11-001556 Marlene Serrano vs. Department Of Financial Services Status: Closed Recommended Order on Thursday, July 7, 2011.

Summary: Petitioner did not meet burden of proof; Petition dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARLENE SERRANO, ) )

)

Petitioner, ) Case No. 11-1556

vs. )

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on May 24, 2011, in Orlando, Florida, before Administrative

Law Judge R. Bruce McKibben of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Marlene Serrano, pro se

3227 Hillmont Circle

Orlando, Florida 32817

For Respondent: Linje E. Rivers, Esquire

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner, Marlene

Serrano ("Serrano"), should be awarded certification as a

firefighter or, in the alternative, whether Serrano should be

allowed to re-take the hose operation and ladder operation

portions of the Firefighter Minimum Standards Written and

Practical Examination.

PRELIMINARY STATEMENT

By letter dated February 21, 2011, Respondent, Department

of Financial Services (the "Department), through the State Fire

Marshall, notified Serrano that she had not successfully

completed the minimum requirements of the firefighter

examination. Serrano timely filed an Election of Rights form,

requesting a formal administrative hearing to challenge the

results of the examination.

At the final hearing, Serrano testified on her own behalf

and offered two exhibits which were admitted into evidence as

Exhibits A and B. The Department called two witnesses:

Karl Thompson, standards supervisor; and Kenneth Harper, field

representative. The Department's Exhibits A through F were

admitted into evidence.

The parties advised that a transcript of the final hearing

would be ordered. The parties were given ten days from the date

the transcript was filed at the Division of Administrative

Hearings ("Division") to submit proposed recommended orders.

The Transcript was filed at the Division on June 15, 2011. Each

party timely submitted a Proposed Recommended Order, and each

was duly considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. Serrano was a candidate for certification as a

firefighter in the State of Florida.

2. The Department is the state agency responsible for

testing all candidates for certification as a firefighter, for

conducting such tests, and for issuing a certification upon

successful completion of minimum requirements by a candidate.

One such examination administered by the Department is the

Firefighter Minimum Standards Written and Practical Examination

("Firefighter examination").

3. The Firefighter examination has a written portion, as

well as three practical components: Self-Contained Breathing

Apparatus, Hose Operations, and Ladder Operations. In order to

meet the minimum requirements for certification, a candidate

must obtain at least a 70-percent score on each component of the

Firefighter examination. If a candidate fails the test, he or

she is afforded one chance to take a re-test.

4. The ladder component of the Firefighter examination is

scored using a form listing five mandatory steps which the

candidate must pass and ten evaluative component steps worth ten

points each. A candidate taking the ladder component, who

successfully passes the five mandatory steps, receives a total

score of the sum of the scores from the ten evaluative component

steps. A candidate who does not successfully complete one or

more of the mandatory steps automatically fails the ladder

component section and receives a score of zero out of 100

points.

5. Serrano initially took the Firefighter examination on

December 22, 2010. That test was administered at the

Firefighter Academy, a more controlled environment. She failed

to obtain a passing grade on two components of the examination,

the hose operations component and the ladder operation

component. Specifically, she failed to successfully complete

the components within the required time limit of two minutes,

20 seconds; and one minute, 25 seconds, respectively. Her times

were two minutes, 40 seconds; and one minute, 41 seconds,

respectively. As allowed by law, Serrano was given the

opportunity to re-take those components of the examination one

time only.

6. On February 15, 2011, Serrano went to a training

facility in Ocala, Florida, to re-take the examination. The

Ocala site was more open than the Academy site; there were other

non-firefighter personnel engaged in activities in close

proximity. Thomas Johnson and Kenneth Harper were the examiners

assigned to administer the examination to Serrano.

7. Serrano received a score of 100 on the hose operation

component of the examination. She completed that portion of the

test in one minute and 25 seconds, within the prescribed time.

8. When Serrano finished the hose operation component, she

was going to begin the ladder operation section. However, one

of the examiners "yelled" at her that her protective face shield

was not in place. That is, the shield had been raised to the

top of her helmet, rather than being in the lowered position

required during testing. The instructor yelled for her to "put

your shield down." Serrano interpreted that instruction as a

sign that she had failed the prior (hose operation) test. She

began to walk toward the examiners, but they pointed her back in

the direction of the ladder test.

9. Serrano was confused, but undertook the ladder

operation component of the examination anyway. Her

concentration was somewhat broken by the examiner's comments,

and she was flustered. Then she heard loud noises coming from

the field next to the testing site. Apparently, there were

military maneuvers of some type going on at the adjacent field.

Furthermore, there was a four-wheeler driving around the

training ground, creating more distraction for Serrano.

However, the Department's field representative said he had

administered over 1,000 tests in the same conditions as were

present for Serrano's test.

10. During the test, ten points were deducted from Serrano

due to her inability to maintain the ladder in a vertical

position. Further, Serrano did not complete the ladder

operation component of the examination within the prescribed

time frame for that section of the test. Her recorded time was

two minutes and 49 seconds, some 29 seconds longer than allowed.

The examiner also noted that Serrano almost lost control of the

ladder twice during the examination and struggled with the

halyard and safety lines.

11. There are numerous events going on at the training

site during testing. The training grounds are intentionally

somewhat hectic in order to simulate real "fire ground"

conditions. There is no attempt made by the examiners to keep

the testing site quiet. Conversely, at the Firefighter Academy

where firefighters are initially trained, there is less noise

and distraction.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to sections 120.569 and 120.57(1), Florida

Statutes (2010). 1/

13. The Department has jurisdiction over firefighter

training and certification in the State of Florida pursuant to

Chapter 633, Florida Statutes. Specifically, section 633.35(2)

states in pertinent part, as follows:

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 [Department], and who

possesses the qualifications for employment

in s. 633.34, except s. 633.35(5). . . .

14. The Department has also adopted rules governing the

training and certification of firefighters. Florida

Administrative Code Rule 69A-37.056 sets forth the testing

parameters for firefighter candidates. Subsection (6) of that

rule states:

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.

15. Serrano, as the party, who is applying for

certification by the state, has the burden of proof. Fla. Dep't

of Transp. v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA

1981).

16. Serrano must prove by a preponderance of the evidence

that the Firefighter examination was arbitrary or capricious, or

that the grading process was devoid of logic and reason.

Espinoza v. Dep't of Bus. & Prof'l Reg. , 739 So. 2d 1250 (Fla.

3rd DCA 1999).

17. Serrano did not meet her burden of proof in this

matter. The evidence presented did not show that the

examination was arbitrary or capricious, as administered, or

that the grading process was flawed. By rule, Serrano must be

dropped from the course, i.e., her Petition must be denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by Respondent,

Department of Financial Services, dismissing the Petition of

Marlene Serrano, in full.

DONE AND ENTERED this 7th day of July, 2011, in

Tallahassee, Leon County, Florida.

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of July, 2011.

ENDNOTE

1/ Unless specifically stated otherwise, all references to

Florida Statutes shall be to the 2010 version.

COPIES FURNISHED :

Julie Jones, CP, FRP, Agency Clerk

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399-0390

Linje E. Rivers, Esquire

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399-0333

Marlene Serrano

3227 Hillmont Circle

Orlando, Florida 32817

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.