10-007420 Christopher Dinapoli vs. Department Of Financial Services Status: Closed Recommended Order on Thursday, December 9, 2010.

Summary: Scoring of portion of practical exam was arbitrary and capricious. Candidate for certification should be permitted to re-take exam.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTOPHER DINAPOLI , )

)

Petitioner , )

)

vs. ) Case No. 10 - 7420

)

DEPARTMENT OF FINANCIAL )

SERVICES , )

)

Respondent . )

)

RECOMMENDED ORDER

On October 15, 2010, a hearing in this case was conducted

by video teleconference in Tallahassee and Sarasota, Florida, by

William F. Quattlebaum, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Guy E. Burnette, Jr., Esquire

3020 North Shannon Lakes Drive

Tallahassee, Florida 32309

For Respondent: James Bruce Culpepper, Esquire

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399

STA TEMENT OF THE ISSUE

The issue in this case is whether the Respondent,

Department of Financial Services, properly denied the

application for firefighter certification filed by the

Petitioner , Christopher Dinapoli.

PRELIMINARY STATEMENT

The Petitioner is seeking to become certified as a

firefighter by the Division of the State Fire Marshall, a unit

within the Florida Department of Financial Services.

By letter dated March 26, 2010, the Respondent notified the

Petitioner that on March 25, 2010, he failed to achieve a

passing score on the practical skills examination. The

Petitioner disputed the test re sults and requested a hearing.

On August 11, 2010, the Petitioner forwarded the request to

the Division of Administrative Hearings, which sc heduled and

conducted the proceeding.

At the hearing, the Petitioner testified on his own behalf,

presented the testimony of three additional witnesses, and had

Exhibits 2 through 15 admitted into evidence. The Respondent

presented the testimony of three witnesses and had Exhibits A

through D admitted into evidence. The T ranscript of the hearing

was filed on November 2, 2010. Both parties filed Proposed

Recommended Orders that have been considered in the preparat ion

of this Recommended Order.

Prior to th e hearing, the parties filed a stipulation of

admitted facts that have been fully adopted and which are

incorporated as necessary herein.

FINDINGS OF FACT

1. The Petitioner is a candidate for certification as a

firefi ghter in the State of Florida.

2. Can didates for such certification are required to

complete a Minimum Standards Course and to pass a two - part test

that includes a written portion and a practical skills

examination. A candidate is permitted to take the test twice

before being required to re - take the Minimum Standards Course

a nd re - apply for certification.

3. The practical skills examination, administered by the

Florida State Fire College (Fire College) under the Division of

the State Fire Marshall, includes four components: self -

contained b reathing apparatus, hose operation, ladder operation,

and fireground skills. Field representatives of the Fire

College observe and score the candidate ' s performance in the

practical skills exa mination.

4. On February 16, 2010, the Petitioner took the pra ctical

skills examination at the Sarasota County Technical Institute

and received a grade of "fail" on the hose operation an d ladder

operation components.

5. The Petitioner's failure to pass the two components was

documented by the Fire College field repr esentative by notations

on the Petitioner's score sheet.

6. The Petitioner asserts that the assignment of the

"fail" grade on February 16, 2010 , was erroneous. The field

representative who observed the Petitioner on February 16, 2010 ,

testified that the Petitioner failed to extend the ladder

properly. The field representative's testimony was clear and

persuasive and has been credited.

7. On March 25, 2010, the Petitioner retook the hose

operation and ladder operation components at th e Fire College.

The Petitioner received a grade of "pass" on the hose operation

component and a grade of "fail" on the ladder operation

component.

8. Successful completion of the ladder operation component

requires a candidate to fully extend the ladder at the correct

position and to complete the operation (including retrieval and

positioning of the ladder) in a time not exceeding two minutes

and 20 seconds (2:20).

9. The Petitioner's failure to pass the ladder operation

component was documented by the F ire College field

representative by notation on the Petitioner's score sheet.

10. The Petitioner asserts that the assignment of the

"fail" grade on March 25, 2010 , was erroneous. The field

representative who observed the Petitioner on March 25, 2010 ,

tes tified at the hearing that the Petitioner exceeded the 2:20

time allotted for completion of the ladder operation. The field

representative's testimony as to the administration of the test

lacked c larity and was not persuasive.

11. The March 25, 2010 , sco re sheet for the ladder

operation portion of the test was altered at some point after

the completion of the test process. The time recorded on the

score sheet was initially marked as "2:00 , " and a "3" was

subsequently written over the "2." The field repr esentative's

testimony about the circumstances of the alteration lacked

clarity sufficient to establish that either notation was

reliable.

12. Additionally, the candidate identification number

within the Petitioner's score sheet package was stated

inconsi stently. The cover sheet of the Petitioner's score sheet

package identified the Petitioner as Candidate No. 4, but the

"4" was crossed out and a handwritten "3" was written on the

cover sheet. The candidate number on the Petitioner's score

sheet was hand written as Candidate No. 3.

13. The Petitioner asserted that he successfully completed

the ladder operation within the allotted time on March 25, 2010,

and offered anecdotal testimony in support of the assertion. No

other timing device was utilized durin g the ladder operation

test, as the Respondent prohibits any use of timing devices by

persons other than the field represen tative administering the

test.

14. While i t i s reasonable to presume that, given the

level of training by all participants in the te sting process, a

difference of 60 seconds in test completion time would be

perceptible, the Petitioner's anecdotal evidence was

insufficient to establish that the ladder operation test was

compl eted within the allotted time.

15. There was no credible evid ence, other than as stated

herein, that the Respondent failed to comply with the procedures

adopted by rule that govern the certification process.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties to and subj ect matter of this

proceeding. §§ 120.569 and 120.57, Fla . Stat . (2010).

17. The Respondent is responsible for training and

certification of firefighters in the State of Florida.

§ 633.35, Fla . Stat . (2010).

18. In a challenge to the results of a lice nsure

examination, the applicant has the burden of establishing the

material allegations of the challenge by a preponderance of the

evidence. Department of Transportation v. J. W. C. Company,

Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981). In order to prevail,

the Petitioner must show that the scoring was arbitrary and

capricious or constitutes an abuse of discretion. Espinoza v.

Department of Business and Professional Regulation , 739 So. 2d

1250 (Fla. 3d DCA 1999); State ex rel. Glasser v. J.M. Pepper ,

155 So . 2d 383 (Fla. 1st DCA 1963); and Topp v. Board of

Electrical Examiners , 101 So. 2d 583 (Fla. 1st DCA 1958).

19. In this case, the burden has been met as to the

administration of the ladder operation component of the

practical skills examination on March 25, 2010. The score sheet

on which the referenced exam results were recorded was

materially altered at some point after the test results were

recorded. The score initially recorded would have resulted in a

grade of "pass." The alteration of the score re sulted in a

grade of "fail." The field representative's testimony about the

time and place of the alteration was inconsistent, lacked

credibility , and has been rejected.

20. A capricious action is one which is taken without

thought or reason or irrationally. An arbitrary decision is one

not supported by facts or logic, or despotic. Agrico Chemical

Co. v. State Department of Environmental Regulation , 365 So. 2d

759 , 763 (Fla. 1st DCA 1978), cert. den. , 376 So. 2d 74 (Fla.

1979). The field representative's determination of the

Petitioner's grade on the referenced ladder operation test was

capricious and arbitrary.

21. A candidate for firefighter certification who does not

ini tially achieve a successful score on all portions of the

p ractical e xamination is provided one opportunity to re - take the

portion(s) of the examination not successfully completed. See

Fla . Admin . Code R . 69A - 27.056(6). Based thereon, the following

reco mm endation is set forth.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Financial Services

issue a f inal o rder invalidating the results of the March 25,

2010 , ladder operation test adm inistered to the Petitioner and

permitting the Petitioner one opportunity to re - t ake the ladder

operation test.

DONE AND ENTERED this 9th day of December, 2010 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of December , 2010 .

COPIES FURNISHED :

Guy E. Burnette, Jr., Esquire

3020 North Shannon Lakes Drive

Tallahassee, Florida 32309

James Bruce Culpepper, Esquire

Department of Financial Services

Di vision of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399

Julie Jones, CP, FRP, Agency Clerk

Department of Financial Services

Division of Legal 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.