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
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner passed the "Hose Operation" portion of the initial and the re-test firefighters examinations and whether she was given a fair opportunity to pass the test.
Findings Of Fact On January 13, 2001, the Petitioner, Josephine Louise Ramsey, applied for certification to become a firefighter in the State of Florida. The Respondent is the agency regulating licensure and enforcing practice standards for firefighters in the State of Florida. On May 9, 2001, the Petitioner took the Minimum Standard Written and Practical Examination, a passing score on which would qualify her for firefighter certification. She did not achieve a passing score on the practical portion of the examination because she failed the Hose Operation portion of the examination. The Petitioner began taking the practical Hose Operation evolution portion of the examination with a broken shoulder strap on the "airpack" she was required to wear. She contended that this was an "unsafe act" and that Mr. Begley, the proctor for the examination, should have stopped her testing time and allowed her to correct the equipment malfunction and then resume the test. The Petitioner contended that this caused her a tremendous distraction while she was performing the Hose Operation evolution. She also contended that Mr. Begley should have stopped her test time from running further as soon as he noticed the broken airpack. The Petitioner testified that she changed airpacks after the Hose Operation evolution portion of her examination and was told to proceed on to the ladder portion of the examination. After the Petitioner had completed the ladder portion of the examination, the Petitioner was allowed to again take the Hose Operation evolution that same day. She took the second Hose Operation evolution test after five other applicants had been tested on that portion of the examination. The Petitioner failed the Hose Operation portion of the initial examination because she exceeded the maximum time allotted for that exercise. The Petitioner contends that she was never told of any recourse she might have if she failed her initial examination and was only told that she could schedule a re-test examination. On September 27, 2001, the Petitioner took the Minimum Standards Practical Examination Re-test which consisted, in her case, of only the Hose Operation portion of the examination. She received point deductions in four different categories on the re-test examination. She received point deductions for (1) failure to properly stop and call for water; (2) failure to slowly and fully open and close the hose nozzle while bleeding the hose line; (3) failure to slowly and fully open and close the nozzle during the cone operation; and (4) failure to maintain control of the hose and nozzle during the entire operation. The Petitioner thus received a total score of 60, which is below the minimum, acceptable, passing score of 70, and thus failed the re-test examination. The Petitioner claims that she was charged with point deductions twice for the same violation or deficiency, which in this case was improperly opening and closing the hose nozzle at the front of the truck bumper and during the cone operation. However, according to the Department's score sheet and scoring method, the opening and closing of the hose nozzle are two different skills at two locations, which are scored separately, based upon the location of the hose. The Department is thus attempting to assess how an applicant will handle the hose nozzle when the line is initially charged with water (at the front of the truck bumper) and also when the line is fully charged with water during the cone operation. In her testimony the Petitioner attempted to analogize the opening and closing of the hose operation with running during the exercise. According to the Department's scoring sheet and method, completing the task without running, or walking backwards, would entitle an applicant to 10 points. Before an applicant is deducted any points, an examiner must warn the applicant that they are running or walking backwards. Running during the exercise and properly opening and closing the hose nozzle, however, are two different skills and are scored separately and differently. The Department's policy is that it is an important skill for applicants to be able to properly maintain control of a fire hose and know how to properly open and close the hose in order to prevent injury to firefighters. In any event, the Petitioner received notice of a denial of her certification effective October 5, 2001.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered denying the Petitioner's application for certification as a firefighter in the State of Florida. DONE AND ENTERED this 29th day of April, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 29th day of April, 2002. COPIES FURNISHED: Ladasiah Jackson, Esquire Department of Insurance 200 East Gaines Street Tallahassee, Florida 32399-0333 Josephine Louise Ramsey 1906 St. John's Bluff Road North Jacksonville, Florida 32225 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
The Issue The issue in this case is whether Respondent, Department of Financial Services, Division of State Fire Marshal (the Department), properly administered and graded the Firefighter Minimum Standards practical examination taken by Petitioner, Catalina Williams (hereinafter Williams).
Findings Of Fact The Department is the state agency charged with the responsibility for testing, monitoring and certifying firefighters. The Department conducts certification examinations at the Florida State Fire College in Ocala, Florida, and some thirty-plus other sites around the State. Those sites are located on college campuses, training facilities, fire stations, and other locales. The test at issue in this proceeding was administered at the Fire College site. Catalina Williams is an Hispanic woman who desires to become a certified firefighter. Her interest in firefighting began when she worked as a photographer covering fire-related events for a magazine and thought it would be exciting and interesting to be on “the front line.” Williams has also served as a caregiver, giving her experience in providing assistance to others, and is a certified lifeguard. In order to accomplish her goal of becoming a firefighter, Williams entered into schooling to learn the trade. Williams first attended First Coast Technological College (First Coast) in 2009. She completed the Firefighter Minimum Basic Standards Course (Firefighter I) that year. In 2010, she enrolled at the school for the summer semester to begin training in the advanced (Firefighter II) curriculum. That school term was shorter and more compressed than a regular semester. Despite her best efforts, Williams did not successfully complete the Firefighter II course. Rochford was one of her instructors during her first unsuccessful enrollment at First Coast. In 2012, Williams entered First Coast again. At that time, she was working as a paid volunteer firefighter for Volusia County. The county paid her tuition costs at First Coast when Williams entered the school for the Firefighter II course work. The second time, Williams was able to successfully complete the course material and pass her final examination. Passing the final examination was a prerequisite to taking the State certification exam. While attending First Coast, Williams took hundreds of practice exams, especially on the practical portions of the tests. She took exams as part of her classes, took exams voluntarily with someone timing her, and took exams just to practice. The State Certification Exam There are four primary segments of the State certification exam: A written examination of 100 multiple choice questions; A hose evolution involving a self- contained breathing apparatus (SCBA) and personal protection equipment (PPE); A ladder/search and rescue evolution; and A skills portion, involving ropes and knots, two fire ground skills, and a short test on the emergency response guide (ERG). The ladder/search and rescue evolution is a practical portion of the exam; it is the singular portion of the test at issue in this proceeding and will be referred to as the ladder evolution. The ladder evolution portion consists of the following tasks and assignments: The candidate inspects ladders hanging on a simulated fire truck. He or she then takes a 24-foot ladder from the truck and extends it against the wall of a building up to the second floor. Once that ladder is properly hoisted, the candidate confirms that a ladder guard (another candidate acting as a spotter) has control of the ladder. The candidate then initiates radio contact and then walks quickly around the building to another ladder that is already in place. He/she must ascend the ladder to the second floor, test the floor inside the building to make sure it is safe, and enter the building through a window. Upon entry the candidate must find a “victim” (a 125-pound mannequin) on the lower floor, secure the victim in an approved manner, and then exit the building with the mannequin. Upon exit, the candidate must safely deposit the victim on the ground and provide notice by way of radio contact that he/she and the victim are outside the building. The radio transmission is something along the lines of: “PAR 2 [Personnel Accountability Reporting, two people]. Firefighter No. “X” and victim have safely exited the building.” The entire ladder evolution sequence must be done within four minutes and 30 seconds although, as will be discussed below, there are differences of opinion as to when the timed portion of the evolution ends. It is necessary for candidates taking the test to pass each of the four sections. Failure of any one portion would result in failure overall. Should a candidate fail the examination, they must reschedule their retest within six months of the failed test. All retest examinations are administered at the Fire College. On test day, there may be dozens of applicants taking the test at the same time. The procedure dictates that candidates arrive at the test facility in time to process paperwork prior to the 7:30 a.m., test commencement. Candidates must first provide identification to an instructor and be assigned a candidate number. They then fill out paperwork, including a waiver should any injuries occur during testing. Candidates will have their gear inspected to make sure it is in compliance with State standards. Prior to commencement of testing, one of the instructors or examiners will read a document called the “Minimum Standards Pre-Exam Orientation” (the Orientation) to the candidates. During the reading of the Orientation, which may take 45 minutes to an hour or more, candidates are allowed and encouraged to ask questions. Unless a question is asked, the Orientation will be read verbatim, word for word, with no additional comment. After the Orientation is read, candidates are walked through the facility so they can familiarize themselves with the test site. Once the test commences, candidates are not allowed to ask any questions. Williams’ Test Experience In October 2012, after successful completion of the Firefighter II course at First Coast, Williams applied for and was approved to take the State certification examination. The exam was conducted at First Coast on the school’s training grounds. The test was conducted by certified employees of the Department. Williams did not pass the examination. One of her shortcomings in that test was a failure in the ladder evolution. Her timed completion of that evolution was in excess of the required time of four minutes and 30 seconds. Williams had been confident she would pass the certification exam because it was similar to the final exam she had passed at First Coast during her schooling. She believes she failed because she was too nervous when she took the exam when it was administered as the actual State certification test. After failing the exam, Williams then applied for a retest which would be held at the Fire College on February 7, 2013. That re-test is the focus of the instant proceeding. On the morning of the retest, Williams arrived well in advance of the 7:30 a.m., start time. As she inspected her gear in anticipation of the start of the exam, she found that the SCBA regulator she was supposed to use did not properly fit the face mask on her helmet. There were extra regulators behind one of the tables being used to process applicants for that day’s test. Examiner Harper was sitting at that table and was providing paperwork to applicants who had already signed in at the first processing station. Williams went to Harper’s table and was allowed to obtain a new regulator. Inasmuch as she was already at Harper’s table getting her replacement regulator before going to the first processing station, Williams went ahead and filled out the paperwork Harper was providing to candidates at his processing station. That is, she filled out the paperwork before actually checking in at the first station. Williams then went to the first check-in table which was manned by Examiner Rochford. She provided her identification to Rochford and was assigned candidate number 37. Rochford then told Williams to go to Harper’s table to fill out the paperwork at that station. Williams told Rochford she had already done so and walked away. (At that point, Williams remembers Rochford yelling at her, asking whether she understood his order and telling her in a harsh manner to obey him. Rochford does not remember talking to Williams at all. Neither version of this alleged confrontation is persuasive. Inasmuch as the conversation was not verified one way or another by a third person -- although there were probably a number of other people around, it will not be considered to have happened for purposes of this Recommended Order.) The Orientation was then read to the candidates. The various portions of the test were addressed in the Orientation. The ladder evolution contained the following language, which Rochford read verbatim to the candidates without anything added or deleted: “Time starts when you touch anything. Time ends when the candidate and victim fully exit the building.” There is no evidence that any of the candidates asked a question concerning this part of the Orientation. Rochford’s timing policy regarding the ladder evolution differs from what he read to the candidates. He takes the position that time stops when the candidate exits the building with the victim, places the victim on the ground in an appropriate manner, and issues a verbal statement into the radio indicating that the firefighter and victim are out of the building. By his own admission, Rochford could not speak to how other examiners handle this timing issue. Harper, who was Williams’ assigned examiner on the test, also seemed to require candidates to lay the victim down and make radio contact before stopping the time. Neither Rochford nor Harper satisfactorily explained why their timing policy was different from what was stated in the orientation. The testimony concerning the correct way of timing the evolution was, at best, confusing. The following statements from the record provide contradictory and disparate opinions by various examiners: Rochford: “As soon as they lay the mannequin on the ground [and] announce they have exited the building . . . the time stops.” Tr. p. 45, lines 9-18 “The mannequin’s feet have got to be outside the plane from the door opening. That’s when the time stops.” Id. Lines 23- 25. “Until they talk on the radio is – - when they finish talking on the radio is when the time would stop.” Tr. p. 255, lines 7-9. Johnson: “At that point, they’ll use one of the prescribed methods for rescue to take the victim and themselves past the threshold out to the fresh air. At that point, the time stops.” Tr. p. 111, lines 11-14 “I read [the Orientation] word for word.” Tr. p. 114, line 23 “On the ladder rescue evolution . . . we [examiners] all stop when they pass the threshold.” Harper: “Then they’re told to lay the victim down, make radio contact you’re out of the building. Time stops.” Tr. p. 138, lines 7-8 “After they make radio contact.” Tr. p. 147, line 3 “[Orientation] says time starts when they touch anything, time ends when the candidate and the victim fully exit the building.” Tr. P. 148, lines 15-17 Hackett: “It stops when the victim comes out of the building.” Tr. p. 222, lines 7-8 [If the victim was thrown out of the building by the firefighter] “I think they would stop the clock.” Id., lines 9-11 “It is part of the timed part that they have to designate that they’re out of the building safely and lay down the victim.” Tr. pp. 222, line 24 through 223, line 1 Question to Hackett: “If [Williams] is coming out and she dropped the victim and picked up -- and presumably picked it up or whatever and then radioed, would that add time?” Answer: “No.” Tr. p. 246, lines 5- 10 Williams was timed by Harper when she took the ladder evolution portion of the exam. According to Harper’s (deposition) testimony, he subscribes to the version of timing that requires the victim to be laid down on the ground and the firefighter to make radio contact. Using that version of timing, Williams received a time of four minutes and 35 seconds for the entire ladder evolution portion of the test. In March, the Department mailed out notices to all the candidates that had tested on February 7. Notices of failure were sent by registered mail, return receipt requested. Williams’ letter was returned to the Department as unclaimed. Williams at some point in time found out from Chief McElroy, head of the Fire Academy, that she had purportedly failed the exam. She began calling examiner Harper in March seeking to find out what portion of the exam she had not successfully completed. She had at least two telephone conversations with Harper in March 2013. On April 4, 2013, the Department re-sent the failure letter to Williams, again by certified mail. This time, the letter was claimed by Williams and she became officially aware that she had not passed the exam. The basis given for Williams’ failure was that she did not complete the ladder evolution within the prescribed time parameters. She was timed at four minutes and 35 seconds, just five seconds beyond the allowable limit. It is her contention that she exited the building with the victim within the four minute/30 second time frame. The basis for her belief is that she has done the test so many times that she knows when she is behind schedule. During the test she did not stumble, drop any equipment, or have any other problem that would have added to her time. So, she concludes, she must have completed the evolution timely. Her personal feelings on the matter, without further corroboration or support, are not persuasive. Harper did not testify at final hearing. The transcript of his deposition taken in this case was admitted into evidence. In that transcript, Harper talks about his policy regarding timing of the evolution. His policy is the same as Rochford’s and is discussed above. He does not specifically say if he employed that policy when timing Williams during her test on February 7, 2013. He does not explain the difference between the Orientation statement about timing and his personal policy. The most persuasive evidence at final hearing established that it would have taken ten to 15 seconds after exiting the building to lay the victim down and make radio contact. The radio contact itself would have taken about four seconds. If Harper had stopped his timing when Williams and the victim broke the threshold of the building, her time would have likely been less than four minutes and 30 seconds. If he used his personal timing policy, then the time of four minutes/35 seconds was probably accurate. Harper deducted points from Williams’ score because of other minor mistakes. The totality of those points would not have caused Williams to fail the test. It was the ladder evolution time that caused the failure. In fact, Williams successfully completed all portions of the re-test except for the timing issue in the ladder evolution portion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Financial Services, Division of State Fire Marshal, rescinding the failing score on the State Firefighter Certification Examination for Catalina Williams and certifying her as a Firefighter. DONE AND ENTERED this 19th day of November, 2013, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 2013. COPIES FURNISHED: Seth D. Corneal, Esquire The Corneal Law Firm 904 Anastasia Boulevard St. Augustine, Florida 32080 Michael Davidson, Esquire Department of Financial Services Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Julie Jones, CP, FRP, Agency Clerk Department of Financial Services Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0390
The Issue 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.
The Issue The issue in this case is whether Petitioner, Brandon Michael Post (Petitioner or Mr. Post), achieved a passing score on the practical exam for firefighter certification.
Findings Of Fact The Department is the state agency responsible for the regulatory process governing firefighters, including the process by which candidates apply for certification as firefighters in the State of Florida. In addition to meeting certain background and training requirements, candidates must take and attain passing scores on the Firefighter Minimum Standards Written and Practical Examination (firefighter examination) administered by the Department. Mr. Post applied to the Department for firefighter certification. There is no dispute that Mr. Post met the background and training qualifications for certification in all respects. In addition, Mr. Post took and passed the written portion of the firefighter examination. At issue is whether Mr. Post attained a passing score on the practical portion of the firefighter examination (practical exam). The practical exam has four components covering the following subjects: self-contained breathing apparatus (SCBA); hose operations; ladder operations; and fireground scenarios. In order to pass the practical exam, a candidate must obtain a score of at least 70 percent on each component. If a candidate does not pass the practical exam, the candidate is offered the opportunity for a retest. The practical exams are conducted by Bureau field representatives. A field representative evaluates each candidate's performance and records the candidate's scores on a form called "minimum standards exam field notes" (field notes). There is a separate field notes form for each component of the practical exam. The field notes form identifies each of the separate skills or activities tested. Certain items are scored on a pass-fail basis, because they are considered mandatory skills. Thus, the failure to achieve an acceptable result in a mandatory item results in automatic failure for the component. Other tested items are considered evaluative, and the candidate's performance is given a point score. A total of 100 points is possible for all of the evaluative items; a candidate must attain a score of at least 70 to pass the component. Mr. Post took the firefighter examination on June 13, 2012. In the practical exam, Mr. Post received passing scores of 100 percent for the SCBA component; 100 percent for the hose operation component; and 70 percent for the fireground scenarios component. However, Mr. Post failed the ladder operations component. Mr. Harper was the field representative who administered Mr. Post's practical exam on June 13, 2012, and who completed the field notes reflecting how he scored Mr. Post's performance. Mr. Harper has been a Bureau field representative for more than five years, and in that time, he has administered thousands of practical exams. Mr. Harper gave Mr. Post a failing score for not donning and securing all personal protective equipment (PPE) properly. Donning and securing PPE properly is considered a mandatory item that has to be achieved, because of the importance of this skill to a firefighter's safety. To emphasize the safety concern associated with failing to don and secure all PPE properly, Mr. Harper also gave Mr. Post a failing score for committing an unsafe act that could result in serious injury or death. The "unsafe act" scoring category is separate on the field notes form from the mandatory item "donning and securing all PPE properly." However, a failing score in either one of these categories alone required an automatic failure for the ladder operations component. Thus, giving Mr. Post a failing score for an "unsafe act" had no effect on his score; Mr. Post's failing score for not donning and securing his PPE properly required an automatic failure for the ladder operations component. Mr. Harper credibly explained why he judged Mr. Post's donning and securing of his PPE to be improper. He recalled in precise detail how Mr. Post's mask had a five-point harness mechanism that is designed to hold the face piece tight to the face, creating an air-tight seal that will keep out dangerous smoke and fumes. There were two straps at the temple, two straps at the jaw, and one at the top center. To secure the mask, the two jaw straps are supposed to be pulled tight at the same time, then the two temple straps are pulled tight at the same time, then the top strap is pulled last to pull the mask up evenly on the face. Mr. Post did not secure his mask this way. Instead of pulling the two jaw and temple straps at the same time, he held the face piece with one hand, and pulled the straps on one side of his face with his other hand. This pulled the mask to the side, instead of centering it. Mr. Post testified that his face piece was on good enough for him to achieve an air-tight seal, which was maintained throughout the exercise. Therefore, he took issue with the opinion that the way he put on his PPE was unsafe. Mr. Post's statements were inconsistent regarding whether the mask was askew, pulled to one side. At the final hearing, Mr. Post testified at first that Mr. Harper's field notes comment was incorrect when it said that the "face piece was pulled to left side." Mr. Post testified that he disagreed with the field notes comment that his face piece was "pulled to one side." But then Mr. Post acknowledged that "it could have been maybe a little bit to the left, but there was no poor seal at all times." This latter statement was closer to Mr. Post's statement in his hearing request: "I had a seal of my face piece but was failed because the harness wasn't quite centered on my head." Mr. Post essentially admitted that he did not "properly" don and secure all of his PPE; his argument is with the extent to which it was improper, and whether his failure to properly secure the harness actually caused harm. Mr. Harper's testimony that Mr. Post improperly donned and secured his PPE and that this failure was an unsafe act that could result in serious injury or death is accepted. Mr. Harper credibly explained the danger of a mask not being harnessed securely with a centered face piece. Even though it is possible to initially attain a proper seal with an off-centered face piece, as Mr. Post did, the fact that it is not properly secured to be centered on the face means that it is easier to dislodge than a centered, properly-harnessed mask. Anything jarring the head gear, or even an abrupt head movement, could cause the mask to move further off-center and break the critical seal that protects the firefighter from toxic gases and smoke. These serious risks cannot be brushed aside simply because Mr. Post managed to make it through a short simulated exercise without dislodging his off-centered mask. The Bureau notified Mr. Post that he did not achieve a passing score on his practical exam because of his failed score on the ladder operations component. As provided by statute, Mr. Post was advised that he was allowed one opportunity to retake the practical exam. Mr. Post took the practical exam retest on September 18, 2012. Once again, Mr. Harper was the field representative who administered the practical exam to Mr. Post. Mr. Post admitted that his retest "was pretty sloppy." On the hose operations component, once again, Mr. Post had problems donning and securing all of his PPE. This time, the problems were with the gear that was supposed to protect his torso. As Mr. Post acknowledged, "my shoulder strap was twisted and . . . my high-pressure hose [was] under [the] strap. That is true. I remember that." His jacket was pulled up in the back, and his shirt was exposed. Based on these problems, Mr. Post received an automatic failure under the mandatory category for failing to don and secure all PPE properly. Mr. Post admitted that he failed to don and secure all of his protective equipment properly. The protective jacket is not supposed to be pulled up in the back, exposing one's shirt. Shoulder straps are not supposed to be twisted, with the high-pressure hose caught under a strap. Mr. Post testified that he did not think he should have been failed for these admitted problems with putting on his protective gear, because no skin was exposed. However, he offered no legitimate challenge to the reasonableness of the exam itself, which makes the proper donning and securing of all of one's PPE a mandatory step. As described, it was entirely reasonable to give Mr. Post an automatic failure on this retest component for his improper donning and securing of his protective gear. Mr. Post also received an automatic failure in the ladder operations component. There were two separate problems with this exercise. One problem was Mr. Post's failure to fully secure the ladder's "dogs" or locking devices that secure the separate sections of a multi-section ladder. The dogs are like clamps that are activated by a spring mechanism; when employed properly, they clamp around a rung at the joinder point of the ladder's separate sections. In Mr. Post's ladder exercise, he failed to properly employ the dogs; they were not fully secured in place around the rung. Instead, they were balanced on the tips, sitting on top of the rung, instead of locked around the rung. Mr. Post attempted to argue that it was not possible for him to have failed to properly employ the dogs in this manner because if the dogs were not locked, the ladder would have fallen down and his stayed upright. However, as Mr. Harper credibly explained, the dogs were sitting on top of the rung (instead of clamped around it). As such, the ladder could remain upright, albeit, in a precarious state that depended on the dogs keeping their balance on top of a rung, instead of in a secure state with the dogs locked in place around the rung. Mr. Harper's testimony is credited; Mr. Post did not effectively rebut the testimony regarding his improper employment of the dogs. The second problem Mr. Post had in the ladder operations component of his retest came in the part of the exercise in which Mr. Post was supposed to exit the building carrying the "victim" and retreat to safety. According to the field notes, Mr. Post received an automatic failure for committing an unsafe act that could result in serious injury or death, because he was running backwards with the victim. Mr. Post did not take issue with this aspect of his retest scoring, admitting that the field notes were accurate: "When you're carrying the victim out of a building, that's the only time you're allowed to go backwards, but I guess I was running where I should have been walking. But I don't really--I don't really testify against that." Mr. Post expressed some generalized concern with the fact that the same field representative--Mr. Harper--administered Mr. Post's initial examination and the retest. However, no evidence was offered to suggest that Mr. Harper's administration of the practical exam or the retest was improper or unfair to Mr. Post in any respect. Indeed, Mr. Post essentially conceded that Mr. Harper fairly and reasonably assessed Mr. Post's admittedly sloppy performance on the retest. Mr. Post's concession in this regard puts to rest any implication that Mr. Post might not have failed the retest if a different field representative had been assigned. Instead, the evidence established that Mr. Post's performance in the practical exam retest earned three different automatic failures, any one of which would have resulted in an overall failing grade on the retest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Financial Services, denying the application of Petitioner, Brandon Michael Post, for certification as a firefighter in the State of Florida. DONE AND ENTERED this 9th day of April, 2013, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 9th day of April, 2013.
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 issue is whether Respondent properly denied Petitioner certification as a Florida firefighter.
Findings Of Fact Petitioner, a resident of Ohio, requested to qualify for the Florida Minimum Standards Equivalence Examination, based on his experience, to become a Florida firefighter. Petitioner's request effectively "challenged" the exam and requested an exemption from attending the Florida Minimum Standards Course. Petitioner could have taken the Florida Minimum Standards Course. If he had taken the course, he may have had an opportunity to review video tapes and other instructional materials which are available but not a required part of the basic curriculum. Instead, Petitioner elected to furnish Respondent with his out-of-state firefighter credentials. Subsequently, Respondent granted Petitioner the requested exemption. Prior to taking the examination, Respondent's staff accurately informed Petitioner about the scope, structure and subject matter of the test during numerous telephone calls. On at least ten occasions, Respondent's staff described the test to Petitioner and told him how to prepare for it. Respondent's staff specifically told Petitioner that he should study the International Fire Service Training Association Manual (IFSTA Manual). As to part one of the practical portion of the exam, Petitioner knew that Respondent would test him on the breathing apparatus, the one and three quarter-inch hose and nozzle operation, and the twenty-four foot ladder evolution. Respondent told Petitioner that he needed to know how to perform all skills set forth in the IFSTA Manual because Respondent randomly selects six different sections of tasks to test on part two of the practical examination. The six skill sections which are picked for part two remain unknown to anyone in advance of the test regardless of whether he is out-of-state or in-state applicants. These skills are chosen by Respondent's Field Representatives in their offices at the Florida State Fire College prior to going to a testing site or for testing at the Florida State Fire College. The two parts of the practical examination are of equal worth. An examinee begins with 100 points and points are deducted for deficiencies throughout the exam. Candidates are required to achieve a score of at least seventy (70) points in order to pass the practical examination. Petitioner took his Minimum Standards Equivalency Practical Examination on April 28, 1997, at the Florida State Fire College in Ocala, Florida. Petitioner's final score on the April 28, 1997, Minimum Standards Equivalency Practical Examination was twenty-five (25) points, which was not a passing score. Candidates are allowed one retest of the Minimum Standards Equivalency Practical Retest if they are not successful on their initial test. Petitioner chose to take the test again on July 28, 1997, at the Florida State Fire College in Ocala, Florida. Respondent's Field Representative administered part one of the Minimum Standards Equivalency Practical Retest to Petitioner. Petitioner did not take part two of the Minimum Standards Equivalency Practical Retest. He chose to quit after realizing that his score on part one was so low that he could not pass the retest as a whole. After deciding not to take part two in the Minimum Standards Equivalency Practical Retest, Petitioner approached Field Representative Bill DePauw to tell him that he was quitting. Petitioner was not attired in the mandatory minimum safety gear, but in civilian clothes. At that time, Mr. DePauw was in the process of testing another examinee. Mr. DePauw told the Petitioner he needed to talk to Larry McCall, Field Representative Supervisor. Petitioner then approached Mr. McCall and informed him that he would not be taking part two of the retest. Mr. McCall asked Petitioner to leave the testing grounds because Petitioner was being loud and disruptive to the applicants testing or waiting to be tested. Further, once an applicant decides not to continue, he is no longer allowed in the testing area. Petitioner informed Mr. McCall, both on the field and in Mr. McCall's office, that the Florida exam and the process were "chicken." Petitioner lost seventy-five (75) points on part one of the Minimum Standards Equivalency Practical Retest. The maximum allowable deduction for part one of fifty (50) points was deducted from Petitioner's part one score. Therefore, Petitioner's final score on the Minimum Standards Equivalency Practical Retest administered on July 28, 1997, was fifty (50) points, which is not a passing score. Applicants are assigned a number during orientation. From that time on, the applicants are referred to only by that number to ensure impartiality. The applicant's name is attached to the number after the exam, sometimes several days later. The examiner makes up a package of exams, numbers the packets, and then circles six (6) skills at random in each packet. No names are applied to the packets and the numbers are not assigned to the examinees until the day of testing. The Field Representatives are required to give an orientation prior to each Minimum Standards Equivalency Examination on the day of the exam. The orientation consists of walking the applicants through each section of part one. The Field Representatives use the same form check-off sheet during each orientation to ensure that each candidate is given the same orientation. The Field Representatives use a scoresheet to grade the applicants which is a guide to simplify the scoring process. The numeric values on the scoresheet are negative points deducted from an applicant's raw score of 100 points. The Field Representatives only make deductions when the applicant does not follow the required procedure for performing the evolution. Petitioner admits that the point deduction is correct for exceeding the required time on the breathing apparatus evolution. Petitioner admits that he had to go back to the loop during the hose and nozzle evolution to fix the kinks in the hose line. Additionally, he took a couple of steps backwards while he was pulling the hose line. Walking backwards occurs when a candidate takes two steps or more backwards, walking in the opposite direction from where he is looking. There are no warnings issued for walking backwards during the certification examination. Petitioner admits that the deduction for exceeding time during the hose and nozzle evolution was correct. The greater weight of the evidence indicates that Petitioner struggled during the ladder evolution. He lacked control of the ladder at all times during the demonstration. All of the deficiencies which Petitioner admits to amount to a total of 35 negative points as the least possible point deduction. That equals a score of 65 without Petitioner even having taken part two. A score of 65 is not a passing score.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Bill Nelson in his capacity as State Fire Marshal enter a Final Order denying Petitioner's request for a Certification of Compliance as a Florida Firefighter. DONE AND ORDERED this 20th day of August, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1998. COPIES FURNISHED: Elenita Gomez, Esquire Division of Legal Services Department of Insurance and Treasurer 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Paul Appleton 13500 Shaker Boulevard, No. 102 Cleveland, Ohio 44120 Bill Nelson, Commissioner Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issue in this case is whether Petitioner is entitled to retake the written portion of the examination for state certification as a firefighter (the "firefighter examination").
Findings Of Fact Respondent’s Bureau of Fire Standards and Training (the "Bureau") is located in Ocala, Florida. The Bureau is responsible for certifying firefighters throughout the state. The Bureau is the only entity authorized to schedule and administer the examination for state certification as a firefighter. A person who wishes to become a firefighter must apply to take the examination for state certification. If the application is approved, the person must first complete a minimum standards course certified by the Bureau and given throughout the state prior to each testing period. The minimum standards course consists of approximately 360 hours. Students attend class four days a week Monday through Friday from 6:00 p.m. until 10:00 p.m.; and from 8:00 a.m. until 5:00 p.m. on Sunday. Petitioner satisfactorily completed the minimum standards course conducted from October 26, 1998, through April 2, 1999, at the Mid Florida Tech training center in Orlando, Florida. Upon completion of the course, Petitioner qualified to take the examination given on April 14 and 15, 1999. The examination for state certification as a firefighter consists of two parts. One part is a practical examination, consisting of a physical test, and the second part is a written examination. Candidates must wear their work uniforms for the practical examination and their dress uniforms for the written examination. A person must score 70 percent or greater on each part of the examination to be certified as a firefighter. Petitioner scored 80 percent on the practical examination given on April 15, 1999. However, Petitioner scored only 65 percent on the written examination given on April 14, 1999. A candidate who does not achieve a passing score on either part of the examination is entitled, by rule, to one retest of that part within six months of the original test. If the candidate does not achieve a passing score on the retest, the candidate must submit a new application for certification and re- take the minimum standards course. By letter dated April 23, 1999, the Bureau notified Petitioner that he had not achieved a passing score on the written examination given on April 14, 1999. By letter dated April 26, 1999, the Bureau notified Petitioner that the Bureau had scheduled Petitioner for a retest on May 12, 1999. On May 12, 1999, Petitioner achieved a score of 68 percent on the written portion of the examination. By letter dated May 24, 1999, Respondent notified Petitioner that he did not achieve a passing score on the written examination and denied Petitioner’s application for certification as a firefighter. Petitioner timely requested an administrative hearing. Petitioner does not challenge a question or score used in either written examination given on April 14 or May 12, 1999. Petitioner challenges the procedure used by the Bureau to determine the sequence of the two-part examination given on April 14 and 15, 1999. During the minimum standards course, students generally are told to be prepared for either examination in any sequence. However, Fire Chief Mullins, Petitioner’s course instructor, specifically told Petitioner and his fellow students that the practical examination would be given on April 14, 1999, and that the written examination would be given on April 15, 1999. The written examination in fact was given on April 14, 1999, and the practical examination was given on April 15, 1999. Respondent did not inform Petitioner and his fellow students that the written examination would be given on April 14, 1999, until the morning of the test. Chief Mullins is the agent of Respondent. The Bureau inspects, approves, and certifies each training center, its course curriculum, and its course instructors. Bureau rules and policies are binding on training centers and on training center personnel, including course instructors. The Bureau can decertify training centers and personnel if either violates agency policy. Course instructors have only that authority granted to them by the Bureau and are responsible to the Bureau. The testimony of Respondent’s witness claimed that Chief Mullins did not have actual authority to represent to his students the sequence in which the two-part examination would be given. Assuming arguendo that the testimony is supported by applicable law, the testimony is not dispositive. Chief Mullins had the apparent authority to make each representation to Petitioner and his fellow students, and the students reasonably relied on that representation. Petitioner relied on the representation by Respondent’s agent to Petitioner’s detriment. The detriment to Petitioner consisted of three parts. First, Petitioner was lulled into inaction and lost his opportunity for final preparation before the written examination. Second, the lost opportunity shocked and unnerved Petitioner during the test. Finally, Petitioner was denied an opportunity to take the written examination a second time without being misled by Respondent’s agent. The first part of the detriment to Petitioner occurred on April 13, 1999. In reliance upon Respondent’s misleading representation, Petitioner deferred his final preparation for the written examination until after the practical test which Petitioner believed in good faith would be given on April 14, 1999. Petitioner’s scheduled final preparation for the written examination included a study group that had been prearranged between Petitioner and some of his fellow students to be conducted after the practical examination was completed. When Respondent scheduled the written examination on April 14, 1999, rather than April 15, 1999, Petitioner lost the opportunity Petitioner had scheduled for final study and preparation during the remainder of the day and night following the practical examination. The second part of the detriment to Petitioner occurred to Petitioner’s state of mind during the written examination given on April 14, 1999. Petitioner was shocked and unnerved by the lost opportunity for final preparation before the written examination. The last part of the detriment to Petitioner occurred when Respondent counted the retest on May 12, 1999, as the second test rather than the first test. The test given on May 12, 1999, was the first test not flawed by misleading representations from Respondent’s agent which lulled Respondent into inaction before the written examination. The retest on May 12, 1999, cured the first and second part of the detriment to Petitioner by allowing Petitioner time for final preparation before the written examination. However, the retest did not cure the third part of the detriment to Petitioner. By counting the test given on May 12 as the second test, Respondent did not cure the procedural defect in counting a flawed test as Petitioner’s first test. The detriment to Petitioner is that he would be required to re-apply for certification and take the 360-hour minimum standards course again before he could take a second written examination not flawed by misleading representations that lulled Petitioner into inaction before the written examination. When Petitioner was given the opportunity for final preparation before the written examination on May 12, 1999, his score improved three percentage points from 65 percent to 68 percent. If Petitioner is given a second opportunity for final preparation before the test, he may, or may not, achieve the additional two percentage points needed to score 70 percent on the written examination. Petitioner is entitled, by rule, to a second opportunity to take the written test without being lulled into inaction before the test by misleading representations from Respondent. Respondent argues that tests are frequently rescheduled for weather or other acts of God. However, an act of God was not the reason Respondent rescheduled the sequence of the two-part examination on April 14 and 15, 1999. Respondent scheduled the sequence of the two-part examination at issue in this case for administrative convenience. The Bureau determines the number of days required to give the examination offered to graduates of each training center at the beginning of each training course when the training center sends the Bureau a course roster. The Bureau gives the examination for certification as a firefighter in one day if there are less than 15 applicants enrolled in a training course and in two days if there are 15 to 30 applicants enrolled. If there are more than 30 applicants enrolled, the Bureau gives the examination over three days, adding an additional day for each increment of 15 applicants. The Bureau does not determine the sequence in which the two parts of the examination will be given until the end of the training course, approximately one week before the first test date, and does not inform the test center until that time. The course instructor, therefore, could not have known what the sequence of testing was going to be on April 14 and 15, 1999, when he misled Petitioner and his fellow students into believing the written examination would be given on April 15, 1999. It is equally correct, however, that neither Petitioner nor his fellow students could have known, or should have known, that the course instructor was unaware of the sequence of testing when the course instructor repeatedly misled Petitioner and his fellow students during the training course. The course instructor misrepresented the sequence of testing throughout the course beginning sometime in February 1999 and thereafter until the course was concluded on April 2, 1999. Several times during March 1999, the course instructor represented to Petitioner and his fellow students that the written examination would be given on April 15, 1999. Respondent has no policy that establishes standards for determining the sequence of the two-part examination. Examiners who administer the tests travel from Ocala to each test site. Approximately one week before leaving for the test site, examiners inform someone at the training center of the testing sequence. Respondent failed to explicate any standards for determining the sequence of testing except acts of God, which are irrelevant to the facts in this case; the general principle that firefighters must be prepared for any eventuality, which Respondent failed to explain in the record; and the unbridled discretion of the examiner. Respondent did not explicate why the examiner for the examination given on April 14 and 15, 1999, decided to give the written examination on the earlier date or why the course instructor did not correct his prior misleading representations during the week before the examination. Respondent’s witness testified that Petitioner and his fellow students had no right to know the sequence of testing. While Petitioner and his fellow students may not have had a right to know the sequence of testing, their course instructor volunteered that information and carried out that voluntary agency action in a misleading manner that lulled Petitioner into inaction. Respondent may not have been required to provide notice of the sequence of testing to Petitioner and his fellow students. Once Respondent voluntarily undertook to provide notice of the sequence of testing, Respondent was required to carry out its voluntary action in a fair and adequate manner. The notice voluntarily given by Respondent’s agent was neither fair nor adequate but was misleading, arbitrary, and capricious. The course instructor had no way of knowing the sequence of testing before the telephone call from the test examiner, and the test examiner had no standards to limit his discretion to determine the sequence of testing. Respondent asserts that the changed testing sequence, if any, did not cause extreme hardship to Petitioner. In support of its assertion, Respondent submitted evidence that other students overcame any hardship and passed the written test. Respondent misses the point. If some students were not harmed by Respondent’s misleading notice, the absence of harm does not eliminate the error in the agency notice to those students. It merely means that the error in the notice to those students was harmless error. The lack of harm to those students does not eliminate the prejudice to a student who was harmed by the error in notice. If an agency voluntarily undertakes action and does so in a faulty and misleading manner, the agency properly should suffer the consequences of such action rather than the person who is prejudiced by such action. The harm caused by faulty and misleading notice to a particular student is not measured by the prejudice, or lack of prejudice, to other students. Such harm is personal and is properly measured by the facts and circumstances unique to the individual student and his or her state of mind.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's challenge to the written examination given on April 14, 1999, and granting Petitioner’s request to retake the written examination given on May 12, 1999. DONE AND ENTERED this 6th day of December, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 6th day of December, 1999. COPIES FURNISHED: Honorable Bill Nelson, State Treasurer And Insurance Commissioner The Capitol, Plaza Level II Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Shiv Narayan Persaud, Esquire Division of Legal Services Department of Insurance 200 East Gaines Street Tallahassee, Florida 32399-0333 Jonathan C. Anthony 215 Bella Coola Drive Indian Harbor Beach, Florida 32937
The Issue The issue in this case is whether the Department properly denied Petitioner's application for certification as a Florida firefighter due to his not achieving a passing score of seventy on the written portion of the required Minimum Standards Examination for firefighters.
Findings Of Fact Mr. Kaliher submitted his application for certification as a Florida firefighter on January 4, 2000. As an applicant, Mr. Kaliher was required to take a Minimum Standards Course in order to be eligible to take the Minimum Standards Certification Examination. Mr. Kaliher took the Minimum Standards Course at HCC, which began on or about January 5, 2000, and concluded on or about July 2000. Approximately one-half (180 hours) of the 360 hours of the Minimum Standards Course are dedicated to preparation for the written portion of the Minimum Standards Examination. To be certified as a Florida firefighter an applicant must successfully complete the Florida Minimum Standards Course and thereafter pass the written (70%) portion and the practical (70%) portion of the Minimum Standards Examination. There are one hundred questions on the written portion of the Minimum Standards Examination and applicants are able to miss up to thirty (30) questions and still achieve a passing score of seventy (70). There are three required texts for students taking the Minimum Standards Course: The Essentials of Fire Fighting by Oklahoma State University; First Responder, 5th Edition, published by Brady, authored by Bergeron, Bizjak; and lastly; Initial Response to Hazardous Materials by the National Fire Academy. Mr. Kaliher, and other students, were instructed to study the required text materials and informed that basically anything found in the text materials could be on the written portion of the Minimum Standards Examination. The first section of the Minimum Standards classes came for First Responder text which covered basic first aid, assessment of an injured victim's signs and symptoms, and how to stabilize for transport to the hospital. HCC ordered and made available to Minimum Standards Course students the text, First Responder text published by Brady and authored by Karren and Hafen; not First Responder, published by Brady and authored by Bergeron and Bizjak. Dennis Phillips, coordinator, and Mike Gonzalez, HCC instructor, both testified that the First Responder text by Karren and Hafen contained accurate information to learn the skills necessary to pass the First Responder portion of the Minimum Standards Course. Mr. Kaliher and other students used the initially issued First Responder text by Karren and Hafen to prepare for and pass the First Responder portion of the Minimum Standards Course. Because First Responder by Brady, Bergeron and Bizjak, is the source text from which the Fire Marshall's office randomly selects a bank of questions from which the computer make random selections for each examination, Dennis Phillips, coordinator, advised HCC to order the Bergeron and Bizjak' edition. First Responder by Brady, Bergeron and Bizjak authors, was ordered, made available to each class member on or about the second week of February 2000, and each Minimum Standards class members exchanged their text without cost and sign an exchange sheet evidencing that fact. Mike Gonzalez, HCC instructor, testified that all essential materials were covered in both First Responder textbooks and that only minor differences are such that in one textbook pediatric and geriatric patients are covered together in one chapter in one textbook, but in the other textbook pediatric and geriatric patients are treated as separate chapters. The substantive similarly of content in both texts negated the need to re-teach materials initially covered at the beginning of the class. The HCC class conducted two review sessions of the First Responder materials during the Minimum Standards class, one prior to the mid-term and again prior to the final examination. Mr. Kaliher took his initial written and practical portions of the Minimum Standards Examination on or about July 20, 2000, scoring 62, not a passing score, on the written portion. Of the 52 students in Mr. Kalihers' Minimum Standards class at HCC, 43 (more than 80%) passed the written portion of the Minimum Standards examination. Indeed, Mr. Kaliher's classmate and only witness, Ryan Moore, admitted that HCC provided him with the proper instructions, materials, and training to prepare him for his successful completion of the examination. Mr. Kaliher re-tested for the written portion of the Minimum Standards Examination on or about August 10, 2000, scoring 69, not a passing score, on the written portion. Larry McCall, the Department's representative, testified that both Mr. Kaliher's examinations were correctly graded; that he missed only two of ten First Responder questions on the retake examination, and missed 29 questions from Essentials of Fire Fighting textbook and Initial Response to Hazardous Materials textbook materials. Further, there is no basis upon which Mr. Kaliher can be granted certification under existing circumstances. Applicants such as Mr. Kaliher are only allowed to take the Minimum Standards Examination written portion two times. If an applicant fails both the initial and retest examinations, that applicant has to retake and complete the 360- hour Florida Minimum Standard Course and successfully pass that course before being permitted to retake the Minimum Standards Examination. Respondent acted properly by not granting Mr. Kaliher his firefighter certification for the State of Florida because he did not pass the written portion of the examination as required of all firefighters by Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance, Division of the State Fire Marshall, enter a final order DENYING Petitioner Ryan Patrick Kaliher's application for certification as a Florida firefighter; further order that Ryan Patrick Kaliher is required to re-take the Florida Minimum Standards Course prior to submission of all future applications; and to re-take the written portion of the Florida Minimum Standards Examination for certification as a Florida firefighter. DONE AND ENTERED this 3rd day of January, 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 2001. COPIES FURNISHED: Ryan Patrick Kaliher 2108 Flamingo Boulevard Bradenton, Florida 34207 James B. Morrison, Esquire Michelle McBride, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333 The Honorable Bill Nelson State Treasurer/Insurance Commissioner The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
