STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FREDERICK MCALLEY, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4637

) DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was conducted in this case by video teleconference (at sites in West Palm Beach and Tallahassee, Florida) on January 10, 1997, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Frederick McAlley, pro se

9531 Lake Serena Drive Boca Raton, Florida 33496

For Respondent: Joe DeMember, Esquire

Department of Insurance Division of Legal Services 612 Larson Building

Tallahassee, Florida 32399-0300 STATEMENT OF THE ISSUE

Whether Petitioner's application for Firefighter's Supplemental Compensation should be granted?

PRELIMINARY STATEMENT

By letter dated August 13, 1996, the Department of Insurance and Treasurer (Department) advised Petitioner of its intention to deny Petitioner's application for Firefighter's Supplemental Compensation because Petitioner's "Major Study Concentration Area of Radio-Television does not meet the criteria found in Rule 4A-37.084, Florida Administrative Code." Petitioner thereafter requested a Section 120.57(1) hearing on the matter. On September 30, 1996, the matter was referred to the Division of Administrative Hearings.

As noted above, the Section 120.57(1) hearing that Petitioner had requested was held on January 10, 1997. During the evidentiary portion of the hearing, a total of four witnesses testified: Fire Chief Robert Rehr of the City of Delray Beach Fire Department; Training Chief Frank Ryncarz of the City of Delray Beach Fire Department; Petitioner; and Larry McCall, supervisor of the Standards Section of the Department's Bureau of Fire Standards and Training. In addition to the testimony of these four witnesses, a total of three exhibits (Petitioner's Exhibits 1 and 2 and Respondent's Exhibit

1) were offered and received into evidence.

At the conclusion of the evidentiary portion of the hearing, the undersigned, on the record, advised the parties of their right to file proposed recommended orders and established

a deadline (20 days after the undersigned's receipt of the transcript of the hearing) for the filing of these post-hearing submittals. The undersigned received the transcript of the hearing on April 17, 1997. On May 2, 1997, the Department filed a proposed recommended order, which the undersigned has carefully considered. To date, Petitioner has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. Petitioner graduated from Southern Illinois University in Carbondale, Illinois in May of 1976 with a Bachelor of Science degree. His major was "Radio-Television."

2. Petitioner is currently employed by the City of Delray Beach as a firefighter/paramedic, the job description for which reads as follows:

   JOB TITLE: FIREFIGHTER/PARAMEDIC GENERAL DESCRIPTION:

   Skilled technical work in the City's Fire Department in the field of fire suppression, prevention and emergency medical services.

   Work is performed under the general direction of the Battalion Chief.

   
   

   ESSENTIAL JOB FUNCTIONS:

   
   

   • Performs all duties in the Firefighter job description.

   • Responds with necessary equipment to

     requests for medical assistance, where life is endangered by illness or injury.

   • Administers basic and advanced life support at the scene of an emergency.

   • Transports victims to the closest appropriate medical facility according to protocol, unless turned over to a licensed transport agency with equal or higher medical authority.

   • Maintains basic and advanced life support apparatus and equipment.

     
     

     (These essential job functions are not to be construed as a complete statement of all duties performed. Employees will be required to perform other job related marginal duties as required.)

     
     

     FULL PERFORMANCE KNOWLEDGE, SKILLS, ABILITIES AND PERSONAL CHARACTERISTICS:

     
     

   • Knowledge of the positions of firefighter and driver engineer and the skills to perform the duties of each.

   • Knowledge of the geography of the City with respect to streets, hydrants and building access information.

   • Knowledge of the location and layout of all high risk and special hazard occupancies, and the problems encountered with each.

   • Knowledge of the strategy and tactics of handling fire, rescue and medical emergencies and the ability to analyze and respond effectively under stress to each.

   • Knowledge of the record keeping system in use, the components of the system, and the functions of each.

   • Knowledge of paramedic principles, practices and techniques and how they are used in rescue operation.

   • Ability to carry out orders and to see that department and City policies are adhered to.

   • Ability to perform Firefighter and ALS duties effectively.

     MINIMUM QUALIFICATIONS:

     
     

     High School graduation or possession of an acceptable equivalency diploma. Completion of minimum standards as required by the State of Florida. Successful completion of all medical and fitness requirements and examinations as described by the City.

     
     

     LICENSES, CERTIFICATIONS OR REGISTRATIONS:

     
     

     State of Florida Paramedic Certification. State of Florida Firefighter Certification. Protocol Certification issued by Department Medical Director. Class D Commercial Drivers License.

     
     

     ESSENTIAL PHYSICAL SKILLS:

     
     

   • Meet physical requirement as indicated for State certification.

   • Must endure sustained acts of physical exhaustion and endure periods of duty under unfavorable and life threatening situations.

   • Heavy (45 pounds and over) lifting and carrying

   • Reaching

   • Acceptable eyesight (with or without correction)

   • Acceptable hearing (with or without hearing aid)

   • Ability to communicate orally

   • Climbing (including ladders)

   • Pulling

   • Pushing

   • Walking

   • Standing

   • Crawling

   • Kneeling

   • Bending

   • Balancing

   • Smelling

   • Stooping

   • Jumping

   • Throwing

   • Driving

   • Running

   • Swimming

     
     

     ENVIRONMENTAL CONDITIONS:

     
     

   • Hazardous conditions: flames, fire, chemicals, smoke, heat, gases, moving vehicles, falling structures and debris, electricity, poor ventilation, poor lighting and related hazards

   • Stressful situations

   • Bio-hazard infectious disease

   
   

   (Reasonable accommodations will be made for otherwise qualified individuals with a disability.)

   
   

3. Because of his educational background in "Radio- Television," Petitioner has, on occasion, been requested by his supervisors to produce video tapes used for firefighter/paramedic training or for educating the public concerning the services offered by the City of Delray Beach Fire Department.

4. The production of these video tapes, however, is not one of Petitioner's primary job duties.

   CONCLUSIONS OF LAW

   
   

5. Pursuant to Section 633.382, Florida Statutes, which provides, in pertinent part, as follows, firefighters who have received a bachelor's degree from an accredited college are entitled to supplemental compensation if their degree is "applicable to fire department duties:"

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

      
      

      1. "Division" means the Division of State Fire Marshall of the Department of Insurance created and existing under the provisions of this chapter.

         
         

      2. "Employing agency" means any municipality 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 meets the definition of the term "firefighter" in s. 633.30(1)1 who is certified in compliance with s. 633.35 and who is employed solely within the fire department of the employing agency or is employed by the division.

         
         

   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: . . .

         
         

         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 is applicable to fire department duties, 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 decision of the division with regard to determination of eligibility shall be final, subject to the provisions of chapter 120.

         
         

   3. SUPPLEMENTAL COMPENSATION.- Supplemental compensation shall be determined as follows: . . .

      
      

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

      
      

6. The "policy guidelines of the division" referenced in subsection (2)(a)2. of Section 633.382, Florida Statutes, are found in Rule 4A-37.084(3) and (5), Florida Administrative Code, which provide as follows:

   For purposes of this part, terms used in Rules 4A-37.082-4A-37.089 are as defined in Section 633.382(1), Florida Statutes, and terms which are not otherwise defined in said statutes are defined as follows:

   
   

   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 as applicable to fire department duties.

      
      

      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 Degree be used in consideration for qualification of the Bachelor's Degree Supplemental Compensation.

         
         

      2. The major study concentration area must be readily identifiable as applicable to fire department duties. Those major

   study concentration areas specifically defined in

   
   

   this rule chapter are considered to be readily identifiable as applicable to fire department duties.

   
   

   (5) "Major Study Concentration Area" as identified on official sealed transcripts, includes a major in fire science, municipal management, public administration, business administration, computer science, engineering, management information systems, emergency medical technology, and paramedic technology.

   
   

7. In the instant case, Petitioner claims that he is a "firefighter" entitled to supplemental compensation under Section 633.382(2)(a)2., Florida Statutes.

8. The burden was on Petitioner at hearing to establish, by a preponderance of the evidence, such entitlement. See Department of Banking and Finance v. Osborne Stern and Company, 670 So.2d 932, 934 (Fla. 1996); Pershing Industries, Inc., v.

   Department of Banking and Finance, 591 So.2d 991, 994 (Fla. 1st DCA 1991); Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 787-88 (Fla. 1st DCA 1981); Section

   120.57(1)(h), Fla. Stat. ("[f]indings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute").

9. Petitioner failed to meet this burden of proof.

   
   

10. While he has shown that he received a Bachelor of

    Science degree from Southern Illinois University (SIU), he has not demonstrated that his degree is "applicable to fire department duties," within the meaning of Section 633.382, Florida Statutes, inasmuch as his "major study concentration area" at SIU was "Radio-Television." Although the "Radio- Television" coursework that he took at SIU may have provided him with the background necessary to successfully complete the special video production projects that, on occasion, as an employee of the City of Delray Beach Fire Department, he has been assigned in addition to his regular firefighter/paramedic duties, "Radio-Television" is not among the majors enumerated in Rule 4A-37.084(5), Florida Administrative Code, nor is it "readily identifiable as applicable to fire department duties," as required by the "policy guidelines of the division" adopted pursuant to Section 633.382, Florida Statutes.

11. Accordingly, Petitioner is not entitled to the supplemental compensation he is seeking pursuant to Section 633.382(2)(a)2., Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Department enter a final order finding that Respondent is not entitled to the supplemental compensation he is seeking pursuant to Section 633.382(2)(a)2., Florida

Statutes.

DONE AND ENTERED this 14th day of May, 1997, in Tallahassee, Florida.

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1997.

ENDNOTE

1 Section 633.30(1), Florida Statutes, defines the term "firefighter" as follows:

"Firefighter" means any person initially employed as a full-time professional firefighter by any employing agency, as defined herein, whose 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.

COPIES FURNISHED:

Frederick McAlley

9531 Lake Serena Drive Boca Raton, Florida 33496

Joe DeMember, Esquire Department of Insurance Division of Legal Services 612 Larson Building

Tallahassee, Florida 32399-0300

Bill Nelson

State Treasurer and Insurance Commissioner The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Daniel Y. Sumner General Counsel The Capitol, LL-26

Tallahassee, Florida 32399-0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

1

Docket for Case No: 96-004637

Orders for Case No: 96-004637