TREASURER OF THE STATE OF FLORIDA DEPARTMENT OF INSURANCE

IN THE MATTER OF:

DOAH CASE NO. 98-4972

MARIA FONZI-GONZALEZ CASE NO. 25595-98-FM

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FINAL ORDER

THIS CAUSE came on before the undersigned Treasurer of the State of Florida, acting in his capacity as Insurance Commissioner, for consideration and final agency action. On September 21, 1998, the Department of Insurance ("Respondent") issued an initial letter denying Maria Fonzi-Gonzalez's ("Petitioner") July 2, 1998 application for entry into the Firefighters Supplemental Compensation Program at the Bachelor Degree level. The denial letter stated that Petitioner's major study concentration area of liberal arts did not qualify under the provisions of Rule 4A-37.084, Florida Administrative Code. The Petitioner timely filed a request for a formal proceeding pursuant to Section 120.57(1), Florida Statutes, and the matter was referred to the Division of Administrative Hearings. On December 3, 1998, the Respondent filed a motion seeking leave to amend its denial letter of September 21,1 998. The motion was granted. The Respondent's amended denial letter, dated December 3, 1998, raised an additional basis for the Respondent's proposed action. Pursuant to notice, the matter was heard before Michael

M. Parrish, Administrative Law Judge, Division of Administrative

Hearings, on January 28, 1999.

After consideration of the record and argument presented at hearing, the Administrative Law Judge issued his Recommended Order on March 26, 1999. (Attached as Exhibit A). The Administrative Law Judge recommended that the Petitioner's application for Firefighters Supplemental Compensation be denied.

On April 12, 1999, the Respondent timely filed exceptions to the Recommended Order. The Respondent excepted to the Findings of Fact and Conclusions of Law, but did not except to the Recommendation. Each exception is addressed below.

RULINGS ON RESPONDENT'S EXCEPTIONS

1. The Respondent excepts to paragraph 4 of the Administrative Law Judge's Findings of Fact by stating "[t]he Judge's finding refers to the review of the Petitioner's transcript from Barry University not revealing any 'course' that

   appears to be 'readily identifiable as applicable to fire department duties' performed by the Petitioner in her present position." The Respondent states, based on Rule 4A-37.084(3), Florida Administrative Code, "[t]he Finding [of Fact] should read, that the Petitioner's transcript does not reveal a 'major study concentration area' that is 'readily identifiable as applicable to fire department duties." The Respondent's exception further indicates "Rule 4A-37.084(3), Florida Administrative Code, states that when an applicant applies for supplemental compensation at a bachelor's level, as is the case here, one must look at the major and not at the individual courses." Rule 4A-37.084, Florida Administrative Code, defines terms applicable to the Firefighters Supplemental Compensation Program. Section 4A-37.084(3), Florida Administrative Code, defines "Bachelor's Degree" as:

   
   

   (3) . . .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. The major study concentrations specifically defined in this rule chapter are considered to be readily identifiable as applicable to fire department duties.

   
   

   Rule 4A-37.084(5), Florida Administrative Code, defines "Major Study Concentration Area" as follows:

   
   

   (5) "Major Study Concentration Area" as identified on official 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.

   
   

   As suggested by the Respondent, the Administrative Law Judge, in the Findings of Fact, has used the term "course" instead of the more narrow and precise terminology of "major study concentration area" found in the administrative rules. However, in the Conclusions of Law, the Administrative Law Judge specifically and properly concluded that a major in Liberal Studies is not a major study concentration area which is readily

   identifiable as applicable to fire department duties as required by Rule 4A-37.084(5), Florida Administrative Code.

   
   

   Based upon a review of the record and the Recommended Order, the Administrative Law Judge properly concluded that the requisite major study concentration area was not presented because the Petitioner's transcript did not identify any courses whatsoever which were readily identifiable as applicable to fire department duties. Accordingly, the Respondent's first exception is rejected.

   
   

2. In the second exception, the Respondent excepts to paragraph 12 of the Administrative Law Judge's Conclusions of Law by indicating the Judge's conclusion states the Petitioner's major in Liberal Studies is not a major study concentration area which is readily identifiable as applicable to fire department duties as set forth in Rule 4A-37.084(5), Florida Administrative Code. The Respondent cites to Rule 4A-37.084(3), Florida Administrative Code, and states the Petitioner's "... Bachelor's degree [in Liberal Studies] is neither a Bachelor of Arts nor a Bachelor of Science as is required by Rule 4A-37.084(3)." Furthermore, that the Petitioner's "... major in Liberal Studies is not a major concentration area which is readily identifiable as relation [sic] to her fire department duties as set forth in her job description."

Rule 4A-37.084(3), Florida Administrative Code, states:

(3) "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.

Rule 4A-37.084(5), Florida Administrative Code, 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.

In essence, the Respondent has suggested that the Administrative Law Judge's Conclusion of Law should have also cited to Rule 4A-37.084(3), Florida Administrative Code, when the Judge said the Petitioner's major in Liberal Studies is not a major study concentration area which is readily identifiable as applicable to fire department duties. Furthermore, the Respondent states that the Petitioner's degree, a Bachelor of

Liberal Studies, also makes the Petitioner ineligible for the Firefighters Supplemental Compensation.

An Administrative Law Judge's Conclusions of Law, as contrasted with Findings of Fact, come to the agency with no equivalent presumption of correctness; as such, an agency is free, subject to judicial review, to disagree with the Judge's Conclusions of Law and may substitute its own. Bustillo v.

Department of Professional Regulation, 561 So.2d 610 (Fla. 3d

D.C.A. 1990); Manasota 88. Inc. v. Tremor, 545 So.2d 439 (Fla.

2d D.C.A. 1989). Accordingly, based on the language of both Rule 4A-37.084(3), Florida Administrative Code, and Rule 4A-37.84(5), Florida Administrative Code, and the policy considerations previously discussed, the Respondent's second exception is accepted. The Administrative Law Judge's Conclusions of Law at paragraph 14 are modified so as to cite to both administrative rules and to specify that the Petitioner's Bachelor of Liberal Studies, in that it is not a Bachelor of Arts or a Bachelor of Science, also makes the Petitioner ineligible for the Firefighters Supplemental Compensation Program.

Upon careful consideration of the record, the submission of the parties, and being otherwise fully advised in the premises it is ORDERED:

The Findings of Fact of the Administrative Law Judge are adopted as the Department's Findings of Fact.

1. The Conclusions of Law of the Administrative Law Judge are adopted, as modified herein, as the Department's Conclusions of Law.

   
   

2. The Administrative Law Judge's recommendation that the Department enter a Final Order denying Petitioner's application for Firefighters Supplemental Compensation is approved and accepted as being the appropriate disposition of this case.

IT IS THEREFORE ORDERED that Petitioner's July 2, 1998, application for entry into the Firefighters Supplemental Compensation Program at the Bachelor Degree level, is hereby DENIED.

DONE and ORDERED this 21st day of May, 1999.

BILL NELSON

Treasurer and Insurance Commissioner

COPIES FURNISHED TO:

Michael M. Parrish Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Maria Fonzi-Gonzalez

212 Southwest 12th Avenue Boynton Beach, Florida 33435

Maria Fonzi-Gonzales 14915 78th Place, North

Loxahatchee, Florida 33470

Elenita Gomez, Esquire Department of Insurance 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

Attorney for the Department of Insurance

NOTICE OF RIGHTS

Any party to these proceedings adversely affected by this Order is entitled to seek review of this Order pursuant to Section l 20.68, Florida Statutes, and Rule 9.l10, Fla.R.App.P Review proceedings must be instituted by filing a petition or Notice of Appeal with the General Counsel, acting as the agency clerk, at 200 East Gaines Street, Tallahassee, FL 32399-0333, and a copy of the same and the filing fee with the appropriate District Court of Appeal within thirty (30) days of the rendition of this Order.

Docket for Case No: 98-004972

Orders for Case No: 98-004972