STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEAN L. SCOTT, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5982

) DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by William R. Cave, the assigned Hearing Officer from the Division of Administrative Hearings, on December 17, 1991, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Dean L. Scott, pro se

18178 Petoskey Circle

Port Charlotte, Florida 33948

For Respondent: Andrew Kenneth Levine, Esquire

Division of Legal Services

412 Larson Building

Tallahassee, Florida 32399-0300 STATEMENT OF THE ISSUE

The issue presented is whether the Petitioner's application for supplemental compensation pursuant to the Firefighters Supplemental Compensation Program should be approved.

PRELIMINARY STATEMENT

On July 25, 1991, the Petitioner, Dean L. Scott, applied to the Respondent, Department of Insurance and Treasurer, Division of State Fire Marshall (Division) for supplemental compensation pursuant to Section 633.382, Florida Statutes. On August 6, 1991 and again on August 14, 1991 the Division advised the Petitioner that his application for supplemental compensation was denied because he did not possess either a bachelor's or an associate's degree that contained a major study concentration area which was easily identifiable and applicable as a fire-related degree. By letter dated August 24, 1991 the Petitioner questioned the denial, and requested a formal hearing. The matter was transferred to the Division of Administrative Hearings by letter dated September 17, 1991 for assignment of a Hearing Officer, and to conduct a formal hearing. The matter was initially scheduled for hearing on November 21, 1991 but due to the key witness being required to be out of the state of Florida on that date the matter was rescheduled and held on December 17, 1991.

At the hearing, the Petitioner testified in his own behalf. Petitioner's exhibit 3 was admitted on evidence. Petitioner's exhibits 1 and 2 were not allowed in as evidence. The Division presented the testimony of Frederick C. Stark. The Division's composite exhibit 1 was admitted as evidence.

There was no transcript of this proceeding provided to the Division of Administrative Hearings. The Petitioner did not submit any proposed findings of fact and conclusions of law. The Division timely submitted a proposed recommended order. A ruling on each proposed finding of fact submitted by the Division has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. At all times material to this proceeding, the Petitioner was employed by the City of North Port Fire Department, City of North Port, Florida as a paramedic and journeyman with certification as both a Firefighter and an Emergency Medical Technician from the state of Florida.

   
   

2. The Division's Bureau of Fire Standards and Training is the state agency in the state of Florida responsible for the management and certification of firefighters in the state of Florida, and is charged under Section 633.382, Florida Statutes, with the responsibility of determining the eligibility of firefighters who are to receive supplemental compensation under the Firefighters Supplemental Compensation Program (Program).

   
   

3. On July 25, 1991, Petitioner applied to Respondent for supplemental compensation at the bachelor's degree level of the Program.

   
   

4. On August 6, 1991 and again on August 14, 1991 the Division advised the Petitioner by letter that his application for supplemental compensation under the Program had been denied because he did not possess either a bachelor's or an associate's degree that contained a major study concentration area which was readily identifiable and applicable as a fire-related degree. The record is unclear as to why the August 14, 1991 letter was mailed by the Division.

   
   

5. On June 2, 1979, the Petitioner received a Bachelor of Arts degree from Cedarville College, Cedarville, Ohio (Cedarville) with a major study concentration area in psychology/behavioral science. During the period that Petitioner attended Cedarville, it did not offer courses in fire science.

   
   

6. Petitioner attended Edison Community College (Edison), Fort Myers, Florida during 1980-1982 but did not receive an associate degree from Edison.

   
   

7. Petitioner attended Manatee Community College, Bradenton, Florida beginning September 1988 and is currently enrolled at Manatee. Petitioner has not received an associate degree from Manatee.

   
   

8. The transcripts from both Manatee and Edison show that Petitioner has taken some course work in fire-related subjects. However, these courses were not part of his study for the bachelor's degree and Petitioner has not earned an associate degree from either Manatee or Edison.

9. Petitioner has had no other degree, bachelor or associate, conferred other than the bachelor's degree conferred by Cederville.

   
   

10. Petitioner is not a fire officer. Petitioner's job does not require that he possess any supervisory skills, nor does it require him to engage in debriefing of fellow employees. He takes instruction from a fire officer.

    
    

11. Petitioner has taken classes which would help further his chances of becoming a fire officer. These classes do not offer college credits, and Petitioner did not attend those classes as part of the course-work required to earn his Bachelor's degree. Rather, these classes constitute an in-service training program.

    
    

12. Petitioner is not employed by his fire department as a psychologist or as a counselor. To the extent that his job requires him to utilize basic psychological principles, it is because he chooses to use those principles in that facet of his life, and not because his job requires an expertise in psychology. Likewise, Petitioner's testimony that his degree helps him in his verbal skills fails to tie that degree uniquely to his position as a paramedic. Petitioner's job description as a paramedic and his explanation of the mostly physical activities which accompany that job does not correlate with his degree.

    
    

13. Petitioner's transcript for his bachelor's degree does not reveal a sufficient number of course hours which are readily identifiable and applicable as fire-related. Although the transcript does reveal the titles of the courses taken by Petitioner in earning his bachelor's degree, it is not accompanied by any catalogue from the university which explains the contents of any of the courses taken by him. Accordingly, none of the courses taken by the Petitioner are readily identifiable and applicable as fire-related.

    
    

14. Petitioner's job description does not require that he render assistance to persons in crisis.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter of an the parties to this proceeding. Section 120.57(1), Florida Statutes (1990).

    
    

16. Section 633.382, Florida Statutes, establishes the Firefighters Supplemental Compensation Program and provides, in 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, 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 concen- tration area readily identifiable and applicable

             to fire-related subjects, as outlined in policy guidelines of the division, shall receive compen- sation as outlined in paragraph (3)(b).

             
             

17. The policy guidelines are found in Chapter 4A-37, Florida Administrative Code. Rule 4A-37.084, Florida Administrative Code, provides the definitions for the Firefighters Supplemental Compensation Program and provides, in part, 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 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 adminis- tration, 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.

    
    

18. Psychology is not one of those major study concentration areas listed in Subsection (5) of Rule 4A-37.084, Florida Administrative Code, which Respondent has determined to be readily identifiable and fire-related per se. Accordingly, the burden is on Petitioner to show that his major study concentration area includes 18 semester hours or 27 quarter hours which are readily identifiable and applicable as fire-related. See Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (2 DCA Fla. 1981), Rule 28-6.008(3), Florida Administrative Code. Petitioner has failed to meet his

burden of proof. Petitioner has not shown that any of the courses which he took in earning his bachelor's degree is readily identifiable and applicable as fire- related or that a degree in psychology is readily identifiable and applicable as fire-related.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying Petitioner's application for supplemental compensation pursuant to the Firefighters Supplemental Compensation Program.

RECOMMENDED this 9th day of January, 1992, in Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1992.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5982

The following constitutes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case.

Rulings on Proposed Finding of Fact Submitted by the Petitioner

1. Petitioner did not submit any proposed findings of fact and conclusions of law.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1.-2. Adopted in substance as modified in Findings of Fact 1 and 2, respectively.

3. Adopted in substance as modified in Findings of Fact 3 and 4.

4.-5. Rejected as either being irrelevant to the issue involved herein or unnecessary for determination of the issue herein, but see Finding of Fact 9.

1. Rejected as either being unnecessary to the issue herein or as a recitation of the testimony.

   
   

2. Adopted in substance as modified in Findings of Fact 6 and 7.

8.-10. Adopted in substance as modified in Findings of Fact 10,

11 and 12, respectively.

11.-12. Adopted in substance as modified in Findings of Fact 12 and 14, respectively.

COPIES FURNISHED:

Dean L. Scott

18178 Petoskey Circle Port Charlotte, FL 33948

Andrew Kenneth Levine, Esquire Division of Legal Services

412 Larson Building Tallahassee, FL 32399-0300

Tom Gallagher, State Treasurer and

Insurance Commissioner The Capitol, Plaza Level

Tallahassee, FL 32399-0300

Bill O'Neil, Deputy General Counsel Department of Legal Affairs

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 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: 91-005982

Orders for Case No: 91-005982