10-001127 Melanie Evans vs. Department Of Financial Services Status: Closed Recommended Order on Thursday, July 29, 2010.

Summary: Petitioner demonstrated that the scoring of the Ladder Operation of the Practical Examination re-test failed to comply with the State's established testing protocol and was, therefore, arbitrary or capricious. Recommend re-testing the Ladder Operation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELANIE EVANS, )

)

Petitioner, )

)

vs. ) Case No. 10-1127

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on May 3, 2010, by video teleconference with connecting sites in

Lauderdale Lakes and Tallahassee, Florida, before Errol H.

Powell, an Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Robert J. Slotkin, Esquire

600 South Andrews Avenue, Suite 600

Fort Lauderdale, Florida 33309

For Respondent: Nic Thornton, Esquire

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner’s

application for certification should be approved as a result of

her successfully completing the Firefighter Minimum Standards

MIN. STD. PRACTICAL RETEST retest.

PRELIMINARY STATEMENT

Melanie Evans took the Firefighter Minimum Standards MIN.

STD. PRACTICAL RETEST retest. By letter dated January 29, 2010,

she was notified by the Department of Financial Services

(Department) that she had not successfully completed the

Firefighter Minimum Standards MIN. STD. PRACTICAL RETEST retest,

that she was only permitted to have one retake, and that,

therefore, she would be required to repeat the Minimum Standards

Course. Ms. Evans challenged the Department’s decision and

requested a hearing. On March 4, 2010, this matter was referred

to the Division of Administrative Hearings.

At hearing, Ms. Evans represented herself. She testified

in her own behalf, presented the testimony of three witnesses,

and entered two exhibits (Petitioner’s Exhibits numbered 1 (a

DVD) and 2) into evidence. The Department presented the

testimony of two witnesses (both experts in firefighting and

Exhibits numbered A, B, C, D, and E) into evidence.

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post-hearing submissions was

set for more than ten days following the filing of the

transcript. The Transcript, consisting of one volume, was filed

on May 14, 2010. On the same date that the Transcript was

filed, Ms. Evans filed her post-hearing submission. Before the

due date of the parties’ post-hearing submissions, Ms. Evans

requested the withdrawal of her post-hearing submission, which

was granted; and requested an extension of time to file a post-

hearing submission, indicating that she was obtaining the

services of counsel to prepare and file her post-hearing

submission, which was also granted. Additionally, before the

due date of the parties’ post-hearing submissions, the

Department timely filed an amended post-hearing submission.

Ms. Evans timely filed her post-hearing submission within the

extended time-period. The parties’ post-hearing submissions

were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Ms. Evans is a candidate for certification as a

firefighter in the State of Florida.

2. Ms. Evans attended the Coral Springs Fire Academy (Fire

Academy), as a student, from July 11, 2009, through January 9,

2010. During her training at the Fire Academy, she was chosen

as the squad leader.

3. A candidate for the certification examination must pass

a written and practical examination, with a minimum score of 70

on both the written and practical parts. Pertinent hereto, a

candidate must pass the Firefighter Minimum Standards Practical

Examination (Practical Examination) in order to become certified

as a firefighter. The Practical Examination consists of four

components: the Self Contained Breathing Apparatus (SCBA); the

Hose Operation (a/k/a Hose Evolution); the Ladder Operation

(a/k/a Ladder Evolution); and the Fireground Skills.

4. The Practical Examination is replicated at the Fire

Academy, and students at the Fire Academy must pass the four

components. The Fire Academy adopted the State standards for

passing the Practical Examination, except that at the Fire

Academy the standards for the Ladder Evolution are more strict.

5. Also, pertinent hereto, for the Ladder Evolution, the

State’s passing score is 70, but the Fire Academy’s passing

score is 80; and the maximum time allowed by the State to

successfully complete the Ladder Evolution is two minutes and 20

seconds, but the Fire Academy’s maximum time is two minutes and

10 seconds.

6. Additionally, pertinent hereto, for the Ladder

Evolution, the State’s established testing protocol is to permit

a candidate to perform a safety inspection of the ladder prior

to beginning the timing of the Ladder Evolution, and the timing

begins after the candidate touches the ladder again.

Consequently, State testing protocol dictates that, during the

safety inspection, no timing occurs, but, when the candidate

touches the ladder again, the timing begins. The Fire Academy

uses this same protocol at testing for the Ladder Evolution.

7. The time limit placed on the Ladder Evolution is

designed to replicate actual fire fighting conditions, producing

a certain degree of stress upon candidates.

8. At the Fire Academy, Ms. Evans successfully completed

the Ladder Evolution on November 11, 2009, receiving a score of

80 and a time of two minutes and three seconds. Again, on

January 5, 2010, she successfully completed the Ladder Evolution

with a score of 100 and a time of one minute and 53 seconds.

9. Ms. Evans graduated from the Fire Academy and was

eligible to sit for the certification examination.

10. On January 10, 2010, Ms. Evans took the Ladder

Evolution part of the State Practical Examination in Coral

Springs, Florida. A wind gust caused her to lose control of the

ladder. She received a score of zero, due to losing control,

and, therefore, did not successfully complete the Ladder

Evolution.

11. Ms. Evans took a re-test of the Ladder Evolution part

of the State Practical Examination on January 28, 2010, in

Ocala, Florida. She completed the Ladder Evolution in two

minutes and 50 seconds, which was beyond the maximum allowed

time of two minutes and 20 seconds. She received a score of

zero and, therefore, failed to successfully complete the Ladder

Evolution on the re-test.

12. Ms. Evans contends that, on January 28, 2010, the

State’s Field Representative began the time during her safety

inspection of the ladder. The more persuasive evidence supports

this contention. As a result, a finding of fact is made that,

on January 28, 2010, the State’s Field Representative began the

timing of Ms. Evans’ Ladder Evolution during her safety

inspection, which was contrary to the State’s testing protocol.

13. The evidence fails to demonstrate what Ms. Evans’ time

on the Ladder Evolution would have been had the timing begun in

compliance with the State’s established testing protocol.

CONCLUSIONS OF LAW

14. 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 (2010).

15. These proceedings are de novo . § 120.57(1)(k), Fla.

Stat. (2010).

16. The general rule is that "the burden of proof, apart

from statute, is on the party asserting the affirmative of an

issue before an administrative tribunal." Florida Department of

Transportation v. J. W. C. Company, Inc. , 396 So. 2d 778, 788

(Fla. 1st DCA 1981). Ms. Evans has the ultimate burden of proof

to show by a preponderance of the evidence that she successfully

completed the Firefighter Minimum Standards MIN. STD. PRACTICAL

RETEST retest, and that, therefore, her application for

certification should be approved. Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996); J. W. C.

Company, Inc. , supra .; § 120.57(1)(j), Fla. Stat. (2010).

17. Section 633.35, Florida Statutes, provides in

pertinent part:

(1) The division [Division of State Fire

Marshal of the Department] shall establish a

firefighter training program of not less

than 360 hours, administered by such

agencies and institutions as it approves for

the purpose of providing basic employment

training for firefighters. . . .

(2) The division [Division of State Fire

Marshal of the Department] shall issue a

certificate of compliance to any person

satisfactorily complying with the training

program established in subsection (1), who

has successfully passed an examination as

prescribed by the division [Division of

State Fire Marshal of the Department], and

who possesses the qualifications for

employment in s. 633.34, except s.

633.34(5). . . .

(emphasis added)

18. Florida Administrate Code Rule 69A-37.056 provides in

pertinent part:

To be recognized for certification as a

firefighter by the Bureau, training shall be

obtained under the conditions specified

herein. Satisfactory completion of the

prescribed training, instruction, and

standards in accordance with these

specifications shall be certified by a

designated instructor or member of the

Bureau staff.

* * *

(6) Each subject area within the Minimum

Standards Course will be tested to validate

the acquisition and application of relevant

knowledge and skill. All subject area and

final tests, both written and practical,

given during the Minimum Standards Course

shall require maintenance of a percentage

score of not less than 70% on each subject

listed in the Minimum Standards Course. 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%. Students not in compliance

with the minimum score requirement shall be

dropped from the course.

* * *

(b) State examinations, consisting of a

written and a practical part, shall be

administered by a Field Representative of

the Bureau, or designee, and shall encompass

all components of the Minimum Standards

Course. The applicant must attain a score

of 70 percent on both the written and

practical examinations to receive a

certificate of compliance.

19. The burden of proof is on Ms. Evans to show by a

preponderance of evidence that the scoring of the Ladder

Evolution of the Practical Examination on the re-test was

arbitrary or capricious, or that the scoring process was devoid

of logic and reason. Harac v. Department of Professional

Regulation, Board of Architecture , 484 So. 2d 1333 (Fla. 3d DCA

1986); State ex rel. Glasser 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).

20. Ms. Evans has met her burden of proof. The evidence

demonstrates that the Field Representative on the re-test failed

to follow the established State protocol for scoring the Ladder

Evolution. The Field Representative started timing the Ladder

Evolution during Ms. Evans’ safety inspection, which was

contrary to the State’s protocol. Hence, the evidence

demonstrates that the scoring of Ms. Evans’ Ladder Evolution was

arbitrary or capricious.

21. The evidence, however, fails to demonstrate what

Ms. Evans’ time on the Ladder Evolution would have been had the

timing began in compliance with the State’s established testing

protocol. Consequently, the evidence fails to demonstrate that,

had the Field Representative followed the State’s protocol,

Ms. Evans would have successfully completed the Ladder Evolution

within the allowed time.

22. Florida Administrative Code Rule 69A-37.056(6)

provides, among other things, for a one-time re-retest.

However, because the scoring of Ms. Evans’ Ladder Evolution was

arbitrary or capricious, she should receive another re-test.

23. Further, Florida Administrative Code Rule 69A-

37.056(6) requires, among other things, for the Practical

Examination to be administered by a Field Representative or

designee. As a result, Ms. Evans should be again re-tested on

the Ladder Evolution component of the Practical Examination by a

Field Representative or designee.

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 directing the re-testing of Melanie Evans on the

Ladder Operation (a/k/a Ladder Evolution) of the Firefighter

Minimum Standards Practical Examination.

DONE AND ENTERED this 29th day of July, 2010, in

Tallahassee, Leon County, Florida.

__________________________________

ERROL H. POWELL

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 29th day of July, 2010.

COPIES FURNISHED:

Robert J. Slotkin, Esquire

600 South Andrews Avenue, Suite 600

Fort Lauderdale, Florida 33309

Nic Thornton, Esquire

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399-0333

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

Julie Jones, Agency Clerk

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399-0390

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.