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 is whether Respondent properly denied Petitioner certification as a Florida firefighter.
Findings Of Fact Petitioner, a resident of Ohio, requested to qualify for the Florida Minimum Standards Equivalence Examination, based on his experience, to become a Florida firefighter. Petitioner's request effectively "challenged" the exam and requested an exemption from attending the Florida Minimum Standards Course. Petitioner could have taken the Florida Minimum Standards Course. If he had taken the course, he may have had an opportunity to review video tapes and other instructional materials which are available but not a required part of the basic curriculum. Instead, Petitioner elected to furnish Respondent with his out-of-state firefighter credentials. Subsequently, Respondent granted Petitioner the requested exemption. Prior to taking the examination, Respondent's staff accurately informed Petitioner about the scope, structure and subject matter of the test during numerous telephone calls. On at least ten occasions, Respondent's staff described the test to Petitioner and told him how to prepare for it. Respondent's staff specifically told Petitioner that he should study the International Fire Service Training Association Manual (IFSTA Manual). As to part one of the practical portion of the exam, Petitioner knew that Respondent would test him on the breathing apparatus, the one and three quarter-inch hose and nozzle operation, and the twenty-four foot ladder evolution. Respondent told Petitioner that he needed to know how to perform all skills set forth in the IFSTA Manual because Respondent randomly selects six different sections of tasks to test on part two of the practical examination. The six skill sections which are picked for part two remain unknown to anyone in advance of the test regardless of whether he is out-of-state or in-state applicants. These skills are chosen by Respondent's Field Representatives in their offices at the Florida State Fire College prior to going to a testing site or for testing at the Florida State Fire College. The two parts of the practical examination are of equal worth. An examinee begins with 100 points and points are deducted for deficiencies throughout the exam. Candidates are required to achieve a score of at least seventy (70) points in order to pass the practical examination. Petitioner took his Minimum Standards Equivalency Practical Examination on April 28, 1997, at the Florida State Fire College in Ocala, Florida. Petitioner's final score on the April 28, 1997, Minimum Standards Equivalency Practical Examination was twenty-five (25) points, which was not a passing score. Candidates are allowed one retest of the Minimum Standards Equivalency Practical Retest if they are not successful on their initial test. Petitioner chose to take the test again on July 28, 1997, at the Florida State Fire College in Ocala, Florida. Respondent's Field Representative administered part one of the Minimum Standards Equivalency Practical Retest to Petitioner. Petitioner did not take part two of the Minimum Standards Equivalency Practical Retest. He chose to quit after realizing that his score on part one was so low that he could not pass the retest as a whole. After deciding not to take part two in the Minimum Standards Equivalency Practical Retest, Petitioner approached Field Representative Bill DePauw to tell him that he was quitting. Petitioner was not attired in the mandatory minimum safety gear, but in civilian clothes. At that time, Mr. DePauw was in the process of testing another examinee. Mr. DePauw told the Petitioner he needed to talk to Larry McCall, Field Representative Supervisor. Petitioner then approached Mr. McCall and informed him that he would not be taking part two of the retest. Mr. McCall asked Petitioner to leave the testing grounds because Petitioner was being loud and disruptive to the applicants testing or waiting to be tested. Further, once an applicant decides not to continue, he is no longer allowed in the testing area. Petitioner informed Mr. McCall, both on the field and in Mr. McCall's office, that the Florida exam and the process were "chicken." Petitioner lost seventy-five (75) points on part one of the Minimum Standards Equivalency Practical Retest. The maximum allowable deduction for part one of fifty (50) points was deducted from Petitioner's part one score. Therefore, Petitioner's final score on the Minimum Standards Equivalency Practical Retest administered on July 28, 1997, was fifty (50) points, which is not a passing score. Applicants are assigned a number during orientation. From that time on, the applicants are referred to only by that number to ensure impartiality. The applicant's name is attached to the number after the exam, sometimes several days later. The examiner makes up a package of exams, numbers the packets, and then circles six (6) skills at random in each packet. No names are applied to the packets and the numbers are not assigned to the examinees until the day of testing. The Field Representatives are required to give an orientation prior to each Minimum Standards Equivalency Examination on the day of the exam. The orientation consists of walking the applicants through each section of part one. The Field Representatives use the same form check-off sheet during each orientation to ensure that each candidate is given the same orientation. The Field Representatives use a scoresheet to grade the applicants which is a guide to simplify the scoring process. The numeric values on the scoresheet are negative points deducted from an applicant's raw score of 100 points. The Field Representatives only make deductions when the applicant does not follow the required procedure for performing the evolution. Petitioner admits that the point deduction is correct for exceeding the required time on the breathing apparatus evolution. Petitioner admits that he had to go back to the loop during the hose and nozzle evolution to fix the kinks in the hose line. Additionally, he took a couple of steps backwards while he was pulling the hose line. Walking backwards occurs when a candidate takes two steps or more backwards, walking in the opposite direction from where he is looking. There are no warnings issued for walking backwards during the certification examination. Petitioner admits that the deduction for exceeding time during the hose and nozzle evolution was correct. The greater weight of the evidence indicates that Petitioner struggled during the ladder evolution. He lacked control of the ladder at all times during the demonstration. All of the deficiencies which Petitioner admits to amount to a total of 35 negative points as the least possible point deduction. That equals a score of 65 without Petitioner even having taken part two. A score of 65 is not a passing score.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Bill Nelson in his capacity as State Fire Marshal enter a Final Order denying Petitioner's request for a Certification of Compliance as a Florida Firefighter. DONE AND ORDERED this 20th day of August, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1998. COPIES FURNISHED: Elenita Gomez, Esquire Division of Legal Services Department of Insurance and Treasurer 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Paul Appleton 13500 Shaker Boulevard, No. 102 Cleveland, Ohio 44120 Bill Nelson, Commissioner Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issues in this case are whether Respondent’s participation in the John M. McKay Scholarships for Students with Disabilities Program (McKay Scholarships) and the Corporate Income Tax Credit Scholarship Program (CTC Scholarships) should have been suspended, and whether Respondent’s eligibility to participate in the programs should be revoked.
Findings Of Fact CHC is a private school located in Merritt Island, Florida. Lara Nichilo is the owner and head administrator of CHC. Ms. Nichilo was also the owner and head administrator of another private school located in Cocoa, Florida. For the purposes of this proceeding, the school located in Cocoa, Florida, will be referred to as CHC 2.2 CHC and CHC 2 had participated in the McKay Scholarships and CTC Scholarships programs. Section 1002.39, Florida Statutes, authorizes the McKay Scholarships program, which affords a disabled student an opportunity to receive a scholarship to defray the cost of attending a private school of choice. Section 220.187, Florida Statutes, authorizes the CTC Scholarships program, which enables taxpayers to make private, voluntary contributions so that students who qualify for free or reduced-price school lunches under the National School Lunch Act may receive a scholarship to defray the cost of attending a private school of choice. The Department of Education has the responsibility to annually verify the eligibility of a private school to participate in these scholarship programs. Private schools participating in the McKay Scholarships and CTC Scholarships programs are required to comply with Section 1002.421, Florida Statutes, and must meet applicable state and local health, safety, and welfare laws, codes, and rules, including laws, codes, and rules relating to firesafety and building safety. If a private school participating in the McKay Scholarships and CTC Scholarships programs desires to renew its participation in the programs, the school must file a signed, notarized Form IEPC SCF-1 affidavit with the Department of Education by March 1 of each year for participation in the subsequent school year. The Form IEPC SCF-1 affidavit contains a list of requirements to which the private school must certify that it meets or does not meet. If the school certifies that it does not meet a requirement, such certification constitutes an outstanding compliance issue, which must be resolved by the school prior to May 1 of each year for the school to remain eligible to participate in the scholarship programs. Specifically, the signature page of the Form IEPC SCF-1 affidavit states in part: “I understand that in answering ‘No’ to any requirement in Section 9: School Facility, the provision of a reason for answering ‘No’ shall not make the school compliant with the reporting requirement and will be considered an outstanding compliance issue for resolution as described in State Board of Education Rules 6A-6.03315, 6A-6.0960, and 6A- 6.0970, Florida Administrative Code.” Florida Administrative Code Rule 6A-6.03315(2) requires that every third year a school applies for renewal of eligibility for the scholarship programs there must be a review of compliance documentation. This means that the school must submit documentation to support its eligibility along with the affidavit. For the renewal of eligibility for the 2009-2010 school year, CHC had to submit compliance documentation for review. On November 6, 2008, Ms. Nichilo executed and mailed the Form IEPC SCF-1 affidavit for CHC for renewal of CHC’s eligibility to participate in the McKay Scholarships and CTC Scholarships programs for the 2009-2010 school year. Subsection 1 of Section 9 of the Form IEPC SCF-1 affidavit requires the school to answer the following question: Does the school facility possess a current, violation free or satisfactory Fire Code Inspection and compliance report in accordance with Section 1002.421(2)(g)1., Florida Statutes, State Finance Services Rule 69A-58.004, Florida Administrative Code, and county and/or municipal ordinance? Ms. Nichilo answered “Yes” to the question. CHC submitted a fire inspection certificate for CHC with a date of February 22, 2008. At the time Ms. Nichilo executed and submitted the Form IEPC SCF-1 affidavit in November 2008, CHC did not have a current Fire Code Inspection and compliance report. The last fire inspection certificate was dated February 22, 2006, and had expired on February 22, 2007. Ms. Nichilo executed and submitted a Form IEPC SCF-1 affidavit for the 2007-2008 school year, certifying that CHC had a current, violation-free fire inspection report. The certificate affidavit which Ms. Nichilo signed stated: I have read the applicable scholarship program rules and understand that by signing this form I am certifying that the school is currently in compliance and agrees [sic] to remain in compliance with all scholarship program rules and reporting requirements. If at any point, the school is not in compliance with scholarship rules, or if there is a change in the status of any reporting requirement, the school will have 15 days to notify the Department of Education and will provide all information necessary to document its continued compliance with program rules and requirements. At the time the certification was submitted on January 11, 2007, CHC did have a current, violation-free fire inspection report; however, CHC did not have a current, violation-free fire inspection report that was valid for the entire 2007-2008 school year. CHC did not notify the Department of Education that it was not in compliance with the fire safety inspections during the 2007-2008 school year. On December 5, 2007, Ms. Nichilo executed and submitted a Form IEPC SCF-1 affidavit for the 2008-2009 school year, certifying that CHC had a current, violation-free fire inspection report. At the time of submission of the affidavit, CHC did not have a current, violation-free fire inspection report, and, from the beginning of the 2008-2009 school year until December 23, 2008, CHC did not maintain a current, violation-free fire inspection report nor did CHC notify the Department of Education as late as December 11, 2008, that CHC was not in compliance with the fire inspection requirement. On November 19, 2008, Assistant Fire Marshall Doug Carter of Brevard County Fire Rescue (BCFR) received a complaint concerning CHC and CHC 2 from an anonymous caller. It is the policy of BCFR to follow up on all complaints. On November 20, 2008, Lead Fire Inspector William Morissette, following up on the anonymous complaint, went to CHC for the purpose of performing a fire inspection. On November 20, 2008, Mr. Morissette performed a fire inspection on CHC and noted some violations. During the inspection on November 20, 2008, Mr. Morissette noticed that the fire inspection certificate that was posted at CHC was partially obscured, and he could not see the school’s address. On November 20, 2008, Mr. Morissette performed a fire inspection of CHC 2 and noted some violations. He observed the posted fire certificate at CHC 2 during his inspection. The fire certificate had an account number 23832 and was dated February 22, 2008. The font used in the printing of the certificate did not appear to be the same type as used by BCFR. While at CHC 2, Mr. Morrissette called Assistant Fire Marshall Carter and learned that account number 23832 was for CHC and not CHC 2 and that no fire certificate had been issued to CHC 2 on February 22, 2008. The last fire certificate that had been issued to CHC 2 was on December 15, 2005, and had expired on December 16, 2006. On November 6, 2008, CHC sent a copy of the fire inspection certificate dated February 22, 2008, to the Department of Education as part of the documentation supplied to verify CHC’s eligibility for renewal. The fire inspection certificate was a forgery. Ms. Nichilo testified that she did not send the forged certificate to the Department of Education and that some disgruntled former employee who had access to CHC’s files must have sent the certificate to the Department of Education or must have put the forged certificate in the envelope containing the renewal information that was sent to the Department of Education. Ms. Nichilo’s testimony is not credible. The certificate came in the same envelope as the other material which CHC submitted in November 2008. Ms. Nichilo signed and mailed the renewal information on November 6, 2008. Her testimony that the envelope must have been in the mail room a couple of days before it was mailed, thereby allowing the disgruntled employee an opportunity to slip the forged certificate in the envelope, is not credible. After the renewal package was sent to the Department of Education, Ms. Nichilo asked her secretary to contact BCFR to schedule a fire inspection. Ms. Nichilo knew that she needed a fire inspection because she knew that she did not have a current fire inspection certificate when she sent the renewal submittal to the Department of Education. Based on the clear and convincing evidence presented, it can only be concluded that Ms. Nichilo knew the fire inspection certificates, which she included with the renewal submittals, were forgeries. On or about December 5, 2008, Mr. Carter contacted the Department of Education and informed the Department of Education that he had concerns about CHC’s and CHC 2’s fire inspection certificates. Mr. Carter sent a memorandum dated December 9, 2008, to Riley Hyle with the Department of Education, explaining BCFR’s observations and concerns relating to the fire inspection certificates. After learning from Mr. Carter that CHC’s and CHC 2’s fire inspection certificates were in question, Mr. Hyle checked the Department of Education’s renewal files on CHC and CHC 2. Mr. Hyle found forged fire inspection certificates in both files. When CHC’s and CHC 2’s submittals arrived on November 10, 2008, in the same envelope, Mr. Hyle reviewed the submittals and verified that both submittals contained fire inspection certificates. He received no further documentation from CHC or CHC 2 from November 10, 2008, and the time he talked to Mr. Carter on December 5, 2008. On December 8, 2008, Mr. Morrissette returned to CHC 2 to do a follow-up inspection. CHC 2 had not corrected all its violations. Mr. Morrissette was advised by the principal at CHC 2 that CHC also had not corrected all of its violations. One of the violations CHC had was a broken lockbox. On December 7, 2008, CHC had called BCFR and requested an application for a lockbox. Thus, on December 8, 2008, CHC would still have not corrected its lockbox violation. On December 11, 2008, Ms. Nichilo signed a revised version of the Form IEPC SCF-1 affidavit3 for CHC for the 2009- 2010 school year. The question posed in the affidavit submitted in November 2008 concerning whether the facility had a current, violation-free fire code inspection remained the same in the revised affidavit. Again, CHC stated that it did have a current, violation-free Fire Code Inspection and compliance report. The revised affidavit also contained the same language as the November 2008 affidavit that answering a question in the negative in Section 9 would result in an out-of-compliance issue. Both the November affidavit and the revised affidavit contained the following language: I have read the applicable scholarship program rules and understand that by signing the form I am certifying that the school is currently in compliance and agrees [sic] to remain in compliance with all scholarship program rules and reporting requirements. If at any point, the school is not in compliance with the scholarship rules, or if there is a change in the status of any reporting requirement, the school shall have 15 days to notify the Department of Education and will provide all information necessary to document its continued compliance with program rules and requirements. The revised affidavit was submitted to the Department of Education, which received the affidavit on December 16, 2008. At the time CHC submitted the affidavit, it did not have a current, violation-free Fire Code Inspection and compliance report. On December 23, 2008, the BCFR re-inspected CHC and found that the violations had been corrected. After its inspection on December 23, 2008, BCFR issued a fire inspection certificate backdated to November 20, 2008, which was the date of the original inspection. On December 17, 2008, the Agency issued an Administrative Complaint, suspending CHC’s eligibility for the McKay Scholarships and CTC Scholarships programs for failure to have a current fire inspection report. By letter dated December 23, 2008, and received by the Department of Education on December 29, 2008, CHC advised that the school had been re- inspected and now had a current fire code inspection certificate. On January 2, 2009, CHC sent a 12-page facsimile transmission to the Department of Education. One of the pages of the transmission was a copy of a facsimile transmission coversheet dated December 31, 2008, with the BCFR letterhead concerning inspection reports. The comments section of the coversheet read “Please read letter.” The second page of the transmission was an unsigned to-whom-it-may-concern letter dated December 30, 2008. At the top of the letter, printed in large, bold type was the following: “Brevard County Fire Rescue.” The letter stated: To whom it may concern, In reviewing and trying to figure out what happen with the 2007 inspection reports this is the conclusion we have come to. If you review the two reports on both CHC-1 and CHC-2 the visiting inspection times over lap each other making it seem like a 2007 inspection was done when in reality it was not. CHC-1 inspection has a date on it February 22, 2006 to February 2007. CHC-2 inspection shows January 12, 2006 (re-inspection) January 2007. I believe that this was just an over site on both our parts due to the fact that the fire department does come in regularly every year even without an appointment. Lara Nichilo did notify us to come in ASAP when the reports could not be found. But as of November 20, 2008 all her inspections were done and her follow up correction reports have been completed putting her in good standing with the fire and inspections department. CHC-1 and CHC-2 (inspection reports provided to you with this letter) For more information you may contact us at 321-455-6383 Thank you for your time, The telephone number given in the letter was the telephone number for CHC. The original letter submitted at the final hearing by CHC was written on stationary bearing the CHC watermark. The letter received by the Department of Education had no visible watermark. The facsimile transmission coversheet that accompanied the letter was a coversheet which BCFR had sent to CHC on December 31, 2008. The statements in the comments section that BCFR sent had been deleted and replaced with “Please read letter.” The following are the comments which BCFR had written: There are no reports or certificates for 690 Range Road for 2006 or 2007. There are no inspection reports or certificates for 55 McLeod for 2007. Certificates will be issued upon receipt of payment. Laura Harrison, the director of the McKay Scholarships and CTC Scholarships programs at the Department of Education, transmitted a copy of the letter to BCFR and asked if the letter had originated from BCFR. Mr. Carter advised Ms. Harrison that the letter did not come from BCFR. Ms. Nichilo wrote the letter. A person reading the letter would be led to believe that the letter came from BCFR. The letter was accompanied by a facsimile transmission coversheet bearing the BCFR letterhead and the coversheet comments said “Please read letter.” The letter refers to Ms. Nichilo in the third person and uses first person plural pronouns to refer to BCFR. The letter purports to bear the letterhead of BCFR. It must be concluded that Ms. Nichilo intended the Department of Education to rely on the letter as a letter transmitted by BCFR to Ms. Nichilo to explain the situation. If Ms. Nichilo had intended the Department of Education to treat the letter as a letter written by her, she would have written the letter using CHC letterhead, signed the letter, not referred to herself in the third person, not referred to BCFR in the first person, and not used a transmission coversheet from BCFR in which the comments section had been altered. In a conversation on December 30, 2008, Ms. Nichilo advised Mr. Hyle that she was sending him a letter that would explain everything and would resolve the situation concerning the fire inspections. Ms. Nichilo testified that she told Mr. Hyle that she was writing the letter. Mr. Hyle did not recall whether Ms. Nichilo said that she was writing a letter. Jade Quinif, who was Ms. Nichilo’s administrative assistant on December 30, 2008, listened to the conversation between Mr. Hyle and Ms. Nichilo on speakerphone. She recalls Ms. Nichilo asking Mr. Hyle if he would like her to write a letter regarding Ms. Nichilo’s conversations with BCFR. Mr. Hyle said that would be fine. Ms. Nichilo typed a letter and asked Ms. Quinif to send it to the Department of Education. Ms. Quinif sent a letter to the Department of Education dated December 30, 2008. Based on the evidence presented, the letter that Ms. Quinif sent was a letter dated December 30, 2008, written on CHC letterhead and signed by Ms. Nichilo.4 It was not the letter dated December 30, 2008, which appeared to be from BCFR (purported BCFR letter). The only evidence of receipt of the purported BCFR letter by the Department of Education is in a 12-page facsimile transmittal, which was transmitted twice on January 2, 2009. Ms. Quinif credibly testified that she did not send a 12-page transmission and that she did not send the doctored transmission coversheet from BCFR. She also credibly testified that the letter that she sent was a few days after Christmas and was not more than a week after Christmas. Ms. Nichilo testified that Ms. Quinif did sent the transmittal coversheet from the BCFR on December 30, 2008; however, Ms. Nichilo’s testimony is not credible given that the transmittal coversheet from BCFR was dated December 31, 2008, and showed a transmission date of December 31, 2008, to CHC. The clear and convincing evidence is that Ms. Nichilo wrote and sent the purported letter from BCFR and the doctored transmittal coversheet from BCFR in an attempt to make it appear that BCFR was taking some of the blame for CHC not having maintained current fire inspection certificates. BCFR does not automatically do an annual inspection of schools. If a school desires to have a fire inspection, the school must notify BCFR and arrange for a fire inspection. The failure to have current, violation-free fire inspection reports rests with CHC and not with BCFR. The bogus letter was an effort by CHC to seek mitigation for its failure to adhere to the requirements for eligibility for the scholarships programs. After learning that the letter transmitted on January 2, 2009, was not from BCFR, the Agency issued an Amended Administrative Complaint on January 23, 2009, which superseded the December 17, 2008, Administrative Complaint. The Amended Administrative Complaint deleted the allegations concerning the failure to have a current, violation-free fire inspection report and added allegations involving fraud and failure to maintain current, violation-free fire inspection reports.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining the suspension of CHC’s eligibility for the McKay Scholarships and CTC Scholarships programs and revoking CHC’s eligibility for the McKay Scholarships and CTC Scholarships programs. DONE AND ENTERED this 4th day of May, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 4th day of May, 2009.
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 September 26, 2011, and included four practical components: self-contained breathing apparatus ("SCBA"), hose operation, ladder operation, and fireground skills.2/ To pass the retention examination, an examinee must earn a score of at least 70 on all sections. Each portion of the retention examination has certain evaluative components that are graded. For instance, the ladder operation consists of 15 skills——e.g., maintaining contact with the ladder, lifting and securing the ladder properly, using proper hand position——that the examinee must complete within the maximum time of four minutes and 30 seconds. The ladder operation also requires the examinee to fulfill ten mandatory components, which include, among other things, maintaining control of the ladder at all times and securing the "dogs"3/ properly. Pertinent to the instant case, noncompliance with respect to any of the mandatory elements results in automatic failure, irrespective of the examinee's performance in connection with the 15 evaluative components. It is undisputed that Petitioner achieved passing scores on the fireground skills, SCBA, and hose components of the retention examination; Petitioner was unable, however, to complete the ladder evaluation within the prescribed time limit, which resulted in an automatic failure. Petitioner, like all candidates who fail the retention examination on the first attempt, was offered one retest opportunity.4/ Petitioner's retest was administered on November 15, 2011, at the Ocala Fire College, during which he passed the SCBA and hose portions of the examination. (For reasons not explained during the final hearing, Petitioner was not required to re-take the fireground skills component.) Once again, however, Petitioner failed the ladder evaluation, as established by the final hearing testimony of Tuffy Dixon, the field examiner on that occasion.5/ Mr. Dixon explained, credibly, that Petitioner scored an automatic failure because he neglected to lock one of the ladder's "dogs"——one of the ladder evaluation's ten mandatory components.6/ Accordingly, the evidence demonstrates that Petitioner failed the November 15, 2011, retention examination retest.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services enter an order denying Petitioner's application to retain his certification as a firefighter in the State of Florida. DONE AND ENTERED this 25th day of July, 2012, in Tallahassee, Leon County, Florida. S Edward T. Bauer Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 2012.
The Issue 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
The Issue Petitioner, Danny Rhoda, has applied for eligibility to take the competency examination for licensing as a fire protection system Contractor IV. The issue in this proceeding is whether Mr. Rhoda’s application should be approved.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED that the Department of Insurance enter its Final Order denying Danny D. Rhoda’s application for eligibility to take the Contractor IV licensing examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of January, 1997. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1997. COPIES FURNISHED: Danny D. Rhoda Post Office Box 232 Fruitland Park, Florida 34731 Lisa S. Santucci, Esquire Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0333 Daniel Y. Sumner, Esquire General Counsel Department of Insurance & Treasurer The Capitol, LL-26 Tallahassee, Florida 32399-0300 Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-3000
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.
The Issue Whether Petitioner is entitled to a passing grade on the practical portion of the Florida Minimum Standards Examination for firefighters taken May 22, 2002.
Findings Of Fact At times pertinent to this proceeding, Petitioner held certification as a firefighter (Firefighter Certificate of Completion #81191) issued by the State Fire Marshal. For at least three years prior to December 5, 2001, Petitioner had not been active as a firefighter or as a volunteer firefighter with an organized fire department. Pursuant to Section 633.352, Florida Statutes, Petitioner was required to successfully complete the practical portion of the Florida Minimum Standards Examination for firefighters to retain his certification. 1/ The practical examinations at issue in this proceeding consisted of four sections: the Self Contained Breathing Apparatus (SCBA) section, the Hose and Nozzle Operation section, the Ladder Operation section, and the Fireground Skills section. A candidate must pass each section to pass the practical examination. On November 16, 2001, Petitioner applied to sit for the practical examination scheduled for December 5, 2001. Petitioner sat for and failed all four sections of the practical examination administered December 5. Respondent's Rule 4A- 37.0527(6), Florida Administrative Code, permits a candidate to retake the practical examination once without further training. Petitioner thereafter applied to retake the examination, which was scheduled for May 22, 2002. Petitioner passed the Hose and Nozzle Operation and the Ladder Operation sections of the practical examination on May 22, and the scoring on those sections are not at issue in this proceeding. At issue in this proceeding is whether Petitioner failed the SCBA section and/or the Fireground Skills section of the practical examination administered May 22, 2002. The SCBA section of the practical examination consisted of questions for which a candidate was awarded credit and certain items that a candidate was required to successfully complete (fatal items). If a candidate missed a fatal item, the candidate failed the SCBA section of the examination and, consequently, the entire practical examination. The Firegrounds Skills section of the examination tests a candidate on a variety of skills a firefighter is expected to demonstrate while fighting a fire, and the candidate is awarded a score for his or her performance. To pass each part of the practical examination, including the SCBA and the Fireground Skills sections, a candidate must achieve a score of 70 points and must not miss a fatal item. The SCBA section of the practical examination requires the candidate to properly don certain protective gear in 1 minute and 45 seconds. The failure to complete the exercise in the allotted time is a fatal item. In addition, the candidate must activate and check a personal alarm system as part of the exercise. The failure of the candidate to properly wear and activate the alarm system is also a fatal item. The greater weight of the credible evidence established that Petitioner's performance on the SCBA section of the practical examination was appropriately and fairly graded. Petitioner failed to timely complete the exercise, which is a fatal item. Petitioner failed to properly activate the personal alarm system, which is also a fatal item. Petitioner was awarded no points for 5 of 10 items for which points could be awarded (each item was worth 10 points). Even if he had passed the fatal items noted above, Petitioner would have failed the SCBA section because he failed to achieve a passing score of 70 on that section of the examination. Petitioner failed to establish that he was entitled to additional credit for the SCBA section of the practical examination. Petitioner received a failing score on the Firegrounds Skills section of the practical examination administered May 22, 2002. The greater weight of the credible evidence established that Petitioner's performance on the Firegrounds Skills section of the practical examination administered May 22, 2002, was appropriately and fairly graded. Of the 100 points available for this section of the examination, Respondent established that Petitioner deserved no credit for the following: 20 points on the forcible entry part of the section; 12 points on the ladders and fire service tools part of the section; and 4 points on the hazardous materials part of the section. Consequently, Respondent established that Petitioner was entitled to a total of 64 points on the Firegrounds Skills section of the practical examination administered May 22 2002, which is a failing grade. Petitioner failed to establish that he was entitled to additional credit for the Firegrounds Skills section of the practical examination administered May 22, 2002. Respondent established that the administration and grading of the subject exams were consistent with the provisions of Chapter 4A-37, Florida Administrative Code, which set forth by rule applicable 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 adopting the Findings of Facts and Conclusions of Law set forth herein. It is further RECOMMENDED that the final order deny Petitioner's application for re-certification as a firefighter. DONE AND ENTERED this 14th day of January, 2003, in Tallahassee, Leon County, Florida. 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 14th day of January, 2003.
The Issue The issue is whether Respondent properly denied Petitioner's application for certification as a firefighter after Petitioner failed to successfully pass the practical portion of the Minimum Standards Examination.
Findings Of Fact Petitioner applied for certification as a firefighter in October 2002. In order to be certified, Petitioner was required to successfully complete the Minimum Standards Course. The course consists of taking a minimum of 360 hours of training at one of 30 certified centers in Florida. After completing the training course, Petitioner was required to take the Minimum Standards Examination, which is structured in two parts: a written portion and a practical portion. The practical portion consists of four sections or evolutions including the Self-Contained Breathing Apparatus (SCBA), the hose pull, the ladder operation, and the fire skills section. To pass the four practical evolutions, an applicant must achieve a score of at least 70 percent on each one. Each evolution of the practical exam has certain elements or skills that are graded. The ladder test contains eleven skills and requires that the test be completed in not more than two minutes and forty-five seconds. The eleven skills for the ladder evolution include but are not limited to the following: ladder properly lifted, carried, (50 feet) and positioned for raise; maintains control of ladder during entire operation; extremities in safe position during entire operation; ladder halyard properly secured and proper safety applied; fly section extended without utilizing the wall; and fly section out and positioned correctly. After completing the Minimum Standards Course, Petitioner took the initial Minimum Standards Examination on February 19, 2003. Petitioner passed the written portion of the exam but did not pass the practical portion of the initial exam because he made a score of 60 on the ladder operations evolution of the practical examination. In a memorandum dated March 5, 2003, the Department formally advised Petitioner that he had failed the ladder portion of the practical exam for failure to maintain control of ladder. The memorandum also informed Petitioner that he was scheduled for a retake of the minimum standards practical retest of the ladder evolution. In another memorandum dated March 5, 2003, the Department advised Petitioner that he was scheduled to retake the ladder portion of the practical examination at the Florida State Fire College in Ocala, Florida, on May 22, 2003, at 8:00 a.m. Petitioner took the retest of the ladder portion of the practical examination as scheduled on May 22, 2003, in Ocala, Florida. Petitioner did not successfully complete the retest, losing points on three skills and not completing the test in the requisite amount of time. However, there was a problem with the ladder used by Petitioner on the retest in that the "fly" was not locked on the ladder. Ralph Chase is a field representative with the Division of State Fire Marshall of the Department. Mr. Chase was the examiner who tested Petitioner on the retake of the ladder portion of the practical exam on May 22, 2003. Mr. Chase is an experienced examiner. Because of the problem with the ladder on Petitioner's initial attempt on the ladder retest, Mr. Chase allowed Petitioner a second attempt to pass the ladder retest on May 22, 2003, although it is unusual to do so. On the second retest, Petitioner finished the test within the required amount of time but points were counted off for the following skills: ladder properly lifted, carried, (50 feet) and positioned for raise; extremities in safe position during entire operation; ladder halyard properly secured and proper safety applied; and fly section out and positioned correctly. Mr. Chase also made a notation that Petitioner had "poor control" but nonetheless gave Petitioner a passing score on the mandatory skill of maintaining control of ladder during the entire operation. Petitioner made a score of 60 on his second attempt of the retest which is below the required passing score of 70. Phillip Hershman was present at the retest in Ocala on May 22, 2003. Mr. Hershman was there to retake the hose pull portion of the practical exam. At the time of the hearing, he had been employed by the Suwannee County Fire Department for two months. Mr. Hershman was about 50 feet away from Petitioner during Petitioner's ladder retest. There was considerable noise near Mr. Hershman because the self-contained breathing apparatus test was also being conducted nearby. Mr. Hershman had a side view of Petitioner during the ladder retest. He could not see everything that was going on during the ladder retest. Mr. Hershman saw Petitioner look over the ladder and say something to Mr. Chase but could not hear what was said. He saw Mr. Chase speaking to Petitioner. When Petitioner picked up the ladder for the retest, Mr. Hershman saw the rungs of the ladder slide open. He saw Petitioner adjust the ladder and pick it up again. He did not see the ladder touch the wall until final resting of the ladder. Petitioner maintains that the ladder he used on the second retest attempt on May 22, 2003, was defective in the same manner as the first. However, Mr. Chase examined the ladder used in the second test to make sure it was in the correct position. Upon examining the ladder Petitioner used in the second retest, Mr. Chase found it to be "normal." It is unclear from the record whether Mr. Hershman witnessed both of Petitioner's attempts at the ladder retest on May 22, 2003. In any event, in instances where Mr. Hershman's testimony and Mr. Chase's testimony are in conflict, Mr. Chase's testimony of the events regarding Petitioner's retest is more persuasive. He is an experienced examiner, he was the person testing Petitioner, and he has a clear recollection of the events that occurred. While Mr. Hershman's testimony is credible, he was not in the same position, neither physically nor through experience, as Mr. Chase to determine how Petitioner should have been graded on the retake tests. In the First Amended Denial Letter dated August 15, 2003, Respondent informed Petitioner that since he passed the written portion of the Firefighter Minimum Standards Examination, a Firefighter I certificate was enclosed. Further, the August 15, 2003, letter informed Petitioner that he did not achieve a passing score on the 24" Ladder Carry, Raise and Extension evolution of the Firefighter Minimum Standards practical retest. He was informed that it will be necessary to either repeat the entire Minimum Standards Course or complete the Firefighter II Course before retaking the Firefighter Minimum Standards Examination.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department enter a final order denying Petitioner's application and that Petitioner be permitted to either repeat the Minimum Standards Course or complete the Firefighter II course before retaking the Firefighter Minimum Standards Examination. DONE AND ENTERED this 31st day of October, 2003, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2003. COPIES FURNISHED: Casia R. Belk, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0330 William Glenn Cone, Esquire 1530 Ryar Road, No. 7 Jacksonville, Florida 32216 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issue 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)
