04-000766 Sharrice Reanette Blackmon vs. Department Of Financial Services Status: Closed Recommended Order on Friday, June 25, 2004.

Summary: Petitioner failed to prove her entitlement to additional credit on the Firefighter Minimum Standards Examination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHARRICE REANETTE BLACKMON, )

)

Petitioner, )

)

vs. ) Case No. 04 - 0766

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pu rsuant to notice, a final hearing was conducted on

May 19, 2004, by video teleconference between Fort Lauderdale

and Tallahassee, Florida, before Administrative Law Judge

Claude B. Arrington of the Division of Administrative Hearings.

APPEARANCES

Fo r Petitioner: Sharrice Reanette Blackmon, pro se

9999 Summerbreeze Drive, No. 414

Sunrise, Florida 33322

For Respondent: Casia R. Sinco, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to a passing grade on the

Self Contained Breathing Apparatus section (the SCBA section) of

the Firefigh ter Minimum Standards Examination (the Examination)

administered September 25, 2003.

PRELIMINARY STATEMENT

The Examination consists of a written portion and a

practical portion. The SCBA section is one of four sections of

the practical portion of the Ex amination. Petitioner took both

portions of the Examination on May 29, 2003. Petitioner passed

the written portion of the Examination and three of four

sections of the practical portion of the Examination.

Petitioner failed the SCBA section.

Pursuant to applicable statute and rule, Petitioner was

permitted to retake the SCBA section on September 25, 2003. 1

Thereafter, Respondent notified Petitioner that she had failed

the retake of the SCBA section. Petitioner requested a formal

administrative hearin g to challenge the scoring of her retake of

the SCBA section, the matter was referred to the Division of

Administrative Hearings, and this proceeding followed.

At the final hearing, Respondent presented its evidence

first to facilitate the proceeding. R espondent presented the

testimony of Ralph Chase, Jr. (a field representative with the

State Fire Marshal’s Bureau of Fire Standards and Training), and

offered 11 sequentially numbered exhibits, each of which was

admitted into evidence. Petitioner present ed no testimony and

no exhibits.

A Transcript of the proceedings was filed on June 10, 2004.

Each party filed a Proposed Recommended Order, which has been

duly - considered by the undersigned in the preparation of this

Recommended Order.

All statutory r eferences are to Florida Statutes (2004),

and all references to rules are to those set forth in the

Florida Administrative Code as of the date of this Recommended

Order.

FINDINGS OF FACT

1. Petitioner applied to Respondent for certification as a

firefig hter. Pursuant to Section 633.35, Florida Statutes,

Petitioner was required to take and pass the written portion and

all four sections of the practical portion of the Examination to

achieve this certification.

2. The practical portion of the Examinatio n consists of

four sections: the SCBA section; the Hose and Nozzle Operation

section; the Ladder Operation section; and the Fireground Skills

section.

3. On May 29, 2003, Petitioner took both the written and

practical portions of the Examination. Sh e passed the written

portion and three sections of the practical portion. Petitioner

failed the SCBA section. Petitioner was not required to retake

the written portion of the examination or the three sections of

the practical examination she passed. Pet itioner thereafter

retook the SCBA section on September 25, 2003.

4. As implied by the name of the section, the SCBA section

involves the use of equipment that enables a firefighter to

breathe in a hostile environment, such as a burning building.

The candidate must check the equipment, properly don the

equipment, activate the equipment, and properly doff the

equipment.

5. Mr. Chase was responsible for administering and grading

Petitioner’s retake of the SCBA section on September 25, 2003.

To pass e ach section of the practical examination, including the

SCBA section, a candidate has to achieve a score of at least

70 points. 2 The candidate’s performance on the SCBA section is

graded in ten categories, with each category being worth ten

points.

6. The greater weight of the credible evidence established

that Petitioner's performance on the SCBA section of the

practical examination was appropriately and fairly graded.

Petitioner earned a score of 40 points on her retake the SCBA

portion of the practi cal examination. Petitioner was awarded no

points for six of ten categories for which points could be

awarded. 3 Petitioner failed to establish that she was entitled

to additional credit for her performance on the SCBA section.

7. Respondent establishe d that Mr. Chase appropriately

administered and graded the subject SCBA section pursuant to the

applicable provisions of Chapter 69A - 37, Florida Administrative

Code, which set forth guidelines for the practical examination.

CONCLUSIONS OF LAW

8. The D ivision of Administrative Hearings has

jurisdiction over the parties hereto and the subject matter

hereof pursuant to Chapter 120, Florida Statutes.

9. Section 633.35, Florida Statutes, provides, in relevant

part, as follows:

(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 firefighters. . . .

(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. . . .

* * *

(4) A person who fails an examination

given under this section may retake the

examination once within 6 months after the

original examination date. An applicant who

does not retake the examination within such

time must take the Minimum Standards Course,

pursuant to subsection (1), before being

reexamine d. . . .

10. Florida Administrative Code Rule 69A - 37.056 pertains

to the Firefighter Minimum Standards Test and provides, in

relevant part, as follows:

(6) All tests, both written and

practical, given during training shall

require maintenance of a pe rcentage 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 requi red 70%.

* * *

(d) Only one retake of the state

examination is permitted ...

11. Petitioner has the burden of proving by a

preponderance of the evidence that she is entitled to a passing

grade on the SCBA section of the test administered Sept ember 25,

2003. 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 ex rel. Glas er v.

J. M. Pepper , 155 So. 2d 383 (Fla. 1st DCA 1963). Petitioner

did not meet that burden in this proceeding.

12. Petitioner argues in her Proposed Recommended Order

that she should be permitted an additional retake of the SCBA

section. The rational e underpinning her argument is rejected as

being contrary to the factual findings that the examination was

properly administered and graded. Moreover, her requested

relief is inconsistent with the provisions of Section 633.35(4),

Florida Statutes, and F lorida Administrative Code Rule 69 -

37.056(6).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

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

finding that Petitioner failed the SCBA section of the practical

portion of the Firefighter Minimum Standard Examination

administered September 25, 2003.

DONE AND ENTERED this 25th day of June, 2004, in

Tallahassee, Leon County, Florida.

S

___ ________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1 230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

File d with the Clerk of the

Division of Administrative Hearings

this 25th day of June, 2004.

ENDNOTES

1/ See Section 633.35(4), Florida Statutes, and Florida

Administrative Code Rule 69A - 37.056(6)(d), the r elevant portions

of which are set forth in the Conclusions of Law section of this

Recommended Order.

2/ The SCBA section also has two fatal items which a candidate

must successfully complete to pass, regardless of total score.

The failure to activate and check a personal alarm as part of

the exercise is one fatal item. The failure to complete the

SCBA section within one minute, forty - five seconds is the other

fatal item. Those fatal items are not at issue in this

proceeding, although the scoring shee t completed by Mr. Chase

erroneously reflects that Petitioner did not timely complete the

SCBA section. This harmless error is not the basis for

Petitioner’s scoring on the SCBA section on September 25, 2003.

3/ Petitioner failed to connect to her air s upply during the

exercise, which established that she failed to properly don the

equipment and failed to properly secure all valves and

connections. In addition, Petitioner failed to announce a

required numerical reading of her regulator, failed to proper ly

secure her facemask, failed to properly seal her facemask, and

failed to properly doff the equipment.

COPIES FURNISHED :

Casia R. Sinco, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

Sharrice Rea nette Blackmon

9999 Summerbreeze Drive, No. 414

Sunrise, Florida 33322

Tom Gallagher, Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Mark Casteel, General Counsel

Department of Finan cial 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 Reco mmended Order should be filed with the agency that

will issue the Final Order in this case.