13-001643 Catalina Williams vs. Department Of Financial Services, Division Of State Fire Marshal Status: Closed Recommended Order on Tuesday, November 19, 2013.

Summary: The Department relied upon an unadopted rule when denying Petitioner's certification as a firefighter.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CATALINA WILLIAMS ,

Petitioner ,

vs. Case No. 13 - 1643

DEPARTMENT OF FINANCIAL

SERVICES, DIVISION OF STATE FIRE

MARSHAL ,

Respondent .

/

RECOMMENDED ORD ER

Pursuant to notice to all parties, the final hearing was

conducted in this case on October 17, 2013, in St. Augustine,

Florida, before Administrative Law Judge R. Bruce McKibben of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Seth D. Corneal, Esquire

The Corneal Law Firm

904 Anastasia B oulevard , Suite B

St. Augustine, Florida 32080

Robby T. Cook, Esquire

5547 A1A South, Suite 111

St. Augustine, Florida 32380

For Respondent: Bruce A. M innick, Esquire

Michael H. Davidson, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Department of

Financ ial Services, Division of State Fire Marshal (the

Department), properly administered and graded the Firefighter

Minimum Standards practical examination taken by Petitioner,

Catalina Williams (hereinafter Williams).

PRELIMINARY STATEMENT

By letter dated Apr il 4, 2013, Williams was notified by the

Department that she had not passed the firefighter minimum

standards examination (hereinafter referred to as the State

certification exam) she had taken on February 7, 2013. Williams

timely filed a request for form al administrative hearing to

contest the DepartmentÓs decision. Subsequently, Williams filed

a rule challenge petition, claiming that the process utilized to

grade her firefighter exam was in fact an unadopted rule. The

parties did not agree to consolida tion of the rule challenge

(DOAH Case No. 13 - 3689RU) with the instant proceeding and the

Administrative Law Judge allowed the cases to remain separate. A

formal hearing in the above - styled case was held at the date and

time set forth above. The parties t hereafter agreed to have Case

No. 13 - 3689RU placed in abeyance pending entry of a Recommended

O rder in this case.

At the final hearing in this matter, Williams presented the

testimony of five witnesses: Richard Rochford, safety programs

manager for the Department; Fred Lanier, retired fire chief;

Thomas Johnson (via deposition transcript excerpts); Ken Harper

(via deposition transcript excerpts); and Catalina Williams.

PetitionerÓs E xhibits 1, 5, 8 , and 9 were admitted into evidence.

The Department cal led Dennis Hackett, Richard Rochford, and

Catalina Williams. One exhibit was accepted into evidence from

the Department.

The parties advised that a transcript of the final hearing

would be ordered. By rule the parties have ten days from the

date the tran script is filed to file proposed recommended orders

(PROs). The transcript was filed at DOAH on November 4, 2013,

making the PROs due on November 1 4, 2 01 3 . Each of the parties

filed its PRO and each was duly considered in the preparation of

this Recommen ded Order.

FINDINGS OF FACT

1. The Department is the state agency charged with the

responsibility for testing, monitoring and certifying

firefighters. The Department conducts certification examinations

at the Florida State Fire College in Ocala, Florida, and some

thirty - plus other sites around the State. Those sites are

located on college campuses, training facilities, fire stations ,

and other locales. The test at issue in this proceeding was

administered at the Fire College site.

2. Catalina Williams is an Hispanic woman who desires to

become a certified firefighter. Her interest in firefighting

began when she worked as a photographer covering fire - related

events for a magazine and thought it would be exciting and

interesting to be on Ðthe front line .Ñ Williams has also served

as a caregiver, giving her experience in providing assistance to

others, and is a certified lifeguard. In order to accomplish her

goal of becoming a firefighter, Williams entered into schooling

to learn the trade.

3. Williams first attended First Coast Technological

College (First Coast) in 2009. She completed the Firefighter

Minimum Basic Standards Course (Firefighter I) that year. In

2010, she enrolled at the school for the summer semester to begin

training in the advanced (Firefighter II) curriculum. That

school term was shorter and more compressed than a regular

semester. Despite her best efforts, Williams did not

successfully complete the Firefighter II course. Rochford was

one of her instructors during her first unsu ccessful enrollment

at First Coast.

4. In 2012, Williams entered First Coast again. At that

time, she was working as a paid volunteer firefighter for Volusia

County. The county paid her tuition costs at First Coast when

Williams entered the school for t he Firefighter II course work.

The second time, Williams was able to successfully complete the

course material and pass her final examination. Passing the

final examination was a prerequisite to taking the State

certification exam.

5. While attending Fi rst Coast, Williams took hundreds of

practice exams, especially on the practical portions of the

tests. She took exams as part of her classes, took exams

voluntarily with someone timing her, and took exams just to

practice.

The State Certification Exam

6. There are four primary segments of the State

certification exam:

A written examination of 100 multiple

choice questions;

A hose evolution involving a self -

contained breathing apparatus (SCBA) and

personal protection equipment (PPE);

A ladder/search a nd rescue evolution;

and

A skills portion, involving ropes and

knots, two fire ground skills, and a

short test on the emergency response

guide (ERG).

7. The ladder/search and rescue evolution is a practical

portion of the exam; it is the singular portio n of the test at

issue in this proceeding and will be referred to as the ladder

evolution. The ladder evolution portion consists of the

following tasks and assignments: The candidate inspects ladders

hanging on a simulated fire truck. He or she then tak es a

24 - foot ladder from the truck and extends it against the wall of

a building up to the second floor. Once that ladder is properly

hoisted, the candidate confirms that a ladder guard (another

candidate acting as a spotter) has control of the ladder . The

candidate then initiates radio contact and then walks quickly

around the building to another ladder that is already in place.

He/she must ascend the ladder to the second floor, test the floor

inside the building to make sure it is safe, and enter t he

building through a window. Upon entry the candidate must find a

ÐvictimÑ (a 125 - pound mannequin) on the lower floor, secure the

victim in an approved manner, and then exit the building with the

mannequin. Upon exit, the candidate must safely deposit t he

victim on the ground and provide notice by way of radio contact

that he/she and the victim are outside the building. The radio

transmission is something along the lines of: ÐPAR 2 [Personnel

Accountability Reporting, two people]. Firefighter No. ÐXÑ and

victim have safely exited the building.Ñ The entire ladder

evolution sequence must be done within four minutes and 30

seconds although, as will be discussed below, there are

differences of opinion as to when the timed portion of the

evolution ends.

8. I t is necessary for candidates taking the test to pass

each of the four sections. Failure of any one portion would

result in failure overall. Should a candidate fail the

examination, they must reschedule their retest within six months

of the failed tes t. All retest examinations are administered at

the Fire College.

9. On test day, there may be dozens of applicants taking

the test at the same time. The procedure dictates that

candidates arrive at the test facility in time to process

paperwork prior to the 7:30 a.m. , test commencement. Candidates

must first provide identification to an instructor and be

assigned a candidate number. They then fill out paperwork,

including a waiver should any injuries occur during testing.

Candidates will have their gear inspected to make sure it is in

compliance with State standards.

10. Prior to commencement of testing, one of the

instructors or examiners will read a document called the ÐMinimum

Standards Pre - Exam OrientationÑ (the Orientation) to the

candidates. During the reading of the Orientation, which may

take 45 minutes to an hour or more, candidates are allowed and

encouraged to ask questions. Unless a question is asked, the

Orientation will be read verbatim, word for word, with no

additional comment. A fter the Orientation is read, candidates

are walked through the facility so they can familiarize

themselves with the test site. Once the test commences,

candidates are not allowed to ask any questions.

WilliamsÓ Test Experience

11. In October 2012, afte r successful completion of the

Firefighter II course at First Coast, Williams applied for and

was approved to take the State certification examination. The

exam was conducted at First Coast on the schoolÓs training

grounds. The test was conducted by cert ified employees of the

Department. Williams did not pass the examination. One of her

shortcomings in that test was a failure in the ladder evolution.

Her timed completion of that evolution was in excess of the

required time of four minutes and 30 second s.

12. Williams had been confident she would pass the

certification exam because it was similar to the final exam she

had passed at First Coast during her schooling. She believes she

failed because she was too nervous when she took the exam when it

was administered as the actual State certification test.

13. After failing the exam, Williams then applied for a

retest which would be held at the Fire College on February 7,

2013. That re - test is the focus of the instant proceeding.

14. On the morning of the retest, Williams arrived well in

advance of the 7:30 a.m. , start time. As she inspected her gear

in anticipation of the start of the exam, she found that the SCBA

regulator she was supposed to use did not properly fit the face

mask on her helmet. Th ere were extra regulators behind one of

the tables being used to process applicants for that dayÓs test.

Examiner Harper was sitting at that table and was providing

paperwork to applicants who had already signed in at the first

processing station. Willia ms went to HarperÓs table and was

allowed to obtain a new regulator. Inasmuch as she was already

at HarperÓs table getting her replacement regulator before going

to the first processing station, Williams went ahead and filled

out the paperwork Harper was providing to candidates at his

processing station. That is, she filled out the paperwork before

actually checking in at the first station.

15. Williams then went to the first check - in table which

was manned by Examiner Rochford. She provided her identif ication

to Rochford and was assigned candidate number 37. Rochford then

told Williams to go to HarperÓs table to fill out the paperwork

at that station. Williams told Rochford she had already done so

and walked away. (At that point, Williams remembers R ochford

yelling at her, asking whether she understood his order and

telling her in a harsh manner to obey him. Rochford does not

remember talking to Williams at all. Neither version of this

alleged confrontation is persuasive. Inasmuch as the

conversati on was not verified one wa y or another by a third

person -- although there were probably a number of other people

around, it will not be considered to have happened for purposes

of this Recommended Order.)

16. The Orientation was then read to the candid ates. The

various portions of the test were addressed in the Orientation.

The ladder evolution contained the following language, which

Rochford read verbatim to the candidates without anything added

or deleted: ÐTime starts when you touch anything. Tim e ends

when the candidate and victim fully exit the building.Ñ There

is no evidence that any of the candidates asked a question

concerning this part of the Orientation.

17. RochfordÓs timing policy regarding the ladder evolution

differs from what he rea d to the candidates. He takes the

position that time stops when the candidate exits the building

with the victim, places the victim on the ground in an

appropriate manner, and issues a verbal statement into the radio

indicating that the firefighter and vi ctim are out of the

building. By his own admission, Rochford could not speak to how

other examiners handle this timing issue. Harper, who was

WilliamsÓ assigned examiner on the test, also seemed to require

candidates to lay the victim down and make radio contact before

stopping the time. Neither Rochford nor Harper satisfactorily

explained why their timing policy was different from what was

stated in the orientation.

18. The testimony concerning the correct way of timing the

evolution was, at best, conf using. The following statements from

the record provide contradictory and disparate opinions by

various examiners:

Rochford : ÐAs soon as they lay the mannequin

on the ground [and] announce they have exited

the building . . . the time stops.Ñ Tr. p.

45, lines 9 - 18

ÐThe mannequinÓs feet have got to be

outside the plane from the door opening.

ThatÓs when the time stops.Ñ Id. Lines 23 -

25.

ÐUntil they talk on the radio is Î -

when they finish talking on the radio is when

the time would stop.Ñ Tr. p. 255, lines 7 - 9.

Johnson : ÐAt that point, theyÓll use one of

the prescribed methods for rescue to take the

victim and themselves past the threshold out

to the fresh air. At that point, the time

stops.Ñ Tr. p. 111, lines 11 - 14

ÐI read [the Orientation] word for

word.Ñ Tr. p. 114, line 23

ÐOn the ladder rescue evolution . . . we

[examiners] all stop when they pass the

threshold.Ñ

Harper : ÐThen theyÓre told to lay the victim

down, make radio contact youÓre out of the

building. Time stops.Ñ Tr. p. 138, lin es 7 - 8

ÐAfter they make radio contact.Ñ Tr. p.

147, line 3

Ð[Orientation] says time starts when

they touch anything, time ends when the

candidate and the victim fully exit the

building.Ñ Tr. P. 148, lines 15 - 17

Hackett : ÐIt stops when the victim come s out

of the building.Ñ Tr. p. 222, lines 7 - 8

[If the victim was thrown out of the

building by the firefighter] ÐI think they

would stop the clock.Ñ Id., lines 9 - 11

ÐIt is part of the timed part that they

have to designate that theyÓre out of the

build ing safely and lay down the victim.Ñ

Tr. pp. 222, line 24 through 223, line 1

Question to Hackett: ÐIf [Williams] is

coming out and she dropped the victim and

picked up -- and presumably picked it up or

whatever and then radioed, would that add

time?Ñ Answer: ÐNo.Ñ Tr. p. 246, lines 5 -

10

19. Williams was timed by Harper when she took the ladder

evolution portion of the exam. According to HarperÓs

(deposition) testimony, he subscribes to the version of timing

that requires the victim to be laid down on the ground and the

firefighter to make radio contact. Using that version of timing,

Williams received a time of four minutes and 35 seconds for the

entire ladder evolution portion of the test.

20. In March, the Department mailed out notices to all the

candidates that had tested on February 7. Notices of failure

were sent by registered mail, return receipt requested.

WilliamsÓ letter was returned to the Department as unclaimed.

21. Williams at some point in time found out from Chief

McElroy, head of the Fire Academy, that she had purportedly

failed the exam. She began calling examiner Harper in March

seeking to find out what portion of the exam she had not

successfully completed. She had at least two telephone

conversations with Harper in March 2 013.

22. On April 4, 2013, the Department re - sent the failure

letter to Williams, again by certified mail. This time, the

letter was claimed by Williams and she became officially aware

that she had not passed the exam.

23. The basis given for WilliamsÓ failure was that she did

not complete the ladder evolution within the prescribed time

parameters. She was timed at four minutes and 35 seconds, just

five seconds beyond the allowable limit. It is her contention

that she exited the building with the vict im within the four

minute/30 second time frame. The basis for her belief is that

she has done the test so many times that she knows when she is

behind schedule. During the test she did not stumble, drop any

equipment, or have any other problem that would have added to her

time. So, she concludes, she must have completed the evolution

timely. Her personal feelings on the matter, without further

corroboration or support, are not persuasive.

24. Harper did not testify at final hearing. The

transcript of his deposition taken in this case was admitted into

evidence. In that transcript, Harper talks about his policy

regarding timing of the evolution. His policy is the same as

RochfordÓs and is discussed above. He does not specifically say

if he employed t hat policy when timing Williams during her test

on February 7, 2013. He does not explain the difference between

the Orientation statement about timing and his personal policy.

25. The most persuasive evidence at final hearing

established that it would ha ve taken ten to 15 seconds after

exiting the building to lay the victim down and make radio

contact. The radio contact itself would have taken about four

seconds. If Harper had stopped his timing when Williams and the

victim broke the threshold of the bu ilding, her time would have

likely been less than four minutes and 30 seconds. If he used

his personal timing policy, then the time of four minutes/35

seconds was probably accurate.

26. Harper deducted points from WilliamsÓ score because of

other minor m istakes. The totality of those points would not

have caused Williams to fail the test. It was the ladder

evolution time that caused the failure.

27. In fact, Williams successfully completed all portions

of the re - test except for the timing issue in the ladder

evolution portion.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

jurisdiction over this matter pursuant to section 120.57(1),

Florida Statutes . Unless specifically stated otherwise herein,

all references to Florida Statutes will be to the 2013 version.

29. Section 633.128, Florida Statutes, sets forth the

powers and duties of the Division of State Fire Marshal. That

statute requires the Department to establish, by rule, uniform

minimum standards for the training of firefigh ters. Pursuant to

that statute (or its predecessor, section 633.45), the Department

created Florida Administrative Code Rule 69A - 37.062, entitled

Procedures for State Firefighter Certification Examination Day

(the ÐRuleÑ).

30. The Rule sets forth the pr ocess and procedure to be

followed by candidates for certification. The Rule addresses the

testing facility, the equipment to be used, clothing to be worn,

and many general procedures for the examination. Candidates are

even told, via rule, what time to appear at the testing site.

The only references to ÐtimingÑ in the Rule is in section (5)(c),

which states:

1. The individual practical examinations are

timed separately but the participant shall be

prepared to begin upon reporting for each

segment.

2. If a participant delays, the examiner

shall inform the participant that the time

will begin.

31. In these kinds of cases, the Petitioner has the burden

of proof. See Fla. Dep't of Transp. v. J.W.C. Co. , 396 So. 2d

778 (Fla. 1st DCA 1981). Williams must prove by a preponderance

of the evidence that she did pass the practical examination or

that the Department improperly graded or scored her exam. See

Dep ' t of Banking & Finance Div. of Securities & Investor

Protection v. Osborne Stern & Co. , 670 So. 2d 932, 934 (Fla.

1996).

32. The hearing is "a de novo proceeding intended to

formulate agency action, and not to review action taken earlier

or preliminarily." Beverly Enterprises - Florida, Inc. v. Dep't of

Health & Rehab. Servs. , 573 So. 2d 19, 23 (Fla . 1st DCA 1990).

It was therefore necessary to take evidence as to the totality of

the testing procedure.

33. The evidence concerning the primary issue in this case

is scant. The dispute revolves around the question of when the

examiner should have stop ped the clock during the ladder

evolution portion of the exam. No textbook or treatise on

firefighting exam standards was offered into evidence to

establish the proper standard for timing an exam. The testimony

by various examiners was conflicting and co nfusing. If Harper

properly stopped the clock when Williams finished her radio

contact upon exiting the building, then Williams has no credible

evidence to refute her time of four minutes and 35 seconds.

Conversely, if Harper should have stopped the clock when Williams

exited the building with the victim, then the time of four

minutes and 35 seconds is suspect. Her time would have been 10

or 15 seconds less than what Harper recorded.

34. There is no written rule which addresses the issue of

when an exami ner should stop the clock during a ladder evolution.

The Orientation states that it will be when the candidate and

victim Ðfully exit the buildingÑ and the Orientation is the only

written statement offered by the Department to support its

testing process.

35. Based upon the facts alone, the evidence is that

Williams more likely than not exited the building with the victim

within the prescribed time frame of four minutes and 30 seconds.

However, the Department relied upon an unadopted rule, i.e., oral

co mments by examiners that a candidate will have completed the

ladder evolution only upon depositing the victim on the ground

and making radio contact. That unwritten rule, which is contrary

to the Orientation which was read to all candidates, cannot be

rel ied upon to base the DepartmentÓs action vis - à - vis candidate

Williams (or any similarly situated candidate). See

§ 120.57(1)(e)1, Fl a. Stat. , which states:

An agency or an administrative law judge may

not base agency action that determines the

substantial interest of a party on an

unadopted rule. The administrative law judge

shall determine whether an agency statement

constitutes an unadopted rule. This

subparagraph does not preclude application of

adopted rules and applicable provisions of

law to the fa cts.

36. The evidence shows that procedures imposed on Williams

and other candidates during the State certification examination

satisfy the statutory definition of a rule. The timing process

employed by examiners was Ðan agency statement of general

app licability that . . . describes the procedure or practice

requirements of an agency . . . .Ñ § 120.52(15), Fla. Stat. The

procedures are generally applicable, implement statutory

requirements, and do not fall within any exception to the

definition of a r ule.

37. In this case, the Department relied upon an unadopted

rule when scoring the ladder evolution of WilliamsÓ State

Firefighter Certification exam. It therefore cannot base an

agency action on the score given to Williams. Thus, the most

persuasive evidence is that WilliamsÓ reported time of four

minutes and 35 seconds is off by ten to 15 seconds. That means

WilliamsÓ time would be four minutes and 20 or 25 seconds, within

the prescribed timeframe for completion of the ladder evolution.

RECOMMENDA TION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Department

of Financial Services, Division of State Fire Marshal, rescinding

the failing score on the State Firefighter Certificat ion

Examination for Catalina Williams and certifying her as a

Firefighter .

DONE AND ENTERED this 19th day of November , 2013 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

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 19th day of November , 20 13 .

COPIES FURNISHED:

Seth D. Corneal, Esquire

The Corneal Law Firm

904 Anastasia Boulevard

St. Augustine, Florida 32080

Michael Davidson, Esquire

Department of Financial Services

Larson Building

200 East Gaines Street

Tallahassee, Florida 32399

Jul ie Jones, CP, FRP, Agency Clerk

Department of Financial Services

Larson Building

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 th e 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.