STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN T. WANDELL, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4981

) DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on November 8, 1990, in West Palm Beach, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: John T. Wandell, pro se

19110 Westbrook Drive Boca Raton, FL 33434

For Respondent: Ruth L. Gokel, Esquire

Division of Legal Services

412 Larson Building Tallahassee, FL 32399-0300

STATEMENT OF THE ISSUE

The issue in this case is whether John T. Wandell (Petitioner) qualifies to participate in the firefighters supplemental compensation program.

PRELIMINARY STATEMENT

At the hearing, the Petitioner testified on his own behalf and introduced one exhibit. The Department introduced one exhibit. Official recognition was taken of pertinent statutes and administrative rules.

The transcript of the final hearing was filed on December 5, 1990, and thereafter, the parties were allowed ten days within which to file proposed recommended orders. A ruling on each proposed finding of fact included in the parties' proposed recommended orders is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, the Petitioner has been employed as a Fire Marshal with the Town of Palm Beach, Florida. He applied to the Department for participation in the firefighters supplemental compensation program, at the bachelor's degree level, on or about May 22, 1990.

   
   

2. After review of Petitioner's transcript from New York Institute of Technology, the Department notified him on or about June 9, 1990, that he did not possess an appropriate major study concentration area to qualify for the program. Petitioner timely sought a formal hearing to contest the Department's denial of his application.

   
   

3. Rule 4A-37.084(5), Florida Administrative Code, became effective on January 3, 1990, and does not include behavioral science/community health as a major study concentration area which would qualify applicants for participation in this program. Former Rule 6A-37.073, Florida Administrative Code, which was in effect prior to January 3, 1990, also does not include this specific field as a qualifying major study concentration area.

   
   

4. Petitioner received his B.S. degree from New York Institute of Technology in late January, 1990, in the field of behavioral science/community mental health.

   
   

5. At hearing, Petitioner testified that notwithstanding the specific designation of his major, a substantial number of courses he took in pursuit of his B.S. degree were "fire-related". However, the Petitioner offered no competent substantial evidence to support his position, and therefore, his testimony is not credited. In fact, the description of the behavioral science major at New York Institute of Technology makes no reference to "fire-related" courses, or qualifying graduates for employment in fire protection or fire safety fields. There was no competent substantial evidence that Petitioner had the requisite number of hours in a fire-related major study concentration area.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes.

   
   

7. Section 633.382, Florida Statutes, establishes the firefighters supplemental compensation program, and specifies the qualifications for participation in the program, which include either an associate degree that is readily identifiable and ascertainable as fire-related, or a bachelor's degree with a major study concentration area readily identifiable and ascertainable as fire-related. The Department has adopted Rule 4A-37.084, Florida Administrative Code, which became effective on January 3, 1990, implementing the firefighters supplemental compensation program, and which provides, in pertinent part, as follows:

   
   

   4A-37.084 Definitions.

   
   

   (3) "Bachelor's Degree" means a . . . degree conferred by an accredited post-secondary institution provided the major study concentration area is readily identifiable and ascertainable as fire-related.

   (b) The major study concentration area,

   at least 18 semester hours or 27 quarter hours, must be readily identifiable and applicable as fire-related. Those major study concentration areas specifically defined in this rule chapter are considered to be readily identifiable and applicable as fire-related.

   
   

   (5) "Major Study Concentration Area" means . . . a major in fire science, fire science technology, fire science administration, fire protection

   engineer, municipal management, public administration, emergency medical technology, paramedic technology, and fire science vocational education. Applicants

   who possess a degree with a major study concentration area which is not specified above may petition the Division for entry in the program if they feel that the major is fire-related. The burden of proof shall be on the applicant. (Emphasis Supplied.)

   
   

   Prior to the effectiveness of Rule 4A-37.084 on January 3, 1990, Rule 4A-37.073 defined "Major Study Concentration Area".

   In addition to the specified fields listed in subsection (5) of Rule 4A-37.084, shown above, former Rule 4A-37.073

   listed the fields of management, human resource management, management science, general business administration,

   education, and health occupations, as qualifying fields for this supplemental compensation program.

   
   

8. Since this is a case in which Petitioner is seeking to establish his qualification to participate in the firefighters supplemental compensation program, he has the burden of establishing his qualifications by a preponderance of the evidence. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Specifically, an applicant who seeks to establish that an agency's initial review of his application was incorrect must show that the agency's initial decision was arbitrary or capricious. Harac v. Department of Professional Regulation, 484 So.2d 1333, 1338 (Fla. 3rd DCA 1986); State ex rel. Glaser v. J.M. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963). In Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1978), relevant terms were defined as follows:

   
   

   A capricious action is one which is taken without thought or reason or irrationally.

   An arbitrary decision is one not supported

   by facts or logic, or despotic. Administrative discretion must be reasoned and based on competent substantial evidence. Competent substantial evidence has been described as

   such evidence as a reasonable person would accept as adequate to support a conclusion.

   
   

   It is also specifically provided in Rule 4A-37.084(5) that the applicant for participation in this program has the burden of proving that his major study concentration area is fire-

   related, if it is not in a specified qualifying field set forth in said rule.

   
   

9. It is clear that the Petitioner's bachelor's degree with his behavioral science/community mental health major from New York Institute of Technology does not appear on the list of approved major study concentration areas set forth in Rule 4A-37.084(5), or former Rule 4A-37.073. Therefore, in order for Petitioner to qualify for this supplemental compensation program, he must show that his

   non-enumerated major is "fire-related". However, the Petitioner offered no competent substantial evidence to support his position. In fact, the description of the behavioral science major at New York Institute of Technology makes no reference to "fire-related" courses, or qualifying graduates for employment in fire protection or fire safety fields, and there was no competent substantial evidence that Petitioner had the requisite number of hours in a fire-related major study concentration area.

   
   

10. It should be noted that although Rule 4A-37.084(5) became effective on January 3, 1990, it contains no grandfather clause, and is therefore applicable to the Petitioner in this case since it was the rule governing this program at the time he submited his application to the Department. See In the Matter of Sammie Cooper, Case No. 90-L-200LSS, Final Order entered July 18, 1990.

However, even under the former Rule 4A-37.073, the Petitioner would not have qualified for this program since his major is also not included in this former rule as a qualifying major study concentration area.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Department enter a Final Order dismissing Petitioner's challenge to the determination that he is not qualified to participate in the firefighters supplemental compensation program.

DONE AND ENTERED this day of December 1990 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this

19th day of December 1990.

APPENDIX

The Petitioner did not timely file Proposed Findings of Fact. Rulings on the Department's Proposed Findings of Fact:

1-2. Adopted in Finding 1.

3. Adopted in Findings 2 and 3.

Copies furnished:

John T. Wandell, Esquire 19110 Westbrook Drive Boca Raton, FL 33434

Ruth L. Gokol, Esquire Division of Legal Services

412 Larson Building Tallahassee, FL 32399-0300

Don Dowdell, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level

Tallahassee, FL 32399-0300

Honorable Tom Gallagher

State Treasurer and Insurance Commissioner The Capitol, Plaza Level

Tallahassee, FL 32399-0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 90-004981

Orders for Case No: 90-004981