19-005190 Lester Blount vs. Department Of Law Enforcement, Criminal Justice Standards And Training Commission Status: Closed Recommended Order on Monday, March 23, 2020.

Summary: The issue in this case is whether Petitioner should receive credit for any or all of the four challenged questions from the State Officers Certification Examination. Petitioner did not meet his burden by a preponderence of the evidence.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

L ESTER B LOUNT ,

Petitioner ,

vs. Case No. 19 - 5190

D EPARTMENT OF L AW E NFORCEMENT ,

C RIMINAL J USTICE S TANDARDS A ND

T RAINING C OMMISSION ,

Respondent .

/

R ECOMMENDED O RDER

Administrative Law Judge ( Ñ ALJ Ò ) Brittany O. Finkbeiner conducted the

final hearing in this case for the Division of Administrative Hearings

( Ñ DOAH Ò ) on February 25, 2020, by video teleconference with site s in

Tallahassee and West Palm Beach, Florida .

A PPEARANCES

For Petitioner: Lester Blount, pro se

6025 Wedgewood Village Circle

Lake Worth, Florida 33463

For Respondent: Christopher D. Bufa no , Esquire

Florida Department of Law Enforcement

P ost O ffice Box 1489

Tallahassee, Florida 32302

S TATEMENT OF T HE I SSUE

The issue in this case is whether Petitioner should receive credit for any

or all of the four challenged questions from the State Officers Certification

Examination (ÑSOCEÒ or ÑExamÒ).

P RELIMINARY S TATEMENT

Petitioner , Lester Blount, took the SOCE for the third and final time on

July 25, 2019. A fter Respondent , Florida Department of Law Enforcement,

Criminal Justice Standards and Training Commission, notified him that he

failed to achieve a passing score on the Exam, Petitioner challenged the

validity of some of the questions that were de emed incorrect. Following a

review of PetitionerÔs challenges to the questions, Respondent rejected all

challenges and maintained the position that Petitioner would not receive

credit for the answers he chose. By the time of the final hearing, the parties

had agreed to limit the scope of the challenge to four questions. P ursuant to

the Protective Order entered in this case that is based on a public records

exemption protecting the Exam questions and answers from disclosure, the

questions and answers will no t be reproduced in their entirety but will

instead be identified by number and general topic description as follows:

1) Question One: Methamphetamine Laboratory .

2) Question Two: Battery by a First Responder .

3) Question Three: First Aid .

4) Question Four : Sexual Harassment .

At the final hearing, Petitioner testified on his own behalf and did not call

any other witnesses . Petitioner referenced four exhibits but did not move

them into evidence. Whether Petitioner intended to offer the exhibits as

evidence is immate rial because they all constitute hearsay not subject to any

exception. Even to the extent the exhibits may have been corroborated by

other admissible evidence at hearing, they are inherently unreliable and

could not have been afforded any weight. Specifically, the exhibits consisted

of PetitionerÔs partial re - creation of t he test questions at issue from memory

and copies of excerpts from instructional materials that were not entirely

legible.

Respondent called two witnesses: Wendy Bailey, g overnme nt a nalyst II,

Florida Department of Law Enforcement; and Corporal Mark Baker, Florida

Highway Patrol. RespondentÔs Composite Exhibit ÑAÒ was admitted into

evidence

At the conclusion of the final hearing, the parties were advised to file

proposed recommen ded orders within ten days of the filing of the transcript.

The T ranscript was filed with DOAH on March 6, 2020. Respondent filed its

Proposed Recommended Order (ÑPROÒ) on March 13, 2020. Petitioner did not

file a PRO . RespondentÔs PRO was considered in th e preparation of this

Recommended Order.

References to the Florida Statutes are to the 2019 version, unless

otherwise indicated.

F INDINGS OF F ACT

1. Petitioner attended law enforcement proficiency training and was

provid ed with 76 hours of instruction.

2 . Petitioner was instructed from the 2018 versions of the law enforcement

and high liability text b ooks.

3. Respondent utilized experienced field training officers, curriculum

development staff, and advisory teams to develop curriculum and

corresponding exa mination questions for the SOCE. The questions are

evaluated and validated through a process that includes internal and

external review for content and accuracy and are field tested as non - graded

questions a minimum of 100 times in actual exams for further validation and

statistical data collection prior to use on graded exams.

4 . When examinees sit for the SOCE, they are informed prior to beginning

the Exam that the questions and answers are derived solely from the

curriculum and that there is only one cor rect answer for each question.

5 . Petitioner took and failed the Exam three times: on April 4, 2019;

April 17, 2019; and July 25, 2019.

6 . Petitioner obtained a raw score of 149 correct answers out of a total of

190 graded questions on his third and fina l attempt on July 25, 2019. A

passing score for the Exam is 80 percent, which requires a minimum of

152 correct answers.

7 . In order to pass the Exam, Petitioner would need credit for at least

three more questions added to his score. Petitioner challenged a total of four

multiple - choice questions.

8. Respondent provides each examinee who fails to achieve a passing score

the opportunity to review and challenge any question for which he or she did

not receive credit. Exam questions challenged by examinees a re reviewed by

subject - matter experts from advisory teams , and credit is awarded when

warranted. The review process strictly addresses the accuracy of the

examination questions as they relate to the training curriculum. If credit is

awarded , thereby invali dating a challenged exam question, that question is

removed from use in all future exams.

9 . Each of the four exam questions at issue w as challenged by Petitioner

and reviewed by Respondent. Following the review process for each of the

four challenged ques tions, no additional credit was awarded. Respondent

upheld the validity and accuracy of each of the four questions and answers as

originally scored in accordance with the exam key as having no other possible

correct answers based on the curriculum.

10 . Wit h respect to Question One: Methamphetamine L aboratory ,

examinees were asked to select which of four statem ents about such

laboratories is accurate. Petitioner chose answer A. for Q uestion One, based

on his reasoning that it stated that methamphetamine labs produce an odor

similar to bleach and that the training material s mention bleach in the

relevant section. PetitionerÔs selection of answer A. is base d on a misreading

of the training materials.

11 . The clear language of Question One dictates a single cor rect answer,

which is directly based on the training curriculum. The curriculum describes

a range of sizes for how small or large a methamphetamine lab may be , which

is reflected verbatim i n answer B . The correct answer to Question One is B .,

consistent wi th RespondentÔs answer key .

12 . With respect to Q uestion Two : Battery by a First R esponder ,

examinees were asked to determine what crime an officer could be charged

with based on a hypothetical wherein the officer provided first aid to a person

without con sent. Petitioner chose answer D ., stating that the question was

open to int erpretation because it did not state whether the officer actually

touched the person in the hypothetical. PetitionerÔs answer was based on the

assumption of elements of a negligence claim that were not presented in the

question.

13 . The clear language of Question Two dictates a single correct answer,

which is directly based on the training curriculum. The curriculum states

that first responders may be charged with battery for render ing emergency

care without the patientÔs consent, which is accurate to the hypothetical

described in Question Two and reflected in Answer A. The correct answer to

Question Two is A . , consistent with RespondentÔs answer key .

14 . With respect to Question Thr ee: First Aid, examinees were asked to

select which step a first - aid provider should take first when trying to stop a

specified type of bleeding. Petitioner chose answer B., which Petitioner stated

was described in the curriculum as a step to be used to co ntrol bleeding.

Although the step Petitioner chose was described as a step to be used to

control bleeding in the curriculum, it was not listed as the first step.

15 . The clear language of Question Three dictates a single correct answer,

which is directly based on the training curriculum. The curriculum lists, in

order, what steps a first - aid provider should take to control bleeding. The

first step listed in the curriculum is reflected in answer D . The correct answer

to Question Three is D. , consistent with RespondentÔs answer key.

16 . With r espect to Question Four: Sexual Harassment, examinees were

presented with a hypothetical exchange between two officers and then

prompted to select which type of sexual harassment was demonstrated in the

hypothetical. Pe titioner chose answer D., based on his opinion that the

question was poorly worded , leaving the answer open for interpretation.

Petitioner did not cite to any portion of the training curriculum as a basis for

his selection of answer D.

17 . The clear langu age of Question Four dictates a single correct answer,

which is directly based on the training curriculum. The curriculum

specifically states that a conversation of the type described in Question FourÔs

hypothetical is verbal sexual harassment, as reflecte d in answer A. The

correct answer to Question Four is A . , consistent with RespondentÔs answer

key.

C ONCLUSIONS OF L AW

1 8 . DOAH has jurisdiction over the subject matter and the parties to this

action in accordance with sections 120.569 and 120.57(1), Flori da Statutes.

19 . Section 943.17(1)(e), Florida Statutes, requires Respondent to

Ñ[ i ] mplement, administer, maintain, and revise a job - related certification for

each discipline Ò Respondent certifies.

20 . Section 943.1397 provides , in pertinent part:

(1) Ex cept as provided in subsection (4), on and

after July 1, 1993, the commission shall not certify

any person as an officer until the person has

achieved an acceptable score on the officer

certification examination for the applicable

criminal justice discipli ne. The commission shall

establish procedures by rule for the administration

of the officer certification examinations and student

examination reviews. Further, the commission

shall establish standards for acceptable

performance on each officer certificati on

examination.

(2) For any applicant who fails to achieve an

acceptable score on an officer certification

examination, the commission shall, by rule,

establish a procedure for retaking the examination,

and the rule may include a remedial training

program requirement. An applicant shall not take

an officer certification examination more than three

times, unless the applicant has reenrolled in, and

successfully completed, the basic recruit training

program .

2 1. As the party asserting affirmative relief, Pe titioner has the burden of

proof. See Fl a . DepÔ t of Transp. v. J.W.C. Co. , 396 So. 2d 778 (Fla. 1st

DCA 1981) . The standard of proof for this case is a preponderance of the

evidence. See Fitzpatrick v. City of Miami Beach , 328 So. 2d 578 (Fla. 3d

DCA 1976) . In cases that involve certification exams, as long as the

examinations are conducted Ñfairly and uniformly in accordance with lawful

authority and their own rules and regulations, their judgment as to the

proper grading of such examinations will not be d isturbed by the courts,

unless clearly shown to be arbitrary and devoid of logic and reason.Ò State ex

rel. Topp v. Bd. of Elec. ExamÔrs , 101 So. 2d 583, 586 (Fla. 1st DCA 1958); See

also Espinoza v. DepÔt of Bus. & ProfÔl Reg . , Fla. Bd. of ProfÔl EngÔrs , 739 So.

2d 1250, 1251 (Fla. 3d DCA 1999)(Ñ[A]n applicant who seeks to establish that

the initial review of his application was incorrect must show that the agencyÔs

initial decision was arbitrary and capricious.Ò); Harac v. DepÔt of ProfÔl Reg . ,

Bd. of Arc hitecture , 484 So. 2d 1333 , 1338 (Fla. 3d DCA 1986).

22 . Petitioner has failed to meet his burden in this case. There is no

evide nce in the record demonstrating that he should receive credit for any of

the four challenged exam questions. To the contrary, the evidence shows that

Respondent conducted and scored the Exam fairly in accordance with the

training curriculum.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Florida Department of Law Enfor cement, Criminal

Justice Standards and Training Commission, enter a final order rejecting

PetitionerÔs challenge to the failing score he received on the July 25, 2019 ,

SOCE.

D ONE A ND E NTERED this 2 3rd day of March , 2020 , in Tallahassee, Leon

County, Flor ida.

S

B RITTANY O. F INKBEINER

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 2 3rd day of March , 2020 .

C OPIES F URNISHED :

Lester Blount

6025 Wedgewood Village Circle

Lake Worth, Florida 33463

(eServed)

Christopher David Bufano, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302 - 1489

(eServed)

Linton B. Eason, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302 - 1489

(eServed)

Jason Jones, General Counsel

Florida Department of Law Enforcement

Post Of fice Box 1489

Tallahassee, Florida 32302 - 1489

(eServed)

Dean Register, Program Director

Division of Criminal Justice

Professionalism Services

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302 - 1489

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.