15-006195 David Hall vs. Florida Department Of Law Enforcement Status: Closed Recommended Order on Thursday, February 11, 2016.

Summary: Petitioner did not meet burden of proving his answer on State Officer Certification Examination was correct.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID HALL,

Petitioner,

vs. Case No. 15 - 6195

FLORIDA DEPARTMENT OF LAW

ENFORCEMENT,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice to all partie s , a final hearing was held

in this case by video teleconference on January 13, 2016, with

sites in Tallahassee and Sebastian , Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings. The parties were represen ted as set

forth below.

APPEARANCES

For Petitioner: David Hall, pro se

29 Slosson Lane

Geneva, New York 14456

For Respondent: Linton B. Eason, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallaha ssee, Florida 32302 - 1489

STATEMENT OF THE ISSUE

The issue in this case is w hether Petitioner David Hall Ós

answer to question number 115 on the Florida State Officer

Certification Examination should have been accepted as correct .

PRELIMINARY STAT EMENT

Petitioner , David Hall , was an examinee who took the

Florida State Officer Certification E xamination (the Ð exam Ñ ) on

June 30, 2015. After being notified that he missed a passing

score by one question, he challenged the incorrectness of his

answer to question 115. On or about August 1, 2015, Petitioner

was notified that his response to question 115 was rejected as

incorrect. Petitioner timely filed a request for a formal

administrative hearing .

At the final hearing held in this matter , Petitioner

te stified on his own behalf and did not call any other

witnesses. Petitioner pre - filed a composite exhibit, but did

not offer it into evidence during the final hearing.

Respondent, Florida Department of Law Enforcement (the

ÐDepartmentÑ or ÐFDLEÑ) , called two witnesses: Sgt. Steve

Norville, Leon County SheriffÓs Office; and Roy Gunnarsson,

training and research manager for FDLE , accepted as an expert in

psychometrics . FDLE Ós E xhibit 1 was admitted into evidence.

A transcript of the final hearing was order ed by the

parties ; the T ranscript was filed at the Division of

Administrative Hearings on January 28, 2016. By rule, parties

were allowed 10 days, i.e., up until February 7 to submit

proposed recommended orders ; February 7 fell on a Sunday, so

proposed re commended order s were due on or before February 8 .

Petitioner filed an untitled document on Januar y 19 , which was

accepted as his Proposed Recommended O rder. FDLE timely

submitted its P ropose d Recommended O rder on February 8 . Each

party's Proposed Recom mended O rder was duly considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a former police officer from New York who

wishes to relocate to Florida. He took the exam on June 30,

2015. According to his Petition for Formal Administrative

Hearing, Petitioner missed passing the exam by one question. He

made the decision to challenge the DepartmentÓs determination as

to the correct answer for exam question number 115.

2. That question and answer choices as set forth i n the

exam are as follows :

Q: In accordance with Chapter 810, F.S.,

how are burglaries classified?

A. Intent of suspects

B. Type of location entered

C. Tools used in commission

D. Number of persons involved

3. Petitioner chose Answer A. He reaso ned that, according

to the curriculum, burglary was distinguished from trespassing

by a single element, i.e., the intent of the offender. While

acknowledging that the type of location was also a way to

classify burglaries, he reasoned that either answer w ould be

equally correct.

4. Petitioner cites to the Florida Basic Recruit Training

Program book (the ÐManualÑ) utilized by the Florida Law

Enforcement Academy (Volume 1, Version 2014.07), which was the

primary curriculum material for persons taking the ex am in June

2015. On page 337 of the Manual, the following statement

appears:

Trespassing and burglary are similar, yet

different, and can be confusing.

Trespassing involves being somewhere that

you do not own and without permission of the

owner. The di fference with burglary is that

you are somewhere that you do not own and

without permission of the owner; however,

the intent of being there is different. The

intent for being there is to commit another

crime, such as theft.

5. Petitioner analogized a h ouse guest versus an intruder

to classify each crime , but his analysis addressed the elements

of the crimes rather than how the crimes are classified.

6. The Department used experienced field training officers

to help develop and verify the exam questio ns. The officers

reviewed question 115 and found it to be valid, legitimate, and

in accordance with the Manual . The proper and only fully

correct answer to question 115 was B, type of location entered.

The basis for this answer appears in the Manual at page 336,

which states in pertinent part :

Chapter 810, F.S. classifies burglaries

according to the type of location entered ,

such as a dwelling, structure, or

conveyance. Penalties are more severe for

burglary of a dwelling than for a structure

or conveya nce. (Emphasis added ) .

7. The Department maintains that the clear la nguage of

question number 115 - Î taken almost verbatim from the Manual - Î

dictates a single answer, B. The question asks how the crime of

burglary, which by its definition includes the of fenderÓs

intent, is classified. That is, the question is concerned with

how the crime will be classified ( i.e., more or less severely)

based upon where it occurred. The question does not ask for the

elements of burglary, which would require the examinee to

include intent. The question was not ambiguous.

8. Interestingly, Roy Gunnarsson, FDLEÓs training and

research manager, an expert in psychometrics, a field of study

and practice involving the measurement of human knowledge skills

and abilities , determ ined that more examinees (165) answered the

same way as Petitioner than answered correctly (164). But as

the expert testified, testing is not governed by majority vote.

9. From the test results, it is clear that question number

115 was difficult, with most examinees failing to answer

correctly. That does not invalidate the question; it only

verifies that the question was harder than others.

10. Because of PetitionerÓs challenge, Mr. Gunnarsson

prepared an ÐItem Challenge Response,Ñ a review of the

c hallenged question and its possible answers. After conducting

an intensive review of the matter, he concluded that the

question and answer were Ð accurate, located in the curriculum,

and [he] denies the validity of the examineeÓs claim.Ñ His

opinion was b ased upon the applic ation of psychometrics to the

test and on his experience and training.

11. Petitioner , who seemed to have extensive knowledge

concerning law enforcement, argued his position quite well.

Unfortunately, his arguments are not supporte d by the plain

language appearing in the training manual.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to s ections 120.569 and 120.57(1), Florida

Sta tutes. Unless stated otherwise herein, all references to

Florida Statutes shall be to the 20 15 codification.

13. Petitioner , as the party asserting the affirmative of

the is sue, has the burden of proof . Ferris v. Turlington , 510

So. 2d 292 (Fla. 1987). The standard of proof for this case is

a preponderance of the evidence. See DepÓt of Banking & Fin.,

Div. of Servs. & Inv. Prot., Osborne Stern & Co. , 670 So . 2d 932

(Fla. 1996).

14. Petitioner attempts to satisfy his burden in this case

by explainin g the elements of the crime of burglary.

15. Chapter 810, Florida Statutes, is entitled ÐBurglary

and Trespass.Ñ Sect ion 810.02 addresses burglary; s ections

810. 08, .09, .095, and .097 address the crime of trespass ,

depending on where the trespass occu rred. Section 810.02 states

in pertinent part:

(1) (b) For offenses committed after July 1,

2001, ÐburglaryÑ means:

1. Entering a dwelling, a structure, or a

conveyance with the intent to commit an

offense therein, unless the premises are at

the time op en to the public or the defendant

is licensed or invited to enter, or

2. Notwithstanding a licensed or invited

entry, remaining in a dwelling, structure or

conveyance;

a. Surreptitiously, with the intent to

commit an offense therein;

b. After permissio n to remain therein has

been withdrawn, with the intent to commit an

offense therein; or

c. To commit or attempt to commit a

forcible felony, as defined in s. 776.08.

16. Th us, there i s the element of intent in the b urglary

statute. However, once burgl ary has been established as the

crime at issue (as posed by the question in the exam), the

classification of what type of burglary has occurred is made

simply by the type of location entered.

17. Petitioner failed to meet his burden of proof that

answer A, intent of suspects, is the correct answer to question

number 115 in the exam.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Department

of Law Enforcement d enying Petitioner David HallÓs challenge to

question number 115 in the Florida State Officer Certification

Examination .

DONE AND ENTERED this 11 th day of February , 2016, in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBB EN

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 Administrativ e Hearings

this 11 th day of February , 2016 .

COPIES FURNISHED :

Linton B. Eason, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302 - 1489

(eServed)

David Joshua Hall

29 Slosson Lane

Geneva, New York 14456

(eSe rved)

Jason Jones, General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302 - 1489

(eServed)

Richard L. Swearingen, Commissioner

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302 - 1489

(eServed)

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

wil l issue the Final Order in this case.