The Issue The issue is whether Petitioner is entitled to a passing grade on the Self-Contained Breathing Apparatus ("SCBA") part of the Firefighter Minimum Standards Examination for firefighter certification.
Findings Of Fact Petitioner applied for certification as a firefighter in August 2004. In order to be certified, Petitioner was first required to successfully complete the Minimum Standards Course, which consists of 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 or "evolutions," including the SCBA, the hose pull, the ladder operation, and the fireground skills section. 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 elements or skills that are graded. The SCBA test contains 11 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 test must be completed in not more than one minute and 45 seconds. After completing the Minimum Standards Course, Petitioner took the initial Minimum Standards Examination on December 8, 2004. Petitioner passed the written portion of the exam, but did not pass the practical portion of the initial exam because he exceeded the maximum time for the SCBA test. In a memorandum dated December 21, 2004, the Department formally advised Petitioner that he had failed the SCBA portion of the practical exam. The memorandum also informed Petitioner that he had been automatically scheduled to retake the SCBA test. In another memorandum dated December 21, 2004, the Department advised Petitioner that he was scheduled to retake the SCBA portion of the practical examination at the Florida State Fire College in Ocala, Florida, on February 24, 2005. Petitioner took the retest of the SCBA portion of the practical examination as scheduled. Petitioner again failed the SCBA test. Though he completed each of the 11 skills with no deduction of points, he again exceeded the maximum time of one minute and 45 seconds. Petitioner's time was one minute and 50 seconds. Larry McCall is a field representative with the Department. Mr. McCall described "field representative" as a "glorified name for an examiner." Mr. McCall was the examiner who tested Petitioner on the retake of the SCBA portion of the practical exam on February 24, 2005. He observed Petitioner perform the 11 skills, and he timed Petitioner with a stopwatch. Mr. McCall has been an examiner for 15 years. He is a certified firefighter and a certified fire service instructor. He retired from the City of Jacksonville Fire Department after 30 years. Mr. McCall estimated that he has administered 10,000 SCBA tests. Petitioner testified that before taking the retest, he practiced the SCBA test upwards of 50 times and never exceeded the time limit. Petitioner testified that he was certain that he completed the test within the time limit on February 24, 2005. Petitioner is currently a volunteer at the Isle of Capri Fire and Rescue Department. The chief of that department, Emilio Rodriguez, testified that he administered the SCBA test to Petitioner in practice situations over a dozen times, and Petitioner never went over one minute and ten seconds. Keith Perry, a veteran firefighter working for the Isle of Capri Fire and Rescue Department, testified that he has timed Petitioner many times and that Petitioner has never exceeded the time limit, averaging between one minute and five seconds and one minute and ten seconds. Neither of Petitioner's witnesses was present when he took the SCBA retest on February 24, 2005, and, thus, could not testify as to whether he passed the test on that day. Petitioner's subjective feeling that he passed the test based on the many times he practiced, is necessarily less persuasive than the time actually recorded by Mr. McCall. The students are assigned an applicant number on the day of the test. The examiners refer to the students by this number, rather than their names, during the testing process. After the test has been administered, the examiners coordinate the names with the numbers and assign final scores. At the hearing, Petitioner suggested that a mistake had been made in coordinating the names and numbers and that he had mistakenly been assigned the failing score of another candidate. Petitioner offered no evidence for this speculative suggestion, which, therefore, cannot be credited. Petitioner also noted that Mr. McCall had recorded a time of 20 seconds for Petitioner's performance on the "seal check," an exercise to ensure that the face piece of the SCBA equipment is securely sealed such that the firefighter is breathing only from his air tank. The candidate must perform the seal check for at least ten seconds. Petitioner persuasively contended that 20 seconds is an extraordinarily long time for the seal check, because the candidate must hold his breath for the duration of the check. Further, Petitioner noted that candidates are trained to count off the required ten seconds, making it unlikely that he would inadvertently take twice the required time to complete the check. Petitioner's theory was that Mr. McCall's mistaken recording of 20 seconds was enough to account for the five seconds by which Petitioner failed the overall SCBA test. However, Mr. McCall testified that he used a stopwatch with a split timer to record Petitioner's time for the SCBA test. A split timer independently records a span of time within the overall time being measured. When Petitioner commenced the seal check portion, Mr. McCall triggered the split timer, and he stopped the split timer when Petitioner completed the seal check. The split timer has no effect on the total time. Whether the split for the seal check had been ten seconds, 20 seconds, or more, Petitioner's overall time would have been one minute and 50 seconds. The greater weight of the credible evidence established that Petitioner's performance on the SCBA section of the practical examination was appropriately and fairly graded. Petitioner failed to establish that he was entitled to a passing grade for his performance on the SCBA section. Respondent established that Mr. McCall appropriately administered the subject SCBA section pursuant to the applicable provisions of Florida Administrative Code Chapter 69A-37, which set forth guidelines for the practical examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding that Petitioner failed the SCBA section of the practical portion of the Firefighter Minimum Standard Examination administered February 24, 2005. DONE AND ENTERED this 29th day of August, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2005. COPIES FURNISHED: Casia R. Sinco, Esquire Department of Financial Services 200 East Gaines Street, Room 612 Tallahassee, Florida 32399-0333 Adam J. Oosterbaan, Esquire Adam J. Oosterbaan, P.A. 2500 Airport Road South, Suite 306 Naples, Florida 34112 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muñiz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
The Issue The issue for determination is whether Petitioner successfully completed the Practical Examination for Retention of Firefighter Retest.
Findings Of Fact Mr. Pointon is a candidate for re-certification as a firefighter in the State of Florida. In 2004, Mr. Pointon obtained his Firefighter Minimum Standards Training Certification. A certification is valid for three years. Since 2004, he has been unable to find gainful employment as a firefighter. In 2007, Mr. Pointon obtained re- certification. He has been working two jobs, unrelated to firefighting, and has been unable to volunteer as a firefighter. To maintain certification, a certified firefighter, within the three-year period, must either be employed as a firefighter in a career status position or a volunteer firefighter for at least six consecutive months. If a certified firefighter fails to fit within either of the two statuses within the three-year period, the certified firefighter must take the practical portion of the Firefighter Minimum Standards examination, i.e., the Firefighter Minimum Standards Practical Examination (Practical Examination) to retain certification as a firefighter. The Practical Examination includes a written examination, as well as four practical components. The four practical components include (a) Self-Contained Breathing Apparatus (SCBA); (b) Hose Operations; (c) Ladder Operations; and (d) Fireground Skills. In order to pass the Practical Examination, a candidate must achieve a score of at least 70 percent on each of the four components. Pertinent to the instant case, the SCBA component is scored using a form listing five mandatory steps, which the candidate must pass, and ten "evaluative component" steps worth ten points each. During the SCBA portion of the examination, a candidate is required to follow the mandatory criteria; the mandatory criteria are required to be completed correctly, including completion of all protective equipment, which includes pulling on the candidate's hood that protects the skin from flash fire; and (c) a candidate is required to complete the mandatory criteria within the maximum allotted time. A candidate, who successfully completes the five mandatory steps, receives a total score of the sum of the points from the ten "evaluative component" steps. A candidate's failure to comply with the mandatory criteria is considered a critical failure. A critical failure is grounds for an automatic failure. A candidate is able to take the re-certification test twice. If a candidate fails the first time, the candidate is automatically afforded an opportunity for a retest. On May 25, 2010, Mr. Pointon took his initial Practical Examination for the re-certification. He completed the SCBA in two minutes and 45 seconds, which was beyond the maximum allowed time of one minute and 35 seconds. Therefore, the Department determined that Mr. Pointon failed to successfully complete that component and, as a result, failed that section of the Practical Examination. Mr. Pointon contends that, on May 25, 2010, during his inspection of the equipment, bottle and air pack, to make sure that it was functioning properly, he discovered that the equipment was not functioning properly. Further, he contends that he made two exchanges of equipment before he obtained properly functioning equipment. Mr. Pointon's testimony is found to be credible. The field representative who administered the initial Practical Examination testified. The field representative did nothing different with Mr. Pointon than he did with any of the other candidates. Furthermore, Mr. Pointon was the eleventh candidate to undergo testing and, by being the eleventh candidate, Mr. Pointon had ample opportunity to test his equipment and ensure that the necessary preparation was conducted before his (Mr. Pointon's) exam began. The field representative's testimony is found to be credible and more persuasive. Therefore, the evidence demonstrates that Mr. Pointon failed to successfully complete the SCBA component within the maximum allotted time. Hence, the evidence demonstrates that, on May 25, 2010, Mr. Pointon failed the SCBA section of the Practical Examination. On September 23, 2010, Mr. Pointon took a retest of the SCBA component. The Department determined that he failed the retest for failure to don all Personal Protective Equipment (PPE), in particular his NOMEX hood. Failure to don all PPE is grounds for automatic failure. As to the retest, Mr. Pointon contends that he was wearing his NOMEX hood. The field representative who administered the retest testified. The field representative observed the NOMEX hood around Mr. Pointon's neck; Mr. Pointon was not wearing the NOMEX hood. The field representative's testimony is more persuasive. Therefore, the evidence demonstrates that, on September 23, 2010, Mr. Pointon failed to don all the PPE by failing to don his NOMEX hood. Hence, the evidence demonstrates that, on September 23, 2010, Mr. Pointon failed the retest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order: Finding that Mark Pointon failed to successfully complete the Practical Examination for Retention of Firefighter Retest; and Denying Mark Pointon's application for recertification as a firefighter in the state of Florida. DONE AND ENTERED this 1st day of August, 2011, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2011.
The Issue The issues are: (1) whether Petitioner passed the Practical Examination for Firefighter Retention test; and (2) whether Petitioner's application for firefighter recertification was properly denied.
Findings Of Fact Petitioner completed his minimum standards training and took the standardized state test in 2004 and Respondent issued him a Firefighter Certificate that year. Florida law requires Petitioner to be employed by a fire agency within a three year period after passing the state examination to keep his minimum standards credentials active. Petitioner is a full-time employee at American Medical Response. Because Petitioner has not been active as a firefighter during the past three years, Petitioner made application to the Department to take the Retention Examination. The practical portion consists of four sections or "evolutions" including the SCBA,1 the hose pull, the ladder operation, and the fire ground skills section. To pass the four practical evolutions, an applicant must achieve a score of at least 70 percent on each component. Each evolution of the practical exam has certain elements or skills that are graded. The SCBA portion of the test contains skills related to checking, donning, and properly activating the SCBA that enables a firefighter to breathe in a hostile environment, such as a burning building. The SCBA portion of the Retention Examination also has an established maximum time allotted for the examinee to complete a minimum of 70 percent of the skills. The time limitation is a mandatory requirement. If an examinee completes a minimum of 70 percent of the skills in a particular part, but fails to do so within the maximum allotted time specified for that part, the examinee has not met the mandatory time requirement and, thus, is not awarded any points for that part. Petitioner took the initial Retention Examination in May 2009. Petitioner did not pass the SCBA and fire ground skills components of the practical portion of the initial exam. On September 24, 2009, Petitioner took the Retention Examination re-test for the SCBA and fire skills components. Petitioner passed the fire skills component. The maximum time allotted for completion of the SCBA part of the Retention Examination is two minutes. Petitioner's completion time on the September 2009 Retention Examination re- test was two minutes and 30 seconds. Because Petitioner failed to complete a minimum of 70 percent of skills in the SCBA portion of the Retention Examination within the maximum time allotted, the Bureau properly awarded him zero points. It is an automatic failure if an examinee does not complete the exam in time. Therefore, Petitioner did not earn a passing score on the Retention Examination re-test. As a result of Petitioner's failing to pass the Retention Examination, his Firefighter Certificate of compliance expired. The Division employs field representatives to administer the Retention Examination to examinees in accordance with the applicable rules and procedures. Dennis Hackett is and has been a field representative with the Bureau of Fire Standards and Training for six years. As a field representative, Mr. Hackett administers and scores the minimum standards examination for firefighters, including the Retention Examination. Mr. Hackett has administered well over a thousand SCBA tests. Mr. Hackett was the examiner who tested Petitioner on the September 24, 2009, for re-test of the SCBA portion of the practical exam. Mr. Hackett timed Petitioner at two minutes and 30 seconds. Petitioner testified that before taking the retest, he practiced the SCBA test and had completed it within the time limit. Petitioner first learned SCBA skills in 2004 at the Coral Springs Fire Academy. At the academy, Petitioner took a three month, 450-hour course of fundamental firefighter skills. On or about September 16, 2009, Petitioner took a refresher course in Ocala, Florida. The course was two days and taught the SCBA skills in a manner different from how Petitioner had been taught at Coral Springs Fire Academy. Petitioner testified that the refresher course wasn't fair because he didn't have enough time to learn the new method. He asserted that the two day course was too short to learn the new method and techniques to compensate for errors. Petitioner admitted that a minor hiccup slowed him down while taking the re-test on September 24, 2009. Petitioner said, "It's not like I can't do it because I could do it, it's just I went over the time limit. I didn't have ample enough time to learn the new way of doing it or to overcome any minor obstacles." In a memorandum dated September 25, 2009, the Department formally advised Petitioner that he had failed the SCBA portion of the Minimum Standards Practical Retention Retest. The memorandum also informed Petitioner that, "Because you did not pass the retest, your Firefighter Certificate of compliance #117349, has expired as of 09/24/2009. It will be necessary for you to repeat the firefighter Minimum Recruit Training Program and submit a new application before any additional testing can be allowed." An individual is allowed to re-take the Retention Examination one time. If the person does not pass the re-test, he must repeat the Firefighter Minimum Recruit Training Program before he is eligible to re-take the Retention Examination. See § 633.352, Fla. Stat., and Fla. Admin. Code R. 69A-37.0527. As noted above, Petitioner did not pass the SCBA portion of the Retention Examination re-test. Therefore, before he is eligible to re-take that examination, he must repeat the Firefighter Minimum Recruit Training Program. Petitioner failed to establish that he was entitled to a passing grade for his performance on the Retention Examination re-test. The greater weight of the credible evidence established that Petitioner's performance on the Retention Examination re-test was appropriately and fairly graded.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that the Department enter a final order denying Petitioner's application to retain his certification as a firefighter in the State of Florida. DONE AND ENTERED this 25th day of March, 2010, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 2010.
The Issue The issues are whether Petitioner, Christie Beverly, should be certified as a firefighter or, in the alternative, whether Petitioner should be allowed to re-take the Firefighter Minimum Standards Practical Examination.
Findings Of Fact Petitioner is 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 the successful completion of the minimum requirements by a candidate. One such examination administered by the Department is the Firefighter Minimum Standards Written and Practical Examination (firefighter examination). Petitioner successfully completed her firefighting training at the Manatee Technical Institute (MTI). Jeff Durling is an adjunct instructor at MTI, whose main purpose is to get candidates prepared for the state firefighter examination. During his particular MTI course, Mr. Durling's students were taught the three main types of hose pulls: flat, triple layer, and minuteman. Larry W. Schwartz, Jr., is the fire science coordinator of MTI. He oversees MTI's operations and is directly involved in its curriculum. Although Mr. Schwartz is familiar with the double minuteman hose pull, MTI has not taught it in the past because that particular pull has not been tested. The firefighter examination has a written portion, as well as four practical evolutions or components (self-contained breathing apparatus, hose operation, ladder operation, and fireground skills).2/ In order to be certified, a candidate has to achieve a score of at least 70 percent on each component. On Tuesday, June 14, 2011, at the MTI campus, Petitioner successfully completed all portions of the firefighter examination, except the hose component of the practical examination. Petitioner conceded that she exceeded the maximum time allowed to complete the hose component by eight seconds. At some point, Petitioner was notified that she did not receive a passing score on the hose component in the June 2011 firefighter practical examination. Petitioner was advised she could take the Firefighter Minimum Standards Practical Retest (retest) within six months of the June 2011 firefighter examination. Petitioner was required to successfully complete the retest or she would be required to re-take the firefighter course before she could take the test again. On Friday, September 23, 2011, Petitioner presented for her retest at the Florida State Fire College (Fire College) in Ocala, Florida. Petitioner arrived by 7:30 a.m. for her retest. There were over 403/ candidates present to take either an original firefighter practical test or a retest. The retest course was not ready at 7:30 a.m. On September 23, 2011, Eric Steves was also a retest candidate at the Fire College. Mr. Steves observed that the retest course was not set up when he arrived at 7:30 a.m. Further, he observed that the retest course was slightly different than the original practical test course in June 2011. There was no walk-through of the retest course prior to starting it, because the retest course was set up after the other candidates took their test and bad weather was approaching. Although Mr. Steves did not pass his retest, his testimony is credible as he has no vested interest in the outcome of this proceeding. Dennis Hackett is the standards supervisor with the Department's Bureau of Fire Standards and Training (Bureau). Mr. Hackett has administered and scored the minimum standard firefighter examination for candidates, including the retest examination. The majority of the candidates were given another practical test, not the retest administered to Petitioner. Mr. Hackett confirmed that the retest course was not ready at 7:30 a.m. on September 23, 2011. The Fire College was capable and did have the equipment to set up two different hose load courses. It is apparent that the Fire College adheres to a strict protocol in the administration of the firefighter testing; yet, it was not adhered to on September 23, 2011. There was a change to the practical testing component of the firefighter examination being implemented. The majority of the candidates on September 23, 2011, took a different practical test than the retest administered to Petitioner and Mr. Steves. Thomas M. Johnson has been a field representative for the Department's Bureau for seven years. As a field representative, Mr. Johnson has administered and scored numerous firefighting examinations and retest examinations. Mr. Johnson testified that Petitioner's retest course "would be set up when we were done with the rest of the students." He further testified that the retest course "would be set up when we were done with the other students who were taking the new evolutions." Although Mr. Johnson testified that Petitioner's retest was administered in a uniform manner, the credible evidence supports the position that the retest was not conducted following the strict protocol of the Fire College. For Petitioner's retest, the course barrels were held in place by field instructors. Petitioner questioned Mr. Johnson regarding their participation, asking: "Is that standard practice?" Mr. Johnson's response of "It was that day," lends credence that it was not standard practice or part of the uniform retest protocol. Further, Mr. Johnson's testimony that Petitioner was "in a hurry" to complete her retest is illogical. Petitioner waited for 40 or more candidates to test before her, and then she had to wait for the retest course to be assembled before she could attempt the course. There was a great deal of discussion about the type of hose pull required during the retest examination. There was no clear definition of a minuteman hose load or a double minuteman hose load.4/ Whether or not the hose pull was a minuteman or a double minuteman is irrelevant as the retest course was not prepared or set up by 7:30 a.m. as required by the Department's own rule. Mr. Johnson scored Petitioner on the retest examination. The score sheet used on the practical retest examination portion reflected three types of Hose Advancements: Flat Load, Triple Layer Load, and Minuteman Load. (An option to pull a double minuteman load is not printed anywhere on the score sheet.) Further review of the Department's score sheet reveals that someone wrote "4 LR"5/ out beyond the phrase: "Hose Advancement (1¾") ~~ Maximum Time 1:25." This phrase, "4 LR," is purported to mean that Mr. Johnson: asked her [Petitioner] to pull the left-side pre-connect, knock down the cone on the left first and then the cone on the right. And the reason it's above the minuteman is because that's the load she pulled, but it was not a minuteman. This "4 LR" phrase is well above the blank line found beside the words "Minuteman Load." The undersigned does not accept the "4 LR" phrase as an indication that the "double minuteman" hose pull was the retest examination option. Further, the score sheet also has blanks to be filled in by the scorer following the phrase: "Your target sequence is RT/Left or Left/RT ." However, the scorer did not fill in either blank. At the bottom of the page, there is an empty blank following "Candidate #," making it uncertain to whom this score sheet applies. On the score sheet, there is a written time of "2:39," the word "Fail" is circled, and there is a zero beside the "Score." The score sheet appears to be incomplete at best. Mr. Johnson was asked to confirm whether or not a double minuteman load was listed on the score sheet, and he confirmed that the phrase "double minuteman" load was not on the score sheet. The words "double minuteman" do not appear on the score sheet, nor is the type of hose load identified. It is impossible to determine what hose load Petitioner was directed to pull during her retest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of State Fire Marshal, enter a final order granting Petitioner's request to retest on the hose component of the practical portion of the firefighter examination and that Petitioner should be tested as if she were taking the retest within the six-month window for the retest. DONE AND ENTERED this 30th day of April, 2012, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 30th day of April, 2012.
The Issue Whether Petitioner's challenge to the failing score he received on the Practical Examination for Retention of Firefighter Retest he took on May 17, 2012, should be sustained.
Findings Of Fact Because no evidence was offered at the final hearing held in the instant case, no findings of fact are made.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services, Division of the State Fire Marshall, enter an order denying Petitioner's challenge to the failing score he received on the Practical Examination for Retention of Firefighter Retest he took on May 17, 2012. S DONE AND ENTERED this 17th day of August, 2012, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 2012. COPIES FURNISHED: Jesse Beauregard 10731 Northwest 18th Court Coral Springs, Florida 33071 Linje E. Rivers, Esquire Department of Financial Services 200 East Gaines Street, Sixth Floor Tallahassee, Florida 32399-0333 Julie Jones, CP, FRP, Agency Clerk Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0390
The Issue The issue is whether Respondent properly denied Petitioner certification as a Florida firefighter.
Findings Of Fact Petitioner, a resident of Ohio, requested to qualify for the Florida Minimum Standards Equivalence Examination, based on his experience, to become a Florida firefighter. Petitioner's request effectively "challenged" the exam and requested an exemption from attending the Florida Minimum Standards Course. Petitioner could have taken the Florida Minimum Standards Course. If he had taken the course, he may have had an opportunity to review video tapes and other instructional materials which are available but not a required part of the basic curriculum. Instead, Petitioner elected to furnish Respondent with his out-of-state firefighter credentials. Subsequently, Respondent granted Petitioner the requested exemption. Prior to taking the examination, Respondent's staff accurately informed Petitioner about the scope, structure and subject matter of the test during numerous telephone calls. On at least ten occasions, Respondent's staff described the test to Petitioner and told him how to prepare for it. Respondent's staff specifically told Petitioner that he should study the International Fire Service Training Association Manual (IFSTA Manual). As to part one of the practical portion of the exam, Petitioner knew that Respondent would test him on the breathing apparatus, the one and three quarter-inch hose and nozzle operation, and the twenty-four foot ladder evolution. Respondent told Petitioner that he needed to know how to perform all skills set forth in the IFSTA Manual because Respondent randomly selects six different sections of tasks to test on part two of the practical examination. The six skill sections which are picked for part two remain unknown to anyone in advance of the test regardless of whether he is out-of-state or in-state applicants. These skills are chosen by Respondent's Field Representatives in their offices at the Florida State Fire College prior to going to a testing site or for testing at the Florida State Fire College. The two parts of the practical examination are of equal worth. An examinee begins with 100 points and points are deducted for deficiencies throughout the exam. Candidates are required to achieve a score of at least seventy (70) points in order to pass the practical examination. Petitioner took his Minimum Standards Equivalency Practical Examination on April 28, 1997, at the Florida State Fire College in Ocala, Florida. Petitioner's final score on the April 28, 1997, Minimum Standards Equivalency Practical Examination was twenty-five (25) points, which was not a passing score. Candidates are allowed one retest of the Minimum Standards Equivalency Practical Retest if they are not successful on their initial test. Petitioner chose to take the test again on July 28, 1997, at the Florida State Fire College in Ocala, Florida. Respondent's Field Representative administered part one of the Minimum Standards Equivalency Practical Retest to Petitioner. Petitioner did not take part two of the Minimum Standards Equivalency Practical Retest. He chose to quit after realizing that his score on part one was so low that he could not pass the retest as a whole. After deciding not to take part two in the Minimum Standards Equivalency Practical Retest, Petitioner approached Field Representative Bill DePauw to tell him that he was quitting. Petitioner was not attired in the mandatory minimum safety gear, but in civilian clothes. At that time, Mr. DePauw was in the process of testing another examinee. Mr. DePauw told the Petitioner he needed to talk to Larry McCall, Field Representative Supervisor. Petitioner then approached Mr. McCall and informed him that he would not be taking part two of the retest. Mr. McCall asked Petitioner to leave the testing grounds because Petitioner was being loud and disruptive to the applicants testing or waiting to be tested. Further, once an applicant decides not to continue, he is no longer allowed in the testing area. Petitioner informed Mr. McCall, both on the field and in Mr. McCall's office, that the Florida exam and the process were "chicken." Petitioner lost seventy-five (75) points on part one of the Minimum Standards Equivalency Practical Retest. The maximum allowable deduction for part one of fifty (50) points was deducted from Petitioner's part one score. Therefore, Petitioner's final score on the Minimum Standards Equivalency Practical Retest administered on July 28, 1997, was fifty (50) points, which is not a passing score. Applicants are assigned a number during orientation. From that time on, the applicants are referred to only by that number to ensure impartiality. The applicant's name is attached to the number after the exam, sometimes several days later. The examiner makes up a package of exams, numbers the packets, and then circles six (6) skills at random in each packet. No names are applied to the packets and the numbers are not assigned to the examinees until the day of testing. The Field Representatives are required to give an orientation prior to each Minimum Standards Equivalency Examination on the day of the exam. The orientation consists of walking the applicants through each section of part one. The Field Representatives use the same form check-off sheet during each orientation to ensure that each candidate is given the same orientation. The Field Representatives use a scoresheet to grade the applicants which is a guide to simplify the scoring process. The numeric values on the scoresheet are negative points deducted from an applicant's raw score of 100 points. The Field Representatives only make deductions when the applicant does not follow the required procedure for performing the evolution. Petitioner admits that the point deduction is correct for exceeding the required time on the breathing apparatus evolution. Petitioner admits that he had to go back to the loop during the hose and nozzle evolution to fix the kinks in the hose line. Additionally, he took a couple of steps backwards while he was pulling the hose line. Walking backwards occurs when a candidate takes two steps or more backwards, walking in the opposite direction from where he is looking. There are no warnings issued for walking backwards during the certification examination. Petitioner admits that the deduction for exceeding time during the hose and nozzle evolution was correct. The greater weight of the evidence indicates that Petitioner struggled during the ladder evolution. He lacked control of the ladder at all times during the demonstration. All of the deficiencies which Petitioner admits to amount to a total of 35 negative points as the least possible point deduction. That equals a score of 65 without Petitioner even having taken part two. A score of 65 is not a passing score.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Bill Nelson in his capacity as State Fire Marshal enter a Final Order denying Petitioner's request for a Certification of Compliance as a Florida Firefighter. DONE AND ORDERED this 20th day of August, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1998. COPIES FURNISHED: Elenita Gomez, Esquire Division of Legal Services Department of Insurance and Treasurer 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Paul Appleton 13500 Shaker Boulevard, No. 102 Cleveland, Ohio 44120 Bill Nelson, Commissioner Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue 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.
The Issue The issue in this case is whether the Department properly denied Petitioner's application for certification as a Florida firefighter due to his not achieving a passing score of seventy on the written portion of the required Minimum Standards Examination for firefighters.
Findings Of Fact Mr. Kaliher submitted his application for certification as a Florida firefighter on January 4, 2000. As an applicant, Mr. Kaliher was required to take a Minimum Standards Course in order to be eligible to take the Minimum Standards Certification Examination. Mr. Kaliher took the Minimum Standards Course at HCC, which began on or about January 5, 2000, and concluded on or about July 2000. Approximately one-half (180 hours) of the 360 hours of the Minimum Standards Course are dedicated to preparation for the written portion of the Minimum Standards Examination. To be certified as a Florida firefighter an applicant must successfully complete the Florida Minimum Standards Course and thereafter pass the written (70%) portion and the practical (70%) portion of the Minimum Standards Examination. There are one hundred questions on the written portion of the Minimum Standards Examination and applicants are able to miss up to thirty (30) questions and still achieve a passing score of seventy (70). There are three required texts for students taking the Minimum Standards Course: The Essentials of Fire Fighting by Oklahoma State University; First Responder, 5th Edition, published by Brady, authored by Bergeron, Bizjak; and lastly; Initial Response to Hazardous Materials by the National Fire Academy. Mr. Kaliher, and other students, were instructed to study the required text materials and informed that basically anything found in the text materials could be on the written portion of the Minimum Standards Examination. The first section of the Minimum Standards classes came for First Responder text which covered basic first aid, assessment of an injured victim's signs and symptoms, and how to stabilize for transport to the hospital. HCC ordered and made available to Minimum Standards Course students the text, First Responder text published by Brady and authored by Karren and Hafen; not First Responder, published by Brady and authored by Bergeron and Bizjak. Dennis Phillips, coordinator, and Mike Gonzalez, HCC instructor, both testified that the First Responder text by Karren and Hafen contained accurate information to learn the skills necessary to pass the First Responder portion of the Minimum Standards Course. Mr. Kaliher and other students used the initially issued First Responder text by Karren and Hafen to prepare for and pass the First Responder portion of the Minimum Standards Course. Because First Responder by Brady, Bergeron and Bizjak, is the source text from which the Fire Marshall's office randomly selects a bank of questions from which the computer make random selections for each examination, Dennis Phillips, coordinator, advised HCC to order the Bergeron and Bizjak' edition. First Responder by Brady, Bergeron and Bizjak authors, was ordered, made available to each class member on or about the second week of February 2000, and each Minimum Standards class members exchanged their text without cost and sign an exchange sheet evidencing that fact. Mike Gonzalez, HCC instructor, testified that all essential materials were covered in both First Responder textbooks and that only minor differences are such that in one textbook pediatric and geriatric patients are covered together in one chapter in one textbook, but in the other textbook pediatric and geriatric patients are treated as separate chapters. The substantive similarly of content in both texts negated the need to re-teach materials initially covered at the beginning of the class. The HCC class conducted two review sessions of the First Responder materials during the Minimum Standards class, one prior to the mid-term and again prior to the final examination. Mr. Kaliher took his initial written and practical portions of the Minimum Standards Examination on or about July 20, 2000, scoring 62, not a passing score, on the written portion. Of the 52 students in Mr. Kalihers' Minimum Standards class at HCC, 43 (more than 80%) passed the written portion of the Minimum Standards examination. Indeed, Mr. Kaliher's classmate and only witness, Ryan Moore, admitted that HCC provided him with the proper instructions, materials, and training to prepare him for his successful completion of the examination. Mr. Kaliher re-tested for the written portion of the Minimum Standards Examination on or about August 10, 2000, scoring 69, not a passing score, on the written portion. Larry McCall, the Department's representative, testified that both Mr. Kaliher's examinations were correctly graded; that he missed only two of ten First Responder questions on the retake examination, and missed 29 questions from Essentials of Fire Fighting textbook and Initial Response to Hazardous Materials textbook materials. Further, there is no basis upon which Mr. Kaliher can be granted certification under existing circumstances. Applicants such as Mr. Kaliher are only allowed to take the Minimum Standards Examination written portion two times. If an applicant fails both the initial and retest examinations, that applicant has to retake and complete the 360- hour Florida Minimum Standard Course and successfully pass that course before being permitted to retake the Minimum Standards Examination. Respondent acted properly by not granting Mr. Kaliher his firefighter certification for the State of Florida because he did not pass the written portion of the examination as required of all firefighters by Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance, Division of the State Fire Marshall, enter a final order DENYING Petitioner Ryan Patrick Kaliher's application for certification as a Florida firefighter; further order that Ryan Patrick Kaliher is required to re-take the Florida Minimum Standards Course prior to submission of all future applications; and to re-take the written portion of the Florida Minimum Standards Examination for certification as a Florida firefighter. DONE AND ENTERED this 3rd day of January, 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 3rd day of January, 2001. COPIES FURNISHED: Ryan Patrick Kaliher 2108 Flamingo Boulevard Bradenton, Florida 34207 James B. Morrison, Esquire Michelle McBride, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333 The Honorable Bill Nelson State Treasurer/Insurance Commissioner The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
The Issue The issue is whether Petitioner is entitled to a passing grade on the Hose and Nozzle Operations part of the Minimum Standards Examination for firefighter certification.
Findings Of Fact Certification as a firefighter requires, among other things, that an applicant successfully complete a Minimum Standards Course and then pass the Minimum Standards Examination. The Minimum Standards Examination comprises a written test and a practice test, each of which an applicant must pass. The practical test comprises four parts, including Hose and Nozzle Operations. An applicant must pass each of the four parts, and a passing score is 70. On October 3, 2003, Petitioner first took the Minimum Standards Examination. She passed three parts, but failed the Hose and Nozzle Operations part. She was entitled to one retest, without having to retake the Minimum Standards Course, which she has already passed. On November 20, 2003, Petitioner retook the Hose and Nozzle Operations part of the Minimum Standards Examination. Petitioner received a score of 60 on the retest, and she challenges this score in the present case. Petitioner lost points for four reasons: she failed to have all of her protective gear donned and properly secured, she opened the hose nozzle too quickly, she closed the hose nozzle too quickly, and she ran with the hose. The Hose and Nozzle Operations part of the test is timed, and Petitioner previously had failed it because she had taken too long to complete the tasks within this part. Petitioner was a candid witness. At the end of the hearing, she essentially withdrew her challenge to the points that she had lost for operating the nozzle improperly. She instead focused on running with the hose and leaving her face shield up during part of the examination. In fact, the examiner testified without doubt that Petitioner had misoperated the nozzle during two tasks. Clearly, Petitioner failed to prove that the examiner's scoring of these two tasks was incorrect. As for running, Petitioner testified that she ran, but, consistent with the test rules, received a shouted warning from the examiner and did not run again. If so, she should not have lost points for running. However, the examiner again is clear that Petitioner ran after the warning. Aware that she had failed the same test previously for not completing this part of the test within the allotted time, Petitioner probably felt a sense of urgency to complete this part of the test. Petitioner's testimony about running is vague at times and even contradictory. Much of Petitioner's early testimony on this point disputes the clarity of the shouted warning not to run, suggesting that she may have run through a large portion of this part of the test. Later, though, Petitioner concedes that the shout was probably a warning not to run. On balance, Petitioner has failed to prove that the examiner improperly deducted points for running. The last issue in dispute is whether Petitioner performed part of the test with her face shield improperly raised. Petitioner testified that her face shield was always in the proper position, and, on this issue, Petitioner produced a fellow student who testified that he saw Petitioner's face shield in the proper position. However, the other student did not see the whole test and presumably was not observing Petitioner as closely as was the examiner. The examiner was most definite in his testimony on the issue of the face shield. He saw Petitioner engage in the awkward task of unloading the heavy hose, and he saw that a section of hose bumped the face shield from its down position into a partial up position. The examiner watched to see if Petitioner would immediately lower the face shield, but she did not. At that point, the examiner properly deducted points for failing to keep the gear properly secured.
Recommendation It is RECOMMENDED that the Department of Financial Services enter a final order dismissing Petitioner's challenge to the scoring of the Hose and Nozzle Operations part of the Minimum Standards Examination that took place on November 20, 2003. DONE AND ENTERED this 30th day of June, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 30th day of June, 2004. COPIES FURNISHED: 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 Ruth Gutierrez 1585 Northeast 110th Terrace Miami, Florida 33161 Casio R. Sinco Assistant General Counsel Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333
