STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JORGE DU QUESNE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4437

)

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Miami, Florida on September 25, 1991 before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Jorge du Quesne, pro se

2500 SW 79th Crt.

Miami, Florida 33155

For the Respondent: Andrew Kenneth Levine, Esquire

Division of Legal Services

412 Larson Building Tallahassee, Florida 32399-0300

STATEMENT OF THE ISSUES

The issue for consideration is whether the Petitioner qualifies for participation in the Firefighter's Supplemental Compensation Program at the Bachelor's level.

PRELIMINARY MATTERS

By letter dated May 29, 1991, Frederick C. Stark, Bureau Chief, Bureau of Fire Standards and Training, Office of the Treasurer, advised the Petitioner herein, Jorge Du Quesne, that he failed to qualify for participation in the Firefighter's Supplemental Compensation Program, (Program), at the Bachelor'slevel since it was determined that he did not possess an appropriate major study concentration area as required by the statute and Rule 4A-37.084, F.A.C.. Petitioner responded to Mr. Stark by letter dated June 18, 1991, in which he outlined those courses which he felt qualified him for participation in the program, and requested reconsideration of the determination previously made. Thereafter, by letter dated July 12, 1991, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer. On August 2, 1991, after Respondent, on behalf of both parties, responded to the Initial Order, the undersigned issued a Notice of Hearing setting the case for hearing in Miami on September 25, 1991 at which time it was held as scheduled.

At the hearing, Petitioner testified in his own behalf and introduced the testimony of Fire Lieutenant Jack Erdozain. Petitioner also introduced Petitioner's Exhibits 1 through 12. Respondent presented the testimony of Frederick C. Stark, the Chief of the Department of Insurance's Bureau of Fire Standards and Training and introduced Respondent's Composite Exhibit A. At the request of the Respondent, the undersigned officially recognized Section 633.382, Florida Statutes, (1989), and Part VI, Chapter 4A, Florida Administrative Code.

No transcript was provided. Respondent submitted proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

Petitioner did not submit any Proposed Findings of Fact subsequent to hearing. A letter, received on October 4,1991, referring to the documentary material previously submitted and commenting on the evidence at hearing, was carefully considered in the preparation of this Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Petitioner, Jorge Du Quesne, was a fire fighter, (driver/engineer), employed by the City of Miami Fire Department. The Respondent, Department of Insurance and Treasurer, Bureau of Fire Standards and Training, was and is the state agency in Florida responsible for the management and certification of fire fighters in this state. It is also the agency charged by statute with the responsibility of determination of the eligibility of any fire fighter to receive supplemental compensation under the Program, and the decision of the Bureau is final subject to the provisions of Chapter 120, Florida Statutes.

   
   

2. Petitioner was awarded a Bachelor of Civil Engineering degree in 1973 by Georgia Tech. The Bachelor of Civil Engineering degree is equivalent to a Bachelor of Science degree in Engineering. While a student, Mr. Du Quesne majored in structural engineering. In addition to his undergraduate degree, he has also taken several courses sponsored by the Miami Fire Department in hydraulics, structures, construction materials and the like. The questions on the examinations came from materials provided at the course presentation.

   
   

3. While a student at Georgia Tech, Mr. Du Quesne took many courses which relate, to some degree, to fire fighting. Included in these are pump operation and efficiency in fluid functions lab, which dealt with a centrifugal pump similar to that which is used on the fire trucks he operates. Others included chemistry, physics, fluid mechanics, thermodynamics, applied electricity, constructions materials, structural analysis, metal structural components, concrete structural components, sanitary engineering, and timber and pre- stressed concrete. All of these subjects have a bearing on fire fighting and give him a background upon which fire training can be based.

   
   

4. Petitioner's current position as a driver/engineer of a pumper truck does not require a college degree. By the same token, the fire fighting courses he has taken since becoming a member of the Department do not provide college credit. The Department sponsored courses were designed to make him a better fire fighter, and most attendees did not possess the civil engineering background he has.

   
   

5. In his work he relies on both his fire training and that material he studied during his training as a civil engineer. Admittedly the formulae he learned while a student in college do not necessarily relate to the work he

   performs on a daily basis dealing with hoses pipes and the other functions of a fire fighter. On the other hand, however, much of the information and the formulae he has learned do relate.

   
   

6. Petitioner feels his civil education helps him make better decisions while on the fire scene. He believes that the two careers, that of a civil engineer and that of a fire fighter, aredirectly related and he contends his civil engineering background qualifies him for participation in the program and the resultant award of additional compensation. His civil engineering background, for example, gives him a better understanding of the structure of a building, how it works, how it will come down, and how it will react to the pressures of the fire and the fire fighting efforts applied. It is his firm opinion that his understanding of those problems, based on the training as a civil engineer he received in college, makes him far better qualified than someone who does not have this training.

   
   

7. The general thrust of Petitioner's argument is supported by the testimony of Fire Lieutenant Erdozain, himself a graduate in engineering from Florida International University. Lt. Erdozain is familiar with the duties of a fire fighter and those of a civil engineer. When he responds to a fire, the first thing he has to take into consideration are those factors dealing with the structure on fire. He needs to know if he can safely enter it or not and the information he learned in his engineering training helps him with that decision.

   
   

8. The Miami Fire Department does not offer any courses in building structure. Most knowledge in that area possessed by fire fighters is gained from experience, but the information received as a result of an education in civil engineering would help in the resolution of those problems.

   
   

9. Another example is service on the hazardous material team, (HAZMAT). In performing that service, a fire fighter has toknow the properties of the material he will be dealing with in responding to a fire involving them. In that regard, according to Lt. Erdozain, a thorough knowledge of chemistry, beyond that which is taught by the fire department, is helpful. Though Petitioner is not now serving on a HAZMAT team and has not ever served on one during his career, he has had the opportunity to work with hazardous materials, as has most every other fire fighter employed by the Department. It is a constant potential.

   
   

10. All fire fighters are trained in the life safety code which relates to the interior construction of buildings. The books used by the Department in the courses it teaches on this subject do not go as far or as thoroughly into it as does the course material given in a civil engineering education, and in Lt. Erdozain's opinion the knowledge possessed by a civil engineer regarding materials and construction would be of great benefit to a fire fighter.

    
    

11. Petitioner's application for enrollment in the Program was forwarded to the bureau chief of the Department of Insurance's Bureau of Fire Standards and Training which has the responsibility for determining eligibility. The application was reviewed by Mr. Stark, the Bureau chief, who has a background of

    20 years experience as a fire fighter, and subsequent to retirement from that position, as an instructor, curriculum writer, and chief of the Bureau since 1982. He is thoroughly familiar with the Program and has dealt with it since its conception.

    
    

12. Mr. Stark determined that the Petitioner was not qualified for entry into the program based on the fact that his bachelor's degree is in civil

    engineering and is not either a bachelor of science or a bachelor of arts degree. Civil engineering is not one of the concentrations which qualifies for entry into the program. Section 633.382(2)(a)2, Florida Statutes, lists as a qualification:

    
    

    ... a bachelor's degree which bachelor's degree curriculum includes a major study concentration area readily identifiable and applicable to fire related subjects.

    
    

    Rule 4A-37, F.A.C., outlines the qualifying areas of concentration and it is Mr. Stark's opinion that Petitioner's civil engineering degree did not contain the major concentration areas identified by the rule as qualifying for admittance into the program. There were no other reasons for denial.

    
    

13. As Mr. Stark sees it, Petitioner is a driver/engineer. He has a responsibility to provide a water supply to hoses in the proper amount for fighting the fire to which he has responded. The particular course material to which Petitioner was exposed while in college constituted a curriculum which does not, in Mr. Stark's opinion, qualify as a fire science curriculum. He is has reviewed the comments furnished by the Petitioner in his letter of response to the Department's letter of denial, but determined that those explanatory comments were not a catalogue description of the courses taken. Petitioner's comments contain much which is not put there by the college.

    
    

14. Under the provisions of Section 4A-37.084(3), F.A.C., a bachelor's degree is acceptable provided the major studyconcentration area is readily identifiable and applicable as fire related, and in the major study concentration area, at least 18 semester hours or 27 quarter hours must be so related. The major study concentration areas means 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 whose major study concentration area does not fall within one of those categories may nonetheless petition the Division for entry into the program but the burden of proof is on the applicant to prove that his major is fire related.

    
    

15. Mr. Stark determined that Petitioner's course background does not closely enough relate to his current job. His education background contains no fire science courses which would be more appropriately related to fire fighting than the general engineering courses he took. In short, the Petitioner's educational background, while of a related type, was not sufficiently related to fire science. The intent of the statute and the rule is to require fire fighters to qualify themselves for the performance of their duties by taking fire science courses, not general courses which might be somewhat generally related to the fire fighting career.

    
    

16. For example, in the area of hydraulics, Mr. Stark contends that the formulae used by fire fighters in this area are somewhat different than those used by a general civil engineer and the fire fighting approach to this course is more specialized. However, he readily admits that a prior knowledge of basic hydraulics will give a fire fighter an advantage in learning those specifics of fire service related hydraulics. The same would apply to any course which bears some relationship to or has some application in fire fighting.

    
    

17. Mr. Stark indicates that if Petitioner had been an officer with the Fire Department as opposed to a fire fighter, his review of the application

    might have been more detailed. In this comment he does not infer that officers are given preference over fire fighters in entry into the program. He means, instead, that the job of the officer, with its management responsibilities, is what controls - not the rank itself. In that regard, Lt. Erdozain, who is an officer, was denied entry into the program. He contends, as does Petitioner, that any fire fighter who is placed in charge may assume the function of an officer at any given time at the scene of a fire. The over-all additional responsibility of the officer is what controls, however.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

19. Here Petitioner contests a decision of the Bureau of Fire Standards and Training denying him eligibility for participation in the Fire Fighters Supplemental Compensation Program on the basis that his degree in civil engineering is not sufficiently related to the area of fire fighting as to meet the criteria for entry.

    
    

20. Section 633.382(2), Florida Statutes, provides:

    
    

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

       * * *

       2. Any fire fighter, 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 paragraphs (3)(b).

       
       

21. Under the provisions of subparagraph (b) of this section, if a question arises as to the eligibility of a fire fighter to receive supplemental compensation, the question shall be referred to the Bureau of Fire Standards and Training whose determination of eligibility shall be final subject to review pursuant to the provisions of Chapter 120, Florida Statutes. Consistent with the terms of the statute, the Department has promulgated Chapter 4, F.A.C., which, at part VI, Rule 4A-37.085, provides that to be eligible to receive the supplemental compensation provided for by the statute, the applicant must:

    
    

    1. Be a full time certified fire fighter employed within the fire department of an employing agency as a full time fire fighter, and

    2. Possesses an eligible associate or bachelor's degree.

22. The evidence of record here indicates that Petitionerpossesses a Bachelor of Civil Engineering degree from Georgia Tech. Rule 4A-37.084(3) provides that:

    
    

    a 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 fire fighter may receive supplemental compensation based on possession of a bachelor's degree regardless of whether or

       not an associate degree was previously earned, and

    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 are considered to be readily identifiable and applicable as fire related.

    
    

23. Thereafter, the rule defines major study concentration areas as:

    
    

    ... 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 posses 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.

    
    

24. Here, the Petitioner has the burden of proof to establish that his post-secondary bachelor's degree, though neither a bachelor of science nor a bachelor or arts degree, and though not in one of the major study concentration areas listed in the rule, is nonetheless fire related.

    
    

25. In support of his claim, Petitioner submitted numerousmagazine articles which establish that various course material covered in a curriculum leading to the award of a civil engineering degree is titled with the same subject category title as those pertinent to fire fighting. The Department does not dispute that many of the subjects taught to engineering candidates bear some relation to the same subjects pertinent to fire fighting. However, the Department's position, which has not been shown to be incorrect by the Petitioner, is that those engineering subjects are only generally related to fire fighting and by themselves, not sufficiently related to fire fighting to qualify a fire fighter for the performance of those duties which are inherent in the description of a fire fighter. In other words, it is the degree of specialization which is inherent in the fire fighter's training which is not met by the basic engineering courses, though the general subject matter may be similar. It is for this reason that the division determined that the civil engineering degree possessed by the Petitioner did not fall within the

    appropriate major study concentration areas outlined in the rule so as to qualify him for entry into the program.

    
    

26. An agency 's interpretation of its own rule will be given great weight and its administration thereof will ordinarily be given great deference. Little Minion Island v. Department of Environmental Regulation, 492 So.D 735, 737 (Fla. Da 1986). In the instant case, the agency has determined that Mr. Du Quesne's civil engineering background is not sufficiently related to fire service as to qualify him for entry into the supplemental compensationprogram. Though Petitioner disagrees, and has presented evidence to show that a civil engineering background can benefit a fire fighter, he has not been able to establish by sufficient evidence of record that the Department's determination is incorrect.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED THAT a Final Order be entered denying Petitioner qualification for entry into the Fire Fighter's Supplemental Compensation Program.

DONE and ENTERED in Tallahassee, Florida this 23rd day of October, 1991.

ARNOLD H. POLLOCK

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 23rd day of October, 1991.

APPENDIX TO RECOMMENDED ORDER

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida States, on all of the Proposed Findings of Fact submitted by the parties to this case.

FOR THE PETITIONER:

Petitioner submitted no Proposed Findings of Fact. His three page letter, dated September 30, 1991, containing his observations, and the other materials therein have been carefully considered in the preparation of this Recommended Order.

FOR THE RESPONDENT:

1. Accepted and incorporated herein.

2. Accepted.

3. Accepted and incorporated herein.

4. Not a Finding of Fact.

5. & 6. Accepted and incorporated herein.

1. Accepted and incorporated herein except for last sentence which is contra to the evidence of record.

2. Rejected as not necessarily consistent with the evidence. Petitioner indicated that depending upon the situation at the scene of a fire, he could be called upon to make almost any fire related decision.

3. Accepted.

4. Not a Finding of Fact but a comment on the evidence.

5. Accepted.

6. Accepted and incorporated herein.

7. - 15. Accepted.

1. Accepted. Petitioner is not on nor has he ever been on a HAZMAT team. However, the evidence, uncontradicted, indicated he could be called upon to work with them at any given time.

2. Accepted.

3. Not a true Finding of Fact but more a comment on the evidence.

4. Accepted.

COPIES FURNISHED:

Jorge Du Quesne 2500 SW 79th Court

Miami, Florida 33155

Andrew Kenneth Levine, Esquire Department of Insurance 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

Bill O'Neil General Counsel

Department of Insurance The Capitol, Plaza Level

Tallahassee, Florida 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 which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should b e filed with the agency which will issue the Final Order in this case.

Docket for Case No: 91-004437

Orders for Case No: 91-004437