STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTIAN E. BEHRENS, )

)

Petitioner, )

vs. ) CASE NO. 93-4319

) DEPARTMENT OF INSURANCE ) AND TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on December 10, 1993, in Miami, Florida.

APPEARANCES

For Petitioner: William Lance Gerlin

330 Alhambra Circle

Coral Gables, Florida 33134

For Respondent: Daniel T. Gross

Division of Legal Services

Department of Insurance and Treasurer 612 Larson Building

Tallahassee, Florida 32399-0333 STATEMENT OF THE ISSUES

The central issue in this case is whether Petitioner is entitled to supplemental compensation pursuant to the Firefighters Supplemental Compensation Program.

PRELIMINARY STATEMENT

This case began on June 28, 1993, when the Department of Insurance (Department) issued a letter notifying Petitioner that his request for supplemental compensation had been denied. Thereafter, the Petitioner timely contested that decision and the matter was forwarded to the Division of Administrative Hearings for formal proceedings on August 5, 1993.

On August 2, 1993, the Department issued an amended letter of denial to specify that Petitioner was not entitled to supplemental compensation at the associate level or bachelor level. The motion for leave to amend the denial letter was granted on August 17, 1993.

A notice of hearing scheduling the hearing for December 14, 1993 was entered on August 31, 1993. In order to accommodate the scheduling conflict of the Petitioner, the hearing was rescheduled for December 10, 1993.

At the hearing, the Petitioner testified in his own behalf and presented the testimony of the following witnesses: Richard P. Cook, operations chief for the Coral Gables Fire Department; and Tom Sullivan, assistant fire chief, City of Miami Beach. The Petitioner's exhibits identified by the letters A through L were admitted into evidence. The Department offered the testimony of Frederick

1. Stark, currently retired from the Department of Insurance, formerly bureau chief of the Bureau of Fire Standards and Training within the Division of State Fire Marshal. Its exhibits numbered 1 through 8 were also admitted into evidence.

   
   

   The transcript of the proceeding was filed on January 12, 1994. On February 3, 1994, the Petitioner filed a motion for enlargement of time to file a proposed recommended order. Such request, although not consented to by Respondent, has been granted. Specific rulings on the proposed findings of fact submitted by the parties are included in the appendix at the conclusion of this order.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner, Christian E. Behrens, is a certified firefighter and is currently employed by the City of Miami Beach Fire Department as a firefighter

      II. As such, Petitioner is a "firefighter" as defined by Section 633.382(1), Florida Statutes.

      
      

   2. Petitioner has been employed by the City of Miami Beach Fire Department for approximately six and one-half years. He has an outstanding record with his employer and is highly rated in job performance.

      
      

   3. Petitioner received an associate in arts degree from Miami-Dade Community College in December, 1983.

      
      

   4. Petitioner received a bachelor of science degree from Florida International University with a major in computer science in April, 1987.

      
      

   5. Petitioner has completed in excess of the 18 semester credit hours of fire-related courses required for entry into the supplemental compensation program; however, such courses were completed after the Petitioner received the degrees described above and such courses were not included in the credits needed for the described degrees.

      
      

   6. The Department's position in this case is that the Petitioner would qualify for supplemental compensation at the associate degree level if he applies for, and receives, a second associate in arts degree from Miami-Dade Community College in either fire science or EMT technology. This would then qualify Petitioner under the associate level of compensation.

      
      

   7. Computer science is a valuable fire-related technology utilized by fire departments across this state. As a part of his regular duties, Petitioner has been required to learn, and teach to others, the statewide fire management information system. This system is mandated by the Department and is a computer program utilizing computers in the work place.

      
      

   8. Additionally, Petitioner has assisted in the design and implementation of his fire department's USC pen pad system. Again, this is a computer program mandated by his employer which utilizes computers in the work place.

   9. Additionally, Petitioner spends countless hours working with computers to assist in the daily function of his fire department. These hours are a part of, or are in addition to, other duties he performs for the fire department.

      
      

   10. Computers have become an indispensable portion of the operations of the Coral Gables Fire Department and, indeed assist all aspects of the fire department operation: from personnel to administration to actual fire fighting. As such Petitioner's skills and training make him a highly desirable employment prospect. Petitioner's expertise is considered by Operations Chief Cook to be invaluable and fire-related.

       
       

       CONCLUSIONS OF LAW

       
       

   11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

       
       

   12. Section 633.382, Florida Statutes, provides, in pertinent part:

       
       

       (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 degree 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).

          
          

       2. Whenever any question arises as to the eligibility of any firefighter to receive supplemental compensation as provided in this section, the question, together with all facts relating thereto, shall be submitted to the division for determination, and the decision of the division with regard to determination of eligibility shall be final, subject to the provisions of chapter 120.

   13. Rule 4A-37.084, Florida Administrative Code, provides, in pertinent part:

       
       

       (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 training, 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)

       
       

   14. As the burden of proof in this case rests with the Petitioner, he must establish that his major study concentration area is fire-related. He has met that burden. The evidence presented in this case establishes that Petitioner's major is fire-related, and that his skills derived from that study are an essential part of the operations of the fire department for which he works. Additionally, the incontrovertible evidence shows that Petitioner's expertise is a highly sought after skill which would be an asset for any fire department.

       
       

   15. Finally, Petitioner has established that he possesses and has completed in excess of 18 semester hours (or 27 quarter hours) in an area that is without question fire-related. Although Petitioner's associate degree does not include those courses, it would be incongruous to require the Petitioner to obtain a second associate in arts degree in order to receive the supplemental award when he has, without dispute, taken the requisite courses and otherwise complied with the rule. Regardless of his bachelor's degree, Petitioner would, at the minimum, qualify for the associate level compensation.

       
       

   16. In summary, Petitioner has met his burden to establish that his bachelor degree is fire-related. Accordingly, he should receive the supplemental compensation at that level.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Department of Insurance and Treasurer, Division of State Fire Marshal, enter a final order granting Petitioner's request for supplemental compensation at the bachelor degree level.

DONE AND ENTERED this 7th day of April, 1994, in Tallahassee, Leon County, Florida.

JOYOUS D. 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 7th day of April, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4319

Rulings on the proposed findings of fact submitted by Petitioner:

1. Paragraphs 1 through 3, 8, 9, and 10 are accepted.

2. Paragraph 4 is rejected as a restatement of law.

3. Paragraph 5 is rejected as a restatement of the statute and rule.

4. Paragraph 6 is rejected as restatement of the rule.

5. Paragraph 7 is rejected as argument or irrelevant.

6. Paragraph 11 is rejected as argument.

7. Paragraph 12 is rejected as conclusion of law or argument.

Rulings on the proposed findings of fact submitted by Respondent:

1. Paragraphs 1, 2, 4, 5, 7, 8 through 24, 31 through 33, 38 and 39 are accepted.

2. Paragraphs 3 and 6 are accepted but are irrelevant.

3 Paragraphs 25, 26, 27, 28, 29, 30, 34, 35, 36, and 37 are rejected as argument, irrelevant, or not supported by credible evidence.

COPIES FURNISHED:

Hon. Tom Gallagher State Treasurer and Insurance Commissioner

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Bill O'Neil General Counsel

Department of Insurance The Capitol, PL-11

Tallahassee, Florida 32399-0300

William Lance Gerlin

330 Alhambra Circle

Coral Gables, Florida 33134

Daniel T. Gross

Division of Legal Services Department of Insurance and Treasurer

612 Larson Building

Tallahassee, Florida 32399-0333

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: 93-004319

Orders for Case No: 93-004319