09-006970 Kim Lashawn Edmonds vs. Department Of Financial Services Status: Closed Recommended Order on Friday, April 16, 2010.

Summary: A stuck ladder was fault of examinee and not equipment failure. Recommend that the exam challenge be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KIM LASHAWN EDMONDS, )

)

Petitioner, )

)

vs. ) Case No. 09-6970

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of this case for the Division of Administrative

Hearings (DOAH) on February 23, 2010, by video teleconference in

Tallahassee and St. Petersburg, Florida.

APPEARANCES

For Petitioner: Kim Lashawn Edmonds, pro se

2641 19th Street, South

St. Petersburg, Florida 33712

For Respondent: Regina M. Keenan, Esquire

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue is whether Respondent should deny an application

for certification as a Firefighter II on the alleged grounds

that Petitioner failed the Firefighter Minimum Standards

Equivalency Examination.

PRELIMINARY STATEMENT

By Notice of Intent to Deny (Notice of Denial) dated

November 20, 2009, Respondent notified Petitioner that

Respondent proposed to deny Petitioner's certification as a

Firefighter II. Petitioner timely requested a formal hearing,

and Respondent referred the matter to DOAH to conduct the

hearing.

At the hearing, Petitioner presented the testimony of one

witness and submitted 14 exhibits for admission into evidence.

Respondent presented the testimony of two expert witnesses and

submitted five exhibits for admission into evidence.

The identity of the witnesses and exhibits, and the rulings

regarding each, are reported in the one-volume Transcript of the

hearing filed on March 5, 2010. Petitioner and Respondent each

requested a Transcript of the hearing.

Petitioner requested an extension of time to file a

proposed recommended order (PRO). The ALJ entered an Order,

extending the time for each party to file the party's respective

PRO until March 19, 2010. Respondent timely filed its PRO on

March 19, 2010. Petitioner filed her PRO on March 22, 2010.

FINDINGS OF FACT

1. Respondent is the state agency responsible for the

certification of firefighters in the State of Florida, pursuant

to Chapter 633, Florida Statutes (2009). 1 At a date not

disclosed in the record, Petitioner applied for a certification

as a Firefighter II.

2. On September 21, 2009, Petitioner took the Firefighter

Minimum Standards Equivalency Examination (“initial

examination”). Petitioner failed to pass the Ladder, Hose, and

Self Contained Breathing Apparatus (SCBA) components of the

practical portion of the initial examination.

3. On November 17, 2009, Petitioner took the Firefighter

Minimum Standards Equivalency Examination Re-test (“examination

re-test”) for the Ladder, Hose, and SCBA components. Petitioner

failed to pass the Ladder component of the examination re-test.

4. By Notice of Denial dated November 20, 2009, Respondent

notified Petitioner that Petitioner had failed the Firefighter

Minimum Standards Equivalency Examination. Petitioner requested

an administrative hearing.

5. Petitioner alleges that, during her initial examination

on September 21, 2009, there was an equipment malfunction during

the Ladder component of the practical portion of the

examination. Petitioner bases her allegations on the Ladder

component score sheet for the initial examination (“score

sheet”) that was received by Petitioner after she completed the

initial examination and examination re-test.

6. The score sheet for the initial examination states that

Petitioner failed the Ladder component of the initial

examination because Petitioner exceeded the time period to

complete the ladder evolution and failed to fully extend the

ladder with the dogs locked. In the “Comments Required for

Failure” section, the score sheet listed, “Safety latch on dawgs

[sic] stuck in top of rung. Unsafe act. Over time.”

7. Petitioner alleges that the statement that a piece of

equipment was "stuck" is proof of an equipment malfunction. Two

experts testified during the hearing that the "stuck" equipment

was caused by operator error rather than an equipment

malfunction. The testimony of the two experts was credible and

persuasive.

8. Petitioner, as the examinee, could have remedied the

"stuck" equipment by raising the ladder to release the finger

and then lowering the ladder to allow the dogs to lock onto the

rung. The failure to do so was an "unsafe act” that created a

safety hazard in which the fly section of the ladder could have

fallen down to the ground.

9. A preponderance of the evidence does not show that

Petitioner failed the Ladder component of the initial

examination because of an equipment malfunction. Rather, the

preponderance of evidence shows that Petitioner failed to have

the dogs locked, which is required by the examination.

10. A preponderance of the evidence also shows that

Petitioner did not complete the ladder evolution within the

required time during the re-take examination. The excessive

time resulted in an automatic failure of the re-take

examination.

CONCLUSIONS OF LAW

11. DOAH has jurisdiction over the parties to and subject

matter of this proceeding. §§ 120.569 and 120.57(1). DOAH

provided the parties with adequate notice of the final hearing.

12. Petitioner bears the ultimate burden of proving her

entitlement to a license. Florida Department of Transportation

v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

Petitioner must show by a preponderance of the evidence that she

satisfied relevant statutory criteria to be certified as a

Firefighter II.

13. Petitioner must show by a preponderance of evidence

that the examination was faulty, arbitrarily or capriciously

worded or graded, or that Respondent arbitrarily or capriciously

denied credit through a grading process devoid of logic or

reason. Espinoza v. Department of Business and Professional

Regulation , 739 So. 2d 1250, 1251 (Fla. 3d DCA 1999), citin g

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

1338 (Fla. 3d DCA 1986); State ex rel Glaser v. J.M. Pepper ,

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

Board of Electrical Contractors for Jacksonville Beach, Florida ,

101 So. 2d 583 (Fla. 1st DCA 1958). Petitioner did not satisfy

her burden of proof. Petitioner is not eligible for

certification as a Firefighter II. § 633.35(2); Fla. Admin.

Code R. 69A-37.056(6).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department of Financial Services enter

a final order denying Kim Lashawn Edmonds’ application for

certification as a Firefighter II.

DONE AND ENTERED this 16th day of April, 2010, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of April, 2010.

ENDNOTE

1/ References to chapters, sections, and subsections are to

Florida Statutes (2009), unless stated otherwise.

COPIES FURNISHED :

Regina M. Keenan, Esquire

Department of Financial Service

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399

Kim Lashawn Edmonds

2641 19th Street, South

St. Petersburg, Florida 33712

Julie Jones, CP, FRP, Agency Clerk

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399-0390

Honorable Alex Sink

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0300

Benjamin Diamond, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0307

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.