STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHERRY P. RICHTER, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6298

) DEPARTMENT OF INSURANCE ) AND TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on February 19, 1993, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Sherry P. Richter, pro se

1980 Northwest 32 Street Oakland Park, Florida 33309

For Respondent: Daniel T. Gross, Esquire

Department of Insurance and Treasurer

412 Larson Building

Tallahassee, Florida 32399-0300 STATEMENT OF THE ISSUE

The issue presented is whether Petitioner's application for entry into the Firefighters' Supplemental Compensation Program at the bachelor's degree level should be granted.

PRELIMINARY STATEMENT

By letter dated September 18, 1992, Respondent advised Petitioner that her application for entry into the Firefighters' Supplemental Compensation Program at the bachelor's degree level was denied, and Petitioner timely requested a formal hearing regarding that determination. This matter was thereafter transferred to the Division of Administrative Hearings for the conduct of that formal proceeding.

Petitioner, Sherry P. Richter, testified on her own behalf and presented the testimony of James P. Shean. Elianne J. Sorel testified on behalf of the Respondent. Additionally, joint exhibits numbered 1-4 were admitted in evidence.

Only Respondent submitted posthearing proposed findings of fact. A specific ruling on each proposed finding of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a certified firefighter. She is currently employed by the City of Fort Lauderdale, Florida, Fire Department.

   
   

2. Petitioner received a bachelor of arts degree on May 11, 1985 from Alfred University in Alfred, New York. Her major was environmental studies with an emphasis in natural science.

   
   

3. The City of Fort Lauderdale Fire Department has a hazardous materials team. Although Petitioner is not on that team since she has just completed her probation as a new employee, she is first on the waiting list for a vacancy on that team.

   
   

4. City of Fort Lauderdale firefighters respond to any 911 emergency call regarding medical services, fire suppression, and hazardous materials.

   Hazardous materials problems involve all firefighters, and all receive basic training in recognizing such emergency situations and the environmental impacts.

   
   

5. To become a member of the hazardous materials team requires that the firefighters have certain courses in chemistry. However, no college degree is required for hazardous materials team membership.

   
   

6. Responding to hazardous substance emergencies is a fire-related service since firefighters respond to such situations. Accordingly, chemistry, environmental, and hazardous substances courses are fire-related courses. Similarly, a major study concentration area in chemistry, environmental science, and hazardous materials courses constitutes a fire-related major study concentration area.

   
   

7. Petitioner has well in excess of 18 semester hours in chemistry, ecology, and environmental science courses. Accordingly, Petitioner's bachelor's degree curriculum includes a major study concentration area readily identifiable and applicable to fire-related subjects.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Section 633.382, Florida Statutes, establishes the Firefighters' Supplemental Compensation Program and provides, in pertinent part, as follows:

   
   

   (2) QUALIFICATIONS FOR SUPPLEMENTAL COMPENSATION.--

   (a) 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 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).

   
   

10. Respondent has implemented the Firefighters' Supplemental Compensation Program by promulgating certain definitions found in Rule 4A-37.084, Florida Administrative Code, which 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 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 sole issue in this case is whether Petitioner possesses an eligible bachelor's degree. There are two ways in which Petitioner can demonstrate that she does. One of those ways is by showing that she possesses a bachelor's degree with a major study concentration area which has been specifically identified in the Rule as being fire-related. If Petitioner, on the other hand, possesses a bachelor's degree which does not specify one of the enumerated major study concentration areas which has been deemed by Rule to be fire-related, then Petitioner can prove that her major study concentration area is fire-related by demonstrating that she has at least 18 semester hours (or 27 quarter hours) in a major study concentration area which is readily identifiable and applicable as fire-related. Since Petitioner's major is not specifically

    identified in the Rule to be fire-related, then the burden is on her to show that she has at least 18 semester hours which are readily identifiable and applicable as fire-related.

    
    

12. Petitioner has met her burden of showing that her major study concentration area is readily identifiable and applicable as fire-related since her course work directly relates to the work performed by firefighters. Petitioner is first on the waiting list for a vacancy on the actual hazardous materials team. Even without being a member of the team, however, Petitioner's duties as a firefighter include being able to recognize hazardous substances in responding to emergency situations and being able to recognize the environmental impacts of those emergency situations. Accordingly, responding to hazardous substances emergencies is a fire-related service. Likewise, courses in chemistry, ecology, and environmental sciences are courses which are readily identifiable and applicable as fire-related. Therefore, Petitioner does have a major study concentration area which is fire-related, and her application for entry into the Firefighters' Supplemental Compensation Program should have been granted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Petitioner's application

for entry into the Firefighters' Supplemental Compensation Program at the

bachelor's degree level.

DONE AND ENTERED this 31st day of March, 1993, in Tallahassee, Florida.

LINDA M. RIGOT

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 31st day of March, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6298

1. Respondent's proposed findings of fact numbered 1 and 8 have been adopted either verbatim or in substance in this Recommended Order.

2. Respondent's proposed findings of fact numbered 2-7, and 11 have been rejected as being subordinate to the issue being determined herein.

3. Respondent's proposed finding of fact numbered 10 has been rejected as not being supported by the weight of the evidence.

4. Respondent's proposed finding of fact numbered 9 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law.

COPIES FURNISHED:

Ms. Sherry P. Richter 1980 Northwest 32 Street Oakland Park, FL 33309

Daniel T. Gross, Esq.

Department of Insurance and Treasurer

412 Larson Building Tallahassee, FL 32399-0300

Mr. Tom Gallagher State Treasurer and

Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300

Bill O'Neil, Esq.

General Counsel

Department of Insurance and Treasurer The Capitol, PL-11

Tallahassee, FL 32399-0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten 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.

=================================================================

AGENCY FINAL ORDER

=================================================================

OFFICE OF THE TREASURER DEPARTMENT OF INSURANCE

IN THE MATTER OF:

CASE NO: 92-L-545DTG

SHERRY P. RICHTER DOAH CASE NO. 92-6298

/

FINAL ORDER

THIS CAUSE came on before the undersigned Treasurer of the State of Florida, acting in his capacity as State Fire Marshal, for consideration and final agency action. Ms. Richter submitted a request for entry into the

Firefighter's Supplemental Compensation Program with the Division of State Fire Marshal pursuant to Section 633.382(2), Florida Statutes. The request was denied by the Division by letter dated September 18, 1992. Ms. Richter timely filed a request for a formal proceeding pursuant to Section 120.57(1), Florida Statutes. The hearing was held on February 19, 1993, in Ft. Lauderdale, Florida before Linda M. Rigot, Hearing Officer, Division of Administrative Hearing.

After consideration of the evidence and subsequent written submission by the Department, the Hearing Officer issued her Recommended Order, on March 31, 1993. (Attached as Exhibit A). The Hearing Officer recommended that Ms.

Richter's request for supplemental compensation be granted. The Department filed exceptions to the Recommended Order on April 7, 1993.

RULING ON EXCEPTIONS TO FINDINGS OF FACT

1. The Department excepts to the Hearing Officer's finding of fact #6 on the basis that it is a conclusion of law and should have been addressed accordingly and also that the Hearing Officer has misinterpreted the Department's Rules promulgated to implement the Supplemental Compensation Program. The Hearing Officer begins her analysis of the Petitioner's job description with the faulty premise that because she is on the waiting list for the hazardous materials team, this some how qualifies her major study concentration area of Environmental Studies as fire-related. The Department is correct when it states in its exceptions that the proper standard is whether the Petitioner's major study concentration area is fire-related, not whether the major study concentration area includes courses that are job-related. 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. In the Matter of Jorge Du Quesne; Case No. 91-L-367AKL (Final Order entered November 22, 1991). The Department's exception to finding of fact #7 is accepted.

   
   

2. The Department excepts to the Hearing Officer's finding of fact #7 on the basis that it is a conclusion of law and should have been addressed accordingly. For the reasons set forth in paragraph 1 above, the Department's exception to finding of fact #7 is accepted.

RULING ON EXCEPTIONS TO CONCLUSIONS OF LAW

1. The Department excepts to the Hearing Officer's conclusion of law #11 the reason being that the Hearing Officer uses an erroneous interpretation of the applicable Rules. It appears that in this conclusion of law the Hearing Officer is simply restating the provisions of Rule 4A-37.084(3) and (5), Florida Administrative Code. Although some what difficult to follow, it does not appear that the Hearing Officer has erroneously interpreted this Rule. The Department's exception to conclusion of law #11 is rejected.

   
   

2. The Department excepts to the Hearing Officer's conclusion of law #12, again the reason being that the Hearing Officer uses an erroneous interpretation of the applicable Rules. The Hearing Officer has incorrectly equated courses with major study concentration area. The Hearing Officer speculates that when, one day, the Petitioner might be on the hazardous materials team, she could make use of her major study concentration area. Not only is this conclusion of law unsupported, it incorrectly finds that because some courses may be fire-related,

the entire major study concentration area become fire-related. This is an incorrect interpretation of the applicable Rules. See In the Matter of Jorge Du Quesne; Case No. 91-L-367AKL (Final Order entered November 22, 1991).

Accordingly, the Department's exception to conclusion of law #12 is accepted.

RULING ON EXCEPTIONS TO RULINGS ON FINDINGS SUBMITTED

BY RESPONDENT IN APPENDIX TO RECOMMENDED ORDER

1. To the extent not inconsistent with the rulings on exceptions to findings of fact contained herein, the Department's exceptions to the Hearing Officer's appendix to Recommended Order are accepted.

RULING ON EXCEPTION TO RECOMMENDATION

Based on the foregoing rulings on the Department's exceptions to the Hearing Officer's findings of fact and conclusions of law, the Hearing Officer's recommendation that the Petitioner be accepted into the Firefighter's Supplemental Compensation Program is rejected and the appropriate disposition of this case is that Petitioner is denied participation in said program.

Upon careful consideration of the record, the submissions of the parties and being otherwise advised in the premises, it is

ORDERED:

1. The Findings of Fact of the Hearing Officer are adopted as the Department's Findings of Fact, with the exception of Findings of Fact #6 and 7.

   
   

2. The Conclusions of Law of the Hearing Officer are adopted as the Department's Conclusions of Law with the exception of Conclusion of Law #12.

   
   

3. That the Hearing Officer's recommendation that Ms. Richter's request for entry into the Firefighter's Supplemental Compensation Program be accepted is rejected and the appropriate disposition of this case is that Ms. Richter's request is denied.

ACCORDINGLY, the request for entry into the Firefighter's Supplemental Compensation Program submitted by SHERRY P. RICHTER is hereby DENIED.

Any party to these proceedings adversely affected by this Order is entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Review proceedings must be instituted by filing a petition or notice of appeal with the General Counsel, acting as the agency clerk, at 612 Larson Building, Tallahassee, Florida, and a copy of the same with the appropriate district court of appeal within thirty

(30) days of rendition of this Order.

DONE and ORDERED this 6th day of May , 1993.

TOM GALLAGHER

Treasurer and State Fire Marshal

COPIES FURNISHED:

HONORABLE LINDA M. RIGOT,

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

SHERRY P. RICHTER

1980 Northwest 32 Street Oakland Park, Florida 33309

DANIEL T. GROSS, ESQUIRE

Division of Legal Services 612 Larson Building

Tallahassee, Florida 32399-0300

Docket for Case No: 92-006298

Orders for Case No: 92-006298