02-001749 Matthew Adam Pepe vs. Department Of Insurance Status: Closed Recommended Order on Tuesday, November 12, 2002.

Summary: Candidate for firefighter certification challenged practical examination; failed to demonstrate that examination was faulty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MATTHEW ADAM PEPE, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1749

)

DEPARTMENT OF INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Jeff B. Clark, held a final hearing in this case in Largo,

Florida, on September 3, 2002.

APPEARANCES

For Petitioner: Sherwood S. Coleman, Esquire

Kwall, Showers, and Coleman, P.A.

133 North Fort Harrison Avenue

Clearwater, Florida 33755

For Respondent: Mechele R. McBride, Esquire

Elentia Gomez, Esquire

D epartment of Insurance

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner is entitled to

credi t for his failure to timely complete the ladder evolution

of the Firefighter Minimum Standards practical examination

because he was allegedly distracted by an examiner.

PRELIMINARY STATEMENT

On April 24, 2002, Respondent, Department of Insurance,

advised P etitioner, Matthew Adam Pepe, in an amended denial

letter that he "did not achieve a passing score on the

Firefighter Minimum Standards practical retest and therefore

your application for certification as a Florida firefighter is

denied." With the amended denial letter was an Election of

Rights letter, which Petitioner returned to Respondent,

disputing Respondent's factual allegations and requesting an

administrative hearing.

On May 2, 2002, the Division of Administrative Hearings

received a letter from Re spondent, which included the amended

denial letter and Petitioner's Election of Rights; the letter

requested assignment of an Administrative Law Judge to consider

the matter. On May 3, 2002, an Initial Order was sent to both

parties. On May 9, 2002, the case was scheduled for final

hearing in Largo, Florida, on July 1, 2002. In response to

Petitioner's Motion to Continue, the case was rescheduled to

September 3, 2002. The rescheduled final hearing was conducted

on September 3, 2002.

Petitioner testified on his own behalf and offered the

deposition testimony of Brian Alexander taken on August 28,

2002. In addition, Petitioner offered two exhibits which were

admitted into evidence and marked Petitioner's Exhibits 1 and 2.

Respondent presented the testimo ny of Larry McCall and Richard

Riddling, both of the State Fire Marshall's office, and the

deposition testimony of Joshua Alderman taken on August 28,

2002. Respondent offered seven exhibits which were admitted

into evidence and marked Respondent's Exhibi ts 1, 2, 4, 6, 7, 8,

and 9.

A Transcript of Proceedings was filed with the Division on

September 18, 2002. By agreement, the parties had 30 days from

the filing of the Transcript to submit proposed recommended

orders. On October 15, 2002, Respondent move d to extend the

time for submitting proposed recommended orders. The motion was

granted. Both parties timely filed Proposed Recommended Orders.

FINDINGS OF FACT

Based on the evidence and the testimony of witnesses

presented and the entire record in this proceeding, the

following findings of fact are made:

1. Respondent, Department of Insurance, through its

Division of State Fire Marshall, certifies all paid firefighters

and establishes a course of instruction and Minimum Standards

written and practical examinations for certification.

2. An individual ("candidate") who desires to become a

firefighter must take a 360 - hour Minimum Standards course of

instruction and pass a Minimum Standards written and practical

examination. If the candidate fails the exa mination, the

candidate is given one opportunity to retake the portions of the

examination which were not passed. If the candidate does not

pass the retest, the candidate must again complete the Minimum

Standards training course before additional retestin g will be

allowed.

3. Petitioner completed the Minimum Standards course of

instruction at Hillsborough Community College in June 2001. He

took the Minimum Standards written and practical examination in

December 2001.

4. The Minimum Standards practical e xamination consists of

four evolutions: (1) self - contained breathing apparatus;

(2) inch and three - quarter hose pull and operation; (3) 24 - foot

ground ladder carry; and (4) other fire ground skills.

5. On the December 2001 Minimum Standards practical

ex amination, Petitioner did not obtain a passing score on the

self - contained breathing apparatus and the 24 - foot ground ladder

carry evolutions.

6. Petitioner was retested on the self - contained breathing

apparatus and the 24 - foot ground ladder carry evoluti ons on

February 28, 2002, at the State Fire College in Ocala, Florida.

Petitioner obtained a passing score on the self - contained

breathing apparatus evolution; he again failed to obtain a

passing score on the 24 - foot ground ladder carry evolution.

7. E ach evolution of the Minimum Standards practical

examination has a value of 100 points. The examiner deducts

points for deficiencies that occur throughout the examination.

Each candidate is required to achieve a score of 70 points in

each evolution to pa ss the Minimum Standards practical

examination.

8. The 24 - foot ground ladder carry evolution involves

multiple sequenced tasks testing a candidate's ability to safely

lift, maneuver, and deploy a 24 - foot ladder; the maximum time

allowed to complete all ta sks required in the 24 - foot ground

ladder carry evolution is two minutes and 45 seconds. Failure

to complete all required tasks of the evolution within the

maximum time results in failure of the evolution.

9. As Petitioner proceeded to perform the 24 - foo t ground

ladder carry evolution, he experienced difficulty with some of

the required tasks, and, as a result, time was running out as he

neared completion of the required tasks.

10. While testimony differs as to the exact words that

were spoken, the exami ner, noting that time was running out,

spoke to Petitioner advising him to hurry to complete the tasks,

or words to that effect. While an examiner speaking to a

candidate during testing is not a common occurrence, nothing

prohibits an examiner from speaki ng to a candidate while the

testing progresses.

11. Petitioner completed the 24 - foot ground ladder carry

evolution in two minutes and 48 seconds, exceeding the maximum

time by three seconds and failing the retest.

12. Petitioner maintains that he was distracted by the

examiner's spoken words, lost his focus, and, as a result,

exceeded the maximum allowable time for the 24 - foot ground

ladder carry evolution.

13. While Petitioner's contention is plausible, it is not

supported by the evidence presented. His previous failure of

the same evolution demonstrates the difficulty he had with it;

he acknowledged this difficulty. Petitioner did not appear to

react to the examiner's spoken words in any way that evidenced

shock or distraction. One of the ladder guards recalls

Petitioner's performance on the 24 - foot ground ladder carry

evolution as "a weak performance all around." "I recall him

taking a lot of time, an excessive amount of time, . . . ."

". . . he wasn't performing it as well, so it t ook him longer to

do it since he wasn't doing it well." The ladder guard's

observations were essentially confirmed by the examiner.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding, pursuant to Section 120.57, Florida Statutes.

15. Section 633.35, Florida Statutes, governs the training

and certification of firefighters by Respondent.

16. Following completion of the Minimum Standards course

of instruction, candid ates for certification as a firefighter

must successfully pass a Minimum Standards examination. Section

633.35(2), Florida Statutes. To succeed in the examination, the

candidate must achieve a 70 percent score on the written portion

of the examination an d a 70 percent score on the practical

portion of the examination. Rule 4A - 37.056(6), Florida

Administrative Code. Petitioner failed to achieve a passing

score on two evolutions of the practical examination.

17. In accordance with Rule 4A - 37.056(6)(d), F lorida

Administrative Code, Petitioner was allowed to re - take the

evolutions of the practical examination he failed on the first

test. Petitioner re - took the two evolutions, passing one and

again failing the 24 - foot ground ladder carry evolution. Rule

4A - 37.056(6)(d), Florida Administrative Code, only allows one

re - take of the state examination.

18. The burden of proof is on Petitioner. Petitioner must

show by a preponderance of evidence that the examinations were

faulty, arbitrarily or capriciously w orded or graded, or that

Petitioner was arbitrarily or capriciously denied credit through

a grading process devoid of logic or reason. Horac v.

Department of Professional Regulation , 484 So. 2d 1333, 1338

(Fla. 3d DCA 1986); State ex rel. Glaser v. J.M. P epper , 155

So. 2d 383 (Fla. 1st DCA 1963); and State ex rel. I.H Topp v.

Board of Electrical Contractors for Jacksonville Beach, Florida ,

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

satisfy his burden of proof. Petitioner maintains that com ments

made to him by an examiner distracted him and resulted in his

failure to complete the 24 - foot ground ladder carry evolution

within the minimum allowable time. Other than his statements to

that effect, there is no evidence that the examiner's comment s

were the cause of Petitioner's failure to complete the 24 - foot

ground ladder carry evolution within the minimum allowable time.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entere d confirming

Petitioner’s examination score and dismissing his challenge.

DONE AND ENTERED this 12th day of November, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

JEFF B. CLARK

Administrative Law Judge

Division of Admini strative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of November, 2002.

COPIES FURNISHED:

Sherwood S. Coleman, Esquire

Kwall, Showers, and Coleman, P.A.

133 North Fort Harrison Avenue

Clearwater, Florida 33755

Mechele R. McBride, Esquire

Elentia Gomez, Esquire

Department of Insurance

Division of Legal Serv ices

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

Mark Casteel, General Counsel

Department of Insurance

The Capitol, Lower Level 26

Tallahassee, Florida 32399 - 0307

Honorable Tom Gallagher

State Treasurer/Insurance Commissioner

Department of I nsurance

The Capitol, Plaza Level 02

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 Recommend ed Order should be filed with the agency that

will issue the Final Order in this case.