The Issue The issue for determination is whether Petitioner successfully completed the Practical Examination for Retention of Firefighter Retest.
Findings Of Fact Mr. Pointon is a candidate for re-certification as a firefighter in the State of Florida. In 2004, Mr. Pointon obtained his Firefighter Minimum Standards Training Certification. A certification is valid for three years. Since 2004, he has been unable to find gainful employment as a firefighter. In 2007, Mr. Pointon obtained re- certification. He has been working two jobs, unrelated to firefighting, and has been unable to volunteer as a firefighter. To maintain certification, a certified firefighter, within the three-year period, must either be employed as a firefighter in a career status position or a volunteer firefighter for at least six consecutive months. If a certified firefighter fails to fit within either of the two statuses within the three-year period, the certified firefighter must take the practical portion of the Firefighter Minimum Standards examination, i.e., the Firefighter Minimum Standards Practical Examination (Practical Examination) to retain certification as a firefighter. The Practical Examination includes a written examination, as well as four practical components. The four practical components include (a) Self-Contained Breathing Apparatus (SCBA); (b) Hose Operations; (c) Ladder Operations; and (d) Fireground Skills. In order to pass the Practical Examination, a candidate must achieve a score of at least 70 percent on each of the four components. Pertinent to the instant case, the SCBA component is scored using a form listing five mandatory steps, which the candidate must pass, and ten "evaluative component" steps worth ten points each. During the SCBA portion of the examination, a candidate is required to follow the mandatory criteria; the mandatory criteria are required to be completed correctly, including completion of all protective equipment, which includes pulling on the candidate's hood that protects the skin from flash fire; and (c) a candidate is required to complete the mandatory criteria within the maximum allotted time. A candidate, who successfully completes the five mandatory steps, receives a total score of the sum of the points from the ten "evaluative component" steps. A candidate's failure to comply with the mandatory criteria is considered a critical failure. A critical failure is grounds for an automatic failure. A candidate is able to take the re-certification test twice. If a candidate fails the first time, the candidate is automatically afforded an opportunity for a retest. On May 25, 2010, Mr. Pointon took his initial Practical Examination for the re-certification. He completed the SCBA in two minutes and 45 seconds, which was beyond the maximum allowed time of one minute and 35 seconds. Therefore, the Department determined that Mr. Pointon failed to successfully complete that component and, as a result, failed that section of the Practical Examination. Mr. Pointon contends that, on May 25, 2010, during his inspection of the equipment, bottle and air pack, to make sure that it was functioning properly, he discovered that the equipment was not functioning properly. Further, he contends that he made two exchanges of equipment before he obtained properly functioning equipment. Mr. Pointon's testimony is found to be credible. The field representative who administered the initial Practical Examination testified. The field representative did nothing different with Mr. Pointon than he did with any of the other candidates. Furthermore, Mr. Pointon was the eleventh candidate to undergo testing and, by being the eleventh candidate, Mr. Pointon had ample opportunity to test his equipment and ensure that the necessary preparation was conducted before his (Mr. Pointon's) exam began. The field representative's testimony is found to be credible and more persuasive. Therefore, the evidence demonstrates that Mr. Pointon failed to successfully complete the SCBA component within the maximum allotted time. Hence, the evidence demonstrates that, on May 25, 2010, Mr. Pointon failed the SCBA section of the Practical Examination. On September 23, 2010, Mr. Pointon took a retest of the SCBA component. The Department determined that he failed the retest for failure to don all Personal Protective Equipment (PPE), in particular his NOMEX hood. Failure to don all PPE is grounds for automatic failure. As to the retest, Mr. Pointon contends that he was wearing his NOMEX hood. The field representative who administered the retest testified. The field representative observed the NOMEX hood around Mr. Pointon's neck; Mr. Pointon was not wearing the NOMEX hood. The field representative's testimony is more persuasive. Therefore, the evidence demonstrates that, on September 23, 2010, Mr. Pointon failed to don all the PPE by failing to don his NOMEX hood. Hence, the evidence demonstrates that, on September 23, 2010, Mr. Pointon failed the retest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order: Finding that Mark Pointon failed to successfully complete the Practical Examination for Retention of Firefighter Retest; and Denying Mark Pointon's application for recertification as a firefighter in the state of Florida. DONE AND ENTERED this 1st day of August, 2011, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2011.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner passed the "Hose Operation" portion of the initial and the re-test firefighters examinations and whether she was given a fair opportunity to pass the test.
Findings Of Fact On January 13, 2001, the Petitioner, Josephine Louise Ramsey, applied for certification to become a firefighter in the State of Florida. The Respondent is the agency regulating licensure and enforcing practice standards for firefighters in the State of Florida. On May 9, 2001, the Petitioner took the Minimum Standard Written and Practical Examination, a passing score on which would qualify her for firefighter certification. She did not achieve a passing score on the practical portion of the examination because she failed the Hose Operation portion of the examination. The Petitioner began taking the practical Hose Operation evolution portion of the examination with a broken shoulder strap on the "airpack" she was required to wear. She contended that this was an "unsafe act" and that Mr. Begley, the proctor for the examination, should have stopped her testing time and allowed her to correct the equipment malfunction and then resume the test. The Petitioner contended that this caused her a tremendous distraction while she was performing the Hose Operation evolution. She also contended that Mr. Begley should have stopped her test time from running further as soon as he noticed the broken airpack. The Petitioner testified that she changed airpacks after the Hose Operation evolution portion of her examination and was told to proceed on to the ladder portion of the examination. After the Petitioner had completed the ladder portion of the examination, the Petitioner was allowed to again take the Hose Operation evolution that same day. She took the second Hose Operation evolution test after five other applicants had been tested on that portion of the examination. The Petitioner failed the Hose Operation portion of the initial examination because she exceeded the maximum time allotted for that exercise. The Petitioner contends that she was never told of any recourse she might have if she failed her initial examination and was only told that she could schedule a re-test examination. On September 27, 2001, the Petitioner took the Minimum Standards Practical Examination Re-test which consisted, in her case, of only the Hose Operation portion of the examination. She received point deductions in four different categories on the re-test examination. She received point deductions for (1) failure to properly stop and call for water; (2) failure to slowly and fully open and close the hose nozzle while bleeding the hose line; (3) failure to slowly and fully open and close the nozzle during the cone operation; and (4) failure to maintain control of the hose and nozzle during the entire operation. The Petitioner thus received a total score of 60, which is below the minimum, acceptable, passing score of 70, and thus failed the re-test examination. The Petitioner claims that she was charged with point deductions twice for the same violation or deficiency, which in this case was improperly opening and closing the hose nozzle at the front of the truck bumper and during the cone operation. However, according to the Department's score sheet and scoring method, the opening and closing of the hose nozzle are two different skills at two locations, which are scored separately, based upon the location of the hose. The Department is thus attempting to assess how an applicant will handle the hose nozzle when the line is initially charged with water (at the front of the truck bumper) and also when the line is fully charged with water during the cone operation. In her testimony the Petitioner attempted to analogize the opening and closing of the hose operation with running during the exercise. According to the Department's scoring sheet and method, completing the task without running, or walking backwards, would entitle an applicant to 10 points. Before an applicant is deducted any points, an examiner must warn the applicant that they are running or walking backwards. Running during the exercise and properly opening and closing the hose nozzle, however, are two different skills and are scored separately and differently. The Department's policy is that it is an important skill for applicants to be able to properly maintain control of a fire hose and know how to properly open and close the hose in order to prevent injury to firefighters. In any event, the Petitioner received notice of a denial of her certification effective October 5, 2001.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered denying the Petitioner's application for certification as a firefighter in the State of Florida. DONE AND ENTERED this 29th day of April, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 29th day of April, 2002. COPIES FURNISHED: Ladasiah Jackson, Esquire Department of Insurance 200 East Gaines Street Tallahassee, Florida 32399-0333 Josephine Louise Ramsey 1906 St. John's Bluff Road North Jacksonville, Florida 32225 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
The Issue The issue is whether Petitioner's apparent failure to achieve a passing score on the written portion of the Firefighter Minimum Standards retest resulted from improper administration or grading of the examination by Respondent.
Recommendation Based on the foregoing, it is RECOMMENDED that the Department enter a final order dismissing Cruz's petition and denying his application for certification as a Florida firefighter. DONE AND ENTERED this 4th day of June, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 2001. COPIES FURNISHED: Hipolito Cruz, Jr. 1214 Southwest 46 Avenue Deerfield Beach, Florida 33442 James Morrison, Esquire Department of Insurance 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333 Honorable Tom Gallagher State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300
The Issue Is Petitioner entitled to be certified as a Firefighter based upon examination results through an examination administered by Respondent? See Section 633.35, Florida Statutes.
Findings Of Fact Petitioner applied for certification as a Firefighter on June 19, 1998. Subsequently he completed the Firefighter training program administered at Volusia County Fire Science Institute commensurate with the requirements set forth in Section 633.35(1), Florida Statutes. On December 15, 1998, Petitioner took the state examination following completion of the "Minimum Standards Course." The state examination was administered by the Bureau of Fire Standards and Training. That examination was constituted of a written and practical portion with the expectation that a minimum score of 70% was required in both aspects of the examination. See Rule 4A-37.056(6)(b), Florida Administrative Code. When the December 15, 1998 examination was graded, the Petitioner passed the practical with a score of 90. Petitioner did not pass the written, receiving a score of 66. Officials within the Respondent's agency were persuaded that some portions of the examination given on December 15, 1998, were arguably beyond the abilities of a beginning Firefighter. This decision was arrived at recognizing that material on the test had been presented in the "Minimum Standards Course." Nonetheless, adjustments were made to the scores of the candidates in recognition of the difficulty of some of the examination questions. The re-scoring improved Petitioner's written score from 66 to 67. On February 9, 1999, Petitioner retook the written portion of the state examination and received a score of 59. That score was adjusted on the same basis as has been described in relation to the December 15, 1998, examination session. With the adjustment Petitioner received a score of 62. Petitioner took a third written examination on May 12, 1999. This examination was given, having purged the examination instrument of the more difficult questions that had been presented on the occasion of the December 15, 1998, and the February 9, 1999, examinations. In the instance of the May 12, 1999 examination, Petitioner received a 66 on the written portion. Petitioner has failed to demonstrate that the nature of the examinations, taking into account the adjustments in the scoring, were beyond the expectation of the competence of a candidate who had undergone the "Minimum Standards Course" in preparation for this state examination or that Respondent failed to appropriately administer and grade the examinations given Petitioner.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered upholding the examination results in the several examinations administered to Petitioner in relation to the written portion, as adjusted, and finding that Petitioner has exhausted his opportunities for examination in this cycle. DONE AND ENTERED this 23rd day of December, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 23rd day of December, 1999. COPIES FURNISHED: Elenita Gomez, Esquire Department of Insurance 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Anthony Robert Shuta, II 3043 Pine Tree Drive Edgewater, Florida 32141 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Bill Nelson, State Treasurer and Insurance Commissioner The Capital, Plaza Level 11 Tallahassee, Florida 32399-0300
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 Whether Petitioner should have received a passing grade on the Firefighter Minimum Standards Retest taken on November 30, 1998.
Findings Of Fact Respondent, Department of Insurance and Treasurer (Department), through its Division of State Fire Marshall, certifies all paid firefighters. Applicants for firefighters must complete a 360-hour minimum standards training course and pass a written and practical examination. If the applicant fails the examination, the applicant may retake the examination within six months after taking the initial examination. If the applicant does not pass the retest, the applicant must complete the minimum standards training course before additional retesting will be allowed. The examination has two parts, a written and a practical part. The written examination consists of 100 multiple choice questions. The practical portion tests the applicant on skills dealing with breathing apparatus, hose and nozzle operation, and the 24-foot extension ladder. The applicant must receive a score of 70 percent on both portions of the examination in order to pass the examination. In the breathing apparatus section of the practical examination, the applicant is timed during the donning of the equipment. If the applicant does not don the equipment within one minute and thirty seconds, points are deducted from the applicant's score. The number of points deducted increases in proportion to the amount of time it takes to don the equipment. If the applicant dons the equipment in more than one minute and thirty seconds but not more than two minutes, five points are deducted. In the hose and nozzle operation portion of the practical examination, the applicant is timed. If the applicant fails to perform the operation in two minutes or less, points are deducted from the applicant's score. Five points are deducted if the applicant takes greater than two minutes but not over two minutes and thirty seconds. Ten points are deducted if the applicant takes greater than two minutes and thirty seconds but not more than three minutes. The ladder operation portion of the examination is timed. If the applicant takes more than two minutes and thirty seconds but not more than three minutes, five points are deducted. During the practical examination, applicants are required to demonstrate their skills in tying knots and hitches. The applicant is required to tie one of a number of knots or hitches. Applicants are also required to show their proficiency in dealing with fire hoses, hose appliances and various fittings by performing one of a number of functions. Applicants must demonstrate their knowledge of the North American Emergency Response Guidebook by answering three questions using the guidebook a reference. On January 20, 1998, Petitioner, Michelle M. McCue (McCue), applied for certification as a firefighter. She completed the Minimum Standards Course. On July 30, 1998, McCue took the minimum standards examination. She received a score of 81 on the written portion and 55 on the practical examination. She was notified by memorandum dated August 12, 1998, of her scores. By memorandum dated September 3, 1998, McCue was notified that she was scheduled to retake the examination on September 22, 1998. She did not take the examination on that date. By memorandum dated October 5, 1998, McCue was notified that she was rescheduled to retake the practical examination on November 30, 1998. She retook the practical portion on the day scheduled. On the retake examination, five points were deducted from McCue's score because her donning time for the breathing apparatus portion was one minute and fifty-one seconds. She took three minutes during the timed portion of the hose and nozzle operation; thus, ten points were deducted from her score. Five points were deducted from her score because she took two minutes and thirty-five seconds to perform the ladder operation. Five points were deducted from McCue's score for failure to correctly tie a Becket Bend knot. Another five points were deducted from her score for failing to properly connect a supply line into a female pumper intake. Five points were deducted for her failure to properly answer a question using the North American Emergency Response Guidebook. McCue received a final score of 65 on the retake of the practical examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Michelle M. McCue failed the retake of the practical portion of the Minimum Standards Test and that she shall be required to repeat the Minimum Standards Course before taking any further examinations. DONE AND ENTERED this 8th day of October, 1999, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1999. COPIES FURNISHED: Bill Nelson, State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Shiv Narayan Persaud, Esquire Department of Insurance Division of Legal Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Michelle M. McCue 4801 Northwest 26th Avenue Tamarac, Florida 33309
The Issue 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 Respondent was arbitrary, capricious, or unlawful in examining Petitioner.
Findings Of Fact On or about October 30, 1998, Petitioner applied for certification as a firefighter with the Department under the provision relating to equivalency as a firefighter certified in another state. Petitioner met the requirements for equivalency and on November 3, 1998, was informed by letter from the Department of an Equivalency Examination. On November 23, 1998, Petitioner took the Examination, scoring a 15 percent on the practical portion. Points were deducted from Petitioner's score for the following items: Part I Breathing apparatus inhalation 5 Donning time over time limit 10 Hose and nozzle Operation 5 (Protective clothing not worn properly) Operation of nozzle 20 (poor control, closing nozzle too fast, nozzle not fully opened, nozzle opened when water arrives) Hose and nozzle operation over time limit 10 24' ladder extension 20 (did not check for overhead obstructions, lost control of ladder, did not tie a clove hitch) 24' ladder extension operation over time limit 5 Part II Improper tying on roof ladder 5 Failed to correctly demonstrate the advancing 5 and uncharged 1 3/4" hoseline up a ladder __ Total points deducted 85 A score of at least 70 percent is required to pass the Practical Examination. The Department sent Petitioner a letter on December 3, 1998, notifying him of his score on the Practical Examination and informing him that he failed. Petitioner was notified by letter dated December 10, 1998, from the Department of a retest on February 22, 1999. On February 22, 1999, Petitioner took the retest of the Practical Examination. Points were deducted from Petitioner's score for the following items: Part I a) Breathing apparatus inhalation 5 b) Donning time over time limit 5 c) Hose and nozzle operation over time limit 10 f) 24' ladder extension 5 g) (fly section not fully extended) 24' ladder extension operation over time limit 10 Part II Retied bowline 5 Unable to find requested material in guidebook 5 __ Total points deducted 45 Petitioner's score on the retest was 55. The Department sent Petitioner a letter on March 3, 1999, notifying him of his score and informing him that he failed. On March 4, 1999, the Department issued a letter of intent to deny, denying his certification as a firefighter for failure to meet the certification requirements. There are four events on the Practical Examination that are timed: testing the seal on the breathing apparatus, donning the apparatus, deploying and using the hose and nozzle, and extending and placing the 24-foot ladder. The inhalation test requires a check of the face seal after donning and fitting the mask of not less than 10 seconds. The Petitioner received a 5-point deduction for not maintaining the seal for the full 10 seconds. The total donning operation must be completed in not more than one minute and twenty-nine seconds. Examinees receive a 5-point penalty for each thirty-second increment they exceed the allowable time up to a maximum of 40 points. The Petitioner exceeded the allowable time by two seconds and received a 5-point deduction. The deployment and operation of the hose and nozzle requires an examinee to pull a water-filled hose a given distance, then turn the hose on and direct it properly on a specified type of fire. The examinee must complete the task in not more than one minute and fifty-nine seconds. For each thirty-second increment over the allowable time, 5-points are deducted from the examinee's score up to a maximum of 35 points. The Petitioner exceeded the allowable time by forty- five seconds, and received a 10-point deduction. The raising of the extension ladder requires the examinee to carry a 24-foot extension ladder to the side of a building, extend the ladder fully, and place the ladder against the wall of the building using proper procedures within a maximum allowable time of two minutes and twenty-nine seconds. For each thirty-second increment an examinee exceeds the allowable time, the examinee receives a deduction of 5-points, up to a maximum of 35 points. In each of the listed tasks above, as well as the other un-timed portions of the examination, the examinee can lose additional points for using the wrong technique or procedure. The total number of points that can be deducted from an examinee's score is 450 points. Mr. McCall from the Fire College testified concerning how the times on the examination were normed. The times of various examinees taking the examination before timing was required were taken and their times averaged. An additional increment of time was added to the average time required to complete each event. For each thirty-second increment an examinee exceeded the set time, 5 points are deducted. The method of arriving at the mean time for the events is sound; however, Mr. McCall reported that the data upon which the time standards were based had been destroyed. There was no evidence presented on the manner in which the point deductions schedules were established. They are uniformly linear in terms of the time limits imposed and points deducted. That is to say, that for every thirty seconds in excess of the allowable time, an additional 5 points is deducted. The Fire Colleges data reveals that only 35 percent of out-of-state applicants are able to qualify for certification by equivalency. This, at fact value, appears to be a low number for individuals who have already been examined and re frequently experienced firefighters. However, many of the tasks on the practical test require physical agility and prowess which may be affected by age or injury. No information is maintained regarding the demographic data of equivalency examinees regarding age and sex; however, it is noted that the statutes provide a special exemption for out-of-state firefighters hired to fill top positions within department. During the course of the hearing, it became evident that the number of points which potentially could be deducted totaled 450 points. It also became evident that the deduction of points was directly from 100 points with which each examinee started. This deduction was direct and was not scaled, weighed, or converted to arrive at a final score. The practical examination has a possible 450 points which can be deducted from 100 points. An examinee's score is the result of subtracting the points he or she loses from 100 points. The statute and rule provides that passing on the written and practical portions of the examination will be 70 percent. The Petitioner had a total of 45 points deducted on his performance examination from a total of 450 possible points that could be deducted. He missed 10 percent of the possible points which could be deducted, or conversely made a score of 90 percent. By deducting up to 450 points from 100 points to arrive at a final score, the Respondent has adopted a scoring system which is arbitrary, capricious, and contrary to the statute and rules. The fact that the Respondent has done this for a long time does not validate the process. Contrary to the suggestion by Respondent that looking at the number of possible deductions is a "red Herring," it is precisely the number of possible points "available." If the Respondent uses a 30 percent error rate when the base is 450, an applicant could lose up to 135 points. The Petitioner lost 45 points, only a third of the allowable points using the Respondent's method. Petitioner passed the written examination with a score of 86. The Petitioner should receive a score of 90 on his practical examination based upon the number of points on the examination and the statutory guidance. Based upon the foregoing the Petitioner's grade should be entered as a 90.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Petitioner be licensed. DONE AND ENTERED this 8th day of December, 1999, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1999. COPIES FURNISHED: Kurt P. Larson 2225 Inverness Drive Pensacola, Florida 32503 Shiv Narayan Persaud, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Honorable Bill Nelson, State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level 01 Tallahassee, Florida 32399-0300
