08-000227 William Sam Walthour vs. Department Of Financial Services, Division Of State Fire Marshal Status: Closed Recommended Order on Tuesday, May 20, 2008.

Summary: Petitioner was properly awarded no points for parts of Retention Examination where he did not complete skills or steps within the alloted time.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM SAM WALTHOUR, )

)

Petitioner, )

)

vs. ) Case No. 08-0227

)

DEPARTMENT OF FINANCIAL )

SERVICES, DIVISION OF STATE )

FIRE MARSHAL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held on March 7, 2008, by

video teleconference at sites in Tallahassee and Orlando,

Florida, before Carolyn S. Holifield, Administrative Law Judge

with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William "Sam" Walthour, pro se

4055 Salmon Drive

Orlando, Florida 32835

For Respondent: Reg ina Keenan, Esquire

Department of Financial Services

200 East Gaines Street

Tallah assee, Florida 32399

STATEMENT OF THE ISSUES

The issues are: (1) whether Respondent properly scored

Petitioner's retake of the Practical Examination for Firefighter

Retention; and (2) whether Petitioner's application for

firefighter recertification was properly denied.

PRELIMINARY STATEMENT

On or about September 26, 2007, Respondent, Department of

Financial Services, Division of State Fire Marshal ("Division"),

notified Petitioner, William "Sam" Walthour ("Petitioner"), that

he did not pass the Practical Examination for Firefighter

Retention ("Retention Examination") re-test. The notice also

advised Petitioner that because he did not pass the Retention

Examination re-test, his Firefighter Certificate of Compliance

No. 3381 expired on September 13, 2007.

Petitioner challenged the scoring on certain parts of the

Retention Examination re-test and requested a formal

administrative hearing. The Division referred the matter to the

Division of Administrative Hearings on January 11, 2008, for

assignment of an Administrative Law Judge to conduct the

hearing.

At hearing, Petitioner testified on his own behalf.

Petitioner's Exhibits 1 through 4 were received into evidence.

The Division presented the testimony of Charles Brush and Philip

Dean Oxendine. The Division's Exhibits A through D were

received into evidence.

At the request of the Division, the undersigned took

official recognition of: (1) Sections 633.01, 633.30, 633.35,

and 633.352, Florida Statutes 1/ ; (2) Florida Administrative Code

Rules 69A-37.0527, 69A-37.055, 69A-37.056, and 69A-37.062; and

(3) Sections 3-1.1, 3-1.1.2, 3-3.1, A-1-4 and A3-3.1 of the

National Fire Protection Association ("NFPA") Standard 1001,

"Fire Fighter Professional Qualifications", 1997 edition,

adopted by reference in Florida Administrative Rule

69A-37.055(6)(a)2.

The hearing Transcript was filed on March 21, 2008.

Petitioner filed his Proposed Recommended Order and revision

thereto on March 26 and 28, 2008, respectively. The Division

filed its Proposed Recommended Order on March 28, 2008. The

parties' Proposed Recommended Orders have been considered in

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner has worked in the fire service for almost

28 years. During that time, Petitioner served as the assistant

fire marshal and the fire marshal for the City of Orlando.

After Petitioner retired from the City of Orlando, he served as

fire chief, building official, and code enforcer officer of

Eatonville, Florida.

2. After more than a three-year time period of not working

as a firefighter or in the fire service field, Petitioner

accepted a job as fire marshal in Hillsborough County, Florida.

Although there is no legal requirement that a fire marshal be

certified as a firefighter, a condition of Petitioner's

employment with Hillsborough County was that he be recertified

as a firefighter.

3. In Florida, a firefighter retains his firefighter

certification if he remains an active firefighter with an

organized fire department. However, a firefighter who has not

been active for a period of three years must successfully

complete the Retention Examination in order to retain his

certification.

4. The Retention Examination is the practical portion of

the examination given to new applicants.

5. Because Petitioner has not been an active firefighter

for the past three years, in order to be recertified as a

firefighter, he was required to successfully complete the

Retention Examination.

6. The Retention Examination consists of the following

four parts: Self-Contained Breathing Apparatus ("SCBA"), Hose

Operations, Ladder Operations, and Fireground Skills. To pass

the Retention Examination, a candidate must achieve a score of

at least 70 percent on each part.

7. Petitioner applied for and took the Retention

Examination that was given on May 16, 2007. He successfully

completed the Fireground Skills part, but did not earn a passing

score on the SCBA, the Hose Operations, and the Ladder

Operations parts. 2/

8. Petitioner applied for and took the September 13, 2007,

Retention Examination re-test. During this re-test, Petitioner

took only the SCBA, the Hose Operations, and the Ladder

Operations parts, the ones that he had not successfully

completed in May 2007.

9. Petitioner passed the Hose Operations part of the

Retention Examination re-test, but did not successfully complete

the SCBA and the Ladder Operations parts, because he did not

complete those components within the maximum allotted time.

10. Each part of the Retention Examination has certain

elements or skills that are graded. The SCBA and the Ladder

Operations parts of the Retention Examination are each comprised

of eleven skills or steps that the examinee must complete within

the specified time. Ten of the 11 skills or steps for each part

of the Retention Examination are assigned a point value of ten. 3/

The other skill (the 11th skill or step) under each part is

designated as a "mandatory step" for which the examinee is

awarded a score of either "pass" or "fail". 4/

11. Under the scoring system described in paragraph 10, an

examinee receives ten points for each of the ten skills he

successfully completes and a passing score for the one skill

designated as mandatory.

12. The SCBA and Ladder Operations parts of the Retention

Examination have an established maximum time allotted for the

examinee to complete a minimum of 70 percent of the skills. The

time requirements are a mandatory criterion/requirement.

13. In order to successfully complete the Retention

Examination, an individual must not only complete a minimum of

70 percent of the ten skills or steps for each part, but he must

also successfully complete the two mandatory criteria for that

part.

14. If an examinee completes a minimum of 70 percent of

the skills in a particular part, but fails to do so within the

maximum allotted time specified for that part, he has not met

the mandatory time requirement and, thus, is not awarded any

points for that part.

15. The Division established the minimum time requirements

for completing the various parts of the practical examination

for firefighters after consulting the NFPA standards and

soliciting input from fire departments, fire chiefs, and other

individuals in firefighter profession.

16. Among the factors that were considered in establishing

the minimum time frames were the nature of fires (i.e., how

quickly they spread) and the need for firefighters to perform

their job duties both safely and quickly.

17. The Division uses these time requirements in testing

the 3,500 to 3,800 firefighters a year that go through the

testing process.

18. On the September 13, 2007, re-test, Petitioner

exceeded the maximum time allotted for the SCBA and the Ladder

Operations parts.

19. The maximum time allotted for completion of the SCBA

part of the Retention Examination is one minute and 45 seconds.

Petitioner's completion time on the September 2007 Retention

Examination re-test was three minutes and ten seconds.

20. The maximum time allotted on the Ladder Operations

part of the Retention Examination is two minutes and 45 seconds.

Petitioner's completion time on the September 2007 Retention

Examination re-test was three minutes and ten seconds.

21. Because Petitioner failed to complete a minimum of

70 percent of the skills in the SCBA and the Ladder Operations

parts of the Retention Examination within the maximum time

allotted, the Bureau properly awarded him no points. Therefore,

Petitioner did not earn a passing score on the Retention

Examination re-test.

22. As a result of Petitioner's failing to pass the

Retention Examination, his Firefighter Certificate of Compliance

No. 3381 expired as of September 13, 2007.

23. The Division's Bureau of Fire Standards and Training

("Bureau of Standards") employs field representatives to

administer the Retention Examination to examinees in accordance

with the applicable rules and procedures.

24. Philip D. Oxendine is and has been a field

representative with the Bureau of Standards for four years. As

a field representative, Mr. Oxendine administers and scores the

minimum standards examination for firefighters, including the

Retention Examination.

25. Prior to being employed as a field representative,

Petitioner worked as a firefighter for 27 years, having retired

as a lieutenant. He also has ten years of experience as an

instructor in the fire science division of the then South

Technical Institution in Palm Beach County, Florida.

26. Mr. Oxendine administered and scored the three parts

of the Retention Examination re-test that Petitioner took on

September 13, 2007, in accordance with the Division's

procedures.

27. All examinees at the September 17, 2007, Retention

Examination re-test location, were assigned a number. In an

effort to avoid bias, throughout the testing process, examinees'

assigned numbers were used instead of their names.

28. On the day of the Retention Examination re-test,

Petitioner was assigned a number by which he was identified.

When Mr. Oxendine administered and scored Petitioner's re-test,

he did not know Petitioner's name or anything about him.

29. Prior to Petitioner's starting the Retention

Examination re-test, Mr. Oxendine took Petitioner and other

examinees to each station and told them what they had to do at

that station. Mr. Oxendine also told the examinees, including

Petitioner, how each part of the Retention Examination would be

graded. 5/

30. Mr. Oxendine's usual practice is to instruct examinees

to touch the apparatus when they are ready for time to begin on

a particular part of the examination. He also gives specific

instructions to the examinees regarding how they should indicate

that they have completed each part. Once an examinee touches

the apparatus and says he is ready to begin, Mr. Oxendine starts

the stop watch. Mr. Oxendine instructed the examinees to

indicate that they had completed the SCBA part by standing up

and clapping their hands. The examinees were told that the

Ladder Operations part was considered completed when they were

behind the ladder and holding it and when they announced that

the ladder was ready to be climbed.

31. Mr. Oxendine used the procedures described in

paragraph 30 in timing Petitioner on the three parts of the

Retention Examination re-test.

32. Mr. Oxendine timed Petitioner's performance on each

part of the Retention Examination re-test using a stop watch.

This is the method that Mr. Oxendine was trained to use when

timing the examinees' performances on the practical portion of

the examination.

33. An individual is allowed to re-take the Retention

Examination one time. If the person does not pass the re-test,

he must repeat the Firefighter Minimum Recruit Training Program

before he is eligible to re-take the Retention Examination.

See § 633.352, Fla. Stat., and Fla. Admin. Code R. 69A-37.0527.

34. As noted above, Petitioner did not pass the SCBA and

the Ladder Operations parts of the Retention Examination re-

test. Therefore, before he is eligible to re-take that

examination, he must repeat the Firefighter Minimum Recruit

Training Program.

35. Petitioner failed to establish that he was entitled to

a passing grade for his performance on the Retention Examination

re-test.

36. The greater weight of the credible evidence

established that Petitioner's performance on the Retention

Examination re-test was appropriately and fairly graded.

CONCLUSIONS OF LAW

37. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes.

38. The Department has jurisdiction over firefighter

training and certification in the State of Florida pursuant to

Chapter 633, Florida Statutes.

39. Subsection 633.35(2), Florida Statutes, authorizes the

Division to establish firefighting training and to issue

certificates of compliance to individuals who meet the

prescribed eligibility requirements and provides in relevant

part:

(2) The [D]ivision shall issue a certificate

of compliance to any person . . . who has

successfully passed an examination as

prescribed by the division.

40. Section 633.352, Florida Statutes, which establishes

the process by which a certified firefighter who has not worked

as a firefighter for a three-year period may retain his or her

certification, provides in pertinent part:

Any certified firefighter who has not been

active as a firefighter, or as a volunteer

firefighter with an organized fire

department, for a period of 3 years shall be

required to retake the practical portion of

the minimum standards state examination

specified in rule 4A-37.056(6)(b), Florida

Administrative Code, [6/] in order to maintain

her or his certification as a firefighter

. . . The 3-year period begins on the date

the certificate of compliance is issued or

upon termination of service with an

organized fire department.

41. Pursuant to its rulemaking authority, the Division is

authorized to promulgate rules for firefighter training,

certification, and re-certification. See § 633.45(2)(a), Fla.

Stat.

42. Florida Administrative Code Rule 69A-37.0527 provides

in part:

(1) The re-take of the state

certification examination for retention of

certificate shall be know as the retention

examination and is referenced in Section

633.352, F.S. . . .

* * *

(6) Any individual who does not obtain a

passing score of 70% or more on the

retention examination will be permitted one

re-take examination. [7/] The retake must

occur within 6 months of the original

examination.

(7) Failure of the re-take examination

will result in the individual's having to

successfully complete Firefighter I and II

training as defined in Rule 69A-37.055,

F.A.C., before any additional testing can

occur.

43. The general procedures for administering the State

Firefighter Certification Examination set forth in Florida

Administrative Code Rule 69A-37.062 provide that the individual

practical examinations are timed. That section provides in

relevant part:

(5) General Procedures

* * *

(c) 1. The individual practical examinations

are timed separately but the participant

shall be prepared to begin upon reporting

for each segment.

2. If a participant delays, the examiner

shall inform the participant that the time

will begin. (Emphasis supplied.)

44. Florida Administrative Code Rule 69A-37.056 provides

in pertinent part:

(6) All tests, both written and

practical, given during training shall

require maintenance of a percentage score of

not less than 70% on each subject listed in

the prescribed Firefighter I and

Firefighter II courses. If a minimum score

of 70% is not achieved on any test, the

student shall be afforded a one-time make up

examination to achieve the required 70%.

Tests used shall be designed to encompass

all the significant contents of the subjects

being taught.

(a) In order to sit for the state

examination, the information required by

Sections 633.34 and 633.35, F.S., must be

furnished to the Bureau of Fire Standards

and Training.

(b) State examinations, consisting of a

written and a practical part, shall be

administered by a Field Representative of

the Bureau of Fire Standards and Training

and shall encompass all components of the

Firefighter I course for Firefighter I

testing and all components of both

Firefighter I and Firefighter II courses for

State Certification as a Firefighter. The

70% score requirements for both written and

practical examinations shall prevail in this

testing environment as well.

* * *

(d) Only one retake of the state

examination is permitted. Retakes of the

practical portion of the examination will be

offered only at the Florida State Fire

College during the months of February, May,

September, and November. Retakes of the

written portion of the examination will be

offered at the Regional Testing Sites in

February, May, September, November and

monthly at the Florida State Fire College.

Students must be pre-registered at least 10

business days prior to the date of the

examination.

(e) The retake of the Firefighter II

Certification Examination must be taken

within 6 months of the initial examination

date.

(f) Failing the retake of the Firefighter

II Certification Examination within the

prescribed 6 month time period will result

in the individual having to repeat the

Firefighter II Course.

45. As an applicant for re-certification, Petitioner has

the burden of proving entitlement to the recertification he

seeks. Florida Department of Transportation v. J.W.C. Co.,

Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

46. To prevail, Petitioner must show by a preponderance of

evidence that the Retention Examination and/or re-test was

faulty or that the grading process was devoid of logic. Harac

v. Department of Professional Regulation, Board of Architecture ,

484 So. 2d 1333, 1338 (Fla. 3d DCA 1986); State ex rel. Glaser

v. Pepper , 155 So. 2d 383 (Fla. 1st DCA 1963); State ex rel.

Topp v. Board of Electrical Examiners for Jacksonville Beach ,

101 So. 2d 583 (Fla. 1st DCA 1958).

47. Petitioner failed to satisfy his burden.

48. Petitioner argues that the scoring method used by the

Division violates provisions that establish a minimum of

70 percent as a passing score on the Retention Examination

re-test. Petitioner contends that he should have been awarded

credit for the SCBA and Ladder Operations parts of the Retention

Examination re-test, even though he failed to complete those

activities within the prescribed maximum allotted time. Next,

Petitioner challenges the field's representative's use of a stop

watch during Petitioner's re-test, indicating that this was not

the most accurate method to time his performance. Finally,

Petitioner asserts that the scoring of his re-test was adversely

affected by bias.

49. Petitioner failed to establish that the mandatory time

requirement for completing a minimum of 70 percent of the skills

in the SCBA and the Ladder Operations parts of the Retention

Examination re-test was devoid of logic and reason.

50. Petitioner failed to establish that either the

stopwatch, or the field representative's use thereof, was in any

way faulty or resulted in an incorrect completion time being

recorded for Petitioner.

51. Petitioner failed to establish that the scoring of his

test was based on any bias.

52. The undisputed evidence established that in order to

pass the Retention Examination re-test, Petitioner was required

to earn a minimum score of 70 percent on the SCBA and the Ladder

Operations parts. The evidence also established that to receive

credit for the skills in each part, examinees must complete the

skills within the prescribed maximum time allotted.

53. It is undisputed that Petitioner did not complete a

minimum of 70 percent of the skills in the SCBA and the Ladder

Operations parts within the maximum time allotted. Therefore,

he was properly awarded no credit for those parts.

54. Petitioner failed to establish a legal basis that he

was entitled to a passing grade for his performance on the SCBA

and Ladder Operations parts of the Retention Examination re-

test.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department enter a final order denying

Petitioner's application to retain his certification as a

firefighter in the State of Florida.

DONE AND ENTERED this 20th day of May, 2008, in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of May, 2008.

ENDNOTES

1/ All references are to 2007 Florida Statutes, unless otherwise

indicated.

2/ Petitioner attributed his lack of success on three of the

four parts to the almost 100-degree temperature the day he first

took the Retention Examination.

3/ The ten performance skills that must be demonstrated in the

Ladder Operations part of the Retention Examination included

properly lifting and carrying a ladder for 50 feet and

positioning it for raise; checking for overhead obstructions;

properly lifting the ladder to a vertical position; maintaining

extremities in a safe position during entire operation; and

having the ladder properly heeled upon completion of the task.

Performance skills which must be demonstrated in the SCBA part

of the examination include fully opening cylinder valve and

confirming alarm activation; checking cylinder gauge and

announcing reading; positioning SCBA on back and tightening all

straps; donning and securing face piece properly; and completing

seal check and exhalation check.

4/ The "mandatory" skill for the Ladder Operations part is that

examinees must maintain control of ladder during entire

operation. The "mandatory" skill for the SCBA part requires

that examinees wear and activate the Personal Alert Safety

System, or PASS, device and breathe from the regulator.

5/ Petitioner was aware of the grading criteria, including the

time requirements, prior to the re-test because, in preparing

for the re-test, he had used a "practice" score sheet from

Hillsborough Community College that included the parts of the

examination, the skills under that part, and the maximum

allotted time for each part.

6/ This rule is now Florida Administrative Code Rule 69A-37.056.

7/ Florida Administrative Code Rule 69A-37.056(6) also provides

that a minimum score of 70 percent be obtained to pass both the

written and practical parts of the state examination.

COPIES FURNISHED :

William "Sam" Walthour

4055 Salmon Drive

Orlando, Florida 32835

Regina Keenan, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399

Honorable Alex Sink

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0300

Daniel Sumner, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.