05-001353 Timothy E. Garner vs. Department Of Financial Services, Division Of State Fire Marshal, Bureau Of Fire Standards And Training Status: Closed Recommended Order on Monday, August 29, 2005.

Summary: Petitioner failed to demonstrate that the examiner erred in giving him a failing score on the self-contained breathing apparatus portion of the firefighters` certification exam.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TIMOTHY E. GARNER, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1353

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on June 16,

2005, in Naples, Florida, before Lawrence P. Stevenson, a

duly - designated Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Adam J. Oosterbaan, Esquir e

Adam J. Oosterbaan, P.A.

2500 Airport Road South, Suite 306

Naples, Florida 34112

For Respondent: Casia R. Sinco, Esquire

Department of Financial Services

200 East Gaines Street , Room 612

Tallahassee, Florida 32399 - 0333

STATEMENT OF THE ISSUE

The issue is whether Petitioner is entitled to a passing

grade on the Self - Contained Breathing Appar atus ("SCBA") part of

the Firefighter Minimum Standards Examination for firefighter

certification.

PRELIMINARY STATEMEN T

On December 8, 2004, Petitioner took both the written and

practical portions of the Minimum Standards Examination.

Petitioner passed the written portion, but did not achieve a

passing score on the practical portion, because he failed the

SCBA section of that examination.

Petitioner took the Minimum Standards practical examination

retest on February 24, 2005. Petitioner also failed thi s

retest, which covered only the SCBA portion of the examination.

Petitioner was eligible for only one retest . On February 25,

2005, the Department of Financial Services, Division of State

Fire Marshall, Bureau of Fire Standards and Training (the

"Depart ment") , sent Petitioner a letter stating that he had

failed both the Minimum Standards practical examination and the

retest and was , therefore , denied certification as a Florida

firefighter. Petitioner disputed the Department's determination

and filed a t imely Election of Rights form requesting a formal

administrative proceeding.

On April 15, 2005, the Department forwarded this case to

the Division of Administrative Hearings. On May 6, 2005, a

Notice of Hearing was issued scheduling the hearing for June 16,

2005. On May 25, 2005, the Department filed a motion to amend

the denial letter in order to set forth more specific factual

and legal grounds for the denial of Petitioner's application for

certification as a firefighter. Without objection, the motio n

was granted by O rder dated June 7, 2005, and the case proceeded

based upon the First Amended Denial Letter.

At the hearing, Petitioner testified on his own behalf and

presented the testimony of Keith Perry, firefighter for the

Isles of Capri Fire and Re scue Department, and Emilio Rodriguez,

chief of the Isles of Capri Fire and Rescue Department. Chief

Rodriguez also testified in rebuttal. Petitioner's Exhibits 1

through 3 were admitted into evidence. The Department presented

the testimony of Larry McC all, an examiner for the Department .

The Department's Exhibits 1 through 8 were admitted into

evidence. Official recognition was taken of Section 633.35,

Florida Statutes (2004) , and of Florida Administrative Code

Rules 69A - 37.055 and 69A - 37.056.

A one - volume Transcript of the proceeding was filed on

July 5, 2005. The parties timely filed Proposed Recommended

Orders which have been considered in the preparation of this

Recommended Order.

All citations are to Florida Statutes (2004) unless

otherwise in dicated.

FINDINGS OF FACT

1. Petitioner applied for certification as a firefighter

in August 2004.

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

to successfully complete the Minimum Standards Course, which

consists of a minimum of 360 h ours of training at an approved

school or training 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 p ractical portion consists of four sections or

"evolutions ," including the SCBA, the hose pull, the ladder

operation, and the fireground skills section.

4. To pass the four practical evolutions, an applicant

must achieve a score of at least 70 percent on e ach one.

5. Each evolution of the practical exam has certain

elements or skills that are graded. The SCBA test contains

11 skills related to checking, donning, and properly activating

the SCBA that enables a firefighter to breathe in a hostile

environmen t, such as a burning building . The SCBA test must be

completed in not more than one minute and 45 seconds.

6. After completing the Minimum Standards Course,

Petitioner took the initial Minimum Standards Examination on

December 8, 2004. Petitioner passed the written portion of the

exam , but did not pass the practical portion of the initial exam

because he exceeded the maximum time for the SCBA test.

7. In a memorandum dated December 21, 2004, the Department

formally advised Petitioner that he had failed the SCBA portion

of the practical exam. The memorandum also informed Petitioner

that he had been automatically scheduled to retake the SCBA

test.

8. In another memorandum dated December 21, 2004, the

Department advised Petitioner that he was scheduled to retake

the SCBA portion of the practical examination at the Florida

State Fire College in Ocala, Florida, on February 24, 2005.

9. Petitioner took the retest of the SCBA portion of the

practical examination as scheduled. Petitioner again failed the

SCBA test. Though he completed each of the 11 skills with no

deduction of points, he again exceeded the maximum time of one

minute and 45 seconds. Petitioner's time was one minute and

50 seconds.

10. Larry McCall is a field representative with the

Depa rtment. Mr. McCall described "field representative" as a

"glorified name for an examiner." Mr. McCall was the examiner

who tested Petitioner on the retake of the SCBA portion of the

practical exam on February 24, 2005. He observed Petitioner

perform the 11 skills, and he timed Petitioner with a stopwatch.

1 1 . Mr. McCall has been an examiner for 15 years. He is a

certified firefighter and a certified fire service instructor.

He retired from the City of Jacksonville Fire Department after

30 years. Mr. McCall estimated that he has administered 10,000

SCBA tests.

1 2 . Petitioner testified that before taking the retest , he

practiced the SCBA test upwards of 50 times and never exceeded

the time limit. Petitioner testified that he was certain that

he comple ted the test within the time limit on February 24,

2005.

1 3 . Petitioner is currently a volunteer at the Isle of

Capri Fire and Rescue Department. The chief of that department,

Emilio Rodriguez, testified that he administered the SCBA test

to Petitioner i n practice situations over a dozen times, and

Petitioner never went over one minute and ten seconds. Keith

Perry, a veteran firefighter working for the Isle of Capri Fire

and Rescue Department, testified that he has timed Petitioner

many times and that Pe titioner has never exceeded the time

limit, averaging between one minute and five seconds and one

minute and ten seconds.

1 4 . Neither of Petitioner's witnesses w as present when he

took the SCBA retest on February 24, 2005, and , thus , could not

testify as to whether he passed the test on that day.

Petitioner's subjective feeling that he passed the test based on

the many times he practiced, is necessarily less persuasive than

the time actually recorded by Mr. McCall.

1 5 . The students are assigned an applic ant number on the

day of the test. The examiners refer to the students by this

number, rather than their names, during the testing process.

After the test has been administered, the examiners coordinate

the names with the numbers and assign final scores.

1 6 . At the hearing, Petitioner suggested that a mistake

had been made in coordinating the names and numbers and that he

had mistakenly been assigned the failing score of another

candidate. Petitioner offered no evidence for this speculative

suggestion, which , therefore , cannot be credited.

1 7 . Petitioner also noted that Mr. McCall had recorded a

time of 20 seconds for Petitioner's performance o n the "seal

check ," an exercise to ensure that the face piece of the SCBA

equipment is securely sealed such tha t the firefighter is

breathing only from his air tank. The candidate must perform

the seal check for at least ten seconds. Petitioner

persuasively contended that 20 seconds is an extraordinarily

long time for the seal check, because the candidate must ho ld

his breath for the duration of the check. Further, Petitioner

noted that candidates are trained to count off the required ten

seconds, making it unlikely that he would inadvertently take

twice the required time to complete the check. Petitioner's

theo ry was that Mr. McCall's mistaken recording of 20 seconds

was enough to account for the five seconds by which Petitioner

failed the overall SCBA test.

1 8 . However, Mr. McCall testified that he used a stopwatch

with a split timer to record Petitioner's tim e for the SCBA

test. A split timer independently records a span of time within

the overall time being measured. When Petitioner commenced the

seal check portion, Mr. McCall triggered the split timer, and he

stopped the split timer when Petitioner complet ed the seal

check. The split timer has no effect on the total time.

Whether the split for the seal check had been ten seconds,

20 seconds, or more, Petitioner's overall time would have been

one minute and 50 seconds.

19 . The greater weight of the credib le evidence

established that Petitioner's performance on the SCBA section of

the practical examination was appropriately and fairly graded.

Petitioner failed to establish that he was entitled to a passing

grade for h is performance on the SCBA section.

2 0 . Respondent established that Mr. McCall appropria tely

administered the subject SCBA section pursuant to the applicable

provisions of Florida Administrative Code Chapter 69A - 37, which

set forth guidelines for the practical examination.

CONCLUSIONS OF LAW

2 1 . The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

2 2 . Section 633.35, Florida Statutes, provides, in

relevant part, as follows:

(1) The divisi on 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

ce rtificate 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

gi ven 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

reexamined. . . .

2 3 . 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 percentage 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 t he required 70%.

* * *

(d) Only one retake of the state

examination is permitted . . . .

2 4 . Petitioner is an applicant for certification as a

firefighter in the State of Florida. Accordingly, as the party

asserting the affirmative of an iss ue before this administrative

tribunal, Petitioner has the burden of proof. Florida

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

778 (Fla. 1st DCA 1981). Petitioner must establish facts by a

preponderance of the evidence that the Depa rtment improperly

denied his application for certification as a firefighter.

Department of Banking and Finance v. Osborne Stern and Company ,

670 So. 2d 932 (Fla. 1996).

2 5 . Petitioner argues that he should be permitted an

additional retake of the SCBA section, given the questions he

raised concerning the test 's administration and the fact that he

missed a passing grade by a mere five seconds. The rationale

underpinning his argument is rejected as being contrary to the

factual findings that the examinat ion was properly administered

and graded. Moreover, his requested relief is inconsistent with

the provisions of Subs ection 633.35(4), Florida Statutes, and

Florida Administrative Code Rule 69 - 37.056(6).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department enter a final order finding

that Petitioner failed the SCBA section of the practical portion

of the Firefighter Minimum Standard Examination administered

February 24, 2005.

DONE AND ENT E RED this 29th day of August , 2005 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 29th day of August , 2005 .

COPIES FURNISHED :

Casia R. Sinco, Esquire

Department of Financia l Services

200 East Gaines Street, Room 612

Tallahassee, Florida 32399 - 0333

Adam J. Oosterba a n, Esquire

Adam J. Oosterbaan, P.A.

2500 Airport Road South, Suite 306

Naples, Florida 34112

Honorable Tom Gallagher

Chief Financial Officer

Department of Finan cial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Carlos G. Mu ñ iz, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0307

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties h ave 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.