STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARK B. MAXEY, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2479

) DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above-styled cause on September 9, 1992, in Tampa, Florida.

APPEARANCES

For Petitioner: Mark B. Maxey, pro se

6909 N. Glen Avenue Tampa, Florida 33614

For Respondent: William C. Childers, Esquire

Division of Legal Services

412 Larson Building

Tallahassee, Florida 32399-0300 STATEMENT OF THE ISSUES

Whether Petitioner qualifies for participation in the Firefighters Supplemental Compensation Program.

PRELIMINARY STATEMENT

By letter dated October 14, 1991, Petitioner, Mark B. Maxey (Maxey), requested a formal administrative hearing to contest the preliminary decision made by the Respondent, Department of Insurance and Treasurer (the Department), to deny his application for benefits under the Firefighters Supplemental Compensation Program. A factual dispute exists as to whether Petitioner possesses an appropriate major study concentration area to qualify for the Firefighters Supplemental Compensation Program at the associate degree level.

The case was referred to the Division of Administrative Hearings for formal hearing on April 23, 1992, where it was assigned to Hearing Officer Veronica E. Donnelly. Based upon the Department's Response to the Initial Order which represented it was unavailable for hearing until after August 3, 1992, the case was scheduled for hearing on September 9, 1992.

During the hearing, Petitioner filed one exhibit and testified in his own behalf. Leave was granted for the filing of three additional exhibits posthearing. The additional exhibits were not received by the Hearing Officer. The Department moved one exhibit into evidence and presented one witness. The opportunity to file responsive exhibits to Petitioner's posthearing exhibits was provided but became unnecessary when the exhibits were not filed.

A transcript of the hearing was not ordered. Proposed recommended orders were due twenty-one days after hearing so that the anticipated posthearing exhibits could be addressed in proposed findings of fact. The Petitioner did not submit proposed findings of fact. Rulings on the proposed findings of fact submitted by the Department are in the Appendix to the Recommended Order.

FINDINGS OF FACT

1. Petitioner is employed as a full-time professional firefighter by the City of Tampa Fire Department. His primary responsibility is the prevention and extinguishment of fires, the protection and saving of life and property, and the enforcement of municipal, county and state fire prevention codes, as well as of any law pertaining to the prevention and control of fires.

   
   

2. Petitioner received an associate in arts degree in Business Administration in May 1989 from Hillsborough Community College. In addition, he has earned 90 hours credit towards an associate in science degree from the same accredited post secondary institution.

   
   

3. Petitioner's permanent academic record at Hillsborough Community College reveals he has successfully completed the following fire-related courses:

   1. SUMMER 1983 SEMESTER CREDITS ENS 1119 EMT AMBULANCE 5

      EMS 1119 EMT AMBULANCE LAB 1

   2. FALL 1986 SEMESTER CREDITS

      FFP 2601 FIRE APPARATUS PRA 3

      FFP 1600 FIRE APPARATUS EQ 3

   3. FALL 1990 SEMESTER CREDITS

   FFP 2420 F/F TACTICS & STRA 3

   FFP 2660 RESCUE PRACTICES 3

   FFP 2110 FIRE COMPANY MAN AG 3

   
   

4. Although Petitioner has 21 semester hours that the Department has agreed are fire related courses, 9 of these hours were credited to him after his associate in arts degree was conferred upon him in May of 1989.

   
   

5. In order for a firefighter to be eligible for supplemental compensation related to an associate degree, he or she must have at least 18 semester hours that are fire related and are part of the firefighter's studies for the degree.

   
   

6. Petitioner had only 12 semesters of fire related studies prior to the award of his degree.

7. In order for Petitioner to receive eligibility credits for the full 21 semester hours in the Firefighter's Supplemental Compensation Program, he would have to acquire his second associate degree from Hillsborough Community College.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Section 120.57(1), Florida Statutes.

   
   

9. The qualifications for supplemental compensation to firefighters are set forth in Section 633.382(2), Florida Statutes, which provides as follows in pertinent part:

   
   

   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 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).

      
      

10. The policy guidelines established by the Division of State Fire Marshall of the Department of Insurance for fire related associate degrees are stated in Rule 4A-37.084, Florida Administrative Code. Subsection 2 of the rule defines an associate degree as follows:

    
    

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

    
    

11. The term "major study concentration area" is subsequently defined within the rule as follows:

    
    

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

    
    

12. Based upon the foregoing, it logically follows that if Petitioner had completed at least 18 semester hours of fire related courses prior to the award of his associate of arts degree in May 1989, he would currently be eligible for supplemental compensation. The fact that he has taken over 18 semester hours fire related courses when his pre-degree fire related courses are combined with his post-degree fire related courses is inadequate to allow eligibility for the supplemental compensation. Section 633.382(2)(a)1., Florida Statutes, specifically requires the fire related courses to be part of the degree program pursued by the firefighter. As a result, the Department has no discretion and must deny Petitioner's pending eligibility request.

RECOMMENDATION

Accordingly, it is RECOMMENDED:

That Petitioner should be denied eligibility for the Firefighters Supplemental Compensation Program as he did not complete at least 18 semester hours of fire related courses prior to receiving his award of an associate of arts degree.

DONE and ENTERED this 6th day of October, 1992, at Tallahassee, Florida.

VERONICA E. DONNELLY

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 6th day of October, 1992.

APPENDIX

The Respondent's proposed findings of fact are addressed as follows:

1. Accepted. See HO #1.

2. Accepted. See HO #2.

3. Accepted. See Preliminary Statement.

4. Accepted. See HO #4 and #5.

COPIES FURNISHED:

Mark B. Maxey

6909 N. Glen Avenue Tampa, FL 33614

William C. Childers, Esquire Division of Legal Services

412 Larson Building Tallahassee, FL 32399-0300

Bill O'Neil

Deputy General Counsel Department of Legal Affairs The Capitol, Plaza Level Tallahassee, FL 32399-0300

Tom Gallagher

State Treasurer and Insurance Commissioner

Department of Insurance and Treasurer

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 consult with 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: 92-002479

Orders for Case No: 92-002479