STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAWRENCE C. GRICE, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2460

)

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before P. Michael Ruff, duly designated Hearing Officer, on November 14, 1986, in Tallahassee, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Lawrence C. Grice, Jr., pro se

5632 Maple Forrest Drive Tallahassee, Florida 32303

For Respondent: Stephen C. Fredrickson, Esquire

Office of Legal Services Department of Insurance 413-B Larson Building Tallahassee, Florida 32301

This matter came before the undersigned concerning the Respondent's denial of Petitioner's request for qualification for the "Firefighter's Supplemental Compensation Program," pursuant to Section 633.382, Florida Statutes. The Petitioner's qualification for that program was denied because his "major concentration area" of sociology, in his college degree program, was not readily identifiable or applicable as "fire related" or one of the college major courses of study recognized in Rule 4A-37.73, Florida Administrative Code, as qualifying him for the Supplemental Compensation Program.

Petitioner availed himself of his rights under Section 120.57(1), Florida Statutes, and requested a formal hearing. The cause was transmitted to the Division of Administrative Hearings and assigned to the undersigned Hearing Officer and came on for hearing on the above date. At the hearing the Petitioner presented his own testimony, and the Respondent presented the testimony of Frederick C. Stark, the Bureau Chief of the Division of Fire Standards and Training of the Department of Insurance. The Petitioner offered nine exhibits which were admitted into evidence with the exception of Petitioner's Exhibit 2 which is only admitted as corroborative hearsay pursuant to Section 120.58, Florida Statutes.

The Respondent offered two exhibits which were admitted into evidence. The Respondent elected to order the proceedings transcribed and the parties announced their intent to file Proposed Findings of Fact and Conclusions of Law in the form of Proposed Recommended Orders. Those Proposed Findings of Fact have been considered and treated in this Recommended Order and are again addressed in the Appendix attached hereto and incorporated by reference herein. The time constraint of Rule 28-5.402, Florida Administrative Code, was waived.

The issue to be resolved in this proceeding concerns whether the Petitioner has obtained educational training in an area sufficiently identifiable and applicable as related to the profession of firefighting so as to qualify for the Supplemental Compensation Program available by virtue of Rules 4A-37.72 and 4A- 37.73, Florida Administrative Code.

FINDINGS OF FACT

1. The Petitioner has been employed by the Fire Department of the City of Tallahassee since 1981. Mr. Grice has obtained a Bachelor of Science degree with a major in sociology and a minor in corrections, which he maintains is sufficiently related to the "human resource management" type of degree as to constitute "fire related" training, so as to authorize his entry into the Supplemental Compensation Program under the above mentioned Rules.

   
   

2. The Respondent is an agency of the State of Florida charged with promulgating and enforcing standards with regard to the profession of firefighting. It is charged with determining the qualifications for entrance into various certification programs and areas of licensure within the profession of firefighting.

   
   

3. It was established by Mr. Stark that the major concentration area of "sociology" is not readily identifiable and applicable as "fire related" training and is not an enumerated major concentration of study qualifying one for entry into the Supplemental Compensation Program. It is a generalized course of study not involving significant education in subjects such as personnel management so as to constitute a course of study in the acceptable field of "Human Resource Management." It is not one of the educational areas enumerated in Rule 4A-37.73, Florida Administrative Code. It was also shown that the Petitioner does not otherwise have the requisite 18 semester hours or the 27 quarter hours of college course work to his credit which are readily identifiable and applicable as "fire related."

   
   

4. The Petitioner attempted to employ as precedent a case involving a Mr. Birney Jordan who, in a similar proceeding, was determined to be qualified for this Supplemental Compensation Program. It was established, however, that that case is unrelated to the situation at bar and has no precedential value in the consideration of the Petitioner's application. Mr. Jordan's application was considered by a different governing board, the Fire Standards Council, with different standards applicable at the time he sought certification. Further, Mr. Jordan had sufficient credits in fire-related training and in the acceptable field of military science, to qualify for that program. The Petitioner has no military science credits appearing in his college transcript and took no military science courses. He had one course in military history, which is not a relevant area of study which would assist in qualifying him for the subject program. Thus no policy by the Respondent agency resulting in variant applications of the rules at issue has been demonstrated.

   
   

5. Finally, it has been shown that the agency has adopted and followed a consistent policy of not admitting applicants to the Supplemental Compensation

   Program on the strength of a sociology degree alone. In short, it has not been established by Petitioner that he has sufficient numbers of hours in college course work which are readily identifiable and applicable as "fire related" training, so as to qualify him for entry into the Supplemental Compensation Program at issue.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Petitioner has failed to demonstrate that his sociology degree is fire related as is required by Rules 4A-37.72 and 4A-37.73, Florida Administrative Code.

   
   

7. Section 633.382(2), Florida Statutes, requires, for any person to be eligible for the Supplemental Compensation Program, that that person have a bachelor's degree which is readily identifiable and applicable to fire related subjects. Rule 4A-37.70 provides that:

   
   

   "(1) The term `supplemental compensation' as used in this Rule chapter, means monies paid to individual firefighters, as defined in Section 633.382(1)(a), Florida Statutes, who meet the criteria and provisions set forth in Section 633.382(2)(3), Florida Statutes, and this Rule chapter, for educational incentive supplemental compensation. "

   
   

8. Rule 4A-37.72 defines the term "bachelor degree" as being, ". a

   Bachelor of Arts or Bachelor of Science degree conferred by an accredited post- secondary institution provided the major study concentration area is readily identifiable and applicable as fire related. . . .

   
   

   (3) The major study concentration area, at least 18 semester hours or 27 quarter hours, must be readily identifiable and applicable as fire related."

   
   

   Rule 4A-37.73 then provides that:

   
   

   The term `major study concentration area' as used in this Rule chapter means, as identified on official sealed transcripts, a major in fire science, fire science technology, fire science administration, fire protection engineer, management, human resource management, management science, general business administration, public administration, education, fire science vocational education, paramedic and/or health occupations, or any other degree that is found by the Division to be compatible with the functions of the employing agency or the job.

   
   

9. A sociology degree may be similar in some respects to a human resource management degree, however, even if the sociology degree could be deemed to be sufficiently similar to the "human resource management" degree, which is an acceptable major study concentration area, the fact remains that Mr. Grice does

   not have 18 semester hours or 27 quarter hours of course work which is readily identifiable and applicable as fire related training. It has not been established, moreover, that sociology equates sufficiently to a degree in human resource management so as to be considered an appropriate major study concentration area under Rule 4A-37.73. In summary, it has not been established that the degree possessed by the Petitioner is a degree which is compatible with the functions of his employing agency or job with the Fire Department. Finally, it has been demonstrated by the Respondent that that agency has consistently followed a policy with other such applications, and in other such proceedings, that a sociology degree is not a proper major study concentration area which is sufficiently fire related within the purview of these Rules as to be compatible with the functions of employment in a fire department or with the functions of that department. Thus, it cannot be determined that the sociology degree qualifies the Petitioner for this program under the last clause in the above- quoted Rule 4A-37.73, Florida Administrative Code, since the agency has established what its policy choice has consistently been in this and similar situations and proceedings with competent substantial evidence. That proof has not been rebutted. Friends of the Everglades, et al. vs. The Department of Environmental Regulation and Port Bouganville Associates, et al., 496 So.2d 181 (Fla. 1st DCA 1986); Department of Environmental Regulation vs. Goldring, 477 So.2d 258 (Fla. 1st DCA 1985).

   
   

10. Accordingly, the above Findings of Fact and the preponderant evidence of record do not establish that the Petitioner has completed college course work in a major concentration area which is of a fire-related nature nor has it been established that he has sufficient semester or quarter hours in such course work so as to qualify him for admission into the Supplemental Compensation Program provided for under the above Statute and Rules.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses, the evidence of record, and the pleadings and arguments of the parties, it is, therefore

RECOMMENDED that the application for qualification for supplemental compensation filed by Lawrence C. Grice be denied.

DONE and ENTERED this 13th day of March 1987, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 13th day of March 1987.

APPENDIX, CASE NO. 86-2460

Petitioner's Proposed Findings of Fact:

The Petitioner's post-hearing submittal cannot be deemed to constitute Proposed Findings of Fact. In reality, the Petitioner's post-hearing pleading filed January 21, 1987, consists of argument concerning admissibility of certain items of evidence offered and argument concerning Petitioner's position as to the weight and credibility ascribed to that evidence. The Petitioner has submitted no Proposed Findings of Fact as such.

Respondent's Proposed Findings of Fact:

1. Accepted.

2. Accepted.

3. Accepted.

4. Accepted.

5. Accepted.

6. Accepted.

COPIES FURNISHED:

Lawrence C. Grice, Jr. 5632 Maple Forrest Drive Tallahassee, Florida 32303

Stephen C. Fredrickson, Esquire Office of Legal Services Department of Insurance

413-B Larson Building Tallahassee, Florida 32301

Honorable William Gunter State Treasurer and Insurance

Commissioner

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Don Dowdell, Esquire General Counsel

Department of Insurance and Treasurer The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Docket for Case No: 86-002460

Orders for Case No: 86-002460