STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOE A. CABRERA, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0260

) DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before Errol H. Powell, a duly designated Hearing Officer of the Division of Administrative Hearings, on May 17, 1994, in Miami, Florida.

APPEARANCES

For Petitioner: Kathleen M. Phillips, Esquire

Kaplan & Bloom, P.A.

Suite 214, Plaza Bank Building 3001 Ponce de Leon Boulevard Coral Gables, Florida 33134

For Respondent: Daniel T. Gross, Esquire

Department of Insurance and Treasurer Division of Legal Services

612 Larson Building

Tallahassee, Florida 32399-0333 STATEMENT OF THE ISSUE

The issue for determination at final hearing was whether Petitioner is eligible for the Firefighter's Supplemental Compensation Program.

PRELIMINARY STATEMENT

Joe A. Cabrera (Petitioner) made application to the Department of Insurance and Treasurer (Respondent) for entry into the Firefighter's Supplemental Compensation Program. In a letter dated November 12, 1993, Respondent denied Petitioner's application on the basis that he failed to possess an eligible associate degree in accordance with Section 633.382, Florida Statutes, and Rule 4A-37.085, Florida Administrative Code. Petitioner filed an election of rights with Respondent contesting the denial.

On January 13, 1994, the matter was referred to the Division of Administrative Hearings for assignment of a Hearing Officer. A formal hearing was scheduled on May 17, 1994, pursuant to notice.

At formal hearing neither Petitioner nor Respondent called any witnesses.

As a joint exhibit, the parties entered one exhibit into evidence.

A transcript of the formal hearing was not ordered. Both Petitioner and Respondent filed proposed findings of fact which are addressed in the appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Joe A. Cabrera (Petitioner) was, and is currently, a certified firefighter in the State of Florida and employed with the City of Miami.

   
   

2. On or about November 1, 1993, Petitioner applied for entry into the Firefighters Supplemental Compensation Program (Program). He executed a transcript request form for the Program, requesting Miami-Dade Community College (Miami-Dade), Miami, Florida, to forward an official copy of his transcript to Respondent. Miami-Dade complied with Petitioner's request.

   
   

3. Petitioner's transcript showed all courses completed and indicated that he was awarded an Associates of Arts degree from Ranger Junior College in Texas on May 7, 1982. It does not identify a major associated with his degree.

   
   

4. Furthermore, Petitioner's transcript reflected that subsequent to the issuance of his Associates of Arts degree, he completed in excess of 30 hours of fire-related courses at Miami-Dade.

   
   

5. By letter dated November 12, 1993, Respondent denied Petitioner's application for entry into the Firefighters Supplemental Compensation Program on the basis that he failed to possess an eligible associate degree in accordance with Section 633.382, Florida Statutes, and Rule 4A-37.085, Florida Administrative Code.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

   
   

7. Petitioner bears the burden of showing that he is eligible for the Firefighters Supplemental Compensation Program. Florida Department of Transportation v. J.W.C. Company, 396 So.2d 778, 788 (Fla. 1st DCA 1981); Balino

   v. Department of Health and Rehabilitative Services, 348 So.2d 349, 350 (Fla. 1st DCA 1977).

   
   

8. The sole issue for determination in the case at bar is whether Petitioner possesses an eligible associate degree.

   
   

9. Subsection 633.382(2)(a), Florida Statutes provides, inter alia, the qualifications for supplemental compensation in the Firefighters Supplemental Compensation Program (Program). The said Subsection provides in pertinent part that qualification for the program is satisfied when:

   
   

   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).

      
      

10. Chapter 4A-37, Florida Administrative Code, contains Respondent's policy guidelines. Rule 4A-37.085, Florida Administrative Code, provides in pertinent part the eligibility requirements for supplemental compensation:

    
    

    1. Be a full-time certified firefighter in compliance with Section 633.35, Florida Statutes, and employed solely within the

       fire department of the employing agency as a full-time firefighter.

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

    3. Must not be employed in a position which requires possession of the Associate or Bachelor's degree as a condition of

    employment.

    
    

11. Rule 4A-37.084, Florida Administrative Code, provides definitions for the Program and provides in pertinent part:

    
    

    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.

    * * *

    (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.

    
    

12. It is undisputed that Petitioner was conferred an Associates of Arts degree by Ranger Junior College. Consequently, he possesses an associate degree.

13. However, the evidence fails to show that a major study concentration area within the matriculation of Petitioner's Associates of Art degree is readily identifiable and applicable as fire-related, as defined by Rule 4A- 37.084.

    
    

14. As an alternative, Petitioner can show that he completed at least 18 hours of readily identifiable and fire-related courses. The evidence shows that Petitioner completed substantially more than the minimum required 18 semester hours of fire-related courses, but that they were unrelated to the conferring of his Associate of Arts degree and were subsequent thereto.

    
    

15. Respondent contends that Petitioner's courses must be completed within the matriculation of Petitioner's Associates of Arts degree. Agencies are accorded great deference when interpreting their own rules and their interpretation is not overturned unless shown to be clearly erroneous. Pan American World Airways v. Florida Public Service Commission, 427 So.2d 716 (Fla. 1983); Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So.2d 515 (Fla. 1st DCA 1984). Petitioner has failed to show that Respondent's interpretation is clearly erroneous, and therefore, Respondent's interpretation must be upheld.

    
    

16. Hence, Petitioner has failed to show that he is eligible to participate in the Firefighter's Supplemental Compensation Program.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance and Treasurer enter a final

order denying Joe A. Cabrera entry into the Firefighters Supplemental

Compensation Program at the associate degree level.

DONE AND ENTERED this 22nd day of June 1994 in Tallahassee, Leon County, Florida.

ERROL H. POWELL

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 22nd day of June 1994.

APPENDIX

The following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact. (Petitioner's proposed findings are not numbered, so they are addressed paragraph by paragraph.)

Paragraph 1. Partially accepted in Finding of Fact 5.

Paragraph 2. Partially accepted in Findings of Fact 1, 3 and 4.

Respondent's Proposed Findings of Fact.

1. Partially accepted in Finding of Fact 1.

2. Partially accepted in Finding of Fact 2.

3. Partially accepted in Finding of Fact 5.

4 & 5. Partially accepted in Finding of Fact 3.

6. Partially accepted in Finding of Fact 4.

NOTE: Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, cumulative, nor supported by the evidence, argument, or conclusion of law.

COPIES FURNISHED:

Kathleen M. Phillips, Esquire Kaplan & Bloom, P.A.

Suite 214, Plaza Bank Building 3001 Ponce de Leon Boulevard Coral Gables, Florida 33134

Daniel T. Gross, Esquire

Department of Insurance and Treasurer Division of Legal Services

612 Larson Building

Tallahassee, Florida 32399-0333

Tom Gallagher, Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Bill O'Neil, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Kathleen M. Phillips, Esquire

Kaplan & Bloom, P.A.

Suite 214, Plaza Bank Building 3001 Ponce de Leon Boulevard Coral Gables, Florida 33134

Daniel T. Gross, Esquire

Department of Insurance and Treasurer Division of Legal Services

612 Larson Building

Tallahassee, Florida 32399-0333

Tom Gallagher, Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Bill O'Neil, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level 11 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 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.

Docket for Case No: 94-000260

Orders for Case No: 94-000260