11-005287 David A. Kennedy vs. Department Of Financial Services Status: Closed Recommended Order on Thursday, February 16, 2012.

Summary: Petitioner did not receive a passing grade on the Firesafety Inspector certification examination on two attempts. Petitioner must retake required courses before retaking exam.

Case No. 11-5287

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID A. KENNEDY, RECOMMENDED ORDER ) )

)

Petitioner, )

vs. )

)

DEPARTMENT OF )

FINANCIAL SERVICES, )

)

Respondent. )

)

Pursuant to notice, a formal hearing was held on

December 14, 2011, via video teleconference with sites in

Daytona Beach and Tallahassee, Florida, before Barbara J.

Staros, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: David A. Kennedy

2615 Auburn Avenue

New Smyrna Beach, Florida 32168

For Respondent: Linje E. Rivers, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue is whether Respondent properly denied

Petitioner's application for certification as a firesafety

inspector.

PRELIMINARY STATEMENT

In a letter dated October 11, 2011, Respondent, Department

of Financial Services (Department) denied Petitioner David A.

Kennedy's application for certification as a firesafety

inspector because he failed the both the initial and retake

examinations of the State Firesafety Inspector Examination.

Petitioner disputed the Department's determination and filed a

timely request for a formal administrative proceeding.

Respondent referred this case to the Division of

Administrative Hearings on or about October 13, 2011. A Notice

of Hearing dated October 26, 2011, was issued scheduling the

hearing for November 28, 2011.

On November 18, 2011, Respondent filed an unopposed Motion

to Continue. The motion was granted and the hearing was

rescheduled for December 14, 2011. The case was heard as

scheduled.

At hearing, Petitioner testified on his own behalf and

presented the testimony of Marshall Shoop and Martin Roberts.

Petitioner's Exhibit A was admitted into evidence. Respondent

presented the testimony of one witness, Carl Thompson.

Respondent's Exhibits A through D were admitted into evidence.

A one-volume Transcript of the proceeding was filed on

January 4, 2012. Petitioner timely filed a post-hearing

submission and Respondent timely filed a Proposed Recommended

Order, which have been considered in the preparation of this

Recommended Order. 1/

All citations are to Florida Statutes (2011) unless

otherwise indicated.

FINDINGS OF FACT

1. Petitioner is an applicant for certification as a

firesafety inspector.

2. In order to be certified, Petitioner was required to

successfully complete the Firesafety Inspector Training Course

and pass a firesafety inspector certification examination.

3. Petitioner successfully completed his required

coursework at the Florida State Fire College and Daytona State

College.

4. To pass the written examination, an applicant must

achieve a score of at least 70 percent.

5. Petitioner took the exam the first time and did not

receive a passing score. After a month or so, Petitioner took a

"retest." He received a score of 68 on the retest, which is

below the minimum passing score of 70.

6. By letter dated October 11, 2011, Respondent notified

Petitioner that he did not receive a passing grade on the

retest. The notice also informed Petitioner that because he

failed both the initial and retake examinations, it would be

necessary for him to repeat the Inspection Training Program

before any additional testing can be allowed. The notice

further informed Petitioner that if he enrolled in another

training program, he would have to submit a new application.

7. Petitioner submitted a letter which was received by the

Department on September 27, 2011, in which he raised concerns

about the quality of instruction he received at Florida State

Fire College. Petitioner asserted that in two classes he took,

the instructors had not taught the class before. He also

asserted that the books used for class were not always the books

used for testing, and that he believed that some of the state

inspector test questions were irrelevant to how or what he would

need to know in performing an actual inspection. Attached to

this letter were five questions which had been marked as being

answered incorrectly on the examination.

8. Petitioner's letter and attachments were treated as a

request for administrative hearing, which was forwarded to the

Division of Administrative Hearings, which resulted in this

proceeding.

9. Marshall Shoop took classes with Petitioner at the

Florida State Fire College. It was also Mr. Shoop's

understanding that at least one instructor had never taught the

class before.

10. Karl Thompson is the Standard Supervisor for the

Bureau of Fire Standards and Training. At hearing, Mr. Thompson

reviewed each question offered by Petitioner and the answer

Petitioner thought to be correct. Mr. Thompson concluded that

Petitioner answered each of the five questions incorrectly.

11. Mr. Thompson explained that the firesafety test is a

secure document and, pursuant to a contract with a third party,

persons who take the test and later review their incorrect

answers are not allowed to write down the questions or copy

anything from the test. The test must remain secure so that it

is not compromised. The test questions and answers are not in

evidence.

12. Petitioner has been shadowing a part-time fire

inspector for the City of Flagler Beach. Martin Roberts is the

Fire Chief for the City of Flagler Beach. Chief Roberts would

feel comfortable with Petitioner taking on the role of fire

inspector despite Petitioner's grades on the fire safety

inspector certification examination.

13. While attending Daytona State College, Petitioner

earned an "A" in a building construction course and a "B" in a

course in "construction codes and materials rating."

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 and 120.57(1).

15. Petitioner is an applicant for certification as a

firesafety inspector in the State of Florida. Accordingly, as

the party asserting the affirmative of an issue before this

administrative tribunal, Petitioner has the burden of proof.

Dep't of Transp. v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st

DCA 1981). Petitioner must establish facts by a preponderance

of the evidence that the Department improperly denied his

application for certification as a firesafety inspector. Dep't

of Banking & Fin. v. Osborne Stern Co. , 670 So. 2d 932 (Fla.

1996); § 120.57 (1)(j), Fla. Stat.

16. Section 633.081 reads in pertinent part as follows:

633.081 Inspection of buildings and

equipment; orders; firesafety inspection

training requirements; certification;

disciplinary action. --

* * *

(2) Except as provided in s. 633.082(2),

every firesafety inspection conducted

pursuant to state or local firesafety

requirements shall be by a person certified

as having met the inspection training

requirements set by the State Fire marshal.

Such person shall:

* * *

(f) Have satisfactorily completed the

firesafety inspector certification

examination as prescribed by the department.

. . .

17. Florida Administrative Code Rule 69A-39.007 reads in

pertinent part as follows:

Procedures for Certification Examination.

In order for an individual to receive

Firesafety Inspector Certification or

Special State Firesafety Inspector

Certification from the Division, a score of

70 must be achieved on a certification

examination administered by the Division.

To be eligible for the examination, the

following procedures must be adhered to:

* * *

(4) Upon completion of the certification

examination, the applicant will be notified

in writing of the result. A minimum score

of 70 percent of the maximum total score is

required for passing.

(a) If the applicant passes the

examination, the certificate will be issued

and mailed directly to the address on the

application form.

(b) If the applicant fails the examination

he or she must contact the Bureau of Fire

Standards and Training and request to be

scheduled for the next available

examination. If after retaking the

examination the applicant has not achieved

the minimum passing score, he or she will be

required to retake the entire training

program before another examination will be

administered.

18. In this case, Petitioner seeks to receive points or

credit for questions which he believes should have been marked

as correct. That is beyond any remedy which I have the

authority to grant.

19. Alternatively, Petitioner must prove that the exam was

graded incorrectly. Petitioner is at a huge disadvantage in

that he was not permitted, for good reasons which preserve the

security of the test, to copy or record the test itself. The

evidence is simply insufficient to prove that his test was

graded inaccurately. And, while he raises interesting concerns

as to whether the courses adequately prepare the applicants for

the test, Petitioner has not met his burden of proving that he

should be entitled to another retest without retaking the

courses as required for in Florida Administrative Code Rule 69A-

39.007(4)(b). Administrative law judges presiding in section

120.57(1) proceedings "will deem controlling duly promulgated

administrative rules never challenged under section 120.56."

Clemons v. State Risk Mgmtust Fund , 870 So. 2d 881, 884

(Fla. 1st DCA 2004) (Benton, J. concurring).

RECOMMENDATION

Based on the forgoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That the Department enter a final order denying

Petitioner's application for certification as a Firesafety

Inspector, and permitting Petitioner to repeat the required

coursework before retaking the Firesafety Inspector

certification examination.

DONE AND ENTERED this 16th day of February, 2012, in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

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 16th day of February, 2012.

ENDNOTE

1/ Petitioner attached portions of documents that are not in

evidence. These are being treated as late-filed exhibits and

have not been considered in the preparation of this Recommended

Order. See § 120.57(1)(f), Fla. Stat.

COPIES FURNISHED :

David A. Kennedy

2615 Auburn Avenue

New Smyrna Beach, Florida 32168

Linje E. Rivers, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399-0330

Julie Jones, Agency Clerk

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.