The Issue The issue is whether Respondent properly denied Petitioner's application for certification as a firefighter after Petitioner failed to successfully pass the practical portion of the Minimum Standards Examination pursuant to Sections 633.34 and 633.35, Florida Statutes, and Rules 4A-37.056 and 4A-37.062, Florida Administrative Code.
Findings Of Fact Petitioner has served as a voluntary firefighter in Bay County, Florida, for approximately nine years. He first applied for certification as a firefighter in October 2001. In order to be certified, Petitioner was required to successfully complete the Minimum Standards Course. The course consists of taking a minimum of 360 hours of training at an approved school or training facility. After completing the training course, Petitioner was required to take the Minimum Standards Examination, which is structured in two parts: a written portion and a practical portion. The practical portion consists of four sections including the Self-Contained Breathing Apparatus (SCBA), the hose pull, the ladder operation, and the fire ground skills. The purpose of the practical portion of the exam is to simulate real fire ground scenarios. To pass the four practical evolutions, an applicant must achieve a score of at least 70 percent on each one. Each evolution of the practical exam has certain steps that are mandatory. Failure to complete a mandatory step results in automatic failure of that portion of the exam. The mandatory steps for the SCBA evolution include the following: (a) complete the procedure in not more than one minute and forty-five seconds; and (b) activate the PASS device in the automatic position. After completing the Minimum Standards Course, Petitioner took the Initial Minimum Standards Examination on May 1, 2002. He was well rested on the day of the test, having slept approximately eight hours the night before. Petitioner passed the written portion of the exam but failed the practical portion of the initial exam because it took him one minute and fifty-nine seconds to complete the SCBA evolution. In a memorandum dated May 7, 2002, Respondent formally advised Petitioner that he had failed the SCBA portion of the practical exam because he exceeded the maximum time for the procedure. The memorandum also stated as follows in pertinent part: Important information about retesting and certification renewal is enclosed. Please read it carefully. You have automatically been scheduled for the next available examination, and written notification indicating your test date and location is enclosed. You are not required to call the Bureau for scheduling. Thank you. (Emphasis provided) In another memorandum dated May 7, 2002, Respondent advised Petitioner that he was scheduled to re-take the SCBA portion of the practical examination at the Florida State Fire College in Ocala, Florida, on May 24, 2002, at 8:00 a.m. The memorandum included the following relevant information: If you are unable to take the examination on the assigned date, please advise the Bureau and we will reschedule you for the next examination. Note: You must retest within six (6) months of the original test date. All an applicant has to do to reschedule a retest exam is to call Respondent's Bureau of Fire Standards and Training and request to be rescheduled. Respondent does not require applicants to provide a justifiable reason in order to be rescheduled. It is a routine and standard practice for Respondent to reschedule exams. Some applicants fail to show up for their retest exam without calling Respondent. In that case, Respondent automatically reschedules the retest. Applicants must take their retest exams within six months of their initial exam dates. Applicants that fail to meet this requirement must repeat the training course. Respondent reminds applicants of these requirements when they call to reschedule retests or fail to show up for retest, and the next retest exam date falls outside of the six-month window. If applicants still wish to reschedule retests outside the six-month window, Respondent will accommodate the requests. The next exam date that Petitioner could have taken his retest was in September 2002, which would have been within the six-month window. Petitioner testified that he called Respondent on May 16, 2002, to reschedule his retest because May 24, 2002, was not convenient with his work schedule. Petitioner also testified that an unidentified female in Respondent's office told him that he could not change the date of his retest. Petitioner's testimony in this regard is not persuasive. Petitioner's job involved working the "graveyard shift" at the Panama City Airport, loading and unloading planes. On May 23, 2002, Petitioner began working at 2:00 a.m. He finished his shift at approximately 1:00 p.m. Petitioner then immediately loaded his gear and began the trip to Ocala, Florida. The trip took about six hours, due to a traffic jam in Tallahassee, Florida. He arrived in Ocala at approximately 8:00 p.m. EST, located the testing site, and checked into a motel. Petitioner reported to the testing site the next morning. He did not tell any officials at the testing site that he was too tired to take the test. Petitioner failed the retest of the SCBA portion of the exam. Petitioner's time for the retest of the SCBA evolution was two minutes and twelve seconds. Additionally, Petitioner had point deductions for failing to complete the "seal check" and failing to properly don and secure all personal protective equipment correctly. In a letter dated May 26, 2002, Petitioner alleged that Respondent had denied his request for a different test date. Petitioner claimed that fatigue had prevented him from succeeding at the test. He requested another opportunity to retest the SCBA evolution within the required six-month period. Shortly thereafter, Fire Chief Tim McGarry from the Thomas Drive Fire Department on Panama City Beach, Florida, called Respondent's Field Representative Supervisor, Larry McCall. During that conversation, Mr. McCall told Chief McGarry that Petitioner could have decided not to show up for the retest. In a letter dated June 3, 2002, Mr. McCall responded to Petitioner's letter. In the letter, Mr. McCall stated that the question of whether Respondent erroneously denied Petitioner's request to reschedule the retest would be closed unless Petitioner could provide more specific details. In a memorandum dated June 6, 2002, Respondent formally advised Petitioner that he had failed the retest. In a letter dated June 6, 2002, Petitioner stated that he could not remember the name of the person he spoke to when he requested a change in his retest date. Once again, Petitioner requested an opportunity to take the retest. Mr. McCall spoke to Petitioner in a telephone call on June 18, 2002. During that conversation, Petitioner indicated that he would file his Election of Rights form, requesting an administrative proceeding.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order denying Petitioner's application. DONE AND ENTERED this 10th day of April, 2003, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 2003. COPIES FURNISHED: Elenita Gomez, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0330 Mark D. Dreyer, Esquire 747 Jenks Avenue, Suite G Panama City, Florida 32401 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 Whether Petitioner's challenge to the failing score he received on the Practical Examination for Retention of Firefighter Retest he took on May 17, 2012, should be sustained.
Findings Of Fact Because no evidence was offered at the final hearing held in the instant case, no findings of fact are made.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services, Division of the State Fire Marshall, enter an order denying Petitioner's challenge to the failing score he received on the Practical Examination for Retention of Firefighter Retest he took on May 17, 2012. S DONE AND ENTERED this 17th day of August, 2012, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 2012. COPIES FURNISHED: Jesse Beauregard 10731 Northwest 18th Court Coral Springs, Florida 33071 Linje E. Rivers, Esquire Department of Financial Services 200 East Gaines Street, Sixth Floor Tallahassee, Florida 32399-0333 Julie Jones, CP, FRP, Agency Clerk Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0390
Findings Of Fact Petitioner was employed as a firefighter with the Tallahassee Fire Department, Tallahassee, Florida, on September 23, 1963, and continued in employment until May 5, 1979. (The suggestion by Petitioner that he had 24 to 27 days of leave accrued upon the last day of his employment is not utilized in determining the official termination date of employment. Beyond May 5, 1979, Petitioner was entitled to be paid for leave time, but was no longer obligated to perform as a firefighter, having been terminated effective May 5, 1979.) During his service as a firefighter with the Tallahassee Fire Department, Petitioner received a certificate of tenure in 1974, pursuant to Section 633.41, Florida Statutes. This provision has been referred to as the savings clause or grandfather clause and allows firefighters who were employed upon the effective date of that section to be certified without the necessity of complying with provisions of law related to certification through training and examination. Section 633.41, Florida Statutes became effective in 1969, thus Petitioner was certified by the terms and conditions of that provision. Petitioner left his employment with the Tallahassee Fire Department to pursue private business and for reason of family obligations. Having terminated his employment with the Tallahassee Fire Department on a voluntary basis, there was no prohibition against reapplying for employment with the Tallahassee Fire Department at some future date. That eventuality occurred when the petitioner contacted the Fire Chief of the Tallahassee Fire Department in April, 1981 to discuss the possibility of reemployment. The Fire Chief of the Tallahassee Fire Department then and now is one Edwin C. Ragans. Shortly after this discussion with Chief Ragans, and in the same month, April, 1981, Ragans hired Petitioner with the effective date of Petitioner's reemployment being July 21, 1901. The delay between April and July was caused by the petitioner's need to conclude certain business undertakings before assuming his duties as a firefighter. The State of Florida, Bureau of Fire Standards and Training, had been informed of the date of original employment for the Petitioner, September 23, 1963, and the date of termination, May 5, 1979, based upon a notice of termination which was submitted by Chief Ragans in behalf of the Tallahassee Fire Department. A copy of that form may be found as Petitioner's exhibit number 1 admitted into evidence. Likewise, the Bureau of Fire Standards and Training was made aware of the reemployment of the Petitioner through the filing of a form known as Qualification of New Employee. A copy of that form may be found as Petitioner's exhibit number 2 admitted into evidence. That exhibit reflects the date of reemployment or rehiring as being July 21, 1981, and further notes that the initial employment was September 23, 1963. That form does not allude to the date of original termination of employment with the Tallahassee Fire Department which was May 5, 1979. When Petitioner returned to employment in July, 1981, Chief Ragans made mention of the "two year rule", which is a reference to Rule 4A-37.14, Florida Administrative Code, (1976), dealing with the idea that firefighters who had been employed with an employing agency, such as the Tallahassee Fire Department, would not have to reapply for certification in this same fashion as the person seeking initial employment as a firefighter, if that former individual resumed full time paid employment with the employing agency within a period of two years immediately subsequent to termination of the initial employment. In this connection Ragans told the Petitioner at the point of reemploying the Petitioner in 1981, that Petitioner had two options. First, he could challenge the examination related to firefighters and gain certification or if that choice was not made it would be necessary for the Petitioner to go through a minimum standards class before recertification. At the commencement of reemployment, Petitioner was mindful of the existence of the two year provision pertaining to continuing certification for those persons who had not been away from employment as a firefighter for more than two years. Furthermore, this topic had been discussed between Petitioner and some other individuals of the fire department on one occasion. Under these circumstances, Petitioner contacted an official within the training division of the Tallahassee Fire Department and obtained books necessary to study in preparation for standing the examination for certification as a firefighter. Petitioner had commenced preparation for the examination when he happened to see Bobby Presnell a lieutenant within the Tallahassee Fire Department and president of the local firefighters union. In the course of this conversation with Presnell, Petitioner mentioned that he was going to have to be examined through a test before receiving certification. Presnell indicated that he would check into the situation and find out exactly what would be necessary to obtain certification. A couple of weeks after that conversation, Presnell called the Petitioner and told him that he had spoken with Olin Greene the then Director of the Division of State Fire Marshal in the state of Florida. Presnell reported to the Petitioner that in the course of the conversation between Greene and Presnell, Greene had stated that the Petitioner was a certified fireman. These conversations between Petitioner and Presnell occurred some time in August or September, 1981. Presnell testified that the discussion between Presnell and Greene concerned the problem which Petitioner had with the two year requirement for continuing certification without the necessity of testing or schooling. In testimony, Presnell indicated that he told Greene that the Petitioner had been reemployed and everything was "supposed to be okay, and then a month or two or three later the problem arose", meaning a certification problem. Greene, according to Presnell, stated that he would get back in contact with Presnell on this subject. Again, per the testimony of Presnell, some ten days to two weeks later, beyond the initial discussion between Greene and Presnell, Greene called Presnell and told him that as far as he, Greene, was concerned, and the Fire Marshal's office was concerned, that "They didn't have any problem with Mr. Adams' recertification or certification." Greene has no recollection of any conversation with Presnell on the subject of the certification situation related to the Petitioner. Having considered the testimony of Presnell and Greene, the Presnell testimony is accepted as factually correct. Following the occurrence wherein Presnell related remarks attributed to Greene as described before, a few days after those events, Petitioner had a discussion with District Fire Chief Raymond Love of the Tallahassee Fire Department. In this conversation Love describes a discussion which he claims to have taken place between himself and Buddy Dewar, whose actual name is Dennis Dewar, in which Dewar is reported to have said that Petitioner was certified. At that time Dewar was the Bureau Chief of the Bureau of Fire Standards and Training. At present he is the Director of the Division of State Fire Marshal, having been promoted to that position in April 1982. In testimony, Love's account of the Dewar conversation concerning certification of the Petitioner, was that in the course of a fireman's convention in October 1981, Dewar asked Love if he knew Jimmy Adams, and Love replied in the affirmative. Given this opening, Love then related that he was impressed with Adams as a person and in terms of his capabilities as a firefighter. Love then recounts that he began to tell Dewar that there was a problem related to the Adams certification and if there was any help that Dewar could give, it would be most appreciated. To which, according to Love, Dewar replied that "he didn't see any problem with the recertification." Dewar, per Love's comments, did not state that he considered the Petitioner to be certified at the time of that conversation, nor was the two-year requirement pertaining to the return to the employment roles, to remain in a certified position without reapplication for certification mentioned in the Dewar conversation with Love, according to Love. Dewar, in his testimony, denied that the conversation between Love and Dewar concerned the Petitioner. His recollection is that Love asked Dewar how long the retention of certification would be valid for, to which he responded two years. Having considered the testimony and the demeanor of the witnesses, a decision cannot be reached on which of the witnesses Love or Dewar should be believed pertaining to the conversation which took place between them in October, 1981. Following discussion with Chief Love, and particularly on the next morning after that discussion, Petitioner talked to another fire chief within the Tallahassee Fire Department, whose name is Revel. This conversation was instituted by Revel in his inquiry of the petitioner on the subject of whether Petitioner was studying for the examination for certification. In response Petitioner stated that he had been but that he had found out the night before that he was certified. Revel in turn told Chief Ragans of this conversation and Ragans summoned the Petitioner to his office and the conversation between Love and Petitioner on the question of certification was recounted for the benefit of Chief Ragans. Petitioner and Love indicate that in the course of the meeting with Ragans, Ragans made a phone call and having concluded that phone call, stated that Petitioner did not have any problem with certification, or something to that effect, as Love recalls Ragans comments. Petitioner's recollection of the comment after the phone call was that Chief Ragans said, "You are a certified fireman." Ragans, in his testimony, does not relate having phoned someone on the topic of certification of the Petitioner in the presence of Petitioner and Love as previously described. His recollection is to the effect that some time prior to Love having stated in the fleeting between Ragans, Love and the Petitioner, that Dewar had confirmed Petitioner's status as a certified firefighter, he, Ragans, had talked to a Mr. Schaffner, Standards Coordinator, at the State of Florida, Fire College, and Schaffner had indicated that the time which Petitioner had been out of employment as a firefighter in a Florida department, was so close to being within the two years allowed, that Petitioner would not be required to go back through the certification process. At the time this case was placed at issue Schaffner had died. Having considered Ragans comments in the context of the other proof, it is determined that Ragans was sufficiently acquainted with Schaffner's voice to identify Schaffner in the course of the telephone conversation on the topic of the Petitioners certification. It is also concluded that this was the only conversation which Ragans had with officials within the State of Florida, Office of the State Fire Marshal, during 1981. Whether this conversation between Ragans and Schaffner occurred while Petitioner and Love were in Ragans office is uncertain. Benjamin E. Mclin, inspector with the Fire Department, speaks in terms of a conversation which he had with Olin Greene in October 1981, in the course of a seminar. Mclin introduced himself to Greene and, Greene is reputed, according to Mclin, to have asked Mclin if he knew Jimmy Adams, the Petitioner, and to have asked what kind of person Adams was. Mclin reports that he replied that he thought that Petitioner was an outstanding person as well as an impressive fireman, to which Mclin says that Greene stated, "Well, I know I did the right thing." Greene has no recollection of this conversation. Having considered the comment, even if it can be attributable to Greene, it is sufficiently ambiguous that it has no value in resolving the certification issue related to the Petitioner. After the conversation with Chief Ragans and Chief Love, which took place in Ragans office, Petitioner assumed that he was certified without the necessity of standing examination to receive certification. He had received no written indication from Respondent confirming or denying this understanding and had never personally spoken to anyone in the employ of the Respondent, on this subject. Petitioner continued his duties throughout 1981, into the beginning of 1984, serving in the capacity as a firefighter with the Tallahassee Fire Department. At that point, Petitioner had been promoted to Lieutenant within the Fire Department, and in the face of that action, a grievance was filed by another firefighter employed by the Tallahassee Fire Department indicating that Petitioner was not a certified firefighter. Ragans, in response to the grievance contacted Paul R. Steckle who was employed with the Office of the Bureau of Fire Standards and Training as a Field Representative Supervisor. Steckle had been asked by Dewar to check the Petitioner's file to determine the period of time between the termination of initial employment with the Tallahassee Fire Department and reemployment with that employer. Having made this check Steckle believed that the period was beyond the two years and reported this finding to Dewar. In conversation with Ragans, Steckle had asked Ragans when Petitioner had been employed and Ragans had indicated that Petitioner had been rehired in April but did not report to work until July, 1981. Steckle told Ragans that if Petitioner had been hired in April, 1981, and had been granted a leave of absence, allowing Petitioner to start work in July, 1981, that the reemployment would have been within the two year limit. Ragans indicated that the City of Tallahassee had no policy of allowing a leave of absence such as inquired about by Steckle. Nonetheless, Ragans got the impression that petitioner was duly certified based upon remarks made by Steckle. On January 30, 1984, Ragans wrote Steckle verifying that Petitioner had not returned to work in April, in view of commitments which would not allow him to be actually at work until July. (Mention is made of 1979, but it is determined that Ragans is referring to 1981.) This correspondence also mentions the conversation between Ragans and Schaffner. A copy of the correspondence is Respondent's exhibit number 3 admitted into evidence. On February 22, 1984, Steckle wrote to the Petitioner and advised the Petitioner that a review of the records of the Bureau of Fire Standards and Training revealed that the Petitioner had been out of fire service for over two years before reemployment. This correspondence refers to May 5, 1979, as the date of termination and July 21, 1981, as the date of reemployment. It alludes to the fact that Petitioner must regain certification through provisions of Rule 4A-37.52, Florida Administrative Code, (1981) 1/ related to an equivalency examination and encloses a copy of the package related to that examination process. It requests that the examination be taken in April, 1984. Otherwise, it is indicated in the correspondence, the Petitioner would be terminated from employment with the Tallahassee Fire Department upon request from the Bureau of Fire Standards and Training to the Tallahassee Fire Department. A copy of this correspondence may be found as Respondent's exhibit number 14, admitted into evidence. On April 10, 1984, through correspondence from counsel for the Respondent to counsel for the petitioner, the case is discussed and the Petitioner is requested to stand the equivalency examination and it alludes to the fact that in view of the error of the Respondent in failing to note at the time of reemployment that Petitioner had been away from fire fighting for more than two years, Petitioner is given until February 22, 1985, to undergo an equivalency examination for purposes of recertification. In lieu of this disposition, Petitioner is afforded the opportunity for a Section 120.57, Florida Statutes hearing, which he availed himself of, leading to the present Recommended Order. A copy of the April 10, 1984 correspondence may be found as Respondent's exhibit number 15 admitted into evidence. Luther Richter had been employed as a firefighter with the Tallahassee Fire Department and was dismissed from that employment after being arrested on a federal drug smuggling charge. He subsequently pleaded nolo contendere to the charge in the United States District Court for the Southern District of Georgia in 1976 and was given a three year probation. In April of 1979 he applied to the Tallahassee Fire Department to be reemployed. Through the reemployment paperwork, Chief Ragans recommended that Richter not be accepted based upon an alleged lack of good character. In response, Dewar, the then Bureau Chief of the Fire College, wrote Ragans on May 22, 1979 stating that Richter was not eligible for employment because of his drug conviction. Another letter was sent on June 15, 1979, from Dewar to Ragans to the same effect. On July 17, 1979, Dewar requested a legal interpretation of the Richter situation from the point of view of the Respondent's duties in considering the question of Richter's certification as a firefighter in Florida. On September 10, 1979, the City of Tallahassee and Richter entered into an agreement for Richter's reinstatement as an employee with the City of Tallahassee. In the face of the action of the City of Tallahassee, the Respondent accepted Richter for purposes of certification as if he had never been dismissed. As stated in the October 16, 1979 correspondence from Olin Greene to Daniel E. A. Kleman, City Manager of the City of Tallahassee, with Richter's reinstatement as an employee of the City of Tallahassee the Respondent would ". . . have no alternative but to accept the reinstatement order and allow his certification that was in effect prior to September 1, 1975, to come back into effect." The agreement for reinstatement can be found as part of the composite exhibit number 6 of the Petitioner, admitted into evidence. The October 16, 1979 correspondence may also be found within that document. Those items are copies of the originals. In furtherance of Greene's perception, Richter having been reinstated by the City of Tallahassee was deemed by the Respondent never to have left employment. Richter's certification continues from September 1, 1975, the dismissal date, and his initial certification remains valid to this date as established in the correspondence of Olin Greene to Kleman dated January 9, 1980, a copy of which is found in the Petitioner's composite exhibit number 6. In essence, Respondent felt that in view of the reinstatement it could not refuse to recognize Richter's certification as if it had never lapsed between the interim period of his dismissal in 1975 and the agreement for reinstatement in 1979. In early 1984 a minimum standards training course for firefighters in Florida was taught at Indian River Community College. An unusually high failure rate was experienced by those students who took that course and this led to an investigation by the State Fire College. Through the investigation it was learned that one of the instructors in the minimum standards course had not been properly certified. To resolve this problem, all students who attended that course were required to take further training with a certified instructor. Following that additional training session, another examination was given and those persons who passed the second examination, in addition to those persons who had passed the initial examination, were certified. Those who failed the second examination were not accepted for certification. On other occasions where tenured firefighters, as recognized by Section 633.41, Florida Statutes, have gone beyond the two year time period for reemployment and continuing certification without examination, those firefighters have had to stand the examination, without exception.
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 in this case is whether Petitioner is entitled to credit for his failure to timely complete the ladder evolution of the Firefighter Minimum Standards practical examination because he was allegedly distracted by an examiner.
Findings Of Fact Based on the evidence and the testimony of witnesses presented and the entire record in this proceeding, the following findings of fact are made: Respondent, Department of Insurance, through its Division of State Fire Marshall, certifies all paid firefighters and establishes a course of instruction and Minimum Standards written and practical examinations for certification. An individual ("candidate") who desires to become a firefighter must take a 360-hour Minimum Standards course of instruction and pass a Minimum Standards written and practical examination. If the candidate fails the examination, the candidate is given one opportunity to retake the portions of the examination which were not passed. If the candidate does not pass the retest, the candidate must again complete the Minimum Standards training course before additional retesting will be allowed. Petitioner completed the Minimum Standards course of instruction at Hillsborough Community College in June 2001. He took the Minimum Standards written and practical examination in December 2001. The Minimum Standards practical examination consists of four evolutions: (1) self-contained breathing apparatus; (2) inch and three-quarter hose pull and operation; (3) 24-foot ground ladder carry; and (4) other fire ground skills. On the December 2001 Minimum Standards practical examination, Petitioner did not obtain a passing score on the self-contained breathing apparatus and the 24-foot ground ladder carry evolutions. Petitioner was retested on the self-contained breathing apparatus and the 24-foot ground ladder carry evolutions on February 28, 2002, at the State Fire College in Ocala, Florida. Petitioner obtained a passing score on the self-contained breathing apparatus evolution; he again failed to obtain a passing score on the 24-foot ground ladder carry evolution. Each evolution of the Minimum Standards practical examination has a value of 100 points. The examiner deducts points for deficiencies that occur throughout the examination. Each candidate is required to achieve a score of 70 points in each evolution to pass the Minimum Standards practical examination. The 24-foot ground ladder carry evolution involves multiple sequenced tasks testing a candidate's ability to safely lift, maneuver, and deploy a 24-foot ladder; the maximum time allowed to complete all tasks required in the 24-foot ground ladder carry evolution is two minutes and 45 seconds. Failure to complete all required tasks of the evolution within the maximum time results in failure of the evolution. As Petitioner proceeded to perform the 24-foot ground ladder carry evolution, he experienced difficulty with some of the required tasks, and, as a result, time was running out as he neared completion of the required tasks. While testimony differs as to the exact words that were spoken, the examiner, noting that time was running out, spoke to Petitioner advising him to hurry to complete the tasks, or words to that effect. While an examiner speaking to a candidate during testing is not a common occurrence, nothing prohibits an examiner from speaking to a candidate while the testing progresses. Petitioner completed the 24-foot ground ladder carry evolution in two minutes and 48 seconds, exceeding the maximum time by three seconds and failing the retest. Petitioner maintains that he was distracted by the examiner's spoken words, lost his focus, and, as a result, exceeded the maximum allowable time for the 24-foot ground ladder carry evolution. While Petitioner's contention is plausible, it is not supported by the evidence presented. His previous failure of the same evolution demonstrates the difficulty he had with it; he acknowledged this difficulty. Petitioner did not appear to react to the examiner's spoken words in any way that evidenced shock or distraction. One of the ladder guards recalls Petitioner's performance on the 24-foot ground ladder carry evolution as "a weak performance all around." "I recall him taking a lot of time, an excessive amount of time, " ". . . he wasn't performing it as well, so it took him longer to do it since he wasn't doing it well." The ladder guard's observations were essentially confirmed by the examiner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered confirming Petitioner’s examination score and dismissing his challenge. DONE AND ENTERED this 12th day of November, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 12th day of November, 2002. COPIES FURNISHED: Sherwood S. Coleman, Esquire Kwall, Showers, and Coleman, P.A. 133 North Fort Harrison Avenue Clearwater, Florida 33755 Mechele R. McBride, Esquire Elentia Gomez, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300
The Issue The issue for determination is whether Petitioner successfully completed the Practical Examination for Retention of Firefighter Retest.
Findings Of Fact Mr. Pointon is a candidate for re-certification as a firefighter in the State of Florida. In 2004, Mr. Pointon obtained his Firefighter Minimum Standards Training Certification. A certification is valid for three years. Since 2004, he has been unable to find gainful employment as a firefighter. In 2007, Mr. Pointon obtained re- certification. He has been working two jobs, unrelated to firefighting, and has been unable to volunteer as a firefighter. To maintain certification, a certified firefighter, within the three-year period, must either be employed as a firefighter in a career status position or a volunteer firefighter for at least six consecutive months. If a certified firefighter fails to fit within either of the two statuses within the three-year period, the certified firefighter must take the practical portion of the Firefighter Minimum Standards examination, i.e., the Firefighter Minimum Standards Practical Examination (Practical Examination) to retain certification as a firefighter. The Practical Examination includes a written examination, as well as four practical components. The four practical components include (a) Self-Contained Breathing Apparatus (SCBA); (b) Hose Operations; (c) Ladder Operations; and (d) Fireground Skills. In order to pass the Practical Examination, a candidate must achieve a score of at least 70 percent on each of the four components. Pertinent to the instant case, the SCBA component is scored using a form listing five mandatory steps, which the candidate must pass, and ten "evaluative component" steps worth ten points each. During the SCBA portion of the examination, a candidate is required to follow the mandatory criteria; the mandatory criteria are required to be completed correctly, including completion of all protective equipment, which includes pulling on the candidate's hood that protects the skin from flash fire; and (c) a candidate is required to complete the mandatory criteria within the maximum allotted time. A candidate, who successfully completes the five mandatory steps, receives a total score of the sum of the points from the ten "evaluative component" steps. A candidate's failure to comply with the mandatory criteria is considered a critical failure. A critical failure is grounds for an automatic failure. A candidate is able to take the re-certification test twice. If a candidate fails the first time, the candidate is automatically afforded an opportunity for a retest. On May 25, 2010, Mr. Pointon took his initial Practical Examination for the re-certification. He completed the SCBA in two minutes and 45 seconds, which was beyond the maximum allowed time of one minute and 35 seconds. Therefore, the Department determined that Mr. Pointon failed to successfully complete that component and, as a result, failed that section of the Practical Examination. Mr. Pointon contends that, on May 25, 2010, during his inspection of the equipment, bottle and air pack, to make sure that it was functioning properly, he discovered that the equipment was not functioning properly. Further, he contends that he made two exchanges of equipment before he obtained properly functioning equipment. Mr. Pointon's testimony is found to be credible. The field representative who administered the initial Practical Examination testified. The field representative did nothing different with Mr. Pointon than he did with any of the other candidates. Furthermore, Mr. Pointon was the eleventh candidate to undergo testing and, by being the eleventh candidate, Mr. Pointon had ample opportunity to test his equipment and ensure that the necessary preparation was conducted before his (Mr. Pointon's) exam began. The field representative's testimony is found to be credible and more persuasive. Therefore, the evidence demonstrates that Mr. Pointon failed to successfully complete the SCBA component within the maximum allotted time. Hence, the evidence demonstrates that, on May 25, 2010, Mr. Pointon failed the SCBA section of the Practical Examination. On September 23, 2010, Mr. Pointon took a retest of the SCBA component. The Department determined that he failed the retest for failure to don all Personal Protective Equipment (PPE), in particular his NOMEX hood. Failure to don all PPE is grounds for automatic failure. As to the retest, Mr. Pointon contends that he was wearing his NOMEX hood. The field representative who administered the retest testified. The field representative observed the NOMEX hood around Mr. Pointon's neck; Mr. Pointon was not wearing the NOMEX hood. The field representative's testimony is more persuasive. Therefore, the evidence demonstrates that, on September 23, 2010, Mr. Pointon failed to don all the PPE by failing to don his NOMEX hood. Hence, the evidence demonstrates that, on September 23, 2010, Mr. Pointon failed the retest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order: Finding that Mark Pointon failed to successfully complete the Practical Examination for Retention of Firefighter Retest; and Denying Mark Pointon's application for recertification as a firefighter in the state of Florida. DONE AND ENTERED this 1st day of August, 2011, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2011.
The Issue The issue 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 Respondent should deny an application for certification as a Firefighter II on the alleged grounds that Petitioner failed the Firefighter Minimum Standards Equivalency Examination.
Findings Of Fact Respondent is the state agency responsible for the certification of firefighters in the State of Florida, pursuant to Chapter 633, Florida Statutes (2009).1 At a date not disclosed in the record, Petitioner applied for a certification as a Firefighter II. On September 21, 2009, Petitioner took the Firefighter Minimum Standards Equivalency Examination (“initial examination”). Petitioner failed to pass the Ladder, Hose, and Self Contained Breathing Apparatus (SCBA) components of the practical portion of the initial examination. On November 17, 2009, Petitioner took the Firefighter Minimum Standards Equivalency Examination Re-test (“examination re-test”) for the Ladder, Hose, and SCBA components. Petitioner failed to pass the Ladder component of the examination re-test. By Notice of Denial dated November 20, 2009, Respondent notified Petitioner that Petitioner had failed the Firefighter Minimum Standards Equivalency Examination. Petitioner requested an administrative hearing. Petitioner alleges that, during her initial examination on September 21, 2009, there was an equipment malfunction during the Ladder component of the practical portion of the examination. Petitioner bases her allegations on the Ladder component score sheet for the initial examination (“score sheet”) that was received by Petitioner after she completed the initial examination and examination re-test. The score sheet for the initial examination states that Petitioner failed the Ladder component of the initial examination because Petitioner exceeded the time period to complete the ladder evolution and failed to fully extend the ladder with the dogs locked. In the “Comments Required for Failure” section, the score sheet listed, “Safety latch on dawgs [sic] stuck in top of rung. Unsafe act. Over time.” Petitioner alleges that the statement that a piece of equipment was "stuck" is proof of an equipment malfunction. Two experts testified during the hearing that the "stuck" equipment was caused by operator error rather than an equipment malfunction. The testimony of the two experts was credible and persuasive. Petitioner, as the examinee, could have remedied the "stuck" equipment by raising the ladder to release the finger and then lowering the ladder to allow the dogs to lock onto the rung. The failure to do so was an "unsafe act” that created a safety hazard in which the fly section of the ladder could have fallen down to the ground. A preponderance of the evidence does not show that Petitioner failed the Ladder component of the initial examination because of an equipment malfunction. Rather, the preponderance of evidence shows that Petitioner failed to have the dogs locked, which is required by the examination. A preponderance of the evidence also shows that Petitioner did not complete the ladder evolution within the required time during the re-take examination. The excessive time resulted in an automatic failure of the re-take examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order denying Kim Lashawn Edmonds’ application for certification as a Firefighter II. DONE AND ENTERED this 16th day of April, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 2010.
The Issue Whether Petitioner is entitled to additional credit for her responses to Question Nos. 14 and 21 of the Special State Firesafety Inspector Certification Examination administered on November 13, 2003.
Findings Of Fact Based on the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner, Alma Elaine Carlus, is an applicant for certification as a firesafety inspector in the State of Florida. Applicants for certification as firesafety inspectors are required to complete a training course, which consists of 80 hours of training in firesafety inspection and must be completed prior to taking the Special State Firesafety Inspector Certification Examination. The approved textbooks for the Special State Firesafety Inspector Certification Examination training courses are Fire Inspection and Code Enforcement (6th Edition), which is published by the International Fire Service Training Association, and the National Fire Prevention Association Life Safety Code. Petitioner successfully completed the required training program and, thereafter, took the Special State Firesafety Inspector Examination on May 29, 2003. The Special State Firesafety Inspector Examination is a written examination containing 50 multiple choice, objective questions, worth two points each. The candidates are given two hours to complete the exam. In order to obtain a passing score, an applicant must earn a score of at least 70 percent. Petitioner did not pass the examination on May 29, 2003. On November 13, 2003, Petitioner retook the examination and earned a score of 66 percent. Because a minimum score of 70 percent is required to pass the examination, Petitioner needs an additional four points to earn a passing score. Petitioner challenged the scoring of two questions on the Special State Firesafety Inspector Examination, Question Nos. 14 and 21. Question No. 14 required the examinee to identify the "least important" characteristic involved in evaluating storage of flammable and combustible liquids. The answer choices given were: (a) the foundations and supports; (b) size and location of vents; (c) design of the tank; and (d) size of the tank. Question No. 14 is clear and unambiguous and the correct answer is included among the choices provided. The answer to Question No. 14 is found on page 325 of the textbook, Fire Inspection and Code Enforcement (Sixth Edition). The correct answer to Question No. 14 is "(d) size of the tank." Petitioner did not select "d" as the correct response and, thus, is not entitled to any additional points for Question No. 14. Question No. 21 states: In above ground tanks containing liquids classified as Class I, Class II, or Class IIIA, the distance between the tanks must be at least the sum of their diameters. The answer choices given were: a) 3/4; b) 1/2; c) 1/4; and d) 1/6. Question No. 21 is clear and unambiguous and the correct answer is included among the choices provided. The answer to Question No. 21 is found on page 327 of the textbook Fire Inspection and Code Enforcement (Sixth Edition). The correct answer to Question No. 21 is "(d) 1/6." Petitioner did not select "d" as the correct response and, thus, is not entitled to any additional points for Question No. 21. The knowledge tested in the Special State Firesafety Inspector Examination is essential for any firesafety inspector to know in order to properly conduct inspections required of individuals in that position.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order be entered finding that Petitioner is not entitled to additional points for her responses to Question Nos. 14 and 21 of the Special State Firesafety Inspector Examination and denying Petitioner's application for certification as a special state firesafety inspector. DONE AND ENTERED this 21st day of April, 2004, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 2004. COPIES FURNISHED: Casia R. Belk, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Alma Elaine Carlus 2419 Paradise Drive Kissimmee, Florida 34741 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
