the City of Tallahassee, with Richter's reinstatement as an employee of the City of Tallahassee the Respondent would ". . . have no alternative but to accept the reinstatement order and allow his certification that was in effect prior to September 1, 1975, to come back into effect." The agreement for reinstatement can be found as part of the composite exhibit number 6 of the Petitioner, admitted into evidence. The October 16, 1979 correspondence may also be found within that document. Those items are copies of the originals. In furtherance of Greene's perception, Richter having been reinstated by the City of Tallahassee was deemed by the Respondent never to have left employment. Richter's certification continues from September 1, 1975, the dismissal date, and his initial certification remains valid to this date as established in the correspondence of Olin Greene to Kleman dated January 9, 1980, a copy of which is found in the Petitioner's composite exhibit number 6. In essence, Respondent felt that in view of the reinstatement it could not refuse to recognize Richter's certification as if it had never lapsed between the interim period of his dismissal in 1975 and the agreement for reinstatement in 1979. In early 1984 a minimum standards training course for firefighters in Florida was taught at Indian River Community College. An unusually high failure rate was experienced by those students who took that course and this led to an investigation by the State Fire College. Through the investigation it was learned that one of the instructors in the minimum standards course had not been properly certified. To resolve this problem, all students who attended that course were required to take further training with a certified instructor. Following that additional training session, another examination was given and those persons who passed the second examination, in addition to those persons who had passed the initial examination, were certified. Those who failed the second examination were not accepted for certification. On other occasions where tenured firefighters, as recognized by Section 633.41, Florida Statutes, have gone beyond the two year time period for reemployment and continuing certification without examination, those firefighters have had to stand the examination, without exception.
