09-006007 Antron Pope vs. Department Of Financial Services Status: Closed Recommended Order on Thursday, March 25, 2010.

Summary: Petitioner's application for firefighter recertification was properly denied because he failed to demonstrate he passed the SCBA component of Retention Examination within the time allotted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANTRON POPE, )

)

Petitioner, )

)

vs. ) Case No. 09-6007

)

FLORIDA DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on

February 12, 2010, by video teleconference at sites in Miami and

Tallahassee, Florida, before Administrative Law Judge June C.

McKinney of the Division of Administrative Hearings, pursuant to

the authority set forth in Sections 120.569 and 120.57(1),

Florida Statutes.

APPEARANCES

For Petitioner: Antron Pope, pro se

2548 Centergate Drive, No. 307

Miramar, Florida 33025

For Respondent: Nicholas Ryan Thornton, Esquire

Florida Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUES

The issues are: (1) whether Petitioner passed the Practical

Examination for Firefighter Retention test; and (2) whether

Petitioner's application for firefighter recertification was

properly denied.

PRELIMINARY STATEMENT

On or about September 25, 2009, Respondent, Department of

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

Marshal ("Division"), notified Petitioner, Antron Rondell Pope

("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.117349 expired on September 24, 2009.

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 November 2, 2009, for

assignment of an Administrative Law Judge to conduct the

hearing. On February 3, 2010, the Division stipulated that the

re-test results for Petitioner contained a computer error and

Petitioner had worn and activated his Self Contained Breathing

Apparatus ("SCBA") pass device.

At hearing, Petitioner testified on his own behalf.

Petitioner's Exhibit A was received into evidence. The Division

presented the testimony of Henry Sheffield and Dennis Hackett.

The Division's Exhibits A through D were received into evidence.

At the request of the Division, the undersigned took

official recognition of Florida Administrative Code Rules 69A-

37.0527 and 69A-37.056.

The proceedings were transcribed and the transcript of the

final hearing was filed with the Division of Administrative

Hearings on March 1, 2010. Respondent timely filed a Proposed

Recommended Order, which has been considered in the preparation

of this Recommended Order. Petitioner did not file a Proposed

Recommended Order.

All citations are to Florida Statutes (2009) unless

otherwise indicated.

FINDINGS OF FACT

1. Petitioner completed his minimum standards training and

took the standardized state test in 2004 and Respondent issued

him a Firefighter Certificate that year.

2. Florida law requires Petitioner to be employed by a

fire agency within a three year period after passing the state

examination to keep his minimum standards credentials active.

3. Petitioner is a full-time employee at American Medical

Response. Because Petitioner has not been active as a

firefighter during the past three years, Petitioner made

application to the Department to take the Retention Examination.

The practical portion consists of four sections or "evolutions"

including the SCBA, 1 the hose pull, the ladder operation, and the

fire ground skills section.

4. To pass the four practical evolutions, an applicant

must achieve a score of at least 70 percent on each component.

5. Each evolution of the practical exam has certain

elements or skills that are graded. The SCBA portion of the

test contains skills related to checking, donning, and properly

activating the SCBA that enables a firefighter to breathe in a

hostile environment, such as a burning building.

6. The SCBA portion of the Retention Examination also has

an established maximum time allotted for the examinee to

complete a minimum of 70 percent of the skills. The time

limitation is a mandatory requirement.

7. If an examinee completes a minimum of 70 percent of the

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

maximum allotted time specified for that part, the examinee has

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

any points for that part.

8. Petitioner took the initial Retention Examination in

May 2009. Petitioner did not pass the SCBA and fire ground

skills components of the practical portion of the initial exam.

9. On September 24, 2009, Petitioner took the Retention

Examination re-test for the SCBA and fire skills components.

Petitioner passed the fire skills component.

10. The maximum time allotted for completion of the SCBA

part of the Retention Examination is two minutes. Petitioner's

completion time on the September 2009 Retention Examination re-

test was two minutes and 30 seconds.

11. Because Petitioner failed to complete a minimum of 70

percent of skills in the SCBA portion of the Retention

Examination within the maximum time allotted, the Bureau

properly awarded him zero points. It is an automatic failure if

an examinee does not complete the exam in time. Therefore,

Petitioner did not earn a passing score on the Retention

Examination re-test.

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

Retention Examination, his Firefighter Certificate of compliance

expired.

13. The Division employs field representatives to

administer the Retention Examination to examinees in accordance

with the applicable rules and procedures.

14. Dennis Hackett is and has been a field representative

with the Bureau of Fire Standards and Training for six years.

As a field representative, Mr. Hackett administers and scores

the minimum standards examination for firefighters, including

the Retention Examination.

15. Mr. Hackett has administered well over a thousand SCBA

tests. Mr. Hackett was the examiner who tested Petitioner on

the September 24, 2009, for re-test of the SCBA portion of the

practical exam. Mr. Hackett timed Petitioner at two minutes and

30 seconds.

17. Petitioner testified that before taking the retest, he

practiced the SCBA test and had completed it within the time

limit.

18. Petitioner first learned SCBA skills in 2004 at the

Coral Springs Fire Academy. At the academy, Petitioner took a

three month, 450-hour course of fundamental firefighter skills.

19. On or about September 16, 2009, Petitioner took a

refresher course in Ocala, Florida. The course was two days and

taught the SCBA skills in a manner different from how Petitioner

had been taught at Coral Springs Fire Academy.

20. Petitioner testified that the refresher course wasn't

fair because he didn't have enough time to learn the new method.

He asserted that the two day course was too short to learn the

new method and techniques to compensate for errors.

21. Petitioner admitted that a minor hiccup slowed him

down while taking the re-test on September 24, 2009. Petitioner

said, "It's not like I can't do it because I could do it, it's

just I went over the time limit. I didn't have ample enough

time to learn the new way of doing it or to overcome any minor

obstacles."

22. In a memorandum dated September 25, 2009, the

Department formally advised Petitioner that he had failed the

SCBA portion of the Minimum Standards Practical Retention

Retest. The memorandum also informed Petitioner that, "Because

you did not pass the retest, your Firefighter Certificate of

compliance #117349, has expired as of 09/24/2009. It will be

necessary for you to repeat the firefighter Minimum Recruit

Training Program and submit a new application before any

additional testing can be allowed."

23. 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.

24. As noted above, Petitioner did not pass the SCBA

portion of the Retention Examination re-test. Therefore, before

he is eligible to re-take that examination, he must repeat the

Firefighter Minimum Recruit Training Program.

25. Petitioner failed to establish that he was entitled to

a passing grade for his performance on the Retention Examination

re-test.

26. 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

27. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes.

28. The Department has jurisdiction over firefighter

training and certification in the State of Florida pursuant to

Chapter 633, Florida Statutes.

29. 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 [D]ivision.

30. 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:

Retention of firefighter certification. --

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, in order to maintain

her or his certification as a firefighter;

however, this requirement does not apply to

state-certified instructors, as determined

by the division. The 3-year period begins

on the date the certificate of compliance is

issued or upon termination of service with

an organized fire department.

31. 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.

32. Florida Administrative Code Rule 69A-37.0527 provides

in part:

(1) The examination for retention of

certificate referenced in Section 633.352,

F.S., shall be known as the retention

examination. Being active as a volunteer

firefighter with an organized fire

department means the individual has been

actively involved for a continuous period of

time of not less than 6 months during the

3 year period since certified or the

certification was last renewed, or since

termination from a fire department.

Verification of being active shall be

evidenced by documentation from the chief or

ranking person of the volunteer fire

department.

* * *

(6) Any individual who does not obtain a

passing score of 70% or more on the

retention examination will be permitted one

opportunity to repeat the examination. The

examination must be repeated within 6 months

of the original examination or the

opportunity is forfeited.

(7) Failure to pass the examination

within the timeframes set forth above will

result in the individual’s having to

successfully complete Firefighter training

as defined in Rule 69A-37.055, F.A.C.,

before a new application and additional

testing can occur.

33. 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.

34. 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).

35. To prevail, Petitioner must establish facts by a

preponderance of the evidence that the Department improperly

denied his application for certification as a firefighter.

Department of Banking and Finance v. Osborne Stern and Company ,

670 So. 2d 932 (Fla. 1996).

36. Petitioner failed to satisfy his burden. Petitioner

exceeded the maximum time to complete the SCBA portion of the

exam. Petitioner's assertion that the refresher course did not

provide enough time to learn the new method and how to

compensate for errors did not demonstrate that the retest was in

any way faulty or resulted in an incorrect completion time being

recorded for Petitioner.

37. The greater weight of the credible evidence

established that Petitioner's performance on the SCBA section of

the practical examination was appropriately and fairly graded.

38. Thus, as found above, the Petitioner failed to

establish a legal basis that he was entitled to a passing grade

for his performance on the SCBA portion of the Retention

Examination re-test.

RECOMMENDATION

Upon consideration of the Findings of Fact and the

Conclusions of Law reached, it is

RECOMMENDED that the Department enter a final order denying

Petitioner's application to retain his certification as a

firefighter in the State of Florida.

DONE AND ENTERED this 25th day of March, 2010, in

Tallahassee, Leon County, Florida.

S

JUNE C. McKINNEY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of March, 2010.

ENDNOTE

1 / SCBA is a mandatory fundamental skill that has to be mastered

by each firefighter so he/she does not die.

COPIES FURNISHED :

Antron Pope

2548 Centergate Drive, No. 307

Miramar, Florida 33025

Nicholas Ryan Thornton, Esquire

Department of Financial Services

208 East Gaines Street

Tallahassee, Florida 32399

Julie Jones, CP, FRP, Agency Clerk

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399-0390

Honorable Alex Sink

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0300

Benjamin Diamond, 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.