The Issue The issues are: (1) whether Petitioner passed the Practical Examination for Firefighter Retention test; and (2) whether Petitioner's application for firefighter recertification was properly denied.
Findings Of Fact Petitioner completed his minimum standards training and took the standardized state test in 2004 and Respondent issued him a Firefighter Certificate that year. Florida law requires Petitioner to be employed by a fire agency within a three year period after passing the state examination to keep his minimum standards credentials active. Petitioner is a full-time employee at American Medical Response. Because Petitioner has not been active as a firefighter during the past three years, Petitioner made application to the Department to take the Retention Examination. The practical portion consists of four sections or "evolutions" including the SCBA,1 the hose pull, the ladder operation, and the fire ground skills section. To pass the four practical evolutions, an applicant must achieve a score of at least 70 percent on each component. Each evolution of the practical exam has certain elements or skills that are graded. The SCBA portion of the test contains skills related to checking, donning, and properly activating the SCBA that enables a firefighter to breathe in a hostile environment, such as a burning building. The SCBA portion of the Retention Examination also has an established maximum time allotted for the examinee to complete a minimum of 70 percent of the skills. The time limitation is a mandatory requirement. If an examinee completes a minimum of 70 percent of the skills in a particular part, but fails to do so within the maximum allotted time specified for that part, the examinee has not met the mandatory time requirement and, thus, is not awarded any points for that part. Petitioner took the initial Retention Examination in May 2009. Petitioner did not pass the SCBA and fire ground skills components of the practical portion of the initial exam. On September 24, 2009, Petitioner took the Retention Examination re-test for the SCBA and fire skills components. Petitioner passed the fire skills component. The maximum time allotted for completion of the SCBA part of the Retention Examination is two minutes. Petitioner's completion time on the September 2009 Retention Examination re- test was two minutes and 30 seconds. Because Petitioner failed to complete a minimum of 70 percent of skills in the SCBA portion of the Retention Examination within the maximum time allotted, the Bureau properly awarded him zero points. It is an automatic failure if an examinee does not complete the exam in time. Therefore, Petitioner did not earn a passing score on the Retention Examination re-test. As a result of Petitioner's failing to pass the Retention Examination, his Firefighter Certificate of compliance expired. The Division employs field representatives to administer the Retention Examination to examinees in accordance with the applicable rules and procedures. Dennis Hackett is and has been a field representative with the Bureau of Fire Standards and Training for six years. As a field representative, Mr. Hackett administers and scores the minimum standards examination for firefighters, including the Retention Examination. Mr. Hackett has administered well over a thousand SCBA tests. Mr. Hackett was the examiner who tested Petitioner on the September 24, 2009, for re-test of the SCBA portion of the practical exam. Mr. Hackett timed Petitioner at two minutes and 30 seconds. Petitioner testified that before taking the retest, he practiced the SCBA test and had completed it within the time limit. Petitioner first learned SCBA skills in 2004 at the Coral Springs Fire Academy. At the academy, Petitioner took a three month, 450-hour course of fundamental firefighter skills. On or about September 16, 2009, Petitioner took a refresher course in Ocala, Florida. The course was two days and taught the SCBA skills in a manner different from how Petitioner had been taught at Coral Springs Fire Academy. Petitioner testified that the refresher course wasn't fair because he didn't have enough time to learn the new method. He asserted that the two day course was too short to learn the new method and techniques to compensate for errors. Petitioner admitted that a minor hiccup slowed him down while taking the re-test on September 24, 2009. Petitioner said, "It's not like I can't do it because I could do it, it's just I went over the time limit. I didn't have ample enough time to learn the new way of doing it or to overcome any minor obstacles." In a memorandum dated September 25, 2009, the Department formally advised Petitioner that he had failed the SCBA portion of the Minimum Standards Practical Retention Retest. The memorandum also informed Petitioner that, "Because you did not pass the retest, your Firefighter Certificate of compliance #117349, has expired as of 09/24/2009. It will be necessary for you to repeat the firefighter Minimum Recruit Training Program and submit a new application before any additional testing can be allowed." An individual is allowed to re-take the Retention Examination one time. If the person does not pass the re-test, he must repeat the Firefighter Minimum Recruit Training Program before he is eligible to re-take the Retention Examination. See § 633.352, Fla. Stat., and Fla. Admin. Code R. 69A-37.0527. As noted above, Petitioner did not pass the SCBA portion of the Retention Examination re-test. Therefore, before he is eligible to re-take that examination, he must repeat the Firefighter Minimum Recruit Training Program. Petitioner failed to establish that he was entitled to a passing grade for his performance on the Retention Examination re-test. The greater weight of the credible evidence established that Petitioner's performance on the Retention Examination re-test was appropriately and fairly graded.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that the Department enter a final order denying Petitioner's application to retain his certification as a firefighter in the State of Florida. DONE AND ENTERED this 25th day of March, 2010, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 2010.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner's application for certification as a firefighter in the State of Florida should be denied. Included within that question is the issue of whether the Petitioner successfully passed the Fireground Skills portion of the Minimum Standards Examination pursuant to Section 633.35, Florida Statutes, and Florida Administrative Code Rules 4A-37.056 and 4A-37.062.
Findings Of Fact In July of 2002 the Petitioner applied for certification as a Florida Firefighter. In order to be accorded that status he had to take the Minimum Standards Examination. Prior to being allowed to take that examination applicants are required to successfully complete the Minimum Standards Course, consisting of a minimum of 360 hours of training at an approved school or training facility. The Minimum Standards Examination is structured in two parts: A written portion and a practical portion. The practical portion consists of four sections which are: the self-contained breathing apparatus (SCBA), the hose pull, the ladder operation, and Fireground Skills. In order to pass the practical evolutions an applicant must achieve a score of at least 70 percent on each one. The Petitioner took the initial Minimum Standards Examination on December 11, 2002. Mr. Ralph Chase was the examiner for the Petitioner's initial Minimum Standards practical Examination. Mr. Chase is a field representative with the Bureau of Fire Standards and Training and has held that position for seven years. He is a certified EMT and holds numerous fire service certifications, including Instructor Level Three, Inspector Level Two, Fire Investigator Level Two, Fire Officer Level Two, and has been a certified Firefighter since 1974. The Petitioner did not pass either the written portion of the Minimum Standards Examination or the Fireground Skills portion. The Petitioner took his written re-test and Fireground Skills re-test on May 20, 2003. Although he passed the written portion of the re-test he failed the Fireground Skills portion of the practical re-test. Mr. Chase was his examiner for the Fireground Skills portion of the re-test examination. Assignment of examiners at the Minimum Standard Re-test is done by the choice of the examiner in charge that day. The examiners are then responsible for conducting the examinations for either all the odd-numbered students or the all the even- numbered students. That is to say, on the day of the re-test, students are assigned an applicant number. They are referred to by this number throughout the testing process to prevent the examiners from knowing whom they are grading. This is done for ease of reference and to prevent possible bias among the examiners. Mr. Chase conducted an orientation for the applicants, including the Petitioner, on the day of the re-test. During the orientation, the applicants were told how each portion of the exam was going to be graded and what would be expected from them. Mr. Chase also referred to and checked off an orientation check-list to ensure that each section was covered and explained. The students were allowed to ask questions about the orientation and the examinations, but were not allowed to ask for a demonstration of exactly how an exam will be conducted. On the day of the Petitioner's re-test, no student, including the Petitioner, had any questions concerning how any part of the Firegrounds Skills portion of the exam would be conducted or graded. Part four, or the Fireground Skills portion, of the minimum standard re-test exam consists of five skills stations: ropes and knots, forced entry, ladder operations, hose, and hazardous materials. The specific skills that each applicant must perform are chosen randomly when the test packets are prepared. On the date of the re-test, Mr. Chase prepared the Petitioner's grade sheets. On the ropes, knots, and hitches, portion of Petitioner's Fireground Skills re-test, Mr. Chase deducted points for a number of different errors in the Petitioner's performance. The Petitioner had points deducted or was not awarded them, for failing to successfully tie a bowline knot. The Petitioner did not have the correct configuration for the knot and did not have a safety applied on the knot. He did not tie the knot correctly on his first attempt and he did not successfully complete the requested task. When Mr. Chase originally scored the Petitioner's ropes, knots and hitches exam, he added up the total number of points incorrectly and put the total number of points awarded as "16." When he realized his error he completed a second score sheet tallying the correct total number of points which was "4." There is no difference in the score sheet other than the total number of points, the score. The total number of points deducted on both sheets corresponds with a score of "4." The knot the Petitioner attempted to tie fell apart twice and the Petitioner never successfully tied the bowline knot as requested. Points were deducted on the skill number 5 of the ropes, knots, and hitches portion of the Fireground Skills evolution for failing to complete the task without performing an unsafe act. The Petitioner contended that he should have been awarded points on skill number 5 of the ropes, hitches, and knots portion of the re-test because he never performed an unsafe act. According to the Department's score sheet, skill 5 of the ropes, knots, and hitches, portion of the Fireground Skills test or re-test concerns "following instructions, completing the task without performing an unsafe act." The Petitioner failed to complete the assigned task because he never tied a bowline knot. On the forcible entry portion of the re-test, Mr. Chase deducted points for a number of different errors in performance. The Petitioner had points deducted or was not awarded points, for having improper use of his tool, by failing to remove his extremities from in front of the window and for performing an unsafe act, by failing to keep his hands and arms outside the window he was breaking. The Petitioner contended that there was no way to hold the tool in order to keep his extremities outside of the glass. Mr. Chase established however, that the Petitioner could have, but did not stand off to one side of the window while breaking the glass, and also did not keep his arm and hand out of the area of broken glass while using his tool. On the ladders and fire service tools portion of the re-test, Mr. Chase deducted points for errors in the Petitioner's performance. The Petitioner had points deducted or was not awarded points, because he failed to achieve a leg lock on a ladder he was climbing and performed an unsafe act by not properly locking himself on to the ladder before working with the tool. On the hose coupling and the hose rolls portion of the re-test, points were deducted for errors in performance. The Petitioner had points deducted or was not awarded points, because he failed to use the proper technique to roll the hose by starting to perform a single donut roll, instead of the twin donut roll he was asked to perform and for failing to dress the hose roll. The Petitioner maintains that he knew what "dressing a hose" means and that a firefighter would dress a hose in order to prevent the hose from falling apart while storing or carrying it. The Petitioner contended that there is no requirement in the "Essentials of Firefighting" publication that a diamond be formed when rolling a hose into a twin donut roll configuration. The Petitioner also maintained that there is no requirement in the "Essentials of Firefighting" publication that a hose be dressed upon completion of a hose roll. The Petitioner achieved full credit on the hazardous materials portion of the re-test examination. As a result of the above point deduction, the Petitioner received a score of sixty. A score of seventy is required in order to pass the re- test examination. The Petitioner was provided notice of denial of certification on May 28, 2003.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witness, and the pleadings and arguments of the parties it is, therefore, RECOMMENDED that a Final Order be entered denying the Petitioner's application for certification as a firefighter in the State of Florida. DONE AND ENTERED this 8th day of January, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 8th day of January, 2004. COPIES FURNISHED: Ross Lee Kramer 103 Baird Way Saint Mary's, Georgia 31558 Casia R. Belk, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issue is whether the Bureau of Fire Standards and Training of the Division of State Fire Marshall properly denied Petitioner's application for certification as a firefighter.
Findings Of Fact On December 8, 1995, Petitioner submitted his application for certification as a firefighter. He later passed the written portion of the minimum standards examination for certification as a firefighter. However, he failed the practical portion of the examination. As permitted by law, Petitioner retook the practical portion of the examination on October 14, 1996. He failed the examination a second time and challenges his grade in this proceeding. William George DePauw, Jr., administered the practical examination on October 14, 1996. Mr. DePauw is a certified firefighter with over 25 years’ experience. He has administered firefighter certification exams since 1994. A passing score on the practical portion of the examination is 70 points. Mr. DePauw correctly scored Petitioner’s practical portion of the examination at 45 points. For part one of the practical examination, Petitioner properly lost five points for failing to complete the breathing apparatus section within the assigned time, five points for failing to carry the 1 3/4 inch hose properly on his shoulder at all times during the advance, ten points for failing to control the extension ladder, five points for failing to extend fully the extension ladder, and ten points for failing to complete the extension ladder section within the assigned time. For part two of the practical examination, Petitioner properly lost five points for failing to tie clove hitch and half hitch knots and five points for incorrectly breaking a plate glass door at the bottom of the pane. As a result of these deficiencies, Petitioner failed the practical examination.
Recommendation It is RECOMMENDED that the Division of State Fire Marshall enter a final order denying Petitioner’s request a determination that he passed the practical portion of the minimum standards examination for certification as a firefighter. DONE AND ENTERED this 3rd day of September, 1997, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 3rd day of September, 1997. COPIES FURNISHED: Jason Wayne Parker 8260 Collins Road Jacksonville, Florida 32244 Elizabeth Arthur Division of Legal Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Daniel Y. Sumner General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300
The Issue The issue for consideration in this proceeding is whether the Respondent’s license as an adult living facility should be subject to an administrative fine in the amount of five hundred dollars ($500.00) for repeated class III deficiencies.
Findings Of Fact The Respondent is the owner/operator of San Juan Retirement Home. The home is licensed to operate a 6-bed assisted living facility in Jacksonville, Florida. On March 5, 2003, AHCA conducted a survey of Respondent's facility. During that survey, Respondent did not have a fire safety inspection report within 365 days from an earlier fire safety inspection report. Because of the lack of a timely report the facility was cited for violating Tag A209, a Class III deficiency. Tag A209 requires that all licensed facilities have an annual fire inspection conducted by the local fire marshal or authorities having jurisdiction. In this instance the Agency interprets the word annual to mean 365 days from the last inspection report. Respondent had the facility inspected by the Fire Marshal on March 12, 2003. She received the report the same day. A follow-up survey was conducted on April 15, 2003. Tag A209 was noted as corrected in a timely manner by Respondent. Since this was the first Class III deficiency regarding the timeliness of the inspection report, no penalties were imposed by Petitioner on Respondent. On April 23, 2004, AHCA again inspected Respondent's facility. During the inspection, Respondent again did not have a fire safety inspection report completed within 365 days of the earlier inspection report of March 12, 2003. Because of the lack of the report, the facility was cited for a class III deficiency under Tag A209. Respondent admitted that she twice did not have a timely fire safety inspection report completed for her facility. The evidence demonstrated that, prior to the April 2004 inspection by AHCA, Respondent had called the Fire Marshal’s office to schedule an inspection for the facility. However, the call was not made until the expiration of the March 12, 2003, fire safety inspection report. For some unknown reason the Fire Marshal’s office did not schedule the fire safety inspection until after the April 2004 inspection. However, the Fire Marshal’s failure to schedule the inspection does not excuse Respondent’s lack of a timely inspection and report since Respondent remains responsible for obtaining the inspection and report in a timely manner and did not call the Fire Marshal’s office until the expiration of the earlier report. To her credit, Respondent obtained a new fire safety inspection report on May 4 or 5, 2004, after AHCA had inspected the facility.
Recommendation Based on the foregoing Finding of Facts and Conclusions of Law, it is RECOMMENDED: That AHCA enter a final order imposing a $500.00 administrative fine for repeatedly failing to timely conduct or obtain an annual fire safety inspection report. DONE AND ENTERED this 9th day of November, 2004, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 9th day of November, 2004. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3408D Mail Stop 3 Tallahassee, Florida 32308 Elvira C. Demdam San Juan Retirement home 6561 San Juan Avenue Jacksonville, Florida 32210 Alan Levine, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issue for determination is whether Petitioner successfully completed the Firefighter Minimum Standards Practical Examination Retest.
Findings Of Fact Mr. Berejuk is a candidate for certification as a firefighter in the state of Florida. To be certified as a firefighter, a candidate is required to successfully complete the Firefighter Minimum Standards Written and Practical Examination. A candidate is able to take the certification test twice. If a candidate fails the first time, the candidate is automatically afforded an opportunity for a retest. On April 11, 2012, Mr. Berejuk took the original examination of the Firefighter Minimum Standards Written and Practical Examination at Miami, Florida. To successfully complete the Minimum Standards Written Examination (Written Examination), a candidate is required to receive a minimum of 70 points on the Written Examination. Mr. Berejuk received more than the minimum of 70 points. As a result, he passed the Written Examination. The Minimum Standards Practical Examination (Practical Examination) consists of four evolutions. To successfully complete the Practical Examination, a candidate is required to receive a minimum of 70 points on each evolution and to complete all mandatory steps. Mr. Berejuk received more than a minimum of 70 points in each evolution, except the ladder search and rescue evolution (Ladder Evolution). During the Ladder Evolution, Mr. Berejuk failed to complete a mandatory step. He failed to don a hood on his head, and because of that failure he received zero points for the Ladder Evolution. As a result, he failed to pass the Ladder Evolution. Also, pertinent to the instant case, the maximum time allowed on the Ladder Evolution is four minutes and 30 seconds. Exceeding the maximum time allowed is an automatic failure of the Ladder Evolution. Mr. Berejuk's time on the Ladder Evolution was three minutes and 20 seconds, which was one minute and 10 seconds, or 70 seconds, less than the maximum allowable time. Because of his failure to pass the Ladder Evolution, Mr. Berejuk failed to successfully complete the Practical Examination. On May 15, 2012, Mr. Berejuk completed a retest of the Practical Examination at Ocala, Florida. The Practical Examination Retest consisted of three evolutions. He was required to receive a minimum of 70 points on each evolution and to complete all mandatory steps in order to successfully complete the Practical Examination Retest. On the Practical Examination Retest, Mr. Berejuk received more than a minimum of 70 points, receiving a perfect score of 100 points, on all of the evolutions, except the Ladder Evolution on which he received zero points. He exceeded the maximum time allowed on the Ladder Evolution. As on the original examination, the maximum time allowed is four minutes 30 seconds and exceeding the maximum time allowed is an automatic failure of the Ladder Evolution. Mr. Berejuk's time was four minutes 42 seconds, which is 12 seconds more than the maximum allowable time. He received zero points on the Ladder Evolution for exceeding the maximum allowable time. As a result of his failing to pass the Ladder Evolution, Mr. Berejuk failed to successfully complete the Practical Examination Retest. Because Mr. Berejuk failed the Practical Examination Retest, the Department denied his certification as a firefighter. As support for his challenge to the Department's determination that he exceeded the maximum allowable time on the Ladder Evolution, Mr. Berejuk relies upon his performance on the practice ladder evolution at the Coral Springs Fire Academy (Academy). He completed his training at the Academy in 2012. His time on the practice ladder evolution was three minutes and 49 seconds, which is 41 seconds less than the maximum allowable time. The Ladder Evolution's footprint at the Practical Examination Retest in Ocala is different from the footprint at the Academy (the practice site) in Coral Springs and at the original examination site in Miami. At the practice, Mr. Berejuk's time for the Ladder Evolution was three minutes and 49 seconds, 41 seconds less than the maximum allowable time; at the original examination, his time was three minutes and 20 seconds, 70 seconds less than the maximum allowable time; and at the Practical Examination Retest, a little over 30 days after the first test, his time was four minutes and 42 seconds, 12 seconds more than the maximum allowable time. Even though the difference in the times recorded for the Ladder Evolution at the original examination and the Practical Examination Retest are markedly different, Mr. Berejuk presented insufficient evidence addressing the difference in order to make a finding of fact or draw an inference. Also, he did not present any evidence detailing his specific performance on the Ladder Evolution at the Practical Examination Retest, such as his not stumbling or hesitating at any point during the Ladder Evolution. Mr. Berejuk failed to present any evidence as to the inaccuracy of the instrument, a stopwatch, used to time the Ladder Evolution or as to the inaccuracy of the field representative recording the time at the Practical Examination Retest. He presented only assumptions or conjectures as to the inaccuracy of the instrument or the recording of the field representative. The field representative did not testify at hearing. The evidence fails to demonstrate that the amount of time determined by the Department for Mr. Berejuk to complete the Ladder Evolution was incorrect or inaccurate. Therefore, the evidence demonstrates that Mr. Berejuk failed to successfully complete the Ladder Evolution within the maximum allotted time. Hence, the evidence demonstrates that Mr. Berjuk failed the Practical Examination 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 Daniel Berejuk failed to successfully complete the Practical Examination Firefighter Retest; and Denying Daniel Berejuk's application for certification as a firefighter in the state of Florida. DONE AND ENTERED this 20th day of December, 2012, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 2012.
Findings Of Fact At all times material hereto, Francis Edward Neuzil, Jr. (Respondent), was certified as a firefighter and firesafety inspector in the State of Florida, holding certificates 7360 and FI-39965, respectively. Respondent's firefighter certification was issued on or about February 22, 1979, and his firesafety inspector certification was issued on or about January 9, 1985. On or about December 20, 1991, Respondent was charged by Information with one count of grand theft in the Circuit Court, Seventeenth Judicial Circuit, Broward County, Florida, in Case No. 91-23492CF10. On or about May 11, 1992, Respondent plead nolo contendere to grand theft for violating Subsection 812.014(1)(a), Florida Statutes, a third degree felony. Adjudication was withheld, and Respondent was placed on 18 months probation with special conditions of 50 hours of community service and no consumption of drugs or alcohol. On or about January 14, 1993, the court terminated Respondent's probation, approximately 10 months prior to the scheduled time for his probation to end. The incident which led to Respondent's felony charge occurred on or about December 7 or 8, 1991, at a Sam's store in Broward County after 11:00 p.m. A sprinkler system was being installed and was sufficiently completed for inspection by a firesafety inspector. Respondent went to Sam's store acting in the capacity of a firesafety inspector. Originally, he had estimated that only 10 minutes would be needed to accomplish his task--check the water gauges--but the sprinkler installers were behind schedule and it took approximately an hour. Prior to arriving at Sam's, Respondent had consumed approximately 10 beers. While waiting to perform the inspection, Respondent, who was not in uniform, walked around in the store, consuming an unknown quantity of beers that he had brought into the store with him. Respondent was observed by an electrical worker and several of Sam's employees who either saw him drinking beer or smelled the alcohol on his person and who either knew who he was or were told by other workers or employees who he was. These same individuals witnessed Respondent take several items to the rear entrance--through which everyone working that night or morning was coming and going--and out of the store. Respondent did not attempt to conceal the items. None of the individuals questioned Respondent about the items or stopped him. However, one employee contacted a Sam's manager who was present. They discovered store items were missing, went to Respondent's vehicle which was parked at the rear entrance, as was everyone else's vehicle, and saw the items inside his vehicle. Law enforcement was called, and Respondent was arrested. All the people who saw Respondent at Sam's store believe that he was intoxicated. Respondent has little or no recollection of the incident, and what he does recall is vague. He does not recall taking the items, all of which were items that he had seen before in Sam's and wanted for the Boy Scouts with whom he volunteers. However, he does recall picking up a light bulb and an electrical cord with no ends to it. As a result of the incident, Respondent was suspended by the Fire Chief of the City of Miramar and has not acted in the capacity as a firesafety inspector since December 1991. Even though Respondent pled nolo contendere to the felony charge of grand theft, mitigating circumstances exist, both at the time of the incident and subsequent thereto. Medically, Respondent is diagnosed as an alcoholic, having the disease alcoholism. During the incident, he suffered an alcoholic blackout and, as a result, has little or no recollection of taking the items. Furthermore, Respondent was incapable of forming the requisite intent to steal the items. Additionally, immediately after the incident, he sought treatment and checked himself into a rehabilitation center. Respondent is now a recovering alcoholic. He regularly attends meetings of Alcoholics Anonymous and is monitored by a sponsor who is also a professional firefighter (10 years) and a recovering alcoholic (approximately six years). Further, since January 1992, Respondent has been receiving medical assistance with his alcoholism. Even though he needs to remain in a recovery program, he does not pose a threat to his profession. 1/ Moreover, during Respondent's career as a firefighter (almost 15 years) and firesafety inspector (almost nine years), his certifications have never been disciplined and he has been actively participating in his community. Through his community involvement, Respondent established the City of Miramar's Fire Prevention Bureau and raised money to fund the Bureau. Additionally, he has received many job-related commendations and service recognitions and he has volunteered extensively to work with service organizations, such as the Boy Scouts. Petitioner's consistent policy is to not consider mitigating factors in disciplinary action against a firesafety inspector's certification. In matters involving a plea of nolo contendere, the consistent policy is that an applicant for firesafety inspector will not be issued a certification and that, if the individual has been issued a certification, Petitioner will seek revocation of the certification, regardless of mitigating circumstances. Petitioner is not seeking to discipline Respondent's certification as a firefighter since his certification, by statute [Section 633.351(2), Florida Statutes], was revoked until termination of his probation which occurred on January 14, 1993.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order: Suspending Respondent's certification as a firesafety inspector for a period of two years, retroactive to May 11, 1992, the date of Respondent's plea of nolo contendere. Reinstating Respondent's certification at the conclusion of the suspension and thereafter, for a period of one year, placing Respondent's certification on probation under whatever terms and conditions that Petitioner deems just and appropriate. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of December 1993. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December 1993.
The Issue The issue for determination in this proceeding is whether the proposed amendment to Florida Administrative Code Rule 69A-39.005(1)(b)2.d. is an invalid exercise of legislatively granted authority in violation of section 120.52(8)(b), (c), (e), and (f), Florida Statutes (2020).
Findings Of Fact The Parties Respondent, Department of Financial Services, Division of State Fire Marshal, is headed by the Chief Financial Officer of the state, who serves as the Chief Fire Marshal pursuant to section 603.104(1), Florida Statutes. The State Fire Marshal is charged with the responsibility to minimize the loss of life and property in Florida due to fire, and to adopt rules, which must “be in substantial conformity with generally accepted standards of firesafety; must take into consideration the direct supervision of children in nonresidential child care facilities; and must balance and temper the need of the State Fire Marshal to protect all Floridians from fire hazards with the social and economic inconveniences that may be caused or created by the rules.” § 633.104(1), Fla. Stat. Petitioner is a Florida corporation authorized by the Department to offer fire certification training courses in both online and blended learning formats. A blended learning course is one that has both online and in-person components. The blended learning courses Petitioner currently offers have 37 hours of online learning and eight hours of in-person instruction to address those portions of the course that may need “hands on” instruction. Section 633.216, Florida Statutes, requires Respondent to certify fire safety inspectors, and to provide by rule for the development of a fire safety inspector training program of at least 200 hours. The program developed by Department rule must be administered by education or training providers approved by the Department for the purpose of providing basic certification training for fire safety inspectors. § 633.216(2), (8), Fla. Stat. Current Certification Requirements Section 633.406 identifies several certifications in the fire safety arena that may be awarded by the Division of State Fire Marshal: firefighter, for those meeting the requirements in section 633.408(4); fire safety inspector, for those meeting the requirements in section 633.216(2); special certification, for those meeting the requirements in section 633.408(6); forestry certification, for those meeting the requirements of section 590.02(1)(e); fire service instructor, for those who demonstrate general or specialized knowledge, skills, and abilities in firefighting and meet the qualifications established by rule; certificate of competency, for those meeting certain requirements with special qualifications for particular aspects of firefighting service; and volunteer fire fighter certifications. In order to become a fire safety officer, an applicant must take the courses outlined in rule 69A-39.005, and pass an examination with a score of 70% or higher. The five courses as listed in the current version of rule 69A- 39.005 are Fire Inspection Practices; Private Protection Systems; Blue Print Reading and Plans Examinations (also known as Construction Documents and Plans Review); Codes and Standards; and Characteristics of Building Construction. The Rulemaking Process On November 5, 2015, the Department held the first of a series of rule workshops and “listening sessions” as it began the process for making changes in the certification program for fire safety inspectors.1 These workshops and listening sessions were held on November 5, 2015; July 10, 2016; November 10, 2016; January 17, 2017; August 8, 2018; November 8, 2018; and October 29, 2019. As described by Mark Harper, who is now the assistant superintendent of the Bureau of Fire Standards and Training at the Florida State Fire College, the Bureau conducted the first few listening sessions to hear the industry’s view on what changes were needed, followed by drafting proposed rule language and conduct of rule workshops. 1 Curiously, neither party introduced the notices for any of these workshops or listening sessions, so how notice was provided to interested persons wanting to give input on possible changes cannot be determined. The first workshop/listening session was conducted on November 5, 2015, in Palm Beach Gardens, and was moderated by Mark Harper. At this workshop, a variety of comments were received regarding the quality of the existing program and the quality of the fire safety inspectors being certified. Those comments included the need for more field training and more hours of instruction; suggested use of a “task book” in training; the view that classes should be taught by more experienced inspectors, not just people who have passed the classes; and the need for more practical training. The view was expressed by at least one attendee that the quality and method of delivery needed to be examined, and that Codes and Standards and Construction Documents and Plans Review should not be taught online. In December 2015, Tony Apfelbeck, the Fire Marshal for Altamonte Springs, provided to Mr. Harper proposed draft revisions to chapter 69A-39, which included increasing the number of training hours to 315 hours (as opposed to the 200 hours required by section 633.216), and requiring use of a task book, as well as other changes. The draft did not include any language regarding course methodology in terms of classroom, online, or blended format classes. At the next workshop, held July 10, 2016, a draft proposal was provided to the audience, but it is not clear whether the draft provided is the one Mr. Apfelbeck suggested or something else. Concerns were expressed regarding the implementation of the use of a task book, and at least one speaker speaking against the suggested changes opined that the changes suggested in the draft would cost more money. Another commented that increasing the hours may not help the issue. Instead, there should be a greater emphasis on the quality of the educational delivery, and that instruction needed to be tied more closely to field work. Late in the workshop, comments were made regarding online and classroom delivery, and it was suggested that some classes should not be held online. While the drafts that were provided at the various workshops are not in the record, at some point, language was added that would require two of the five courses for fire safety certification, i.e., Codes and Standards and Construction Documents and Plans Review, be taught in a traditional classroom setting only. The subject of online classes was discussed more thoroughly at the next workshop held November 10, 2016. During this workshop, there were comments both in favor of and against the use of online classes. While the speakers cannot always be identified from the recordings of the workshops, some attendees stated that some of the online providers were doing a really good job, and the concern was raised that if online classes were eliminated, it might be an exchange of convenience for quality.2 At least one person expressed the opinion that the speaker was not a fan of online classes, and Mr. Harper suggested that blended learning might be a way to meet some of the concerns expressed, and that the method of delivery would be up to the institution. Others who participated in the workshop spoke highly of blended classes. The remaining workshops also had discussions regarding the online class change, as well as other changes in the proposed rule. Opinions were voiced on both sides of the issue. The primary source of comments seeking a traditional classroom setting only were fire marshals at various municipalities around the state concerned about the need for “hands-on” training and the current lack of preparation encountered with new staff. On July 10, 2019, the Department filed a Notice of Proposed Rules for rules 69A-39.003, 39.005, and 39.009. The proposed rule amendments included the following amendment to rule 69A-39.005(1)(b)2.d.: d. The courses “Codes and Standards” and “Construction Documents and Plans Review” 2 The identity of the speakers is not important, and the comments are not relayed for the truth of the statements made. They are listed simply to show that the Department heard several viewpoints during these listening sessions. required under this paragraph (1)(b) will only be approved by the Bureau when taught in a traditional classroom delivery method. No definition for “traditional classroom delivery method” is provided. On January 15, 2020, Respondent conducted a public hearing on the proposed rule. As was the case with the workshops, people voiced both support and opposition to the proposal to require a traditional classroom setting for the Codes and Standards and Construction Documents and Plans Review courses. Counsel for Petitioner appeared and spoke against the proposed language to eliminate online and blended learning for the two classes, and asked whether any type of data existed to support the change in the rule, or whether any type of study had been conducted to gauge the need for the change. Respondent’s representative stated that the proposed language was based upon “extensive testimony” from employers requesting the change. Counsel also asked that Respondent consider defining what is meant by traditional classroom delivery. No such definition has been added to the rule. The Notice of Proposed Rule does not include a Statement of Estimated Regulatory Costs. Instead, it states: The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency. The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The Department’s economic analysis of the potential impact of the proposed rule amendments determined that there will be no adverse economic impact or increased regulatory costs that would require legislative ratification. Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so within 21 days of this Notice. Petitioner addressed the increased costs under the proposed rule during at least one of the workshops. There is no evidence, however, that Petitioner submitted, in writing, a proposal for a lower cost regulatory alternative within 21 days of the Notice of Proposed Rule. On January 27, 2020, Petitioner filed its Petition to Challenge Specific Changes to Proposed Rule 69A-39.005(1)(b)2.d. The Petition is timely filed. Current Online Providers and Course Review Process As of April 10, 2020, there are approximately 20 organizations approved by the Bureau of Fire Standards and Training that offer distance learning delivery for courses in programs leading to a certification pursuant to rule 69A-37.605. Of those providers, two are approved to teach Codes and Standards and three are approved to teach Construction Documents and Plans Review. In addition, as of June 1, 2020, there are 13 state colleges and/or universities in Florida also approved to provide distance learning. Of those, ten are approved to offer Codes and Standards, and ten are approved to offer Construction Documents and Plans Review. Petitioner has been approved to teach these two courses in a blended format since at least 2015. It also has articulation agreements with some educational institutions, including Waldorf University in Iowa, and Columbia Southern University in Alabama. The Department previously sought to take action against Ricky Rescue related to the type of courses taught, although the statutory basis for taking action against Ricky Rescue is not part of the evidence presented in this proceeding. The Consent Order entered to resolve the prior proceeding expressly provides, “Respondents agree that they will not offer any on-line courses until such time as they obtain approval from the Bureau, which will not be unreasonably withheld.” In order to be approved to teach any of the courses for certification in an online or blended format, a provider is required to go through an extensive review process. Initially, Respondent used a Quality Matters Higher Education Rubric to evaluate the courses a provider sought to offer. Course approvals initially took anywhere from four months to a year and a half to meet the standards and be approved. Respondent no longer uses the Quality Matters rubric, because it has transitioned to the accreditation process used by the Southern Association of Colleges and Schools. With this change, the length of time for class approvals has shortened considerably. Susan Schell used to be the Department’s Training Programs Manager and was in charge of the review and approval of classes for online learning. She has since moved on to another position within the Department. Ms. Schell would take the submitted course herself, view the different videos and discussion boards, and work through some of the projects, as well as review some of the case discussions and questions. Ricky Rescue’s courses that she reviewed met all of the state requirements to be approved. According to Ms. Schell, classes taught in the traditional format did not go through the same review process. Ricky Rescue’s accreditation verification from AdvancED Southern Association of Colleges and Schools Council on Accreditation and School Improvement indicated that Ricky Rescue’s accreditation was confirmed on March 31, 2017, for a five-year term expiring June 30, 2022. There is no credible dispute regarding whether Ricky Rescue complies with the requirements for offering its courses in a blended format. The report of the external review team prepared by AdvancED Education, Inc., noted that the school’s website is exemplary and stated in its conclusions: Once a month, students attend a day on site blended learning instruction where students can collaborate and complete and present projects. Given that the owners are brother fire fighters, there is a genuine feeling of camaraderie and collegiality. It is apparent to the Team that the Ricky Rescue Training Academy is an ideal institutional opportunity to obtain classes for firefighter training and certification classes. … The school has embraced the continuous improvement model to insure that they continue to deliver high quality online educational programs with rigor, relevance, and fidelity. Two Different Views Petitioner and Respondent approached the proposed rule amendment, both at the workshops and public hearing conducted by the Department and at the hearing in this proceeding, from different perspectives. Ricky Rescue focused on the needs and opinions of students seeking to take the courses. Its witnesses testified that the blended courses had significant substantive content; that the in-person component gave the necessary opportunity for completion of group projects and hands-on instruction or field trips; and that the ability to complete the course at any time during a 30-day period was essential in terms of both costs and scheduling for the student, and completing the classes while managing job and family responsibilities. For example, Ryan Russell has worked for over ten years in the fire service and is a battalion chief for the Haines City Fire Department. He has a variety of certifications and oversaw the training division for his department. Mr. Ryan has taken five courses from Ricky Rescue, and speaks highly of them. Mr. Ryan agrees that there are some advantages to traditional classroom settings, because they provide more opportunities for engagement, but that ultimately, a class is only as good as the instructor. Similarly, Robert Morgan is also a battalion chief at another fire department, and took Documents and Plans Review from Ricky Rescue. Mr. Morgan believed that the online blended course is just as good as a traditional classroom setting, and believes that in the blended setting, a student has to work harder than just sitting at the back of the classroom. Both men spoke of the convenience and accessibility that online learning provides that a traditional classroom does not. Matthew Trent also testified in favor of the availability of online and blended courses. Mr. Trent has a master’s degree in public administration and is a Ph.D. student in public policy administration. He is also a certified state firefighter II; pump operator; Fire Officer I, II, III, and IV; fire inspector I and II; fire investigator I; and fire life safety educator I. About half of Mr. Trent’s certifications have been based on classes taken online, and all of his classes for his masters’ and doctoral degrees have been online. Mr. Trent felt both courses at issue could be taught in an online format, and stated that both as a student and as an instructor, it is up to the student to choose the delivery method by which they want to learn. If not for online learning, he would not have been able to accomplish nearly as much in his professional life, because distance learning gives the student the ability to work around other responsibilities. The Department, on the other hand, was influenced more heavily by (and sought information from) the fire safety officials across the state who employ fire safety inspectors. Many of those officials spoke at the public workshops and some testified at hearing. The major concern voiced by these officials was that new fire safety inspectors certified by the state were not really prepared to do their job. Although most acknowledged that some on the job training would always be necessary to deal with local codes and ordinances that are not part of the state curriculum, they felt that new inspectors did not have a good grasp of the concepts necessary to be effective, especially with respect to the skills taught in the classes at issue in this case. For example, Anthony Apfelbeck is the Director of the Building and Fire Safety Department for the City of Altamonte Springs. He has worked in that department for approximately 20 years and served as Fire Marshal for a significant portion of his tenure there, and served in other cities as well. Mr. Apfelbeck has an impressive array of certifications and currently supervises approximately eight fire safety inspectors. He attended almost all of the workshops and was an active participant. Mr. Apfelbeck testified that he concurred with the State Fire Marshal’s Association that both classes should be offered only in a traditional classroom environment. He stated that there is a limited period of time to get someone trained and certified as a fire safety inspector, and he has seen some of the deficiencies in the current training. In his view, requiring these two classes to be given in a traditional classroom environment allows the instructor to keep the student engaged, and to get into critical thinking with probing questions and real-life examples. Instructors can have interactions with students that address issues the students may be having in the students’ jurisdictions, and read the body language of the students to gauge involvement. He also spoke of the ability to develop relationships with other individuals in the class and develop a peer group within that body. Mr. Apfelback has used the virtual environment extensively during the COVID-19 pandemic, and does not feel that it has the spontaneity and free- flow of information that a traditional classroom affords. Mr. Apfelbeck has not taken any of Ricky Rescue’s classes, and does not know what it has done to make sure its students get 200 hours of education. Likewise, he is not aware of the review Ricky Rescue went through to get its courses approved. He stated, correctly, that the rule is not written specifically about Ricky Rescue’s programs. It is written for all educational programs that are provided pursuant to this rule. Michael Tucker is the assistant superintendent for the State Fire Marshal’s Office. His experience includes serving as battalion chief for the Reedy Creek Improvement District (i.e., Disney) for 13 years, and serving as the Chief of the Fire Department for the Villages for 13 years. He has taught fire safety classes both in the classroom setting and online. While at Reedy Creek, he was the training officer responsible for providing training to fire inspectors, firefighters, paramedics, and EMTs. Mr. Tucker believes that the two classes addressed in the proposed rule are very intricate classes with a lot of detail. He believes that the traditional environment gives more opportunity for students to get hands-on instruction and have more interaction with the instructor. He acknowledged that there is a possibility that fees could increase under the proposed rule, but thinks that the increased cost is outweighed by the value that employers would get when they hire people trained in a classroom setting. Cheryl Edwards is the Fire Marshal for the City of Lakeland, and her views regarding traditional versus online learning are similar to those already expressed. She believes that the traditional classroom environment promotes collaborative learning and enhances critical thinking skills, through live discussions, and the need to think on your feet. She also felt that in person, an instructor is better able to gauge students’ learning styles and provide activities and modalities for all to learn, regardless of learning style. Ms. Edwards believes that the traditional classroom setting allows for more “teachable moments,” and guided practice before a student has to put that knowledge into use. Finally, David Abernathy is the Fire Chief of the City of Satellite Beach and has worked with the City for 35 years. Mr. Abernathy has an impressive list of certifications and has taught all five of the courses necessary for fire safety inspector certification, but has never taught them in an online or blended learning format. Mr. Abernathy believes that for these two courses there is a benefit to the traditional classroom setting. He believes that both classes need a hands-on approach to be the most effective. Mr. Abernathy also believes that requiring these two courses to be taught in a traditional classroom setting will cost more, but as an employer is more willing to pay for it than for online classes. Mark Harper testified that during the workshops, the Department wanted to hear from everyone, because all would be impacted by the changes. However, he believes that there is a heavier weight of responsibility on employers as opposed to students, because they are the ones trying to fill positions, and they are the ones having to deal with additional costs occasioned by failures in training. As a practical matter, employers are more cognizant of the potential liability jurisdictions face when a fire safety inspector, who looks at everything from mom and pop businesses to industrial sites with large containers of hazardous materials, is not adequately trained. The decision to go forward with the proposed rule amendment requiring a traditional classroom delivery method with respect to Codes and Standards and Construction Documents and Plans Review is based on the feedback received through the workshop process. It is not based on data. The Department does not track how students who took certification classes online or in a blended format score on the certification examination as opposed to students who took the same classes in a traditional setting. It would be difficult to collect that type of data, because there is no requirement that a student take all five courses the same way. In preparation for the hearing in this case, the Department conducted a survey of employers regarding their views on traditional versus distance learning. The Florida Fire Marshals and Inspectors Association distributed the survey to its members, and of the 358 addressees, 114 responded. There was no evidence to indicate that the Department attempted to survey people taking the classes. The questions asked in the survey were quite limited, and frankly, provide no guidance because they provide only two alternatives, and do not address blended learning formats at all. There are three questions, and they are as follows, with the responses in parentheses: Is there is current need to increase the proficiency of newly certified Firesafety Inspectors in Florida? Yes (59.65%) No (16.67%) Neutral opinion (12.68%) When a prospective Firesafety Inspector attends a Codes and Standards class, which class setting would produce a more proficient inspector? Traditional classroom delivery method (71.17%) Online (distance learning ) delivery method (9.91%) Neutral opinion (18.92%) When a prospective Firesafety Inspector attends a Construction Documents and Plans Review Class, which class setting would produce a more proficient instructor? Traditional classroom (76.32%) Online (7.02%) Neutral opinion (16.67%) Questions two and three assume that one format must be better than the other, rather than allowing for the possibility of equivalency. Had there been some recognition of a blended learning format, the answers might be different. The survey was informative in terms of the comments that were provided by the respondents. Similar to the views expressed at the workshops, there were strong opinions both in favor of limiting the classes to the traditional setting, and strong opinions advocating for the option of online learning. Petitioner presented information related to the increased costs that will be incurred should the rule go in effect. Those costs include the need for space rental for five-day periods in order to teach in multiple locations; the costs related to conversion of the material to a classroom setting versus online; and the need to pay instructors for more days each time the course is taught. It does not appear from the evidence presented that Ricky Rescue would experience increased costs of $200,000 in one year. However, Ricky Rescue is just one provider, and section 120.54 speaks in terms of an increase in costs in the aggregate, meaning as a whole. It is not known whether the other approved providers who teach these two courses will continue to do so should the rule be amended to require a classroom setting. It is also unknown what types of costs would be borne by state colleges and universities in order to recast the courses for traditional classroom settings. Finally, the litigants to this proceeding were well aware that this rule was being developed and was noticed as a proposed rule before the world began to deal with the COVID-19 pandemic. It is open to speculation whether some of the impetus to require a traditional classroom setting would have changed in light of the changes society has had to make over the last six months. Department employees were questioned regarding the Fire College’s response to the pandemic, and both Mark Harper and Michael Tucker testified about the precautions being taken on the campus to insure safety, such as taking temperatures, having students complete a questionnaire regarding possible exposure, limiting the number of students per class, and spacing people six feet apart to maintain effective social distancing. Mr. Tucker testified that they would be ready to postpone some classes until they could be taught safely in person. When asked whether Respondent would consider postponing the effective date of the proposed rule, he indicated “that would be something we would have to take into consideration, and again, the feedback from our constituents, but if it became necessary, then we would consider it.”
The Issue The issue is whether Florida Administrative Code Rules 69A- 62.001, 69A-62.003, 69A-62.006, and 69A-62.007, constitute an invalid exercise of delegated legislative authority as defined in Sections 120.52(8)(d), 120.52(8)(e), and 120.52(8)(f), Florida Statutes (2004).
Findings Of Fact Petitioner is and, at all times material to this case, was a volunteer firefighter. The size of the volunteer firefighter population is dependent on the ability of volunteer fire departments to attract and keep volunteers. People are willing to volunteer as firefighters if the experience is rewarding, training is not excessive, and conflict is minimized. However, the greater weight of the evidence indicates that the subject rules do not detract from the volunteer experience, impose excessive training, or create between conflict between professional and volunteer firefighters. Petitioner testified that a reduction in volunteer population will result in increased hazards to volunteers and a reduction in the delivery of services to citizens. This testimony is not persuasive for two reasons. First, there is no persuasive testimony that the subject rules will result in a reduction of the number of volunteer firefighters. Second, the most persuasive evidence indicates that the subject rules will reduce hazards to volunteers without impairing the delivery of services to Floridians. Some labor unions that represent career firefighters discourage their members from volunteering their services with volunteer fire departments. The competition between the unions and the volunteer fire departments is commonly referred to as the "turf-war." There is no persuasive evidence that the subject rules contribute to the tension between the two groups of firefighters. The firefighter labor unions are usually very active in the political arena. It is undisputed that the unions support legislation that benefits their members. However, the subject rules were not promulgated to eliminate or place hardships on volunteer fire departments and volunteer firefighters. The safety needs and concerns of firefighters have evolved over time. Technology has improved firefighting equipment to such an extent that the greatest threat to firefighters is from heart attacks and transportation accidents. Nevertheless, the fact that the subject rules focus on safety enhancement at the scene of a fire instead of firefighter health and transportation safety does not render them invalid. Florida Administrative Code Rule 69A-62.003 provides as follows in pertinent part: (3) With respect to 29 C.F.R. Section 1910.134(g)(4), the two individuals located outside the immediately dangerous to life and health atmosphere may be assigned to an additional role, such as incident commander, pumper operator, engineer, or driver, so long as such individual is able to immediately perform assistance or rescue activities without jeopardizing the safety or health of any firefighter working at an incident. (a)1. Except as provided in subparagraphs 2., 3., and 4., no firefighter or any other person under the authority of the firefighter employer at the scene of a fire is permitted to participate in any operation involving two-in, two-out as one of the two or more persons inside the IDLH atmosphere or as one of the two or more persons outside of the IDLH atmosphere unless such firefighter or other person at the scene of a fire is certified in this state by the division as a Firefighter I or a Firefighter II, as established in subsections (1) and (2) of Rule 69A-37.055, F.A.C. Such training shall consist of the training described in subsection (6) of Rule 69A-37.055, F.A.C. This requirement specifically applies to volunteer fire departments and volunteer firefighters but is also applicable to any other person working under the authority of the Firefighter Employer at the scene of a fire. 2.a. A volunteer firefighter who possesses the State Basic Volunteer certificate previously issued by the division is exempt from the Firefighter I and Firefighter II requirement in subparagraph 1. The training encompassed in the basic volunteer certificate in itself may not meet “trained commensurate to duty” as defined depending upon duties or tasks assigned or undertaken in the exclusionary zone. A volunteer firefighter who provides evidence of having completed curriculum equivalent to the Florida Firefighter I course of study as provided in subsection 69A-37.055(6), F.A.C., prior to January 1, 2004, is exempt from the Firefighter I and Firefighter II requirement in subparagraph 1., if The fire chief or other chief administrative officer of the fire department of which the firefighter is a member files with the State Fire Marshal form DFS-K4-1594, “Firefighter I Training Exemption Application,” which is hereby adopted and incorporated by reference, and The said form is accepted by the State Fire Marshal after confirmation of the evidence provided. Form DFS-K4-1594 may be obtained by writing the Bureau of Fire Standards and Training, 11655 Northwest Gainesville Road, Ocala, Florida 34482-1486. Any volunteer exempted by sub- subparagraph a.or b. is permitted to take the Florida Firefighter I examination until December 31, 2005, upon the completion and filing with the division of form DFS-K4- 1380, “Firefighter I Training Record,” Rev. 03/00, adopted in Rule 69A-37.039, F.A.C., by a Florida certified instructor that verifies equivalent training and demonstration of competency. The above-referenced rule sets forth ways that a firefighter, trained prior to the current regulations, may keep his or her interior-firefighter status without becoming certified as a Firefighter I or Firefighter II. The rule will not disqualify all previously qualified firefighters as long as they are "trained commensurate to duty" for any type of work they are requested to perform. There is no persuasive evidence that Florida Administrative Code Rule 69A-62.003(3)(a) will cause a reduction in the number of volunteer firefighters due to newly created administrative hurtles. The rule, which has its basis in safety enhancement, clearly is not arbitrary or damaging to the safety of volunteers. Florida Administrative Code Rule 69A-62.003(3)(a)4. states as follows: 4. Volunteer firefighters having NWCG S- 130, S-190, and Standards for Survival certification by the Florida Division of Forestry are permitted to participate in wild land fire suppression without the Firefighter I certification. The above-referenced rule allows a volunteer to fight wild-land fires without earning Firefighter I certification. The rule sets forth an exception to the Firefighter I certification requirement; it does not mandate that the NWCG courses are the exclusive means to qualify as a wild-land firefighter. Florida Administrative Code Rule 69A-62.003(3)4. is not invalid or arbitrary because it requires volunteers to pass training courses that are accepted as setting national standards or because the training courses teach firefighting techniques that are applicable across the nation as well as Florida. Petitioner presented no persuasive evidence to the contrary. Florida Administrative Code Rule 69A-62.006 states as follows: 69A-62.006 Requirements for Recognition as a Fire Department. To be recognized as an organized fire department by the division, compliance with the following must be documented: Capability of providing fire protection 24 hours a day, seven days a week; Responsibility for response in an area capable of being depicted on a map; and Staffing with a sufficient number of qualified firefighters who are employed full-time or part-time or serve as volunteers and who shall have successfully completed an approved basic firefighting course recognized by the Bureau of Fire Standards and Training. (2)(a) A fire department shall meet the requirements of the Insurance Services Office (ISO) for Class 9 Protection, the 2003 edition, the Fire Suppression Rating Schedule, effective February, 2003, which is hereby adopted and incorporated by reference and which may be obtained from Insurance Services Office (ISO), 545 Washington Blvd., Jersey City, NJ 07310-1686 or at www.iso.com. If the fire department does not meet the requirements of this section, the fire department shall submit a plan of compliance which provides for meeting these requirements within 90 days of the date of submission of the plan. ISO measures the major elements of a community’s fire-suppression system and develops a numerical grade ranging from 1 to 10. Class 1 represents the best public protection rating and Class 10 indicates no recognized protection. The requirements for ISO 9 may be obtained at the ISO website located at www.iso.com, or it may be obtained by writing to the Division of State Fire Marshal, Bureau of Fire Standards and Training, 11655 Northwest Gainesville Road, Ocala, Florida 34482-1486. Florida Administrative Code Rule 69A-62.006(1)(a) is not invalid because it requires fire departments to document their capability of providing fire protection 24 hours a day/seven days a week. The requirement for full-time availability will provide significant safety enhancement for the communities being served. This is true because some voluntary fire departments in rural communities historically have provided only part-time service. There is no persuasive evidence that requiring full- time fire protection will result in the following: (a) the creation of a fire-suppression performance standard that is unauthorized by law; (b) the closing of some volunteer fire departments; (c) a reduction in services to the public; and (d) uncorrectable rule-violations; an increase in conflict between professional and volunteer firefighters. Florida Administrative Code Rule 69A-62.006(1)(c) requires that each fire department be staffed with a sufficient number of qualified firefighters. The rule is not vague because it uses the word "sufficient" to determine the number of firefighters that are required. One must read the applicable rules in their entirety and consider the needs of each community to determine adequate staffing. There is no persuasive evidence that the staffing requirement fails to establish adequate standards for determining compliance. Florida Administrative Code Rule 69A-62.006(2) requires fire departments to meet certain requirements of the Insurance Services Office (ISO) for Class 9 protection. This requirement determines the minimum equipment that is necessary to safely fight a structure fire. There is no persuasive evidence that requiring a fire department to provide Class 9 protection will make it impossible to start a new voluntary fire department. The rule clearly is not arbitrary in setting this minimum standard. Florida Administrative Code Rule 69A-62.007(1) states as follows in pertinent part: 69A-62.007 Minimum Requirements for Class 9 Protection. To be considered for Class 9 protection, the following minimum facilities must be available: Organization: The fire department shall be organized on a permanent basis under applicable state or local laws. The organization shall include one person responsible for operation of the department, usually with the title of chief. The fire department must serve an area with definite boundaries. If a municipality is not served by a fire department solely operated by or for the governing body of that city, the fire department providing such service shall do so under a contract or resolution. When a fire department’s service area involves one or more jurisdictions, a contract shall be executed with each jurisdiction served. Membership: The department shall have a sufficient number of firefighters/members to assure the response of at least 4 firefighters/members that can assemble at the scene of a fire as contemplated by subsection (1) of Rule 69A-62.003, F.A.C., to be compliant with Rule 69A-62.003, F.A.C., the two-in, two-out rule. The fire chief may be one of the 4 responding firefighters/members. The above-referenced rule does require fire departments to have four "interior-qualified" firefighters at the scene of a structure fire. The requirement is necessary to comply with the longstanding "two-in, two-out" rule. However, the rule does not preclude a fire department from relying on mutual-aid from other fire departments in order to comply with the rule. The rule clearly is not vague. Florida Administrative Code Rule 69A-62.007(4)(a) states as follows in relevant part: (4)(a) The chief of any fire department that includes volunteer firefighters shall annually submit a Roster of Volunteer Firefighters to the State Fire Marshal utilizing form DFS-K4-1581, effective 05/04, which is hereby adopted and incorporated by reference, no later than June 30 of each year. Form DFS-K4-1581 may be obtained by contacting the Division of State Fire Marshal, Bureau of Fire Standards and Training, 11655 Northwest Gainesville Road, Ocala, Florida 34482-1486 or at the division’s website located at http://www.fldfs.com/SFM/. The roster shall include: The fire department name, The fire department identification number (FDID), The complete fire department address, The fire department contact person, telephone number and the fire department fax number, if any, The certification level for each firefighter reported and, if any equivalency exemption has been issued, the number of persons for whom such exemption has been issued, and The firefighter certification number, the issue date of the certification, the status of the certification, i.e., volunteer or career, and the status of each firefighter who has been issued an equivalency exemption, i.e., volunteer or career, if any. The above-referenced rule requires the chief of a fire department to submit an annual roster of volunteer firefighters. Petitioner objects to the rule because some career firefighters volunteer their off-duty hours with the local volunteer fire department. Career firefighters who also perform volunteer work may do so contrary to their union rules. Publication of the roster might keep some professional firefighters from volunteering their services. Nevertheless, there is no persuasive evidence that losing some speculative number of career/volunteer firefighters will undermine the safety of firefighters or the public. The information that the roster contains is a public record. The information is necessary so that Respondent can perform statutorily-mandated studies involving injuries to firefighters. The rule clearly is not arbitrary.
The Issue The issue is whether the Department properly denied Petitioner's application for certification as a Florida firefighter due to his not achieving a passing score of 70% on the written portion of the required Firefighter Minimum Standards Examination.
Findings Of Fact Mr. Notkin filed his application for certification as a Florida firefighter on February 4, 2000. As an applicant, Mr. Notkin was required to and did take a state-approved Minimum Standards Course. Upon successful completion of the Florida Minimum Standards Course, applicants must thereafter sit for the Minimum Standards Examination. The examination consists of a written part and a practical part, and applicants must pass each part with a score of 70% or better in order to be eligible for certification. Approximately one-half (180 hours) of the 360 hours of the Minimum Standards Course is dedicated to preparation for the written portion of the Minimum Standards Examination, with the balance of the time devoted to matters to be covered on the practical field work portion of the Minimum Standards Examination. There are 100 questions on the written portion of the Minimum Standards Examination and applicants are able to miss up to 30 questions and still achieve a passing score of 70%. At all times material to this case there were three required texts for students taking the Minimum Standards Course: The Essentials of Fire Fighting, 4th edition, published by Oklahoma State University's Fire School; Medical First Responder, 5th edition, authored by J. David Bergeron; and Initial Response to Hazardous Materials published by the National Fire Academy. Mr. Notkin and his classmates were instructed to study the required text materials and informed that anything found in the text materials could be on the written portion of the Minimum Standards Examination. Students were advised that where information provided in the textbook conflicts with information provided by the instructor, the instructor's interpretation should be followed. Most questions on the Minimum Standards Examination are featured prominently in the required course textbooks. Mr. Notkin successfully completed his Firefighters Minimum Standards course with a score of 85%. He thereafter took his initial written and practical portions of the Minimum Standards Examination on June 13, 2000, at which time Mr. Notkin passed the practical examination with the minimum allowable score of 70%. However, he scored a 67% on the written portion, which is three points below the minimum passing score of 70%. Applicants are permitted two chances to achieve a passing score on the Minimum Standards Examination written portion. If an applicant fails both the initial and retest examinations, that applicant has to retake and successfully complete the 360-hour Minimum Standards Course before being permitted to retake the Minimum Standards Examination. Mr. Notkin re-tested for the written portion of the Minimum Standards Examination on or about August 2, 2000. A score of 70% would have allowed him to be certified as a firefighter without the necessity of taking a second practical examination, or repeating the Minimum Standards Course. Mr. Notkin scored 60% on the August 2, 2000, written examination, ten points below the required minimum for a passing score and certification as a firefighter. Mr. Notkin's examinations were properly graded.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance, Division of the State Fire Marshal, enter a final order denying Petitioner's application for certification as a Florida firefighter. DONE AND ENTERED this 24th day of January, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 24th day of January, 2001. COPIES FURNISHED: Michael Ian Notkin 10809 Northwest 46 Drive Coral Springs, Florida 33076 James B. Morrison, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333 The Honorable Tom Gallagher State Treasurer/Insurance Commissioner The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
