02-003450 Pedro M. Hernandez vs. Department Of Insurance Status: Closed Recommended Order on Tuesday, January 14, 2003.

Summary: Petitioner failed two sections of the practical portion of the Florida Minimum Standards Examination and was not entitled to re-certification as a firefighter.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PEDRO M. HERNANDEZ, )

)

Petitioner, )

)

vs. ) Case No. 02 - 3450

)

DEPARTMENT OF INSURANCE, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for final hearing on

November 21, 2002, by video teleconference between Miami and

Tallahassee, Florida, before Administrative Law Judge Claude B.

Arrington, of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Pedro M. Hernandez, pro se

600 Southeast 8th Street

Hialeah, Florida 33010

For Respondent: Mechele R. McBride, Esquire

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to a passing grade on the

practical portion of the Florida Minimum Standards Examination

for firefighters taken May 22, 2 002.

PRELIMINARY STATEMENT

When Petitioner applied for re - certification as a

firefighter in November 2001, his existing certification was

scheduled to expire May 22, 2002. Because he had not been

active as a firefighter for the past three years, Petiti oner was

required to sit for and pass the four - section practical portion

of the Florida Minimum Standards Examination (the practical

examination) to maintain his certification.

Petitioner sat for and failed all four sections of the

practical examination administered December 5, 2001. Petitioner

was permitted by rule to re - take the practical examination,

which by happenstance was scheduled for May 22, 2002, the date

his certification was to expire. Petitioner re - took the

practical examination on May 22, 2002. Thereafter Respondent

notified Petitioner that he had failed two sections of the

examination, that his application for re - certification was

denied, and that he would have to complete additional training

before being permitted to re - apply for certifi cation.

Petitioner thereafter requested a formal administrative

hearing to challenge the scoring of the examination he took on

May 22, 2002, the matter was referred to the Division of

Administrative Hearings, and this proceeding followed.

At the fina l hearing, Respondent presented its case first

to expedite the proceeding. Respondent presented the testimony

of Larry McCall and Ralph Chase, Jr., both of whom are field

representatives with the State Fire Marshal's Bureau of Fire

Standards and Training. Field representatives, including

Mr. McCall and Mr. Chase, were responsible for administering and

grading the practical examinations Petitioner took on

December 5, 2001, and May 22, 2002. Respondent offered seven

exhibits, each of which was accepted int o evidence. Petitioner

presented no testimony and no exhibits.

The transcript of the final hearing was filed on

December 4, 2002. Respondent's Proposed Recommended Order,

filed December 23, 2002, has been considered by the undersigned

in the preparatio n of this Recommended Order. Petitioner did

not file a proposed recommended order.

FINDINGS OF FACT

1. At times pertinent to this proceeding, Petitioner held

certification as a firefighter (Firefighter Certificate of

Completion #81191) issued by the St ate Fire Marshal. For at

least three years prior to December 5, 2001, Petitioner had not

been active as a firefighter or as a volunteer firefighter with

an organized fire department. Pursuant to Section 633.352,

Florida Statutes, Petitioner was required to successfully

complete the practical portion of the Florida Minimum Standards

Examination for firefighters to retain his certification. 1/

2. The practical examinations at issue in this proceeding

consisted of four sections: the Self Contained Breath ing

Apparatus (SCBA) section, the Hose and Nozzle Operation section,

the Ladder Operation section, and the Fireground Skills section.

A candidate must pass each section to pass the practical

examination.

3. On November 16, 2001, Petitioner applied to s it for the

practical examination scheduled for December 5, 2001.

Petitioner sat for and failed all four sections of the practical

examination administered December 5. Respondent's Rule 4A -

37.0527(6), Florida Administrative Code, permits a candidate to

re take the practical examination once without further training.

Petitioner thereafter applied to retake the examination, which

was scheduled for May 22, 2002.

4. Petitioner passed the Hose and Nozzle Operation and the

Ladder Operation sections of the pra ctical examination on

May 22, and the scoring on those sections are not at issue in

this proceeding. At issue in this proceeding is whether

Petitioner failed the SCBA section and/or the Fireground Skills

section of the practical examination administered M ay 22, 2002.

5. The SCBA section of the practical examination consisted

of questions for which a candidate was awarded credit and

certain items that a candidate was required to successfully

complete (fatal items). If a candidate missed a fatal item, th e

candidate failed the SCBA section of the examination and,

consequently, the entire practical examination.

6. The Firegrounds Skills section of the examination tests

a candidate on a variety of skills a firefighter is expected to

demonstrate while figh ting a fire, and the candidate is awarded

a score for his or her performance.

7. To pass each part of the practical examination,

including the SCBA and the Fireground Skills sections, a

candidate must achieve a score of 70 points and must not miss a

fat al item.

8. The SCBA section of the practical examination requires

the candidate to properly don certain protective gear in 1

minute and 45 seconds. The failure to complete the exercise in

the allotted time is a fatal item. In addition, the candidate

must activate and check a personal alarm system as part of the

exercise. The failure of the candidate to properly wear and

activate the alarm system is also a fatal item.

9. The greater weight of the credible evidence established

that Petitioner's per formance on the SCBA section of the

practical examination was appropriately and fairly graded.

Petitioner failed to timely complete the exercise, which is a

fatal item. Petitioner failed to properly activate the personal

alarm system, which is also a fat al item. Petitioner was

awarded no points for 5 of 10 items for which points could be

awarded (each item was worth 10 points). Even if he had passed

the fatal items noted above, Petitioner would have failed the

SCBA section because he failed to achieve a passing score of 70

on that section of the examination. Petitioner failed to

establish that he was entitled to additional credit for the SCBA

section of the practical examination.

10. Petitioner received a failing score on the Firegrounds

Skills secti on of the practical examination administered May 22,

2002. The greater weight of the credible evidence established

that Petitioner's performance on the Firegrounds Skills section

of the practical examination administered May 22, 2002, was

appropriately an d fairly graded. Of the 100 points available

for this section of the examination, Respondent established that

Petitioner deserved no credit for the following: 20 points on

the forcible entry part of the section; 12 points on the ladders

and fire service tools part of the section; and 4 points on the

hazardous materials part of the section. Consequently,

Respondent established that Petitioner was entitled to a total

of 64 points on the Firegrounds Skills section of the practical

examination administered M ay 22 2002, which is a failing grade.

Petitioner failed to establish that he was entitled to

additional credit for the Firegrounds Skills section of the

practical examination administered May 22, 2002.

11. Respondent established that the administratio n and

grading of the subject exams were consistent with the provisions

of Chapter 4A - 37, Florida Administrative Code, which set forth

by rule applicable guidelines for the practical examination.

CONCLUSIONS OF LAW

12. The Division of Administrative Hear ings has

jurisdiction over the parties hereto and the subject matter

hereof pursuant to Chapter 120, Florida Statutes.

13. Petitioner has the burden of proving by a

preponderance of the evidence that he is entitled to passing

grades on all sections of the practical examination. See Harac

v. Department of Professional Regulation , 484 So. 2d 1333 (Fla.

3d DCA 1986); State ex rel. I. H. Topp v. Board of Electrical

Contractors for Jacksonville Beach, Florida , 101 So. 2d 583

(Fla. 1st DCA 1958); and State e x rel. Glaser v. J. M. Pepper ,

155 So. 2d 383 (Fla. 1st DCA 1963). Petitioner did not meet

that burden in this proceeding.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that Petitioner enter a final order

adopting the Findings of Facts and Conclusions of Law set forth

herein. It is further RECOMMENDED that the final order deny

Petitioner's application for re - certification as a firefighter.

DONE AND ENTERED this 14th day of January, 2003, in

Tallah assee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative 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 14th day of January, 2003.

ENDNOTE

1/ Section 633.352, Florida Statutes, provides, in pertinent

part, as follows:

Any certified fire fighter 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 ru le 4A -

37.056(6)(b), Florida Administrative

Code, in order to maintain her or his

certification as a firefighter. . . .

COPIES FURNISHED:

Pedro M. Hernandez

600 Southeast 8th Street

Hialeah, Florida 33010

Mechele R. McBride, Esquire

Department of Fi nancial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

Honorable Tom Gallagher

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Mark Castee l, 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 Recommende d Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.