09-005264 Jeffrey Bates vs. Department Of Financial Services Status: Closed Recommended Order on Tuesday, April 20, 2010.

Summary: Petitioner failed to achieve a passing score on the firesafety inspection examination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEFFREY BATES, )

)

Petitioner, )

)

vs. ) Case No. 09-5264

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on February 26, 2010, in Orlando, Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Jeffrey Bates, pro se

Post Office Box 1399

Minneola, Florida 34755

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 in this case is whether Petitioner’s application

for certification as a firesafety inspector should be granted.

PRELIMINARY STATEMENT

Respondent, Department of Financial Services (Department),

issued Petitioner, Jeffrey Bates (Mr. Bates), a State Fire

Marshall, Bureau of Fire Standards and Training (Bureau)

Examination Grade Report, notifying Mr. Bates that he failed to

achieve a passing score for the firesafety inspector examination

given on June 27, 2009. Mr. Bates requested an administrative

hearing concerning the examination results, and the case was

forwarded to the Division of Administrative Hearings for

assignment of an Administrative Law Judge. The case was

originally assigned to Administrative Law Judge J.D. Parrish,

but was transferred to Administrative Law Judge Susan B. Harrell

to conduct the final hearing.

At the final hearing, Mr. Bates testified in his own

behalf. Petitioner’s Exhibits 1 through 4 were admitted in

evidence. The Department called Charles Brush as its witness.

Respondent’s Exhibits 1 through 5 were admitted in evidence.

The Transcript was filed on March 24, 2010. A corrected

Transcript was filed on March 26, 2010. At the final hearing,

the parties agreed to file their proposed recommended orders

within ten days of the filing of the Transcript. The Department

filed its Proposed Recommended Order on April 5, 2010. As of

the date of this Recommended Order, Mr. Bates had filed no post-

hearing submittals.

FINDINGS OF FACT

1. The Department is the state agency responsible for the

certification of firesafety inspectors in the State of Florida

pursuant to Chapter 633, Florida Statutes (2009). 1

2. In September 2008, Mr. Bates completed his coursework

for certification as a firesafety inspector. In November 2008,

Mr. Bates submitted an application for certification as a

firesafety inspector.

3. Sometime between November 19, 2008, and December 5,

2008, the Department notified Mr. Bates that the Department did

not have a copy of his high school diploma and the certificate

showing that course work for the building construction for the

fire service had been completed. On December 5, 2008, the

Department received documentation showing that Mr. Bates had

graduated from high school and had completed the course work for

the building construction for the fire service.

4. Scheduling a time to take the firesafety inspector

examination can be done online by going to the Pearson Vue

testing center website and entering the ID and password provided

by the Bureau. Mr. Bates attempted to schedule the examination

by telephone and was unsuccessful, but he did not attempt to

schedule the examination online. Sometime during January or

February 2009, Mr. Bates was able to obtain a date for the

examination.

5. Mr. Bates took the examination for firesafety inspector

certification for the first time on February 13, 2009. A

passing score on the examination was 70 percent. The Bureau

sent a notice to Mr. Bates that his score was 56 percent. The

notice of the test results advised that he could retake the

examination within six months of his test date of February 13,

2009, and that he could review his test questions by contacting

the Promissor at www.promissor.com.

6. On April 3, 2009, Mr. Bates contacted Charles Brush,

who was the standards supervisor for the Bureau, to schedule a

review of his examination taken in February. Mr. Brush was

responsible for the testing for certifications and renewals

issued by the Bureau. Due to miscommunications with the Bureau,

Pearson Vue testing center, and Mr. Bates, Mr. Bates was not

scheduled for a review of his examination until May 2009.

7. Mr. Bates reviewed his examination in May 2009;

however, after he had gone through the examination one time, he

was not allowed to again review the examination. This

restriction on the review process is designed to prevent

applicants from memorizing questions from the examination. Many

of the questions on the examination may be used again in another

examination.

8. Because of the communication issues concerning the test

review, Mr. Brush gave Mr. Bates an open-ended time extension to

retake the examination. Sometime between February 13, 2009, and

June 27, 2009, Mr. Bates took a weekend course to practice for

the examination.

9. On June 27, 2009, Mr. Bates retook the firesafety

inspector examination and again scored 56 percent, which was a

failing score. The notice of the test results provided that

“[s]hould you fail the retest or waive your right to a retest,

the only way to obtain certification is retake the course(s)

required, submit a new application for approval, and pass the

certification examination.”

10. Mr. Bates does not contest the scores that he received

on the examinations. He contends that he should be entitled to

be certified as a firesafety inspector due to the amount of time

that passed between the completion of his coursework in

September 2008 and the taking of the examinations in February

and June 2009. He was not able to retain coursework information

from September 2008, when he completed his courses, until

February 2009, when he first took the test.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat.

12. Subsection 633.081(2)(f), Florida Statutes, states

that certification as a firesafety inspector is conditioned on,

among other things, the passing of the firesafety inspector

certification examination. Florida Administrative Code

Rule 69A-39.007 requires that a minimum score of 70 percent is

necessary to pass the examination.

13. Mr. Bates bears the ultimate burden of proving his

entitlement to a firesafety inspector certification. Department

of Transportation v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st

DCA 1981). He must establish by a preponderance of the evidence

that he satisfied relevant statutory criteria to be certified as

a firesafety inspector.

14. In order to establish that he should be granted

certification, Mr. Bates must demonstrate that he received or

should have received a passing score on the examination. He

must show that the examination was faulty, arbitrarily or

capriciously worded or graded, or that he was arbitrarily or

capriciously denied credit through a grading process devoid of

logic or reason. Harac v. Department of Professional

Regulation , 484 So. 2d 1333, 1338 (Fla. 3rd DCA 1986); State ex

rel. I.H. Topp v. Board of Electrical Examiners for Jacksonville

Beach, Florida , 101 So. 2d 583 (Fla. 1st DCA 1958). Mr. Bates

has failed to meet this burden. His score on both examinations

was 56 percent, a failing score. He is ineligible for

certification as a firesafety inspector.

15. Mr. Bates’ contention that he should be granted

certification, regardless of his test score, is without merit.

There is no statutory provision that would allow Mr. Bates to be

certified without having received a passing score.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered denying

Mr. Bates’ request that he be certified as a firesafety

inspector.

DONE AND ENTERED this 20th day of April, 2010, in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 20th day of April, 2010.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2009 version.

COPIES FURNISHED :

Jeffrey Bates

Post Office Box 1399

Minneola, Florida 34755

Regina M. Keenan, Esquire

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399

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.