STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RUSSELL L. BJORKMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2922

)

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to agreement of the parties, no formal hearing was held in this proceeding. Instead, the record in this proceeding consists of written evidence in the form of exhibits submitted by the parties.

APPEARANCES

For Petitioner: Kathleen Phillips, Esquire

Kaplan & Bloom, P.A.

1951 Northwest 17th Avenue

P.O. Box Drawer 520337 Miami, Florida 33152

For Respondent: Lisa S. Santucci, Esquire

Department of Insurance Office of Legal Affairs

412 Larson Building

Tallahassee, Florida 32399-0300 STATEMENT OF THE ISSUES

Whether Petitioner is entitled to participate in the Firefighters Supplemental Compensation Program when he has a master's degree but not a bachelor's degree.

PRELIMINARY STATEMENT

Petitioner is a firefighter who was initially accepted as being eligible to participate in the Firefighters Supplemental Compensation Program. By letter dated April 4, 1990, Respondent notified Petitioner that he was not eligible to participate in the program because Petitioner did not have either an Associate Degree or a Bachelor's Degree as required by the pertinent statutes and rules.

Respondent's position is that the Master's Degree earned by Petitioner does not, without either the Associates Degree or the Bachelor's Degree, qualify for the program. Petitioner timely protested that determination and this proceeding followed.

Pursuant to the agreement of the parties, no formal hearing was held in this proceeding. Instead, the facts of this case are to be determined based on the exhibits filed herein. Neither party objects to the exhibits offered by the other party. Consequently, all exhibits are accepted into evidence. Petitioner filed a total of nine exhibits which are described below. Respondent filed one composite exhibit, a copy of Respondent's complete file on Petitioner. The Petitioner's exhibits are:

Petitioner's Exhibit 1: Certificate of Compliance issued to Petitioner by the Bureau

of Fire Standards and Training on August 25, 1976;

Petitioner's Exhibit 2: Firefighter Supplemental Compensation Transcript Request dated August 10, 1988;

Petitioner's Exhibit 3: Official Acceptance Notification dated September 21, 1988;

Petitioner's Exhibit 4: Letter to Petitioner from Frederick C. Stark dated November 20, 1989;

Petitioner's Exhibit 5: Transcripts from the University of Arkansas and Miami Dade Community College and cover letter dated December 18, 1989;

Petitioner's Exhibit 6: Certified letter to

Petitioner from Frederick C. Stark dated April 4, 1990;

Petitioner's Exhibit 7: Certified letter from Petitioner to Frederick C. Stark dated April 23, 1990;

Petitioner's Exhibit 8: Copy of diploma dated May 6, 1988, from Barry University conferring on Petitioner the degree of Master of Business Administration;

Petitioner's Exhibit 9: Affidavit of George J. Petrello, Ph.D., former dean of the Andreas School of Business Executive Program at Barry University.

The parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to these proceedings, the Petitioner has been employed as a firefighter with the City of Miami, Florida. He received his Certificate of Compliance with the Division of the State Fire Marshal on August 25, 1976.

   
   

2. On August 25, 1988, Petitioner applied to the Respondent for Firefighter Supplemental Compensation pursuant to Section 633.382, Florida Statutes, at the bachelor's level.

3. On September 21, 1988, Respondent notified Fire Chief C. H. Duke, City of Miami Fire Department, that Petitioner's application was accepted. This notification provided, in part that "... the firefighter will receive Supplemental Compensation for qualifying under the requirements of Section 633.382, Florida Statutes and Rule 4A-37.78 for possession of a/an [sic] Bachelor's degree of Business Administration."

   
   

4. On November 20, 1989, Respondent asked Petitioner to provide a copy of his undergraduate transcript. In response to that request, Petitioner provided a copy of his transcripts from the University of Arkansas, Miami Dade Community College, and Barry University.

   
   

5. On April 4, 1990, Petitioner was informed that he was being removed from the Firefighter Supplemental Compensation Program. This determination was based on a reevaluation of his transcripts which reflected that he did not possess an eligible Associate or Bachelor's Degree as required by Section 633.382, Florida Statutes, and by Rule 4A-37.085, Florida Administrative Code. [Formerly Rule 4A-37.076, Florida Administrative Code.]

   
   

6. Petitioner received 8 credit hours at the University of Arkansas, 27 credit hours at Miami Dade Community College, and 36 credit hours from Barry University.

   
   

7. Petitioner received a Master of Business Administration Degree from Barry University on May 6, 1988.

   
   

8. Petitioner does not possess an Associate degree or Bachelor's Degree from an accredited college or university.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Section 633.382(2)(a), Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. 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). ...

          
          

11. Rule 4A-37.085, Florida Administrative Code, [Formerly 4A-37.076, Florida Administrative Code], provides, in pertinent part, as follows:

    
    

    To be eligible to receive the Supplemental Compensation provided for by Section 633.382(3), Florida Statutes, the following requirements must be met:

    1. Possess an eligible Associate or Bachelor's Degree.

       
       

12. Petitioner argues that a master's degree, being a degree that is higher than the bachelor's level, subsumes within it the curriculum of the bachelor's degree and meets the requirements of Section 633.382, Florida Statutes. While this argument may be valid as to those subjects within the major field of study, the argument loses its validity when subjects outside the major field of study are considered. Moreover, the plain language of the statute requires that the firefighter must have either an associate degree or a bachelor's degree to be eligible to participate in the supplemental compensation program. It is not clear how Petitioner was able to earn a master's degree without first earning a bachelor's degree, but the record is clear that Petitioner has neither an associate degree or a bachelor's degree.

    
    

13. Petitioner, as the party asserting the affirmative of the issue in this proceeding, has the burden of establishing by a preponderance of the evidence his entitlement to supplemental compensation pursuant to Section 333.382, Florida Statutes.

    
    

14. An agency's interpretation of its governing statutes and the rules it has adopted will not be overturned even if such interpretation is not the sole possible interpretation, the most logical interpretation, or the most desirable interpretation. An agency's interpretation of its governing statutes and rules will not be overturned unless the interpretation is clearly erroneous. Health Quest Corporation, et al. v. Department of Health and Rehabilitative Services and Arbor Health Care Co., et al., 11 FALR 5427 (1989), ABC Liquors, Inc. v. Department of Business Regulation, 397 So.2d 696 (Fla. 1st DCA 1981); Department of Insurance v. Southeast Volusia Hospital District, 438 So.2d 815 (Fla. 1983).

    
    

15. While Respondent's interpretation of this statute and rule may not be the most logical or the most desirable interpretation considering the purpose of the statute, Petitioner has failed to establish that Respondent's interpretation of the subject statute and rule is clearly erroneous. Petitioner has, therefore, failed to carry his burden of proof.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent enter a final order which DENIES Petitioner's eligibility to participate in the Firefighters Supplemental Compensation program.

DONE AND ENTERED this 29th day of August, 1990, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1990.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NUMBER 90-2922

The following rulings are made on the proposed findings of fact submitted by Petitioner:

1. The proposed findings of fact in paragraphs 1-9 are adopted in material part by the Recommended Order.

   
   

2. The proposed findings of fact in paragraph 10 are rejected as being merely recitation of testimony in the form of excerpts from the affidavit of George J. Petrello, Ph.D., the former Dean of the Business Executive Program at Barry University. The statements in Paragraph 5 are overly broad and fail to consider the well recognized differences between a bachelor's program and a master's program, particularly as to subjects outside the major field of study. The statements in Paragraph 6 merely reflect Dr. Petrello's interpretation of the pertinent statute and rule. His interpretation is clearly not the only permissible interpretation.

The proposed findings of fact submitted on behalf of Respondent are adopted in material part by the Recommended Order.

Copies furnished:

Kathleen Phillips, Esquire KAPLAN & BLOOM, P.A.

1951 Northwest 17th Avenue

P. O. Drawer 520337 Miami, Florida 33152

Lisa B. Santucci, Esquire Division of Legal Services

412 Larson Building

Tallahassee, Florida 32399-0300

Tom Gallagher

State Treasurer and Insurance Commissioner

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Don Dowdell General Counsel

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Docket for Case No: 90-002922

Orders for Case No: 90-002922