STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAMELA JO PARKER, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4760

) DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on November

51 1991, at Fort Lauderdale, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances at the hearing were as follows:

For Petitioner: Lisa S. Santucci, Esquire

Division of Legal Services

412 Larson Building

Tallahassee, Florida 32399-0300

For Respondent: O. Edgar Williams, Jr., Esquire

Berryhill, Avery, Williams & Jordan Post Office Box 24266

Fort Lauderdale, Florida 33307-4266 STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner qualifies for the Firefighters Supplemental Compensation Program at the Bachelor level for supplemental compensation at the rate of $110.00 per month.

PRELIMINARY STATEMENT

This case had its genesis in the Department's proposed

denial of the Petitioner's application for supplemental compensation at the Bachelor level of the Firefighters Supplemental Compensation Program. By letter received July 15, 1991, the Petitioner requested a formal proceeding in accordance with Section 120.57(1), Florida Statutes, to contest the proposed denial. That case was forwarded to the Division of Administrative Hearings for assignment of a Hearing Officer, where it was docketed as Case No. 91-4760.

Thereafter, on August 9, 1991, the Petitioner filed a petition challenging the validity of a portion of Rule 4A-37.084(3)(a), Florida Administrative Code, which is one of the Respondent's rules governing the application of the Firefighters Supplemental Compensation Program. The rule challenge case was docketed at the Division of Administrative Hearings as Case NO. 91- 5058R.

By order dated September 10, 1991, Case No. 91-4760 and Case NO. 91-5058R were consolidated for purposes of the formal hearing. The consolidation order specifically provided that the cases would again be severed following the hearing. 1/

At the formal hearing on November 5, 1991, the Petitioner testified on her own behalf and also offered two exhibits, both of which were received in evidence. The Respondent did not call any witnesses, nor did it offer any exhibits. 2/ Official recognition was taken of the applicable rules in the Florida Administrative Code. No transcript of the hearing has been prepared.

At the conclusion of the formal hearing, all parties were allowed 20 days within which to file their proposed orders. Thereafter, both parties filed timely proposed orders containing proposed findings of fact and conclusions of law.

Specific rulings on all proposed findings of fact submitted by both parties are in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times relevant and material to these proceedings, the Petitioner has been employed as a firefighter with the Metro-Dade Fire Department. The Petitioner's primary function with the Metro-Dade Fire Department is as a firefighter.

   
   

2. By letter dated May 30, 1991, and received on June 10, 1991, the Petitioner applied to the Respondent for Firefighters Supplemental Compensation at the Bachelor degree level.

   
   

3. Three transcripts were submitted with the Petitioner's application. The first was from Miami-Dade Community College, and showed that an Associate of Science degree in Fire Science was awarded to the Petitioner on May 4, 1991. The second transcript was from Broward Community College, showing many courses taken by Petitioner, but no degree awarded. 3/ The third transcript was from Florida International University, and showed that a Bachelor of Science degree with a major in Industrial Technology was awarded to Petitioner on December 12, 1980.

   
   

4. Petitioner's Bachelor degree from Florida International University is not based upon, and does not include, any of the courses in fire science that formed the basis for Petitioner's Associate degree from Miami-Dade Community College. 4/ Petitioner's transcript of her Bachelor degree does not reveal a major study concentration area of at least 18 semester hours or 27 quarter hours which is readily identifiable and applicable as fire- related.

   
   

5. On or about June 24, 1991, the Respondent notified the Petitioner that she was eligible for the Firefighters Supplemental Compensation Program at the Associate degree level by virtue of her Associate of Science degree in Fire Science from Miami-Dade Community College.

   
   

6. On or about June 26, 1991, the Respondent notified the Petitioner that she was not eligible for the Firefighters Supplemental Compensation Program at the Bachelor degree level because Petitioner's major in Industrial Technology from Florida International University was not a recognized Major Study Concentration Area in Rule 4A-37.084. The denial letter cites and quotes the definition of "Bachelor's Degree" at Rule 4A-37.084(3), Florida Administrative Code.

   CONCLUSIONS OF LAW

   
   

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

   
   

8. In a case of this nature, the applicant bears the burden of proving, by a preponderance of the evidence, its entitlement to the benefits sought. See Rule 28-6.08(3), Florida Administrative Code, and Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). If the proof is insufficient to demonstrate entitlement, the application must be denied. In this regard, the Petitioner must show that she meets all relevant statutory and rule criteria.

   
   

9. Section 633.382, Florida Statutes, establishes the Firefighter Supplemental Compensation Program and sets forth the criteria for disbursing additional compensation to qualified applicants. That section provides, in pertinent part:

   
   

   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 munici- pality 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 is certified in compliance with s. 633.35 and who is employed solely within the fire department of the employing agency as a full-time firefighter whose primary responsibility is the extinguishment of fires.

   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.

   3. Supplemental compensation. Supplemental compensation shall be determined as follows:

      1. Fifty dollars shall be paid monthly to each firefighter who qualifies under the provisions of subparagraph (2)(a)1.

      2. One hundred and ten dollars shall be

         paid monthly to each firefighter who qualifies under the provisions of subparagraph (2)(a)2.

         
         

10. The applicable policy guidelines are found at Chapter 4A-37, Florida Administrative Code. Rule 4A-37.084, Florida Administrative Code, contains the definitions for the Firefighter Supplemental Compensation Program, and reads, in pertinent part, 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. "Associate Degree" means an Associate of Arts or Associate of Science degree conferred by an accredited post-secondary institution.

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

    2. "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 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, 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 chapter are considered to be readily identifiable and applicable as fire-related.

    (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 technology, 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.

    
    

11. The Petitioner's major study concentration area for her Bachelor degree was Industrial Technology. That is not one of the major study concentration areas listed as "readily identifiable and applicable as fire- related" in Rule 4A-37.084(5), Florida Administrative Code. The evidence related to whether a major in Industrial Technology is "fire-related" is somewhat sparse, and is insufficient to support a conclusion that such a major, standing alone, is "fire-related." This is not to say that obtaining a major in Industrial Technology is not useful to a firefighter; it probably is. But the mere fact that it may be useful does not necessarily make it "fire-related." 5/ See the following cases for other examples of useful majors that have been found not to be fire-related: In the Matter of Craig L. Dunn, 8 FALR 2121 (1986); Dean

    J. John v. Dept. of Insurance and Treasurer, Case NO. 90-7665 (Ro issued April 23, 1991); Jorge Du Quesne v. Dept. of Insurance and Treasurer, Case No. 91-4437 (RO issued October 23, 1991). Thus, the Petitioner's Bachelor degree in Industrial Technology is insufficient, standing alone, to provide a basis for her participation in the Firefighters Supplemental Compensation Program at the Bachelor level.

    
    

12. Petitioner argues that her Bachelor degree must be considered in light of her Associate degree, and that when the two are considered together, she meets the eligibility requirements for the Firefighters Supplemental Compensation Program at the Bachelor level. Petitioner's argument in this regard must be rejected for at least two reasons. The first reason is that her Associate degree has absolutely no relationship to her Bachelor degree; she received the Bachelor degree more than ten years before she received her Associate degree. The major study concentration area of the Petitioner's Bachelor degree was totally different from the major study concentration area of her Associate degree, and the Bachelor degree was not based upon any of the courses that led up to the Associate degree. 6/ Therefore, it would be somewhat absurd to treat the courses in the Petitioner's Associate degree program as constituting part of her Bachelor degree program when they were so obviously not a part of that program of study.

13. The second reason for rejecting the Petitioner's argument is that the applicable statute, Section 633.382(2)(a)2., Florida Statutes, limits eligibility at the Bachelor level to those who receive a Bachelor degree "which bachelor's degree curriculum includes a major study concentration area readily identifiable as applicable to fire-related subjects. . . ." The Department has by rule interpreted the term "major study concentration area" to mean having "a major in" a fire-related field (see Rule 4A-37.084(5), F.A.C.), with the qualification that the "major" must include at least 18 semester hours or 27 quarter hours. As interpreted in the rules, for purposes of eligibility at the Bachelor level the statute requires more than merely 18 semester hours or 27 quarter hours of fire-related courses. One must also have a major, at the Bachelor level, in a fire-related field. Therefore, even if the courses which form the basis for the Petitioner's Associate degree were to be considered as part of her Bachelor course work, she would still not be eligible at the Bachelor level, because her major for her Bachelor degree would still be Industrial Technology and she would still not have a major at the Bachelor level in a fire-related field.

    
    

14. The Petitioner's argument also relies in part on her challenge to the validity of the second sentence of Rule 4A-37.084(3)(a), Florida Administrative Code. For reasons set forth in a Final Order issued this same day in Case NO. 91-5058R, the Petitioner's challenge to the rule has been dismissed.

RECOMMENDATION

For all of the foregoing reasons, it is RECOMMENDED that the Department of Insurance issue a final order in this case denying the Petitioner's application for participation in the Firefighters Supplemental Compensation Program at the Bachelor degree level. 7/

DONE AND ENTERED at Tallahassee, Leon County, Florida, this 17th day of December, 1991.

MICHAEL M. 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 17th day of December, 1991.

ENDNOTES

1/ Consolidation of the two cases for hearing was appropriate because most of the same facts are relevant to both cases. The posthearing severance of the cases is necessary because in one case the Hearing Officer must issue a Recommended Order and in the other must issue a Final Order.

2/ The Respondent tentatively offered a composite exhibit comprised of the entire file regarding the subject application, but when it was noted that all

relevant documents were already included in the Petitioner's exhibits, the Respondent's proposed exhibit was withdrawn.

3/ The Broward Community College transcript covers a period of time from "Term 1" of the 1974-75 academic year to "Term 3" of the 1985-86 academic year. None of the courses itemized on that transcript for terms prior to December of 1980 appear to be any type of "fire-related" subjects. However, for the 1985-86 academic year the transcript lists what appears to be a total of 18 semester hours of courses on subjects related to paramedic activities. Those 18 semester hours of paramedic related courses may come within the meaning of "fire-related" subjects. But it is irrelevant whether they do or do not, because those courses were taken five years after the Petitioner received her bachelor degree.

4/ Unlike the usual pattern in which a student first earns an Associate degree and then earns a Bachelor degree, in this case Petitioner first received her Bachelor degree and then approximately ten years later earned an Associate degree. The courses which formed the basis for Petitioner's Associate degree at Miami-Dade Community College could not have formed the basis for her Bachelor degree because the Bachelor degree was awarded before Petitioner began to attend courses at Miami-Dade Community College.

5/ Majors in Creole or Spanish would probably be quite useful to a firefighter in Dade County to communicate with victims and crowds at fire scenes, but such majors are not "fire-related."

6/ As previously noted, all of the courses that resulted in the Petitioner's Associate degree were taken after she had received her Bachelor degree.

7/ The Petitioner will, of course, continue to be eligible to participate in the Firefighters Supplemental Compensation Program at the Associate degree level.

APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 91-4760

Proposed findings submitted by Petitioner:

Paragraphs 1 and 2: Rejected as constituting conclusions of law, rather than findings of fact.

Paragraph 3: Accepted that the Petitioner is a firefighter.

Paragraphs 4, 5, and 6: Accepted in substance, with some unnecessary details omitted.

Paragraph 7: Accepted in substance except for the portion after the word "because." The portion after the word "because" is a conclusion of law rather than a proposed finding of fact.

Paragraph 8: Rejected as constituting a conclusion of law, rather than a finding of fact.

Proposed findings submitted by Respondent:

All proposed findings of fact submitted by the Respondent have been accepted in substance.

COPIES FURNISHED:

Lisa S. Santucci, Esquire Division of Legal Services

412 Larson Building Tallahassee, Florida 32399-0300

O. Edgar Williams, Jr., Esquire Berryhill, Avery, Williams & Jordan Post Office Box 24266

Fort Lauderdale, Florida 33307-4266

Bill O'Neil, Esquire Deputy General Counsel Division of Legal Services The Capitol, Plaza Level Tallahassee, FL 32399-0300

The Honorable Tom Gallagher

State Treasurer and Insurance Commissioner 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 dads 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.

State of Florida

Division of Administrative Hearings The DeSoto Building, 1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675. SunCom: 278-9675

December 23, 1991

The Honorable Tom Gallagher

State Treasurer and Insurance Commissioner The Capitol, Plaza Level

Tallahassee, FL 32399-0300

Re: Pamela Jo Parker vs. Dept. of Insurance and Treasurer DOAH Case Nos. 91-4760 and 91-5058R

Dear Commissioner Gallagher:

On December 17, 1991, I sent you my Recommended Order In Case NO. 91-4760 and my Final Order In Case NO. 91-5058R, which is a related rule challenge proceeding. It has since come to my attention that on the first page of both of those documents the names of the attorneys for the parties were inadvertently switched. To avoid confusion when those documents are published, I am enclosing a new first page for each document in which the names of the attorneys for the parties are listed correctly. Please substitute the enclosed pages for the first pages of the documents sent to you on December 17, 1991.

I apologize for any confusion or inconvenience which may have been occasioned by the switching of the names.

Sincerely,

Michael M. Parrish Hearing Officer

cc: Lisa S. Santucci, Esquire

O. Edgar Williams, Jr., Esquire Bill O'Neil, Esquire

Carroll Webb, Executive Director

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAMELA JO PARKER, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4760

) DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on November 5, 1991, at Fort Lauderdale, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances at the hearing were as follows:

For Petitioner: O. Edgar Williams, Jr., Esquire

Berryhill, Avery, Williams & Jordan Post Office Box 24266

Fort Lauderdale, Florida 33307-4266

For Respondent: Lisa S. Santucci, Esquire

Division of Legal Services

412 Larson Building Tallahassee, Florida 32399-0300

STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner qualifies for the Firefighters Supplemental Compensation Program at the Bachelor level for supplemental compensation at the rate of $110.00 per month.

PRELIMINARY STATEMENT

This case had its genesis in the Department's proposed

Docket for Case No: 91-004760

Orders for Case No: 91-004760