02-004445 Richard John Ollo vs. Department Of Insurance Status: Closed Recommended Order on Thursday, April 10, 2003.

Summary: Petitioner not entitled to take portion of practical examination for third time unless he completes the training course for second time.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD JOHN OLLO, )

)

Petitioner, )

)

vs. ) Case No. 02 - 4445

)

DEPARTMENT OF INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing wa s conducted in this case on February 28,

2003, in Tallahassee, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Mark D. Dreyer, Esquire

747 Jenks Av enue, Suite G

Panama City, Florida 32401

For Respondent: Elenita Gomez, Esquire

Department of Financial Services

Division of Legal Services

200 East Gaines Street

612 Larson Building

Tallahassee, Florida 32399 - 0330

STATEMENT OF THE ISSUE

The issue is whether Respondent properly denied

Petitioner's application for certification as a firefighter

after Petitioner failed to successfully pass the practical

portion of the Minimum Standards Examination pursuant to

Sections 633.34 and 633.35, Florida Statutes, and

Rules 4A - 37.056 and 4A - 37.062, Florida Administrative Code.

PRELIMINARY STATEMENT

In a letter dated June 4, 2002, Respondent Department of

Insurance (Respondent) denied Petitioner Richard John Ollo's

(Petitioner) application for certification as a firefighter

because he had failed the practical portion of the initial

examination and the retest examination. On or about June 18,

2002, Petitioner filed a timely request for an informal

administrative proceeding.

On July 19, 2002, Respondent filed a Motion to Amend Denial

Letter, together with a First Amended Denial Letter.

Respondent's Hearing Officer granted the motion by Order dated

July 23, 2002.

On September 23, 2002, Respondent's Hearing Officer issued

a Written Report and Recommended Order denying Petitioner's

application for certification as a firefighter. The Written

Report and Recommended Order also pro vided that Petitioner must

meet the requirements of Rule 4A - 37.056, Florida Administrative

Code, before taking additional examinations.

On October 29, 2002, Respondent issued an Order finding

that the Written Report and Recommended Order and the record of

the informal proceeding presented disputed issues of material

fact. Accordingly, Respondent referred this case to the

Division of Administrative Hearings on November 1, 2002.

The parties filed a Joint Response to Initial Order on

November 26, 2002. O n December 4, 2002, the parties filed a

Joint Response to Request for Additional Dates. A Notice of

Hearing dated December 4, 2002, scheduled the hearing for

February 28, 2003.

During the hearing, Petitioner testified on his own behalf

and presented the testimony of one additional witness.

Respondent presented the testimony of one witness. The parties

presented 10 joint exhibits, which were admitted into evidence.

A Transcript of the proceeding was filed on March 14, 2003.

Respondent filed its Pro posed Recommended Order on

March 24, 2003. Petitioner filed his Proposed Recommended Order

on March 27, 2003.

FINDINGS OF FACT

1. Petitioner has served as a voluntary firefighter in Bay

County, Florida, for approximately nine years. He first applied

fo r certification as a firefighter in October 2001.

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

successfully complete the Minimum Standards Course. The course

consists of taking a minimum of 360 hours of training at an

approved school or trai ning facility.

3. After completing the training course, Petitioner was

required to take the Minimum Standards Examination, which is

structured in two parts: a written portion and a practical

portion. The practical portion consists of four sections

inc luding the Self - Contained Breathing Apparatus (SCBA), the

hose pull, the ladder operation, and the fire ground skills.

4. The purpose of the practical portion of the exam is to

simulate real fire ground scenarios. To pass the four practical

evolutions, a n applicant must achieve a score of at least 70

percent on each one.

5. Each evolution of the practical exam has certain steps

that are mandatory. Failure to complete a mandatory step

results in automatic failure of that portion of the exam.

6. The ma ndatory steps for the SCBA evolution include the

following: (a) complete the procedure in not more than one

minute and forty - five seconds; and (b) activate the PASS device

in the automatic position.

7. After completing the Minimum Standards Course,

Pet itioner took the Initial Minimum Standards Examination on

May 1, 2002. He was well rested on the day of the test, having

slept approximately eight hours the night before. Petitioner

passed the written portion of the exam but failed the practical

portion of the initial exam because it took him one minute and

fifty - nine seconds to complete the SCBA evolution.

8. In a memorandum dated May 7, 2002, Respondent formally

advised Petitioner that he had failed the SCBA portion of the

practical exam because he exc eeded the maximum time for the

procedure. The memorandum also stated as follows in pertinent

part:

Important information about retesting and

certification renewal is enclosed. Please

read it carefully.

You have automatically been scheduled for

the nex t available examination, and written

notification indicating your test date and

location is enclosed. You are not required

to call the Bureau for scheduling. Thank

you. (Emphasis provided)

9. In another memorandum dated May 7, 2002, Respondent

advise d Petitioner that he was scheduled to re - take the SCBA

portion of the practical examination at the Florida State Fire

College in Ocala, Florida, on May 24, 2002, at 8:00 a.m. The

memorandum included the following relevant information:

If you are unable to take the examination on

the assigned date, please advise the Bureau

and we will reschedule you for the next

examination.

Note: You must retest within six (6) months

of the original test date.

10. All an applicant has to do to reschedule a retest ex am

is to call Respondent's Bureau of Fire Standards and Training

and request to be rescheduled. Respondent does not require

applicants to provide a justifiable reason in order to be

rescheduled. It is a routine and standard practice for

Respondent to res chedule exams.

11. Some applicants fail to show up for their retest exam

without calling Respondent. In that case, Respondent

automatically reschedules the retest.

12. Applicants must take their retest exams within six

months of their initial exam dates . Applicants that fail to

meet this requirement must repeat the training course.

Respondent reminds applicants of these requirements when they

call to reschedule retests or fail to show up for retest, and

the next retest exam date falls outside of the si x - month window.

If applicants still wish to reschedule retests outside the

six - month window, Respondent will accommodate the requests.

13. The next exam date that Petitioner could have taken

his retest was in September 2002, which would have been within

the six - month window.

14. Petitioner testified that he called Respondent on

May 16, 2002, to reschedule his retest because May 24, 2002, was

not convenient with his work schedule. Petitioner also

testified that an unidentified female in Respondent's of fice

told him that he could not change the date of his retest.

Petitioner's testimony in this regard is not persuasive.

15. Petitioner's job involved working the "graveyard

shift" at the Panama City Airport, loading and unloading planes.

On May 23, 2002, Petitioner began working at 2:00 a.m. He

finished his shift at approximately 1:00 p.m. Petitioner then

immediately loaded his gear and began the trip to Ocala,

Florida.

16. The trip took about six hours, due to a traffic jam in

Tallahassee, Florida. He arrived in Ocala at approximately

8:00 p.m. EST, located the testing site, and checked into a

motel.

17. Petitioner reported to the testing site the next

morning. He did not tell any officials at the testing site that

he was too tired to take the test.

18. Petitioner failed the retest of the SCBA portion of

the exam. Petitioner's time for the retest of the SCBA

evolution was two minutes and twelve seconds. Additionally,

Petitioner had point deductions for failing to complete the

"seal check" and fai ling to properly don and secure all personal

protective equipment correctly.

19. In a letter dated May 26, 2002, Petitioner alleged

that Respondent had denied his request for a different test

date. Petitioner claimed that fatigue had prevented him from

succeeding at the test. He requested another opportunity to

retest the SCBA evolution within the required six - month period.

20. Shortly thereafter, Fire Chief Tim McGarry from the

Thomas Drive Fire Department on Panama City Beach, Florida,

called Resp ondent's Field Representative Supervisor, Larry

McCall. During that conversation, Mr. McCall told Chief McGarry

that Petitioner could have decided not to show up for the

retest.

21. In a letter dated June 3, 2002, Mr. McCall responded

to Petitioner's l etter. In the letter, Mr. McCall stated that

the question of whether Respondent erroneously denied

Petitioner's request to reschedule the retest would be closed

unless Petitioner could provide more specific details.

22. In a memorandum dated June 6, 20 02, Respondent

formally advised Petitioner that he had failed the retest.

23. In a letter dated June 6, 2002, Petitioner stated that

he could not remember the name of the person he spoke to when he

requested a change in his retest date. Once again, Petit ioner

requested an opportunity to take the retest.

24. Mr. McCall spoke to Petitioner in a telephone call on

June 18, 2002. During that conversation, Petitioner indicated

that he would file his Election of Rights form, requesting an

administrative procee ding.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

26. Petitioner has the burden of proving by the

prepond erance of the evidence that Respondent improperly denied

his application for certification as a firefighter. Florida

Department of Transportation v. J.W.C. Company, Inc. , 396 So. 2d

778 (Fla. 1st DCA 1981); Balino v. Department of Health and

Rehabilitativ e Services , 348 So. 2d 349 (Fla. 1st DCA

1977)(Burden of proof, apart from statute, is on party asserting

affirmative of issue before administrative tribunal).

27. Section 633.35, Florida Statutes, states as follows in

relevant part:

633.35 Firefight er training and

certification. --

(1) The division 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 firefig hters. . . .

(2) The division 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, and who

poss esses the qualifications for employment

in s. 633.34. . . .

* * *

(4) A person who fails an examination

given under this section may retake the

examination once within 6 months after the

original examination date. . . .

28. Rule 4A - 37.056, Florida Administrative Code, states as

follows in pertinent part:

4A - 37.056 Specifications for Certifiable

Training.

To be recognized for certification as a

firefighter by the Division, training shall

be obtained under the conditions as

specified herein. . . .

(1) The training shall take place in a

training center or facility approved for

such training by the Bureau of Fire

Standards and Training.

* * *

(6) All tests, both written and practical,

given during training shall require

maintenance of a percen tage score of not

less than 70% on each subject listed in the

prescribed Firefighter I and Firefighter II

courses. 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 7 0%. Tests used shall

be designed to encompass all the significant

contents of the subjects being taught.

(a) In order to sit for the state

examination, the information required by

Sections 633.34 and 633.35, Florida

Statutes, must be furnished to the Bur eau of

Fire Standards and Training.

(b) State examinations, consisting of a

written and a practical part, shall be

administered by a Field Representative of

the Bureau of Fire Standards and Training

and shall encompass all components of the

Firefighter I course for Firefighter I

testing and all components of both

Firefighter I and Firefighter II courses for

State Certification as a Firefighter. The

70% score requirements for both written and

practical examinations shall prevail in this

testing environment as well.

(c) The state examination will be

administered at the local training facility.

Whenever possible, the Bureau of Fire

Standards and Training will schedule the

state examination date at the convenience of

the training facility.

(d) Only one ret ake of the state

examination is permitted. Retakes of the

practical portion of the examination will be

offered only at the Florida State Fire

College during the months of February, May,

September, and November. Retakes of the

written portion of the examina tion will be

offered at the Regional Testing Sites in

February, May, September, November and

monthly at the Florida State Fire College.

Students must be pre - registered at least 10

business days prior to the date of the

examination.

(e) The retake of the Firefighter II

Certification Examination must be taken

within 6 months of the initial examination

date.

29. In this case, Petitioner does not deny that he failed

the retest of the SCBA evolution. Instead, he argues that

Respondent refused to change the date of his retest and,

therefore, should be estopped from denying his application.

Petitioner seeks a third opportunity to pass the SCBA evolution

without having to repeat the training course.

30. During the hearing, Petitioner was unable to identify

the name of the person he allegedly spoke to on May 16, 2002.

There is no evidence that the person he allegedly spoke to had

authority to speak on Respondent's behalf.

31. Petitioner chose to take his retest as scheduled. He

did not attempt to contact som eone in authority to discuss the

obvious contradiction between the statement in the May 7, 2002,

memorandum and the alleged statement by the unidentified person

regarding rescheduling examinations. He did not inform anyone

in authority on the day of his e xam that he was fatigued and

needed to reschedule the test.

32. There is insufficient evidence to prove that

Respondent improperly denied Petitioner's application. The

facts of this case do not support the application of estoppel

against Respondent.

R ECOMMENDATION

Based on the forgoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That Respondent enter a final order denying Petitioner's

application.

DONE AND ENTERED this 10th day of April, 2003, in

Tallahassee, Leon County, Florida.

_ __________________________________

SUZANNE F. HOOD

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 10th day of April, 2003.

COPIES FURNISHED :

Elenita Gomez, Esquire

Department of Financial Services

Division of Legal Services

200 East Gaines Street

612 Larson Building

Tallahassee, Florida 32399 - 0330

Mark D. Dreyer, Esquire

747 Jenks Avenue, Suite G

Panama City, Florida 32401

Honorable Tom Gallagher

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Mark Casteel, 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 Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.