STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAMELA JO PARKER, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5058RX

) DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was conducted in this case on November 5, 1991, at Fort Lauderdale, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances at the hearing were as follows:

APPEARANCES

For Petitioner: Lisa S. Santucci, Esquire

Division of Legal Services

412 Larson Building

Tallahassee, Florida 32399-0300

For Respondent: O. Edgar Williams, Jr., Esquire

Berryhill, Avery, Williams & Jordan Post Office Box 24266

Fort Lauderdale, Florida 33307-4266 ISSUE

The issue in this case is whether Rule 4A-37.084(3)(a), Florida Administrative Code, is an invalid exercise of delegated legislative authority.

PRELIMINARY STATEMENT

This case had its genesis in the Department's proposed denial of the Petitioner's application for supplemental compensation at the Bachelor level of the Firefighters Supplemental Compensation Program. By letter received July 15, 1991, the Petitioner requested a formal proceeding in accordance with Section 120.57(1), Florida Statutes, to contest the proposed denial. That case was forwarded to the Division of Administrative Hearings for assignment of a Hearing Officer, where it was docketed as Case No. 91-4760. Thereafter, on August 9, 1991, the Petitioner filed a petition challenging the validity of a portion of Rule 4A-37.084(3)(a), Florida Administrative Code, which is one of the Respondent's rules governing the application of the Firefighters Supplemental Compensation Program. The rule challenge case was docketed at the Division of Administrative Hearings as Case No. 91-5058RX.

By order dated September 10, 1991, Case No. 91-4760 and Case No. 91-5058RX were consolidated for purposes of the formal hearing. The consolidation order specifically provided that the cases would again be severed following the hearing. 1/

At the formal hearing on November 5, 1991, the Petitioner testified on her own behalf and also offered two exhibits, both of which were received in evidence. The Respondent did not call any witnesses, nor did it offer any exhibits. 2/ Official recognition was taken of the applicable rules in the Florida Administrative Code. No transcript of the hearing has been prepared.

At the conclusion of the formal hearing, all parties were allowed 20 days within which to file their proposed orders. Thereafter, both parties filed timely proposed orders containing proposed findings of fact and conclusions of law.

Specific rulings on all proposed findings of fact submitted by both parties are in the Appendix to this Final Order.

FINDINGS OF FACT

1. At all times relevant and material to these proceedings, the Petitioner has been employed as a firefighter with the Metro-Dade Fire Department. The Petitioner's primary function with the Metro-Dade Fire Department is as a firefighter.

   
   

2. By letter dated May 30, 1991, and received on June 10, 1991, the Petitioner applied to the Respondent for Firefighters Supplemental Compensation at the Bachelor degree level.

   
   

3. Three transcripts were submitted with the Petitioner's application.

   The first was from Miami-Dade Community College, and showed that an Associate of Science degree in Fire Science was awarded to the Petitioner on May 4, 1991.

   The second transcript was from Broward Community College, showing many courses taken by Petitioner, but no degree awarded. 3/ The third transcript was from Florida International University, and showed that a Bachelor of Science degree with a major in Industrial Technology was awarded to Petitioner on December 12, 1980.

   
   

4. Petitioner's Bachelor degree from Florida International University is not based upon, and does not include, any of the courses in fire science that formed the basis for Petitioner's Associate degree from Miami-Dade Community College. 4/ Petitioner's transcript of her Bachelor degree does not reveal a major study concentration area of at least 18 semester hours or 27 quarter hours which is readily identifiable and applicable as fire-related.

   
   

5. On or about June 24, 1991, the Respondent notified the Petitioner that she was eligible for the Firefighters Supplemental Compensation Program at the Associate degree level by virtue of her Associate of Science degree in Fire Science from Miami-Dade Community College.

   
   

6. On or about June 26, 1991, the Respondent notified the Petitioner that she was not eligible for the Firefighters Supplemental Compensation Program at the Bachelor degree level because Petitioner's major in Industrial Technology from Florida International University was not a recognized Major Study Concentration Area in Rule 4A-37.084. The denial letter cites and quotes the definition of "Bachelor's Degree" at Rule 4A- 37.084(3), Florida Administrative Code.

7. Rule 4A-37.084(3)(a), Florida Administrative Code, the rule which is the subject of this rule challenge proceeding, reads as follows (with the challenged portion underscored [<> --Ed.]):

   
   

   1. "Bachelor's Degree" means 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.

      1. A firefighter may receive Supplemental Compensation based on possession of a Bachelor's Degree regardless of whether or not an Associate Degree was previously earned. <In no event shall receipt of a transcript for an Associate Decree be used in consideration for qualification of the Bachelor's Degree Supplemental Compensation.>

      2. 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.

         
         

         CONCLUSIONS OF LAW

         
         

8. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sections 120.56 and 120.57, Florida Statutes.

   
   

9. The basis for the challenge in this case is a contention that the subject rule "enlarges, modifies, or contravenes the specific provisions of law implemented." The Petitioner contends that the underscored portion of the rule quoted above has the effect of adding a requirement that is not found in the statute implemented, Section 633.382, Florida Statutes. The Respondent argues that the subject rule provision is a reasonable interpretation of the statutory provision, and that it does not enlarge, modify, or contravene the statutory provision.

   
   

10. Section 633.382, Florida Statutes, establishes the Firefighter Supplemental Compensation Program and sets forth the criteria for disbursing additional compensation to qualified applicants. That section provides, in pertinent part:

    
    

    1. Definitions. - As used in this section, the term:

       1. "Division" means the Division of State

          Fire Marshall [sic] of the Department of Insurance created and existing under the provisions of

          this chapter.

       2. "Employing Agency" means any munici- pality or any county, the state, or any political subdivision of the state, including authorities and special districts employing firefighters.

       3. "Firefighter" means any person who is certified in compliance with s. 633.35 and who is employed solely within the fire department of the employing agency as a full-time firefighter whose primary responsibility is the extinguishment of fires.

    2. Qualifications for supplemental compensation.

       1. In addition to the compensation now paid by an employing agency to any firefighter, every firefighter shall be paid supplemental compensation by the employing agency when such firefighter has complied with one of the following criteria:

          1. Any firefighter who receives an associate degree from a college, which degree is readily identifiable and applicable as a fire-related degree, as outlined in policy guidelines of the division, shall be additionally compensated as outlined in paragraph (3)(a).

          2. Any firefighter, regardless of whether or not he earned an associate degree earlier, who receives from an accredited college or university a bachelor's degree, <which bachelor's decree curriculum includes a major study concentration area readily identifiable and applicable to fire-related subjects,> as outlined in policy guidelines of the division, shall receive compensation as outlined in paragraph (3)(b).

          * * *

    3. Supplemental compensation. Supplemental compensation shall be determined as follows:

       1. Fifty dollars shall be paid monthly to each firefighter who qualifies under the provisions of subparagraph (2)(a)1.

       2. One hundred and ten dollars shall be paid monthly to each firefighter who qualifies under the provisions of subparagraph (2)(a)2. (emphasis added)

    
    

11. Subsection (5) of Rule 4A-37.084, Florida Administrative Code, (a rule provision which has not been challenged here) contains the following definition:

    
    

    (5) "Major Study Concentration Area", means, identified on official sealed transcripts <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 into the program if they feel that the major is

    fire-related. The burden of proof shall be on the applicant. (emphasis added)

    
    

12. The portion of Section 633.382 underscored above in Paragraph 3 of these conclusions is by no means a model of clarity and could possibly be interpreted in more than one way by reasonable men. The statutory language "which bachelor's degree curriculum includes a major study concentration area readily identifiable and applicable to fire-related subjects" has been interpreted by the Department as requiring a major at the Bachelor level in a fire-related subject, which major includes at least 18 semester hours or 27 quarter hours of fire-related subjects beyond the requirements for an Associate degree. This interpretation of the statute, reflected both in the challenged rule provision and in subsection (5) of Rule 4A-37.084, Florida Administrative Code, cannot be said to be either unreasonable or clearly erroneous. /5 To the contrary, the Department's interpretation of the statute appears to be an interpretation well within the range of permissible interpretations. Such being the case, there is no basis for invalidating the challenged rule. See such cases as State, Marine Fisheries Commission v. Organized Fishermen of Florida,

503 So.2d 935 (Fla. 1st DCA 1987); Austin v. Dept. of Health and Rehabilitative Services, 495 So.2d 777, 779 (Fla. 1st DCA 1986); Dept. of Professional Regulation v. Durrani, 455 So.2d 515 (Fla. 1st DCA 1984); Pan American Airways, Inc. v. Florida Public Service Commission, 427 So.2d 716 (Fla. 1983); Dept. of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981).

For all of the foregoing reasons, it is ORDERED:

That the petition in this case challenging the validity of Rule 4A- 37.084(3)(a), Florida Administrative Code, is hereby DISMISSED.

DONE AND ORDERED at Tallahassee, Leon County, Florida, this 17th day of December, 1991.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1987.

ENDNOTES

1/ Consolidation of the two cases for hearing was appropriate because most of the same facts are relevant to both cases. The post-hearing severance of the cases is necessary because in one case the Hearing Officer must issue a Recommended Order and in the other must issue a Final Order.

2/ The Respondent tentatively offered a composite exhibit comprised of the entire file regarding the subject application, but when it was noted that all

relevant documents were already included in the Petitioner's exhibits, the Respondent's proposed exhibit was withdrawn.

3/ The Broward Community College transcript covers a period of time from "Term 1" of the 1974-75 academic year to "Term 3" of the 1985-86 academic year. None of the courses itemized on that transcript for terms prior to December of 1980 appear to be any type of "fire-related subjects." However, for the 1985-86 academic year the transcript lists what appears to be a total of 18 semester hours of courses on subjects related to paramedic activities. Those 18 semester hours of paramedic related courses may come within the meaning of "fire-related" subjects. But it is irrelevant whether they do or do not, because those courses were taken five years after the Petitioner received her bachelor degree.

4/ Unlike the usual pattern in which a student first earns an Associate degree and then earns a Bachelor degree, in this case Petitioner first received her Bachelor degree and then approximately ten years later earned an Associate degree. The courses which formed the basis for Petitioner's Associate degree at Miami-Dade Community College could not have formed the basis for her Bachelor degree because the Bachelor degree was awarded before Petitioner began to attend courses at Miami-Dade Community College.

5/ In view of the fact that supplemental compensation at the Bachelor degree level is approximately twice the amount of supplemental compensation at the Associate degree level, it seems quite reasonable to interpret the statute as requiring approximately twice as much fire-related course work to be eligible for supplemental compensation at the Bachelor degree level.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5058RX

Proposed findings submitted by Petitioner:

Paragraphs 1 and 2: Rejected as constituting conclusions

of law rather than findings of act.

Paragraph 3: Accepted that the Petitioner is a firefighter.

Paragraphs 4, Accepted in substance, with some 5, and 6: unnecessary details omitted.

Paragraph 7: Accepted in substance except for the portion

after the word "because." The portion after the word "because" is a conclusion of law rather than a proposed finding of fact.

Paragraph 8: Rejected as constituting a conclusion of

law, rather than a finding of fact.

Proposed findings submitted by Respondent:

All proposed findings of fact submitted by the Respondent have been accepted in substance.

COPIES FURNISHED:

Lisa S. Santucci, Esquire Division of Legal Services

412 Larson Building

Tallahassee, Florida 32399-0300

O. Edgar Williams, Jr., Esquire Berryhill, Avery, Williams & Jordan Post Office Box 24266

Fort Lauderdale, Florida 33307-4266

Bill O'Neil, Esquire Deputy General Counsel Division of Legal Services The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

The Honorable Tom Gallagher

State Treasurer and Insurance Commissioner The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY. ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 91-005058RX

Orders for Case No: 91-005058RX