The Issue Whether Petitioner achieved a passing score on the Practical Examination for Retention of Firefighter Retest.
Findings Of Fact The Department is the state agency responsible for the certification of firefighters in the State of Florida, pursuant to chapter 633, Florida Statutes. In or around 2008, Petitioner achieved his Firefighter Minimum Standards Training Certification, which was valid for three years. To maintain his certification, it was necessary for Petitioner to either: maintain employment as a firefighter (or serve as a volunteer firefighter) for at least six consecutive months during the three-year period subsequent to his certification; or successfully complete the retention examination, which is identical to the practical examination given to new applicants.1/ Petitioner could not satisfy the first option, and was therefore required to take the retention examination. Petitioner's first attempt to successfully complete the retention examination occurred on May 20, 2011, and included four components: self-contained breathing apparatus ("SCBA"), hose operation, ladder operation, and fireground skills. To pass the retention examination, an examinee must earn scores of at least 70 on each section. Each portion of the retention examination has certain evaluative components that are graded. For instance, the ladder operation consists of 15 skills——e.g., maintaining contact with the ladder at all times, lifting and securing the ladder properly, using proper hand position——that the examinee must complete within the maximum time of four minutes and 30 seconds. A failure to finish the tasks within the allotted time results in an automatic failure and a score of zero, even if the examinee performs each of the 15 skills successfully.2/ Although Petitioner achieved perfect scores of 100 on the ladder operation and fireground skills components, he was unable to achieve scores of 70 or higher on the SCBA or hose portions of the practical examination. Petitioner, like all candidates who fail the retention examination on the first attempt, was offered one retest opportunity.3/ Petitioner's retest was administered on September 22, 2011, at the Ocala Fire College. On that occasion, Petitioner passed the SCBA and hose portions——the sections that he failed during his previous attempt——with scores of 85. Interestingly, however, the Department's field notes indicate that Petitioner exceeded the ladder evaluation's maximum permitted time by 32 seconds, a performance 58 seconds slower than his recorded time just four months earlier, when he achieved a perfect score. The field notes further reflect that Petitioner committed no errors in connection with the 15 ladder skills and that his failing score was entirely attributable to the examiner's conclusion that the time limit had been exceeded. During the final hearing, Respondent called Thomas Johnson, the field representative for the Bureau of Fire Standards and Training that administered Petitioner's retest, who testified that he timed the ladder examination with a stopwatch, and that Petitioner did not complete the evaluation within the prescribed time period. Significantly, however, the Department elicited no detail from Mr. Thomas with respect to the causes——e.g., loss of ladder control, tripping, fumbling, etc.——of Petitioner's purported failure to complete the evaluation within the allotted time.4/ In contrast, Petitioner testified that although he was not permitted to bring a timekeeping device to the examination (the Department forbids examinees from doing so), he is confident that he completed the ladder retest within the prescribed time limit: Mr. Saintilmond: All right. On the date of the retest, I was taking the ladder examination. I've gone through the evolution. I did not fumble around. I did not take any time. I went through the exam as trained. No fumbling around, no waiting, no nothing. And I believe that I completed the evolution on time. And I passed the examination before. I've done it several times. But on this particular day, on my retake, I know I went through this evolution and I passed it with no fumbling around. Final Hearing Transcript, p. 12. Notwithstanding the anecdotal nature of Petitioner's evidence, his description of the evaluation, which was credible and adequately detailed, carries significant persuasive force in light of his perfect completion of the same ladder examination—— with 26 seconds to spare——just four months before the retest. The undersigned therefore accepts Petitioner's version of the events and finds that he did not exceed the maximum time limit of four minutes and 30 seconds during the September 22, 2011, retention examination.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services enter an order granting Petitioner's application to retain his certification as a firefighter in the State of Florida. DONE AND ENTERED this 17th day of May, 2012, in Tallahassee, Leon County, Florida. S Edward T. Bauer Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2012.
The Issue Is Petitioner eligible for Respondent sponsored retraining?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner sustained a workers’ compensation injury (injury) to his right knee on November 26, 1989, while working for the Polk County Fire Department (Fire Department), as a firefighter. Following the injury, Petitioner received authorized medical care at the expense of his employer, which included surgery, followed by approximately one year of physical rehabilitation. After completing approximately one year of physical rehabilitation and light duty work, Petitioner was returned to full duty work with the Fire Department in January 1991. Petitioner continued to experience problems with his right knee, including pain and swelling. However, Petitioner continued on full time duty receiving medical care for his knee. Petitioner’s right knee remained problematic and required regular medical attention between 1990 and 1996. In January 1996, Thomas F. Winters, Jr., M.D. performed a second surgical procedure on Petitioner’s right knee. Following the second surgical procedure, Dr. Winters provided conservative treatment for a brief period before releasing Petitioner to full duty on March 9, 1996, without any restrictions. On March 12, 1996, Dr. Winters placed Petitioner at maximum medical improvement (MMI). Dr. Winters is of the opinion that Petitioner had some degenerative changes to his knee but that those changes were related to a previous arthritic problem, not to the workman’s compensation injury; and if Petitioner was performing full firefighter duties before the injury then he could perform those duties after March 9, 1996. However, based on the opinions expressed by Dr. Barrett, and Dr. McGregor, Dr. Croft, it appears that Dr. Winters did not properly take into account Petitioner’s continued problem with his knee when Dr. Winters found Petitioner at MMI and put Petitioner on full firefighter’s duty. At the time of his release by Dr. Winters on March 9, 1996, and placed at MMI, Petitioner’s knee was so weak that he could not climb stairs or climb ladders or lift anything with any degree of certainty and Petitioner did not feel himself capable of safely performing the full duties of a firefighter. Because of his knee, Petitioner did not return to full duty as a firefighter but instead requested another medical opinion. Petitioner was authorized to see Carl L. Croft, M.D. for a second opinion. Dr. Croft agreed that Petitioner could not perform full duty as a firefighter and recommended that he receive further physical therapy. This physical therapy was never authorized. Petitioner did not return to full duty as a firefighter following Dr. Winters’ release. Instead, Petitioner requested the additional care recommended by Dr. Croft. This additional care was never authorized. Ultimately, Petitioner exhausted his sick leave and vacation time and was forced to return to work in May 1996. Upon his return to work in May 1996, Petitioner advised his employer of his continued concerns as they related to his knee and his inability to perform the essential functions of a firefighter. At this point, Petitioner’s employer changed Petitioner’s work duties and he was not functioning as a firefighter. Because of Petitioner’s physical limitations on performing full firefighter duties his employment could not be considered "suitable gainful employment" as that term is defined in Section 440.491(1)(g), Florida Statutes. Petitioner was placed on administrative leave in October 1996, and remained on administrative leave until his termination for cause on January 17, 1997. At the time of termination, Petitioner’s right knee continued to be problematic. Petitioner sought retraining through Respondent and was approved for retraining on July 14, 1998. However, the Fire Department and its insurance carrier objected on the basis that Petitioner had returned to work for 90 days or more after the injury and therefore, retraining was precluded by rule. After a reevaluation, the Respondent determined that Petitioner had worked more than 90 days after being released by Dr. Winters to return to full-time work and, additionally, had worked more than 90 days after Dr. Winters had determined that Petitioner had reached MMI. Therefore, Petitioner was denied retraining on the basis that retraining was precluded by rule. Thereafter, Respondent’s initial decision to grant retraining was revoked and retraining denied by letter dated August 5, 1998. Petitioner worked full-time for more than 90 days after his injury when he was returned to full firefighter’s duty by Dr. Winters in January 1991, and when he returned to work after Dr. Winters had determined that Petitioner had reached MMI on March 12, 1996. However, neither of these periods of employment could be considered as "suitable gainful employment" as that term is defined in Section 440.491(1)(g), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a final order granting Petitioner’s request for retraining. DONE AND ENTERED this 24th of May, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May 2000. COPIES FURNISHED: Mary Hooks, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Sherri Wilkes-Cape, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Geoffrey Bichler, Esquire Geoffrey Bichler, P.A. 533 West New England Avenue, Suite C Winter Park, Florida 32789 Nancy Staff Slayden, Esquire Department of Labor and Employment Security Suite 307, Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189
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 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 issues are: (1) whether Respondent properly scored Petitioner's retake of the Practical Examination for Firefighter Retention; and (2) whether Petitioner's application for firefighter recertification was properly denied.
Findings Of Fact Petitioner has worked in the fire service for almost 28 years. During that time, Petitioner served as the assistant fire marshal and the fire marshal for the City of Orlando. After Petitioner retired from the City of Orlando, he served as fire chief, building official, and code enforcer officer of Eatonville, Florida. After more than a three-year time period of not working as a firefighter or in the fire service field, Petitioner accepted a job as fire marshal in Hillsborough County, Florida. Although there is no legal requirement that a fire marshal be certified as a firefighter, a condition of Petitioner's employment with Hillsborough County was that he be recertified as a firefighter. In Florida, a firefighter retains his firefighter certification if he remains an active firefighter with an organized fire department. However, a firefighter who has not been active for a period of three years must successfully complete the Retention Examination in order to retain his certification. The Retention Examination is the practical portion of the examination given to new applicants. Because Petitioner has not been an active firefighter for the past three years, in order to be recertified as a firefighter, he was required to successfully complete the Retention Examination. The Retention Examination consists of the following four parts: Self-Contained Breathing Apparatus ("SCBA"), Hose Operations, Ladder Operations, and Fireground Skills. To pass the Retention Examination, a candidate must achieve a score of at least 70 percent on each part. Petitioner applied for and took the Retention Examination that was given on May 16, 2007. He successfully completed the Fireground Skills part, but did not earn a passing score on the SCBA, the Hose Operations, and the Ladder Operations parts.2/ Petitioner applied for and took the September 13, 2007, Retention Examination re-test. During this re-test, Petitioner took only the SCBA, the Hose Operations, and the Ladder Operations parts, the ones that he had not successfully completed in May 2007. Petitioner passed the Hose Operations part of the Retention Examination re-test, but did not successfully complete the SCBA and the Ladder Operations parts, because he did not complete those components within the maximum allotted time. Each part of the Retention Examination has certain elements or skills that are graded. The SCBA and the Ladder Operations parts of the Retention Examination are each comprised of eleven skills or steps that the examinee must complete within the specified time. Ten of the 11 skills or steps for each part of the Retention Examination are assigned a point value of ten.3/ The other skill (the 11th skill or step) under each part is designated as a "mandatory step" for which the examinee is awarded a score of either "pass" or "fail".4/ Under the scoring system described in paragraph 10, an examinee receives ten points for each of the ten skills he successfully completes and a passing score for the one skill designated as mandatory. The SCBA and Ladder Operations parts of the Retention Examination have an established maximum time allotted for the examinee to complete a minimum of 70 percent of the skills. The time requirements are a mandatory criterion/requirement. In order to successfully complete the Retention Examination, an individual must not only complete a minimum of 70 percent of the ten skills or steps for each part, but he must also successfully complete the two mandatory criteria for that part. 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, he has not met the mandatory time requirement and, thus, is not awarded any points for that part. The Division established the minimum time requirements for completing the various parts of the practical examination for firefighters after consulting the NFPA standards and soliciting input from fire departments, fire chiefs, and other individuals in firefighter profession. Among the factors that were considered in establishing the minimum time frames were the nature of fires (i.e., how quickly they spread) and the need for firefighters to perform their job duties both safely and quickly. The Division uses these time requirements in testing the 3,500 to 3,800 firefighters a year that go through the testing process. On the September 13, 2007, re-test, Petitioner exceeded the maximum time allotted for the SCBA and the Ladder Operations parts. The maximum time allotted for completion of the SCBA part of the Retention Examination is one minute and 45 seconds. Petitioner's completion time on the September 2007 Retention Examination re-test was three minutes and ten seconds. The maximum time allotted on the Ladder Operations part of the Retention Examination is two minutes and 45 seconds. Petitioner's completion time on the September 2007 Retention Examination re-test was three minutes and ten seconds. Because Petitioner failed to complete a minimum of 70 percent of the skills in the SCBA and the Ladder Operations parts of the Retention Examination within the maximum time allotted, the Bureau properly awarded him no points. 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 No. 3381 expired as of September 13, 2007. The Division's Bureau of Fire Standards and Training ("Bureau of Standards") employs field representatives to administer the Retention Examination to examinees in accordance with the applicable rules and procedures. Philip D. Oxendine is and has been a field representative with the Bureau of Standards for four years. As a field representative, Mr. Oxendine administers and scores the minimum standards examination for firefighters, including the Retention Examination. Prior to being employed as a field representative, Petitioner worked as a firefighter for 27 years, having retired as a lieutenant. He also has ten years of experience as an instructor in the fire science division of the then South Technical Institution in Palm Beach County, Florida. Mr. Oxendine administered and scored the three parts of the Retention Examination re-test that Petitioner took on September 13, 2007, in accordance with the Division's procedures. All examinees at the September 17, 2007, Retention Examination re-test location, were assigned a number. In an effort to avoid bias, throughout the testing process, examinees' assigned numbers were used instead of their names. On the day of the Retention Examination re-test, Petitioner was assigned a number by which he was identified. When Mr. Oxendine administered and scored Petitioner's re-test, he did not know Petitioner's name or anything about him. Prior to Petitioner's starting the Retention Examination re-test, Mr. Oxendine took Petitioner and other examinees to each station and told them what they had to do at that station. Mr. Oxendine also told the examinees, including Petitioner, how each part of the Retention Examination would be graded.5/ Mr. Oxendine's usual practice is to instruct examinees to touch the apparatus when they are ready for time to begin on a particular part of the examination. He also gives specific instructions to the examinees regarding how they should indicate that they have completed each part. Once an examinee touches the apparatus and says he is ready to begin, Mr. Oxendine starts the stop watch. Mr. Oxendine instructed the examinees to indicate that they had completed the SCBA part by standing up and clapping their hands. The examinees were told that the Ladder Operations part was considered completed when they were behind the ladder and holding it and when they announced that the ladder was ready to be climbed. Mr. Oxendine used the procedures described in paragraph 30 in timing Petitioner on the three parts of the Retention Examination re-test. Mr. Oxendine timed Petitioner's performance on each part of the Retention Examination re-test using a stop watch. This is the method that Mr. Oxendine was trained to use when timing the examinees' performances on the practical portion of the examination. 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 and the Ladder Operations parts 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 Based upon the foregoing Findings of Fact and Conclusions of Law, 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 20th day of May, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 20th day of May, 2008.
Findings Of Fact Based upon the documentary evidence received, the following findings of fact are made: At all times material to the issue in this case, Petitioner, Jorge L. Barreto, has been employed as a firefighter with the City of Miami, Fire, Rescue & Inspection Services Department (City). Petitioner has attained the rank of Fire Lieutenant with the City. Petitioner's primary function with the City is that of firefighter. During the period March 10, 1986 until January 31, 1987, Petitioner was assigned to Rescue 2B. For that same period, a firefighter named George T. Gross was also assigned to Rescue 2B. Mr. Gross' request for supplemental compensation was approved by the Department on April 17, 1986. Mr. Gross' entry into the Firefighter Supplemental Compensation Program was deemed appropriate under the requirements of Section 633.382, Florida Statutes, and Rule 4A-37.76, Florida Administrative Code. Mr. Gross' field of major study as specified in his transcript indicated the degree, bachelor of business administration major- finance" from Florida Atlantic University. On September 30, 1988, Patrick J. Regan, a member of the City's fire department, was approved for supplemental compensation. On August 12, 1988, Mr. Regan was awarded a bachelor of business administration with a major in finance. On April 10, 1987, Robert D. Martinez, a firefighter with the City, was approved for entry into the Firefighter Supplemental Compensation Program. Pursuant to Statute 633.382, Florida Statutes, and Rule 4A-37.76, Florida Administrative Code, Mr. Martinez was deemed to have qualified. Mr. Martinez' transcript from the University of South Florida indicated "Latest college: Business Administration Latest Major: Finance." On April 17, 1986, Andrew L. Huntington, a firefighter with the City's department, was approved for entry into the Firefighter Supplemental Compensation Program. Mr. Huntington possessed a bachelor of business administration degree with a major field of study in accounting. On August 29, 1986, Edward Pidermann, a firefighter with the City's department, was approved for entry into the Firefighter Supplemental Compensation Program. Mr. Pidermann's notification letter specified he had qualified under the requirements "for possession of a/an B/A degree of Accounting." On June 27, 1986, Daniel G. Meadows, a firefighter with the City's department, was approved for entry into the Firefighter Supplemental Compensation Program. Mr. Meadows' transcript specified that he had been awarded "Bachelor of Business Administration Major: Marketing School of Business and Organization Sci" from Florida International University. Effective July 1, 1981, Donald P. Pilger was accepted foil entry into the Firefighter Educational Incentive Program established by Section 633.382, Florida Statutes. Mr. Pilger's transcript from St. Edward's University provided: "College ARTS and SCIENCES Major Subject Accounting Degree B.B.A." On April 16, 1986, Bruce A. Oestreich, a member of the City's fire department, was authorized to receive supplemental compensation. Mr. Oestreich was awarded a bachelor of arts in political science on December 17, 1977. Mr. Oestreich's duties with the City are not a part of the record in this case. On or about May 11, 1989, Petitioner executed a form entitled "Bureau of Fire Standards and Training Firefighter Educational Incentive Program Transcript Request." The purpose of the form was to secure a transcript which would verify Petitioner's eligibility for entrance into the Educational Incentive Program. On June 19, 1989, the transcript was received by the Department. On or about April 21, 1989, Petitioner was awarded a bachelor's degree in business administration from Florida International University, College of Business Administration. His major field of study was finance. Prior to the award of this degree, Petitioner had received an associate in arts degree (A.A.) in general education on July 30, 1982. The A.A. degree course of study had included 46 semester hours in fire-related subjects. On June 27, 1989, the Department advised Petitioner that it had determined that he did not possess an appropriate major study concentration to qualify for the firefighters supplemental compensation program. Thereafter, on July 18, 1989, Petitioner filed a letter requesting a formal proceeding regarding the denial of eligibility. The Department did not contest the accuracy of Petitioner' s transcripts.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Office of the Treasurer, Department of Insurance, Division of State Fire Marshal, enter a final order granting the application of Petitioner for the Firefighter Supplemental Compensation Program. DONE and ENTERED this 29 day of January, 1990, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1990. APPENDIX RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: The Petitioner in this case submitted a narrative which was not in a form sufficient to address rulings; consequently, the narrative as been deemed argument or comment not requiring specific rulings. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 3 are accepted. While finance is not listed specifically among the areas, business administration (which Petitioner received a degree in) is listed. Apparently, the subarea of specialty is finance but the degree is business administration. The first sentence of paragraph 4 is accepted. The second sentence of paragraph 4 is rejected as irrelevant. COPIES FURNISHED: Lisa S. Santucci Office of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Jorge L. Barreto 1717 North Bayshore Drive #2737 Miami, Florida 33132 Hon. Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell General Counsel Department of Insurance The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Frederick C. Stark Bureau Chief Bureau of Fire Standards & Training 1501 W. Silver Springs Boulevard Ocala, Florida 32675-6499 =================================================================
The Issue The issue in this case is whether Respondent, Department of Financial Services, Division of State Fire Marshal (the Department), properly administered and graded the Firefighter Minimum Standards practical examination taken by Petitioner, Catalina Williams (hereinafter Williams).
Findings Of Fact The Department is the state agency charged with the responsibility for testing, monitoring and certifying firefighters. The Department conducts certification examinations at the Florida State Fire College in Ocala, Florida, and some thirty-plus other sites around the State. Those sites are located on college campuses, training facilities, fire stations, and other locales. The test at issue in this proceeding was administered at the Fire College site. Catalina Williams is an Hispanic woman who desires to become a certified firefighter. Her interest in firefighting began when she worked as a photographer covering fire-related events for a magazine and thought it would be exciting and interesting to be on “the front line.” Williams has also served as a caregiver, giving her experience in providing assistance to others, and is a certified lifeguard. In order to accomplish her goal of becoming a firefighter, Williams entered into schooling to learn the trade. Williams first attended First Coast Technological College (First Coast) in 2009. She completed the Firefighter Minimum Basic Standards Course (Firefighter I) that year. In 2010, she enrolled at the school for the summer semester to begin training in the advanced (Firefighter II) curriculum. That school term was shorter and more compressed than a regular semester. Despite her best efforts, Williams did not successfully complete the Firefighter II course. Rochford was one of her instructors during her first unsuccessful enrollment at First Coast. In 2012, Williams entered First Coast again. At that time, she was working as a paid volunteer firefighter for Volusia County. The county paid her tuition costs at First Coast when Williams entered the school for the Firefighter II course work. The second time, Williams was able to successfully complete the course material and pass her final examination. Passing the final examination was a prerequisite to taking the State certification exam. While attending First Coast, Williams took hundreds of practice exams, especially on the practical portions of the tests. She took exams as part of her classes, took exams voluntarily with someone timing her, and took exams just to practice. The State Certification Exam There are four primary segments of the State certification exam: A written examination of 100 multiple choice questions; A hose evolution involving a self- contained breathing apparatus (SCBA) and personal protection equipment (PPE); A ladder/search and rescue evolution; and A skills portion, involving ropes and knots, two fire ground skills, and a short test on the emergency response guide (ERG). The ladder/search and rescue evolution is a practical portion of the exam; it is the singular portion of the test at issue in this proceeding and will be referred to as the ladder evolution. The ladder evolution portion consists of the following tasks and assignments: The candidate inspects ladders hanging on a simulated fire truck. He or she then takes a 24-foot ladder from the truck and extends it against the wall of a building up to the second floor. Once that ladder is properly hoisted, the candidate confirms that a ladder guard (another candidate acting as a spotter) has control of the ladder. The candidate then initiates radio contact and then walks quickly around the building to another ladder that is already in place. He/she must ascend the ladder to the second floor, test the floor inside the building to make sure it is safe, and enter the building through a window. Upon entry the candidate must find a “victim” (a 125-pound mannequin) on the lower floor, secure the victim in an approved manner, and then exit the building with the mannequin. Upon exit, the candidate must safely deposit the victim on the ground and provide notice by way of radio contact that he/she and the victim are outside the building. The radio transmission is something along the lines of: “PAR 2 [Personnel Accountability Reporting, two people]. Firefighter No. “X” and victim have safely exited the building.” The entire ladder evolution sequence must be done within four minutes and 30 seconds although, as will be discussed below, there are differences of opinion as to when the timed portion of the evolution ends. It is necessary for candidates taking the test to pass each of the four sections. Failure of any one portion would result in failure overall. Should a candidate fail the examination, they must reschedule their retest within six months of the failed test. All retest examinations are administered at the Fire College. On test day, there may be dozens of applicants taking the test at the same time. The procedure dictates that candidates arrive at the test facility in time to process paperwork prior to the 7:30 a.m., test commencement. Candidates must first provide identification to an instructor and be assigned a candidate number. They then fill out paperwork, including a waiver should any injuries occur during testing. Candidates will have their gear inspected to make sure it is in compliance with State standards. Prior to commencement of testing, one of the instructors or examiners will read a document called the “Minimum Standards Pre-Exam Orientation” (the Orientation) to the candidates. During the reading of the Orientation, which may take 45 minutes to an hour or more, candidates are allowed and encouraged to ask questions. Unless a question is asked, the Orientation will be read verbatim, word for word, with no additional comment. After the Orientation is read, candidates are walked through the facility so they can familiarize themselves with the test site. Once the test commences, candidates are not allowed to ask any questions. Williams’ Test Experience In October 2012, after successful completion of the Firefighter II course at First Coast, Williams applied for and was approved to take the State certification examination. The exam was conducted at First Coast on the school’s training grounds. The test was conducted by certified employees of the Department. Williams did not pass the examination. One of her shortcomings in that test was a failure in the ladder evolution. Her timed completion of that evolution was in excess of the required time of four minutes and 30 seconds. Williams had been confident she would pass the certification exam because it was similar to the final exam she had passed at First Coast during her schooling. She believes she failed because she was too nervous when she took the exam when it was administered as the actual State certification test. After failing the exam, Williams then applied for a retest which would be held at the Fire College on February 7, 2013. That re-test is the focus of the instant proceeding. On the morning of the retest, Williams arrived well in advance of the 7:30 a.m., start time. As she inspected her gear in anticipation of the start of the exam, she found that the SCBA regulator she was supposed to use did not properly fit the face mask on her helmet. There were extra regulators behind one of the tables being used to process applicants for that day’s test. Examiner Harper was sitting at that table and was providing paperwork to applicants who had already signed in at the first processing station. Williams went to Harper’s table and was allowed to obtain a new regulator. Inasmuch as she was already at Harper’s table getting her replacement regulator before going to the first processing station, Williams went ahead and filled out the paperwork Harper was providing to candidates at his processing station. That is, she filled out the paperwork before actually checking in at the first station. Williams then went to the first check-in table which was manned by Examiner Rochford. She provided her identification to Rochford and was assigned candidate number 37. Rochford then told Williams to go to Harper’s table to fill out the paperwork at that station. Williams told Rochford she had already done so and walked away. (At that point, Williams remembers Rochford yelling at her, asking whether she understood his order and telling her in a harsh manner to obey him. Rochford does not remember talking to Williams at all. Neither version of this alleged confrontation is persuasive. Inasmuch as the conversation was not verified one way or another by a third person -- although there were probably a number of other people around, it will not be considered to have happened for purposes of this Recommended Order.) The Orientation was then read to the candidates. The various portions of the test were addressed in the Orientation. The ladder evolution contained the following language, which Rochford read verbatim to the candidates without anything added or deleted: “Time starts when you touch anything. Time ends when the candidate and victim fully exit the building.” There is no evidence that any of the candidates asked a question concerning this part of the Orientation. Rochford’s timing policy regarding the ladder evolution differs from what he read to the candidates. He takes the position that time stops when the candidate exits the building with the victim, places the victim on the ground in an appropriate manner, and issues a verbal statement into the radio indicating that the firefighter and victim are out of the building. By his own admission, Rochford could not speak to how other examiners handle this timing issue. Harper, who was Williams’ assigned examiner on the test, also seemed to require candidates to lay the victim down and make radio contact before stopping the time. Neither Rochford nor Harper satisfactorily explained why their timing policy was different from what was stated in the orientation. The testimony concerning the correct way of timing the evolution was, at best, confusing. The following statements from the record provide contradictory and disparate opinions by various examiners: Rochford: “As soon as they lay the mannequin on the ground [and] announce they have exited the building . . . the time stops.” Tr. p. 45, lines 9-18 “The mannequin’s feet have got to be outside the plane from the door opening. That’s when the time stops.” Id. Lines 23- 25. “Until they talk on the radio is – - when they finish talking on the radio is when the time would stop.” Tr. p. 255, lines 7-9. Johnson: “At that point, they’ll use one of the prescribed methods for rescue to take the victim and themselves past the threshold out to the fresh air. At that point, the time stops.” Tr. p. 111, lines 11-14 “I read [the Orientation] word for word.” Tr. p. 114, line 23 “On the ladder rescue evolution . . . we [examiners] all stop when they pass the threshold.” Harper: “Then they’re told to lay the victim down, make radio contact you’re out of the building. Time stops.” Tr. p. 138, lines 7-8 “After they make radio contact.” Tr. p. 147, line 3 “[Orientation] says time starts when they touch anything, time ends when the candidate and the victim fully exit the building.” Tr. P. 148, lines 15-17 Hackett: “It stops when the victim comes out of the building.” Tr. p. 222, lines 7-8 [If the victim was thrown out of the building by the firefighter] “I think they would stop the clock.” Id., lines 9-11 “It is part of the timed part that they have to designate that they’re out of the building safely and lay down the victim.” Tr. pp. 222, line 24 through 223, line 1 Question to Hackett: “If [Williams] is coming out and she dropped the victim and picked up -- and presumably picked it up or whatever and then radioed, would that add time?” Answer: “No.” Tr. p. 246, lines 5- 10 Williams was timed by Harper when she took the ladder evolution portion of the exam. According to Harper’s (deposition) testimony, he subscribes to the version of timing that requires the victim to be laid down on the ground and the firefighter to make radio contact. Using that version of timing, Williams received a time of four minutes and 35 seconds for the entire ladder evolution portion of the test. In March, the Department mailed out notices to all the candidates that had tested on February 7. Notices of failure were sent by registered mail, return receipt requested. Williams’ letter was returned to the Department as unclaimed. Williams at some point in time found out from Chief McElroy, head of the Fire Academy, that she had purportedly failed the exam. She began calling examiner Harper in March seeking to find out what portion of the exam she had not successfully completed. She had at least two telephone conversations with Harper in March 2013. On April 4, 2013, the Department re-sent the failure letter to Williams, again by certified mail. This time, the letter was claimed by Williams and she became officially aware that she had not passed the exam. The basis given for Williams’ failure was that she did not complete the ladder evolution within the prescribed time parameters. She was timed at four minutes and 35 seconds, just five seconds beyond the allowable limit. It is her contention that she exited the building with the victim within the four minute/30 second time frame. The basis for her belief is that she has done the test so many times that she knows when she is behind schedule. During the test she did not stumble, drop any equipment, or have any other problem that would have added to her time. So, she concludes, she must have completed the evolution timely. Her personal feelings on the matter, without further corroboration or support, are not persuasive. Harper did not testify at final hearing. The transcript of his deposition taken in this case was admitted into evidence. In that transcript, Harper talks about his policy regarding timing of the evolution. His policy is the same as Rochford’s and is discussed above. He does not specifically say if he employed that policy when timing Williams during her test on February 7, 2013. He does not explain the difference between the Orientation statement about timing and his personal policy. The most persuasive evidence at final hearing established that it would have taken ten to 15 seconds after exiting the building to lay the victim down and make radio contact. The radio contact itself would have taken about four seconds. If Harper had stopped his timing when Williams and the victim broke the threshold of the building, her time would have likely been less than four minutes and 30 seconds. If he used his personal timing policy, then the time of four minutes/35 seconds was probably accurate. Harper deducted points from Williams’ score because of other minor mistakes. The totality of those points would not have caused Williams to fail the test. It was the ladder evolution time that caused the failure. In fact, Williams successfully completed all portions of the re-test except for the timing issue in the ladder evolution portion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Financial Services, Division of State Fire Marshal, rescinding the failing score on the State Firefighter Certification Examination for Catalina Williams and certifying her as a Firefighter. DONE AND ENTERED this 19th day of November, 2013, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 2013. COPIES FURNISHED: Seth D. Corneal, Esquire The Corneal Law Firm 904 Anastasia Boulevard St. Augustine, Florida 32080 Michael Davidson, Esquire Department of Financial Services Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Julie Jones, CP, FRP, Agency Clerk Department of Financial Services Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0390
The Issue Whether Petitioner is entitled to a passing grade on the Self Contained Breathing Apparatus section (the SCBA section) of the Firefighter Minimum Standards Examination (the Examination) administered September 25, 2003.
Findings Of Fact Petitioner applied to Respondent for certification as a firefighter. Pursuant to Section 633.35, Florida Statutes, Petitioner was required to take and pass the written portion and all four sections of the practical portion of the Examination to achieve this certification. The practical portion of the Examination consists of four sections: the SCBA section; the Hose and Nozzle Operation section; the Ladder Operation section; and the Fireground Skills section. On May 29, 2003, Petitioner took both the written and practical portions of the Examination. She passed the written portion and three sections of the practical portion. Petitioner failed the SCBA section. Petitioner was not required to retake the written portion of the examination or the three sections of the practical examination she passed. Petitioner thereafter retook the SCBA section on September 25, 2003. As implied by the name of the section, the SCBA section involves the use of equipment that enables a firefighter to breathe in a hostile environment, such as a burning building. The candidate must check the equipment, properly don the equipment, activate the equipment, and properly doff the equipment. Mr. Chase was responsible for administering and grading Petitioner’s retake of the SCBA section on September 25, 2003. To pass each section of the practical examination, including the SCBA section, a candidate has to achieve a score of at least 70 points.2 The candidate’s performance on the SCBA section is graded in ten categories, with each category being worth ten points. 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 earned a score of 40 points on her retake the SCBA portion of the practical examination. Petitioner was awarded no points for six of ten categories for which points could be awarded.3 Petitioner failed to establish that she was entitled to additional credit for her performance on the SCBA section. Respondent established that Mr. Chase appropriately administered and graded the subject SCBA section pursuant to the applicable provisions of Chapter 69A-37, Florida Administrative Code, which set forth guidelines for the practical examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding that Petitioner failed the SCBA section of the practical portion of the Firefighter Minimum Standard Examination administered September 25, 2003. DONE AND ENTERED this 25th day of June, 2004, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 June, 2004.
The Issue The issue in this case is whether the Department of Financial Services, Division of State Fire Marshal can revoke Respondent's certification as a firefighter because Respondent failed to timely complete the requirements to maintain his Firefighter Certificate of Compliance prior to September 30, 2011, pursuant to section 633.352, Florida Statutes (2010).
Findings Of Fact The Department is the state agency charged with the responsibility for certifying firefighters in the State of Florida, pursuant to chapter 633, Florida Statutes. On June 30, 2006, Respondent also obtained certification as a fire Instructor III. On October 9, 2006, Pointu obtained his Firefighter II Certificate of Compliance ("certification"). On September 30, 2008, Respondent stopped volunteering with Lauderdale-By-The-Sea Volunteer Fire Department ("Lauderdale-By-The-Sea"). Prior to July 1, 2010, state certified fire instructors were able to maintain their firefighter certification as long as their fire instructor certification was current. On July 1, 2010, the statutory requirements for firefighters changed. Section 633.352 was amended to require a certified firefighter be a full-time fire instructor or a full- time fire inspector to maintain certification. The 2010 statutory change retained a three-year period for firefighters to complete the requirements to maintain certification. It is undisputed that between September 30, 2008, and September 30, 2011, Pointu did not perform any of the necessary requirements to maintain his certification in section 633.352, such as retake the Minimum Standards Examination; maintain employment as a firefighter or volunteer firefighter; or work full time as an instructor or firesafety inspector. On April 6, 2012, the Department distributed an informational bulletin titled "Firesafety Instructors & Maintenance of Firefighter Certification." The bulletin stated in bold "The 3-year period begins on July 1, 2010 for persons who held an active instructor certification and an active firefighter certification as of June 30th, 2010." Question 7 of the bulletin also provided: 7. Is the Division of the State Fire Marshal attempting to amend the State Statute to reflect the previous language that does not require "full-time employment as a fire instructor"? The Division has attempted to amend or reinstate this language, however, the Statute remains unchanged, and the Division may not be successful in amending the language to its previous form. Pointu received the 2012 bulletin and determined that since he held an active instructor certification and active firefighter certification as of June 30, 2010, his firefighter certification period started July 1, 2010, and expired July 1, 2013. On July 1, 2013, section 633.352 was revised amended and renumbered legislature as section 633.414. The statutory amendment also changed the three-year recertification cycle to a four-year cycle and removed the full-time instructor requirement. Respondent used the 2013 statutory change to calculate his certification validation date until 2018. In 2014, Pointu contacted the Department regarding his certification after being told by a county official that his certification was not valid. Thereafter, over an approximate two-year period, Respondent was informed various and conflicting information regarding his certification status and expiration dates. The Department does not have a statutory requirement to provide notice to certified individuals of requirements to maintain certification. The Fire College Department of Insurance Continuing Education ("FCDICE") database monitors and manages all firefighters' certifications. Department's interim chief, Michael Tucker ("Tucker"), made the final decision regarding Pointu's certification. Tucker reviewed FCDICE and did not find any records which demonstrated Pointu's renewal of certification prior to September 29, 2011. Tucker correctly determined that the 2010 version of the statute applied to Pointu's certification because Respondent left his employment at Lauderdale-By-The-Sea on September 30, 2008, which made his three-year period for renewal deadline September 30, 2011, pursuant to section 633.352. Tucker also established that Pointu did not fulfill the minimum requirements to renew his certification prior to September 30, 2011, because he did not become employed again, volunteer with a fire department, become a full-time fire inspector or a full-time instructor, or retake the practical portion of the examination. After evaluating Respondent's certification history, Tucker concluded Respondent failed to meet the minimum firefighter requirements and therefore Pointu's certification is not valid and should be revoked. At hearing, Tucker acknowledged that he was not familiar with the issuance of the April 6, 2012, bulletin, but, after reviewing it, he determined there were misstatements in the bulletin regarding requirements for certification because the Department did not have the authority to waive any statutes. On June 3, 2011, Petitioner issued an amended Notice that it intended to revoke Pointu's certification for failure to renew his certification within three years of employment termination from an organized fire department pursuant to section 633.352. Pointu contested the notice and requested a hearing.
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 finding that Respondent, Patrick Pointu, violated section 633.252, Florida Statutes. It is further RECOMMENDED that Respondent's Firefighter Certificate of Compliance be revoked. DONE AND ENTERED this 31st day of August, 2016, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2016. COPIES FURNISHED: Melissa E. Dembicer, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 (eServed) Merribeth Bohanan, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 (eServed) Patrick Pointu (Address of Record-eServed) Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
The Issue Whether Petitioner is entitled to additional credit for her responses to Question Nos. 14 and 21 of the Special State Firesafety Inspector Certification Examination administered on November 13, 2003.
Findings Of Fact Based on the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner, Alma Elaine Carlus, is an applicant for certification as a firesafety inspector in the State of Florida. Applicants for certification as firesafety inspectors are required to complete a training course, which consists of 80 hours of training in firesafety inspection and must be completed prior to taking the Special State Firesafety Inspector Certification Examination. The approved textbooks for the Special State Firesafety Inspector Certification Examination training courses are Fire Inspection and Code Enforcement (6th Edition), which is published by the International Fire Service Training Association, and the National Fire Prevention Association Life Safety Code. Petitioner successfully completed the required training program and, thereafter, took the Special State Firesafety Inspector Examination on May 29, 2003. The Special State Firesafety Inspector Examination is a written examination containing 50 multiple choice, objective questions, worth two points each. The candidates are given two hours to complete the exam. In order to obtain a passing score, an applicant must earn a score of at least 70 percent. Petitioner did not pass the examination on May 29, 2003. On November 13, 2003, Petitioner retook the examination and earned a score of 66 percent. Because a minimum score of 70 percent is required to pass the examination, Petitioner needs an additional four points to earn a passing score. Petitioner challenged the scoring of two questions on the Special State Firesafety Inspector Examination, Question Nos. 14 and 21. Question No. 14 required the examinee to identify the "least important" characteristic involved in evaluating storage of flammable and combustible liquids. The answer choices given were: (a) the foundations and supports; (b) size and location of vents; (c) design of the tank; and (d) size of the tank. Question No. 14 is clear and unambiguous and the correct answer is included among the choices provided. The answer to Question No. 14 is found on page 325 of the textbook, Fire Inspection and Code Enforcement (Sixth Edition). The correct answer to Question No. 14 is "(d) size of the tank." Petitioner did not select "d" as the correct response and, thus, is not entitled to any additional points for Question No. 14. Question No. 21 states: In above ground tanks containing liquids classified as Class I, Class II, or Class IIIA, the distance between the tanks must be at least the sum of their diameters. The answer choices given were: a) 3/4; b) 1/2; c) 1/4; and d) 1/6. Question No. 21 is clear and unambiguous and the correct answer is included among the choices provided. The answer to Question No. 21 is found on page 327 of the textbook Fire Inspection and Code Enforcement (Sixth Edition). The correct answer to Question No. 21 is "(d) 1/6." Petitioner did not select "d" as the correct response and, thus, is not entitled to any additional points for Question No. 21. The knowledge tested in the Special State Firesafety Inspector Examination is essential for any firesafety inspector to know in order to properly conduct inspections required of individuals in that position.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order be entered finding that Petitioner is not entitled to additional points for her responses to Question Nos. 14 and 21 of the Special State Firesafety Inspector Examination and denying Petitioner's application for certification as a special state firesafety inspector. DONE AND ENTERED this 21st day of April, 2004, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 21st day of April, 2004. COPIES FURNISHED: Casia R. Belk, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Alma Elaine Carlus 2419 Paradise Drive Kissimmee, Florida 34741 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
