STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES A. BARR, )

)

Petitioner, )

)

vs. ) Case No. 98-3240

) DEPARTMENT OF INSURANCE, )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on November 10, 1998, in Tampa, Florida, before Lawrence P. Stevenson, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Sylvia A. Barr, Esquire

2900 55th Street North

St. Petersburg, Florida 33710

For Respondent: Elenita Gomez, Esquire

Division of Legal Services Gabriel Mazzeo, Esquire Division of State Fire Marshall Department of Insurance

612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

The issue presented for decision in this case is whether the Petitioner is entitled to supplemental compensation pursuant to the Firefighters Supplemental Compensation Program, by virtue of his Bachelor of Arts degree with a major course of study in

Communications.

PRELIMINARY STATEMENT

On or about May 11, 1998, Petitioner submitted to the Division of State Fire Marshall, Bureau of Fire Standards and Training (the “Bureau”), an application requesting supplemental compensation for a Bachelor of Arts degree with a major in Communications. By letter dated May 21, 1998, Mr. Larry McCall, Field Representative Supervisor for the Bureau informed Petitioner that his application had been denied. On July 20, 1998, Respondent forwarded the Election of Rights form and accompanying letter to the Division of Administrative Hearings for assignment of an Administrative Law Judge and the conduct of a formal proceeding pursuant to Section 120.57, Florida Statutes. The formal hearing was scheduled for and held on November 10, 1998.

At the formal hearing, Petitioner testified on his own behalf and also presented the testimony of Thomas M. Burton, Assistant Fire Chief with the City of St. Petersburg Fire Department. Petitioner offered one exhibit which was accepted into evidence. Respondent presented the testimony of Larry McCall, Field Representative Supervisor with the Department of Insurance, Division of State Fire Marshall. Respondent offered five exhibits which were admitted into evidence.

A transcript of the proceeding was filed at the Division of Administrative Hearings on December 4, 1998. Both parties filed proposed recommended orders on December 14, 1998.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made:

1. Petitioner, James A. Barr, is a certified firefighter/EMT. He has been employed full-time by the City of St. Petersburg Fire Department since 1996.

2. On or about May 11, 1998, Petitioner applied for admission to the Firefighter’s Supplemental Compensation Program (the “Program”), pursuant to Section 633.382, Florida Statutes.

3. The Program is a state fund providing additional compensation to firefighters who meet certain educational criteria over and above the basic training required for certification as a firefighter pursuant to Section 633.35, Florida Statutes. The Program’s purpose is to provide an incentive for firefighters to pursue educational opportunities related to their fire department duties.

4. Petitioner received a Bachelor of Arts degree, with a major in Communications, from the University of South Florida in August 1995.

5. Petitioner applied for compensation from the Program for his Bachelor of Arts degree in Communications.

6. Respondent denied the application because a degree in Communications is not one of the nine acceptable majors listed in Rule 4A-37.084(5), Florida Administrative Code, nor is it otherwise “readily identifiable” to Petitioner’s duties as a

   firefighter. The pertinent portion of the rule states:

   
   

   (5) “Major Study Concentration Area” as identified on official sealed transcripts, includes a major in fire science, municipal management, public administration, business administration, computer science, engineering, management information systems, emergency medical technology, and paramedic technology.

7. Petitioner conceded that Communications is not one of the listed “Major Study Concentration Areas,” but contended that a Communications major is “readily identifiable as applicable to fire department duties,” as stated in Rule 4A-37.084(3), Florida Administrative Code.

8. Thomas M. Burton, Assistant Fire Chief, testified that the St. Petersburg Fire Department is very active in fire prevention, public education, and community service activities.

9. New employees are required to take a five-week training program that includes public education activities. Trainees are required to develop a teaching outline covering safety concepts that a firefighter might use with elementary school children, and then must make a fifteen-minute presentation using vocabulary appropriate to a second grade class.

10. Once on the job, firefighters are required to perform all manner of public education activities, addressing groups as diverse as senior citizens, college students, and elementary schoolchildren. The presentations may include discussion of smoke detectors, CPR, fall prevention, and swimming pool safety. The firefighters themselves are required to prepare their own

    presentations for these activities.

    
    

11. Mr. Burton testified that he believes Petitioner’s Communications degree relates to many of his duties, especially the public education aspects of the job.

12. Mr. Burton conceded that all firefighters must perform the public education duties he described, and that Petitioner is in no way singled-out for assignment to these duties.

13. The City of St. Petersburg Fire Department’s written job description for firefighters does not include the public education activities described by Mr. Burton. The job description does include a statement that a firefighter must possess the ability “to communicate clearly and concisely, both orally and in writing.”

14. Mr. Burton minimized the import of the written job description, stating that it is not an operating document that firefighters use to manage their day-to-day activities. He described it as more in the nature of a “mission statement” or a “value statement.”

15. Larry McCall, Field Representative Supervisor for the Division of State Fire Marshall, is the person responsible for managing the Program. Mr. McCall reviews the applications and makes the decisions on accepting or denying them. Mr. McCall made the decision to deny Petitioner’s application.

16. Mr. McCall testified that he reviews the applicant’s college transcript and written job description to determine whether the applicant’s college major relates to the duties set forth in the job description. Mr. McCall determined that Petitioner’s major in Communications was not “readily identifiable” to the fire department duties set forth in the job description.

17. Mr. McCall acknowledged the language in the job description requiring firefighters to “communicate clearly and concisely,” but he described that as a generic phrase that is included in all or most job descriptions. He stated that firefighters are able to perform public presentations effectively without degrees in Communications.

18. Mr. McCall testified that he would consider other factors, such as whether the applicant had been assigned to special duties relating to his college major. For example, Mr. McCall testified that he had previously approved an application for a Communications major where the applicant had

    been assigned to the training division and was the department’s video production person. Petitioner in this instance had been given no such special assignment.

    CONCLUSIONS OF LAW

    
    

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

20. Section 633.382, Florida Statutes, 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 municipality 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 meets the definition of the term “firefighter” in

          s. 633.30(1) who is certified in compliance with s. 633.35 and who is employed solely within the fire department of the employing agency or is employed by the division.

    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:

          
          

          * * *

          
          

          2. Any firefighter, regardless of whether or not she or he earned an associate degree earlier, who receives from an accredited college or university a bachelor’s degree, which degree is applicable to fire department duties, 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:

       
       

       * * *

       (b) One hundred and ten dollars shall be paid monthly to each firefighter who qualifies under the provisions of subparagraph (2)(a)2.

       
       

21. The “policy guidelines of the division” referenced in Section 633.382(2)(a)2, Florida Statutes, are set forth in Rule 4A-37.084(3) and (5), Florida Administrative Code, which provides 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 as applicable to fire department duties.

       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 must be readily identifiable as applicable to fire department duties. Those major study concentration areas specifically defined in this rule chapter are considered to be readily identifiable as applicable to fire department duties.

    
    

    * * *

    
    

    (5) “Major Study Concentration Area” as identified on official sealed transcripts, includes a major in fire science, municipal management, public administration, business administration, computer science, engineering, management information systems, emergency medical technology, and paramedic technology.

22. Petitioner claims that he is a “firefighter” entitled to supplemental compensation under Section 633.082(2)(a)2, Florida Statutes, and Rule 4A-37.082, Florida Administrative

    Code.

23. The burden was on Petitioner at hearing to establish his entitlement by a preponderance of the evidence. See Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932, 934 (Fla. 1996); Pershing Industries, Inc. v. Department of Banking and Finance, 591 So. 2d 991, 994 (Fla. 1st DCA 1991); Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778, 787-88 (Fla. 1st DCA 1981).

    
    

24. Petitioner failed to meet this burden of proof. Petitioner demonstrated that his degree is compatible with and a useful enhancement to his duties as a firefighter, but did not show that his Communications major was “readily identifiable as applicable to fire department duties.” See Recommended Order, John T. White v. Department of Insurance, DOAH Case No. 96-1380, entered July 26, 1996; Recommended Order, James E. Dalrymple v. Department of Insurance and Treasurer, DOAH Case No. 92-2150, entered June 22, 1992 (both concluding that a bachelor’s degree in communications is not readily identifiable to fire department duties).

25. It was reasonable for Respondent to rely on the written job description of the St. Petersburg Fire Department as a gauge of Petitioner’s fire department duties. Despite Mr. Burton’s effort to minimize the import of the written job description, it is the definitive statement of Petitioner’s duties as a firefighter, and it does not make reference to the public education activities emphasized by Petitioner at the hearing.

26. Respondent’s reliance on the written job description was not to the exclusion of other factors. Mr. McCall testified that he looks to other factors, such as special assignments of the applicant, before making his decision to accept or deny the application. No such special factors were present in this case, and it was thus reasonable for Mr. McCall to rely on the standard job description of a firefighter in making his decision on Petitioner’s application.

27. Finally, it was reasonable for Mr. McCall to conclude that the requirement that a firefighter possess the ability to “communicate clearly and concisely, both orally and in writing” is simply a generic statement that a firefighter must be able to speak, read and write, not a specific fire department duty generating an entitlement to supplemental compensation.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered denying James A. Barr’s application for entry into the Firefighters’ Supplemental Compensation Program, without prejudice to his ability to reapply in the event of changes to his job description or assignments.

DONE AND ENTERED this 4th day of February, 1999, in Tallahassee, Leon County, Florida.

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1999. www.doah.state.fl.us

COPIES FURNISHED:

Bill Nelson

State Treasurer and Insurance Commissioner Department of Insurance

The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

Daniel Y. Sumner, General Counsel Department of Insurance

The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300

Elenita Gomez, Esquire Division of Legal Services Department of Insurance

200 East Gaines Street 612 Larson Building

Tallahassee, Florida 32399-0300

Gabriel Mazzeo, Esquire Division of State Fire Marshall Department of Insurance

200 East Gaines Street 612 Larson Building

Tallahassee, Florida 32399-0300

Sylvia A. Barr, Esquire 2900 55th Street North

St. Petersburg, Florida 33710

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 98-003240

Orders for Case No: 98-003240