12-000006 Christie Beverly vs. Department Of Financial Services, Division Of State Fire Marshal Status: Closed Recommended Order on Monday, April 30, 2012.

Summary: Petitioner proved by a preponderance of evidence that the Department of Financial Services, Division of State Fire Marshal, failed to follow its own rule in administering a firefighter retest.

Case No. 12-0006

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTIE BEVERLY, RECOMMENDED ORDER )

)

Petitioner, )

vs. )

)

DEPARTMENT OF FINANCIAL )

SERVICES, DIVISION OF STATE )

FIRE MARSHAL, )

)

Respondent. )

)

)

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

March 12, 2012, via video teleconference with sites in Sarasota

and Tallahassee, Florida, before duly-designated Administrative

Law Judge Lynne A. Quimby-Pennock of the Division of

Administrative Hearings (Division).

APPEARANCES

For Petitioner: Christie Beverly, pro se

4207 Donnington Drive

Parrish, Florida 34219

For Respondent: Linje E. Rivers, Esquire

Department of Financial Services

200 East Gaines Street, 6th Floor

Tallahassee, Florida 32399

STATEMENT OF THE ISSUES

The issues are whether Petitioner, Christie Beverly, should

be certified as a firefighter or, in the alternative, whether

Petitioner should be allowed to re-take the Firefighter Minimum

Standards Practical Examination.

PRELIMINARY STATEMENT

In a letter dated October 18, 2011, Respondent, Department

of Financial Services, Division of State Fire Marshal

(Department), denied Petitioner's application to be certified as

a firefighter because she failed to receive a passing score on

the "Firefighter Minimum Standards Practical Retest." Petitioner

disputed the Department's determination and filed a timely

request for a formal administrative proceeding. 1/

On January 3, 2012, the Department referred this case to the

Division. On January 19, a Notice of Hearing was issued,

scheduling the hearing for February 23. An Amended Notice of

Hearing by Video Teleconference was issued on February 17, re-

scheduling the case to March 12. The undersigned was assigned

the case, and it proceeded to hearing on March 12, 2012.

At hearing, Petitioner testified on her own behalf and

presented the testimony of Eric J. Steves, Jeff A. Durling, and

Larry W. Schwartz, Jr. Petitioner offered her composite

Exhibit 1, which was admitted into evidence. The Department

presented the testimony of Dennis Hackett and Thomas M. Johnson

and offered Exhibits A through D, all of which were admitted into

evidence.

The one-volume Transcript was filed on March 26, 2012. The

Department requested to file its proposed recommended order (PRO)

14 days from the filing of the Transcript. The request was

granted, and both parties timely filed their PROs. Each PRO has

been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a candidate for certification as a

firefighter in the State of Florida.

2. The Department is the state agency responsible for

testing all candidates for certification as a firefighter, for

conducting such tests, and for issuing a certification upon the

successful completion of the minimum requirements by a candidate.

One such examination administered by the Department is the

Firefighter Minimum Standards Written and Practical Examination

(firefighter examination).

3. Petitioner successfully completed her firefighting

training at the Manatee Technical Institute (MTI).

4. Jeff Durling is an adjunct instructor at MTI, whose main

purpose is to get candidates prepared for the state firefighter

examination. During his particular MTI course, Mr. Durling's

students were taught the three main types of hose pulls: flat,

triple layer, and minuteman.

5. Larry W. Schwartz, Jr., is the fire science coordinator

of MTI. He oversees MTI's operations and is directly involved in

its curriculum. Although Mr. Schwartz is familiar with the

double minuteman hose pull, MTI has not taught it in the past

because that particular pull has not been tested.

6. The firefighter examination has a written portion, as

well as four practical evolutions or components (self-contained

breathing apparatus, hose operation, ladder operation, and

fireground skills). 2/ In order to be certified, a candidate has

to achieve a score of at least 70 percent on each component.

7. On Tuesday, June 14, 2011, at the MTI campus, Petitioner

successfully completed all portions of the firefighter

examination, except the hose component of the practical

examination. Petitioner conceded that she exceeded the maximum

time allowed to complete the hose component by eight seconds.

8. At some point, Petitioner was notified that she did not

receive a passing score on the hose component in the June 2011

firefighter practical examination. Petitioner was advised she

could take the Firefighter Minimum Standards Practical Retest

(retest) within six months of the June 2011 firefighter

examination. Petitioner was required to successfully complete

the retest or she would be required to re-take the firefighter

course before she could take the test again.

9. On Friday, September 23, 2011, Petitioner presented for

her retest at the Florida State Fire College (Fire College) in

Ocala, Florida. Petitioner arrived by 7:30 a.m. for her retest.

There were over 40 3/ candidates present to take either an original

firefighter practical test or a retest. The retest course was

not ready at 7:30 a.m.

10. On September 23, 2011, Eric Steves was also a retest

candidate at the Fire College. Mr. Steves observed that the

retest course was not set up when he arrived at 7:30 a.m.

Further, he observed that the retest course was slightly

different than the original practical test course in June 2011.

There was no walk-through of the retest course prior to starting

it, because the retest course was set up after the other

candidates took their test and bad weather was approaching.

Although Mr. Steves did not pass his retest, his testimony is

credible as he has no vested interest in the outcome of this

proceeding.

11. Dennis Hackett is the standards supervisor with the

Department's Bureau of Fire Standards and Training (Bureau).

Mr. Hackett has administered and scored the minimum standard

firefighter examination for candidates, including the retest

examination. The majority of the candidates were given another

practical test, not the retest administered to Petitioner.

Mr. Hackett confirmed that the retest course was not ready at

7:30 a.m. on September 23, 2011. The Fire College was capable

and did have the equipment to set up two different hose load

courses. It is apparent that the Fire College adheres to a

strict protocol in the administration of the firefighter testing;

yet, it was not adhered to on September 23, 2011.

12. There was a change to the practical testing component

of the firefighter examination being implemented. The majority

of the candidates on September 23, 2011, took a different

practical test than the retest administered to Petitioner and

Mr. Steves.

13. Thomas M. Johnson has been a field representative for

the Department's Bureau for seven years. As a field

representative, Mr. Johnson has administered and scored numerous

firefighting examinations and retest examinations.

14. Mr. Johnson testified that Petitioner's retest course

"would be set up when we were done with the rest of the

students." He further testified that the retest course "would be

set up when we were done with the other students who were taking

the new evolutions." Although Mr. Johnson testified that

Petitioner's retest was administered in a uniform manner, the

credible evidence supports the position that the retest was not

conducted following the strict protocol of the Fire College. For

Petitioner's retest, the course barrels were held in place by

field instructors. Petitioner questioned Mr. Johnson regarding

their participation, asking: "Is that standard practice?"

Mr. Johnson's response of "It was that day," lends credence that

it was not standard practice or part of the uniform retest

protocol. Further, Mr. Johnson's testimony that Petitioner was

"in a hurry" to complete her retest is illogical. Petitioner

waited for 40 or more candidates to test before her, and then she

had to wait for the retest course to be assembled before she

could attempt the course.

15. There was a great deal of discussion about the type of

hose pull required during the retest examination. There was no

clear definition of a minuteman hose load or a double minuteman

hose load. 4/ Whether or not the hose pull was a minuteman or a

double minuteman is irrelevant as the retest course was not

prepared or set up by 7:30 a.m. as required by the Department's

own rule.

16. Mr. Johnson scored Petitioner on the retest

examination. The score sheet used on the practical retest

examination portion reflected three types of Hose Advancements:

Flat Load, Triple Layer Load, and Minuteman Load. (An option to

pull a double minuteman load is not printed anywhere on the score

sheet.) Further review of the Department's score sheet reveals

that someone wrote "4 LR" 5/ out beyond the phrase: " Hose

Advancement (1¾") ~~ Maximum Time 1:25." This phrase, "4 LR," is

purported to mean that Mr. Johnson:

asked her [Petitioner] to pull the left-side

pre-connect, knock down the cone on the left

first and then the cone on the right. And

the reason it's above the minuteman is

because that's the load she pulled, but it

was not a minuteman.

This "4 LR" phrase is well above the blank line found beside the

words "Minuteman Load." The undersigned does not accept the

"4 LR" phrase as an indication that the "double minuteman" hose

pull was the retest examination option. Further, the score sheet

also has blanks to be filled in by the scorer following the

phrase: "Your target sequence is RT/Left ___ or Left/RT ___."

However, the scorer did not fill in either blank. At the bottom

of the page, there is an empty blank following "Candidate #,"

making it uncertain to whom this score sheet applies. On the

score sheet, there is a written time of "2:39," the word "Fail"

is circled, and there is a zero beside the "Score." The score

sheet appears to be incomplete at best.

17. Mr. Johnson was asked to confirm whether or not a

double minuteman load was listed on the score sheet, and he

confirmed that the phrase "double minuteman" load was not on the

score sheet. The words "double minuteman" do not appear on the

score sheet, nor is the type of hose load identified. It is

impossible to determine what hose load Petitioner was directed to

pull during her retest.

CONCLUSIONS OF LAW

18. 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. (2011). 6/

19. The Department has jurisdiction over firefighter

training and certification in the State of Florida pursuant to

chapter 633, Florida Statutes.

20. Petitioner is a candidate for certification as a

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

asserting the affirmative of an issue before this administrative

tribunal, Petitioner has the burden of proof. Fla. Dep't. of

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

asserting the affirmative of issue in administrative hearing has

burden of proof). Petitioner must prove that the Department

improperly denied her application for certification as a

firefighter. Her proof must establish facts by a preponderance

of the evidence. Dep't of Banking & Fin. v. Osborne Stern & Co. ,

670 So. 2d 932 (Fla. 1996); § 120.57(1)(j), Fla. Stat.

21. Section 633.35 provides the statutory framework for

firefighting training and certification. In pertinent part it

reads:

(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. Nothing herein shall require a

public employer to pay the cost of such

training.

(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 reexamined.

The division may establish reasonable

preregistration deadlines for such

reexaminations.

22. The Department has adopted rules governing the testing

of firefighters. Florida Administrative Code Rule 69A-37.062

establishes standards to be followed in the testing or retesting

of applicants. The rule provides, in pertinent part:

(2) Preparation for Examination.

(a)aining center staff shall have the

apparatus and all equipment necessary for

testing ready not later than 0730 hours on

the morning of the state examination.

* * *

(b) Training center staff shall have the

participants present and prepared for testing

not later than 0730 hours

on the morning of

the state examination.

(c) In the event of extreme or hazardous

weather conditions that have the potential to

compromise the effectiveness of the

examination or expose the participants to

injury, the examiner shall have full

authority to postpone the examination to

another date to be determined by the Bureau.

(3) Examination Sequence.

(a)1. Each participant shall be prepared to

take any segment of the examination at any

time during any day set for testing.

2. The weather and number of participants

will be considerations that can alter the

examination sequence.

(b) The examiner is permitted to administer

the examination in any sequence the examiner

deems necessary.

* * *

(6) Makeup Examinations.

(a) Retests of written examinations are

given quarterly at Regional Testing sites.

(b) Retests of practical examinations or

retests of written and practical examinations

are given quarterly at the campus of the

Florida State Fire College.

(c) The retest of the Minimum Standards

State Certification Examination must be taken

within 6 months of the initial examination

date. (emphasis added).

23. The Department has also adopted rules governing the

training and certification of firefighters. Rule 69A-37.056 sets

forth the testing parameters for firefighter candidates.

7/

Subsection (6) of that rule states in pertinent part:

(6) Each subject area within the Minimum

Standards Course will be tested to validate

the acquisition and application of relevant

knowledge and skill. All subject area and

final tests, both written and practical,

given during the Minimum Standards Course

shall require maintenance of a percentage

score of not less than 70% on each subject

listed in the Minimum Standards Course. 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

required 70%. Students not in compliance

with the minimum score requirement shall be

dropped from the course.

* * *

(b) State examinations, consisting of a

written and a practical part, shall be

administered by a Field Representative of the

Bureau, or designee, and shall encompass all

components of the Minimum Standards Course.

The applicant must attain a score of

70 percent on both the written and practical

examinations to receive a certificate of

compliance.

(c) The state practical examination will be

administered at the local training facility.

Whenever possible, the Bureau will schedule

the state examination date at the convenience

of the training facility. . . .

24. Petitioner must prove that the retest was arbitrary,

capricious, or not set up in accordance with the Department's

rules. Petitioner did so. The testimony from Petitioner,

Mr. Steves, and the Department's own witnesses prove, by a

preponderance of the evidence, that the retest course was not set

up in accordance with the Department's rules, even though the

Department had the ability and equipment to do so. Thus, the

course was not ready at 0730 hours as required by the

Department's own rule.

25. There is no language in the Department's rule that

allows a candidate to waive a Department rule. Further, the

overall conditions for the retest appear to be outside the

standard protocol for a retest to be adequately conducted.

Hence, Petitioner was deprived of taking her retest in accordance

with the Department's rule.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Financial Services,

Division of State Fire Marshal, enter a final order granting

Petitioner's request to retest on the hose component of the

practical portion of the firefighter examination and that

Petitioner should be tested as if she were taking the retest

within the six-month window for the retest.

DONE AND ENTERED this 30th day of April, 2012, in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY-PENNOCK

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 30th day of April, 2012.

ENDNOTES

1/ Petitioner testified that she got the Department's notice on

November 28, 2011.

2/ There are three timed components to the practical examination.

However, the practical examination results score sheet has four

specific components that are graded.

3/ No one disputed that there were over 40 people present to take

either the test or retest on September 23, 2011.

4/ There is no definition of a minuteman or double minuteman hose

load in either chapter 633, Florida Statutes (2011), or Florida

Administrative Code Chapter 69A.

5/ Mr. Johnson testified about the score sheet by pointing and

stating "up at the top of the minute man load, there is an arrow

with a slash, and then LR."

6/ All references to Florida Statutes are to the 2011 version,

unless otherwise indicated.

7/ The Department cited rule 69A-37.0527(7) for the premise that

if a candidate for certification fails to complete the

examination within the applicable time limits, the candidate must

successfully complete the firefighter training course again,

before applying. However, this specific rule (69A-37.0527)

details the retention of a certification and is not applicable to

the case at bar. This case deals with the first-time

certification of a candidate.

COPIES FURNISHED:

Linje E. Rivers, Esquire

Department of Financial Services

200 East Gaines Street, 6th Floor

Tallahassee, Florida 32399

Christie Beverly

4207 Donnington Drive

Parrish, Florida 34219

Julie Jones, CP, FRP, Agency Clerk

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399-0390

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.