STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES E. KEMP, )

)

Petitioner, )

)

vs. ) Case No. 99-3486

)

DEPARTMENT OF INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case in accordance with Section 120.57(1), Florida Statutes, on November 19, 1999, in Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: James E. Kemp, pro se

10851 Southwest 164th Street Miami, Florida 33157

For Respondent: Shiv Persaud, Esquire

Department of Insurance Division of Legal Services

200 East Gaines Street 612 Larson Building

Tallahassee, Florida 32399 ISSUE

Whether Petitioner, who on November 17, 1999 (two days prior to the final hearing in this case) was certified by Respondent to be eligible to receive, effective June 1, 1999, firefighter supplemental compensation pursuant to Section 633.382, Florida

Statutes, is entitled to any further relief from Respondent in this administrative proceeding (which was initiated by Petitioner after he had received Respondent's June 2, 1999, notice of its preliminary determination that Petitioner was not entitled to firefighter supplemental compensation).

PRELIMINARY STATEMENT

By letter dated June 2, 1999, Respondent advised Petitioner that it intended to deny his "application for Firefighters Supplemental Compensation" because, in Respondent's view, Petitioner's "Major Study Concentration of Biology does not meet the criteria found in Rule 4A-37.084, Florida Administrative Code." Petitioner thereafter submitted to Respondent a completed and signed Amended Election of Rights form, dated July 27, 1999, and a letter, dated July 30, 1999, requesting an administrative hearing on Respondent's proposed action. Petitioner's letter read as follows:

I am requesting a formal administrative hearing in reference to the recent denial of my supplemental compensation application. It is my position that the department in [its] review of applicants has failed to apply a uniform standard for selecting applicants.

The only relief that I am seeking is that my name be added to the list of applicants receiving compensation for their degree and to be compensated for travel expenses to attend the hearing. Please allow me to thank you for your time and attention and I look forward to resolving this issue amicably

. . . .

On August 16, 1999, the matter was referred to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct the hearing Petitioner had requested. Such an assignment was made, and on September 10, 1999, a Notice of Hearing was issued advising the parties that the final hearing in this case would be held in Tallahassee (at Petitioner's request) and that the hearing would be held on November 19, 1999.

On October 29, 1999, Respondent filed a Motion to Relinquish Jurisdiction and Close File (First Motion) in the instant case.

In its First Motion, Respondent contended that "Petitioner's claim is barred by res judicata." Respondent indicated that, in support of its position, it was relying on the case of Thomson v. Department of Environmental Regulation, 511 So. 2d 439 (Fla.

1987), wherein the Florida Supreme Court stated, in pertinent part, the following:

It is now well settled that res judicata may be applied in administrative proceedings.

Wager v. City of Green Cove Springs, 261 So. 2d 827 (Fla. 1972); City of Miami Beach v.

Prevatt, 97 So. 2d 473 (Fla. 1957), cert. denied, Wags Transportation System, Inc. v. Prevatt, 355 U.S. 957, 78 S.Ct. 543, 2

L.Ed.2d 532 (1958); Metropolitan Dade County Board of County Commissioners v. Rockmatt Corp., 231 So. 2d 41 (Fla. 3d DCA 1970). Yet

the principles of res judicata do not always neatly fit within the scope of administrative proceedings. Thus, K. Davis, Administrative Law Treatise, S 18.01, at 545-46 (1958), explains:

"Courts normally apply law to past facts which remain static--where res judicata operates at its best--but agencies often work with fluid facts and shifting policies. The

regularized procedure of courts conduces to application of the doctrine of res judicata; administrative procedures are often summary, parties are sometimes unrepresented by counsel, and permitting a second consideration of the same question may frequently be supported by other similar reasons which are inapplicable to judicial proceedings. The finality of unappealed judgments of courts is ordinarily well understood in advance, whereas statutory provisions often implicitly deny finality or fail to make clear whether or when administrative action should be considered binding."

Perhaps this is why the doctrine of res judicata is applied with "great caution" in administrative cases. City of Miami Beach v. Prevatt; Coral Reef Nurseries, Inc. v.

Babcock Co. The proper rule in a case where a previous permit application has been denied is that res judicata will apply only if the second application is not supported by new facts, changed conditions, or additional submissions by the applicant. Doheny v.

Grove Isle, Ltd., 442 So. 2d 966, 976 (Fla.

1st DCA 1983).

On November 2, 1999, the undersigned issued an Order, which provided as follows:

No later than November 10, 1999, Petitioner shall file a written response to Respondent's Motion. If Petitioner fails to file such a response, the undersigned will assume that Petitioner does not dispute any of the assertions made in Respondent's motion, including the assertion that his "claim is barred by res judicata."

That same day, November 2, 1999, Petitioner filed the following written response to Respondent's Motion:

I am in receipt of a motion filed by the State of Florida Department of Insurance on October 29, 1999. This motion is a request to deny me the opportunity to participate in

the scheduled Administrative Hearing on November 19, 1999. On this scheduled date, I will appeal the State's decision to deny my acceptance into the Fire Fighters Supplemental Compensation Program.

Though my job title and credentials are the same in my 1994 and 1999 applications, at the scheduled administrative hearing, I am presenting proof that the State of Florida Department of Insurance has violated Rule 4A- 37.082-4A-37.089 by failing to apply it uniformly and consistently. This material was not presented in my application of 1994 or the most recent application of May 1999.

This hearing will not only affect my case, but also potentially affect many decisions made by the State during the life of Rule 4A- 37.082-4A-37.089. Please allow me the opportunity to present my case on

November 19, 1999 as scheduled.

Oral argument on Respondent's motion was held by telephone conference call on November 8, 1999. On November 10, 1999, the undersigned issued an Order addressing Respondent's First Motion. The Order provided, in part, as follows:

Having carefully considered the arguments advanced by the parties, the undersigned is of the view that it would be inappropriate to resolve the issue (raised in Respondent's Motion) of whether "Petitioner's claim is barred by res judicata" without first taking evidence on the matter. Accordingly, to the extent that Respondent's motion requests the entry of a prehearing order relinquishing jurisdiction and closing the file of the Division of Administrative Hearings in this case on the ground that "Petitioner's claim is barred by res judicata," it is hereby DENIED. The parties will have the opportunity to present evidence on this "res judicata" issue at the evidentiary hearing scheduled for November 19, 1999 (starting at 9:00 a.m.) at the Public Service Commission, Conference Room 152, Shumard Oak Boulevard, Tallahassee, Florida.

On November 18, 1999, the day before the final hearing in the instant case was scheduled to commence, Respondent filed a Second Motion to Relinquish Jurisdiction and Close File (Second Motion) in the instant case, which provided as follows:

1. On May 18, 1999, the Department received Petitioner's, James E. Kemp's, (hereinafter, "Petitioner"), application for entry into the Firefighters Supplemental Compensation Program.

   
   

2. On June 2, 1999, the Department sent Petitioner a letter denying his application for entry into the Program.

   
   

3. The hearing of this matter is set for Friday, November 19, 1999.

   
   

4. On November 17, 1999, the Department issued an Official Acceptance Notification for entry into the Firefighters Supplemental Compensation Program and Letter of Acceptance to Petitioner, effective June 1, 1999, herein attached.

   
   

5. Since the Department has accepted Petitioner into the Firefighters Supplemental Compensation Program, the Petitioner's protest is moot and a hearing is unnecessary. The resources of the Department and Petitioner would be better served by cancelling the hearing.

   
   

6. The Department has contacted Petitioner by telephone and informed him of the Department's letter of acceptance and of the filing of this motion.

   
   

   WHEREFORE, the Department prays that the Administrative Law Judge will enter an Order and therein to:

   
   

   1. Grant the Department's motion to cancel the hearing, dismissing the pending cause and closing the file; or, in the alternative,

   2. Order Petitioner to Show Cause why the petition should not be dismissed as moot based upon the Department's Official Acceptance Notification and Letter of Acceptance.

      
      

   3. Notify the Department by telephone . . . of the ruling on this motion prior to the hearing of this matter on Friday,

November 19, 1999.

The undersigned determined not to take any action on Respondent's Second Motion until such time as he had the opportunity to ascertain Petitioner's position on the matter. That opportunity first presented itself at the outset of the final hearing on November 19, 1999. At that time, Petitioner indicated that he opposed Respondent's Second Motion. He claimed that his "petition should not be dismissed as moot" inasmuch as Respondent had not granted him all the relief to which he was entitled, which, according to Petitioner, was acceptance in the Firefighters Supplemental Compensation Program, effective, not June 1, 1999, but rather "sometime in 1994" ("based on [his] 1994 [application]," which, in his view, was "improperly denied") and "compensat[ion] for [his] expenses incurred in the [administrative] process." After hearing from Petitioner (and counter-argument from Respondent), the undersigned decided that the most prudent course of action under the circumstances would be to allow the parties the opportunity to present evidence and further argument, in written post-hearing submittals, in support of their respective positions. Accordingly, he indicated to the parties that he would not rule on the issue of Petitioner's

entitlement to further relief (in addition to that which he had already received from Respondent) until the parties had such an opportunity.

Petitioner thereupon commenced his evidentiary presentation.

He testified on his own behalf and also presented the testimony of Larry McCall, the Field Representative Supervisor of Respondent's Bureau of Fire Standards and Training. In addition, he offered five exhibits (Petitioner's Exhibits 1 through 5), which were all received into evidence. Mr. McCall was also called to the stand to testify on behalf of Respondent.

Respondent presented the testimony of one other witness, Jamie Payne, Respondent's Agency Clerk of Public Records/Legal. It also offered nine exhibits (Respondent's Exhibits 1 through 6 and

8 through 10), all of which were received into evidence.

At the close of the evidentiary portion of the hearing on November 19, 1999, the parties were advised of their right to file proposed recommended orders, and a deadline was established (15 days from the date of the undersigned's receipt of the transcript of the final hearing) for the filing of proposed recommended orders.

The undersigned received the hearing Transcript (consisting of one volume) on December 13, 1999. Petitioner and Respondent filed their Proposed Recommended Orders on December 30, 1999, and December 22, 1999, respectively. These post-hearing submittals have been carefully considered by the undersigned.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:

1. In August 1994, Petitioner applied to Respondent for entry in the Firefighters Supplemental Compensation Program (1994 Application).

2. The application materials that Respondent received were a completed and signed Firefighters Supplemental Compensation Program Transcript Request form; a copy of Petitioner's transcript from North Carolina Central University (reflecting that he had graduated on May 10, 1986, with a Bachelor of Science degree in biology), along with a cover letter to Respondent from the Office of the University Registrar; a job description; and a letter to Respondent from Petitioner, which read as follows:

   Enclosed [y]ou will find information regarding my educational earnings. I received a Bachelor of Science (Biology) in May, 1986 from North Carolina Central University in Durham. Additionally, I have earned 29 credits at Miami Dade Community College [a]nd I [a]m [a] Paramedic. Please [r]eview [t]his information and include me in the supplemental compensation program. I[']d [l]ike to thank you in advance for your time and consideration.

3. The job description that was included in the application materials Respondent received was for the classification of Fire Fighter and read as follows:

   NATURE OF WORK:

   
   

   Skilled fire-fighting work in combating, extinguishing and preventing fires, and in

   the operation and maintenance of fire department equipment, apparatus and quarters.

   
   

   Work involves responsibility for protecting life and property by fire-fighting and rescue activities, usually under close supervision. Employees of this class are required to learn and participate in the operation of fire apparatus and equipment, and the performance of hazardous tasks under emergency conditions which may require strenuous exertion under such handicaps as smoke and cramped surroundings. Although fire-fighting and rescue activities are the primary responsibilities of this class, the major portion of time is spent in drilling and studying methods, techniques and organization, and in routine duties in the care and maintenance of fire department property and equipment. Employees of this class may be assigned to duty as communications officer, chief driver and aide, and fire prevention inspector, which involves the application of specialized abilities and knowledge developed through experience and training. Specific orders and directions are given by superior officers, but the work requires initiative and a thorough individual understanding of fire- fighting methods.

   ILLUSTRATIVE EXAMPLES OF WORK PERFORMED:

   (The examples of work as listed in this class specification are not necessarily descriptive of any one position in the class. The omission of specific statements does not preclude management from assigning specific duties not listed herein if such duties are a logical assignment to the position. Examples of work performed are not to be used for allocation purposes.)

   
   

   Attends training courses; participation in fire drills and attends classes in fire- fighting and first aid; reads and studies assigned materials related to fire-fighting and prevention.

   
   

   Responds to fire alarms with a company; operates pumps, aerial ladders and auxiliary

   equipment; lays and connects hose; holds nozzles and directs fog or water streams; raises and climbs ladders; uses chemical extinguishers, bars, hooks, lines and other equipment.

   
   

   Performs general maintenance work in the upkeep of fire department property; cleans and washes walls and floors; makes minor repairs to property and equipment; washes, hangs, and dries hoses; washes, cleans, polishes and tests apparatus.

   
   

   Performs limited fire prevention activities; inspects commercial and residential properties for the existence of fire hazards, and seeks removal of such hazards through education and persuasion.

   
   

   When assigned to the Rescue Division the

   Fire-Fighter should be able to accurately and efficiently evaluate and gather patient assessment information; interpret assessment finding; formulate a working diagnosis (i.e. possible M.I.); plan, prioritize and implement necessary treatment as per Rescue protocol and/or physician direction via the radio; evaluate treatment outcome and re- assess the patient's status; plan and implement additional treatment or modifications as indicated by re-assessment and follow-up evaluation.

   
   

   When assigned as a fire inspector, inspects buildings and premises; reviews plans for compliance with fire regulations specified in the City of Miami Building Code; checks on complaints; and may aid investigation of arson cases when assigned to fire prevention duties.

   Performs other related work as required. DESIRABLE KNOWLEDGE, ABILITIES AND SKILLS:

   (The knowledge, skills and abilities

   identified in this class specification represent those needed to perform the duties of this class. Additional knowledge, skills and abilities may be applicable for

   individual positions in the employing departments.)

   
   

   Some knowledge of the street system and physical layout of the City of Miami.

   
   

   Ability to learn a wide variety of fire- fighting duties and methods within a reasonable working test period.

   
   

   Ability to establish and maintain effective working relationships with other employees and the general public.

   
   

   Ability to understand and follow oral and written instructions.

   
   

   Ability to perform limited mechanical work involved in maintaining fire-fighting and rescue apparatus, equipment and tools.

   
   

   Physical strength, endurance, agility and freedom from serious physical defects as shown by a physical examination.

   
   

   Coordination and dexterity.

   
   

   DESIRABLE BASIC TRAINING AND EXPERIENCE:

   
   

   Graduation from high school or State of Florida Equivalency Certificate

   
   

   OR

   
   

   Equivalent combination of training and experience.

   
   

4. By letter dated August 23, 1994, Respondent advised Petitioner that it had determined that he was not qualified to receive supplemental compensation. The letter, which was received by Petitioner on September 6, 1994, read as follows:

   After reviewing your transcript, it has been determined that you do not possess an appropriate Major Study Concentration Area to qualify for the Firefighters Supplemental Compensation Program at the Bachelor level.

   Rule 4A-37.084, Florida Administrative Code, does not list Biology as a "Major Study Concentration Area." Rule 4A-37.084, Florida Administrative Code, states:

   
   

   "4A-37.084 Definitions. For purposes of this part, terms used in Rules 4A-37.082-4A-

   37.089 are as defined in Section 633.382(1), Florida Statutes, and terms which are not otherwise defined in said statutes are defined 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.

   
   

   Specific Authority 633,45(2)(a) FS. Law Implemented 633.382(2) FS.

   History-New 01-03-90." 1/

   
   

   At this level of the Firefighters Supplemental Compensation Program it has been determined that your Bachelor Degree is not readily identifiable and applicable as fire related, per Rule 4A-37.084, Florida Administrative Code.

   
   

   Pursuant to Section 120.57, Florida Statutes, and Rule Chapters 4-121 and 28-5, Florida Administrative Code (F.A.C.), you have a right to request a proceeding to contest this action by the Department. You may elect a proceeding by completing the attached

   Election of Rights form or filing a Petition. Your Petition or Election of a proceeding must be in writing and must be filed with the General Counsel acting as the Agency Clerk, Department of Insurance. If served by U.S. Mail, the Petition or Election should be addressed to the Florida Department of Insurance, at 612 Larson Building, Tallahassee, Florida 32399-0300. If Express Mail or hand delivery is utilized, the Petition or Election should be delivered to

   448 Fletcher Building, 101 East Gaines Street, Tallahassee, Florida 32399-0300. The Petition of Election must be received by,

   and filed in the Department within twenty-one

   (21) days of the date of your receipt of this notice.

   
   

   If a proceeding is requested and there is no dispute of fact, the provisions of Section 120.57(2), Florida Statutes, would apply. In this regard you may submit oral or written evidence in opposition to the action taken by this agency or a written statement challenging the grounds upon which the agency has relied. While a hearing is normally not required in the absence of a dispute of fact, if you feel that a hearing is necessary one will be conducted in Tallahassee, Florida or by telephonic conference call upon your request.

   
   

   If you dispute material facts which are the basis for this agency's action, you may request a formal adversarial proceeding pursuant to Section 120.57(1), Florida Statutes. If you request this type of proceeding, the request must comply with all of the requirements of Rule Chapters 4-121 and 28-5, F.A.C. and contain:

   
   

   1. A statement identifying with particularity the allegations of the Department which you dispute and the nature of the dispute;

      
      

   2. An explanation of what relief you are seeking and believe you are entitled to;

   3. Any other information which you contend is material.

   
   

   These proceedings are held before a State hearing officer of the Division of Administrative Hearings. Unless the majority of witnesses are located elsewhere, the Department will request the hearing be conducted in Tallahassee.

   
   

   Unless a Petition or Election or your written submission challenging this action is received by the Department within twenty-one

   (21) days from the date of the receipt of this notice, the right to a proceeding shall be deemed waived.

   
   

   Failure to follow the procedure outlined with regard to your response to this notice may result in the request being denied. All prior correspondence in this matter shall be considered freeform agency action, and no such correspondence shall operate as a valid request for an administrative proceeding.

   Any request for administrative proceeding received prior to the date of this notice shall be deemed abandoned unless timely renewed in compliance with the guidelines as set out above.

5. Petitioner did not file a "Petition or Election or . . . written submission challenging this action [described in Respondent's August 23, 1994 letter]" within 21 days of the date of his receipt of the letter.

6. He next corresponded with Respondent in May of 1999, when he applied for a second time for entry in the Firefighters Supplemental Compensation Program. Along with a completed and signed Application for Initial Entry into Supplemental Compensation Program (Second Application), he sent Respondent a copy of his transcript from North Carolina Central University and

   an "official job description for current position held: FIREFIGHTER/PARAMEDIC," which was different than the job description that had accompanied his 1994 Application and which read as follows:

   Firefighter

   
   

   Definition: The term firefighter is used to describe all individuals assigned to the various areas within the City of Miami Fire Department. The responsibilities of a Firefighter are very diverse and require specialized training in many areas.

   
   

   Fire Suppression: These individuals are responsible for protecting life and property by means of fire extinguishment. This individual must have a working knowledge of pumps, water friction and resistance tables as well as ropes, foams and nozzles, infra- red cameras and basic building construction and style. Throughout the fire service, physical fitness is important.

   
   

   Hazardous Material Team: Work involves protecting life and property from toxic substances. Must have a working knowledge of fundamental chemistry and chemical interactions with each other. Must be able to identify Department of Transportation Placards to determine substances being transported by vehicles. Additionally, individuals must be familiar with explosive ranges of gases and mixture that have the potential to explode or cause harm to others. Must understand hazardous materials containment areas and the various levels of protective clothing w[o]rn.

   
   

   Emergency Medical Services: Work involves protecting life through use of basic life support and advance life support methods. Individuals involved in these services work under the license and management of a medical director. Paramedics are generally assigned to these positions when possible.

   Individuals should be able to accurately

   gather and interpret patient information to formulate a working diagnosis and provide necessary treatment as per protocol or physician[']s direction. Personnel [are] responsible for calculating and administering various drugs under stressful conditions (i.e. cardiac arrest and major trauma) and reporting patient status and treatment via radio to the medical director. A working knowledge of anatomy and physiology, medical terms and conditions is required.

   
   

   Fire Prevention Bureau: Work involves inspecting buildings and premises; reviewing plans for compliance with fire regulations specified in the City of Miami Building Code; checking on complaints; investigating arson cases and conducting public education throughout the City of Miami.

   
   

7. Petitioner did not indicate, in submitting his Second Application, that he was seeking anything other than prospective entry in the Firefighters Supplemental Compensation Program.

8. Respondent preliminarily determined that Petitioner's Second Application should be denied because his "Major Study Concentration Areas of Biology does not meet the criteria found in Rule 4A-37.084, Florida Administrative Code, for entry in the program," and so advised Petitioner, who subsequently requested an administrative hearing on the matter.

9. Respondent, however, subsequently changed its mind regarding Petitioner's eligibility for the program and, by letter dated November 17, 1999 (two days prior to the final hearing in this case) advised Petitioner that, "[u]pon [f]urther review of [his] application, it had "found [Petitioner] to be eligible" and that he would receive supplemental compensation effective June 1,

   1999. Respondent also prepared and sent to Chief James Fisher of the City of Miami Fire Rescue an Official Acceptance Notification, which read as follows:

   James E. Kemp, Social Security Number, . . ., has met the eligibility requirements for entry into the Firefighters Supplemental Compensation Program. Effective June 1, 1999, Mr. Kemp will receive Supplemental Compensation for qualifying under the requirements of Section 633.382, Florida Statutes, and Rule 4A-37.085 for possession of a Bachelor's degree.

   Mr. Kemp will be eligible to receive up to

   $110.00 a month until such time as he may become ineligible in accordance with Rule 4A-

   37.087. Please insure that the referenced firefighter's name and the amount of Supplemental Compensation paid, appears on your Quarterly Report (form FSTE-3).

   
   

   If any further information is needed, please do not hesitate to contact us.

   
   

   (A copy of this Official Acceptance Notification was sent to Petitioner.)

   CONCLUSIONS OF LAW

   
   

10. Pursuant to Section 633.382, Florida Statutes, which provides as follows, firefighters who have received a bachelor's degree from an accredited college or university are entitled to supplemental compensation if their degree is "applicable to fire department duties":

    1. Definitions.--As used in this section, the term:

       
       

       1. "Division" means the Division of State Fire Marshal 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) 2/ 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:

          
          

          1. Any firefighter who receives an associate degree from a college, which degree is applicable to fire department duties, as outlined in policy guidelines of the division, shall be additionally compensated as outlined in paragraph (3)(a).

             
             

          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 bachelor's 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:

       
       

       1. Fifty dollars shall be paid monthly to each firefighter who qualifies under the provisions of subparagraph (2)(a)1.

          
          

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

       
       

    4. Funding.--

       
       

       1. The employing agency is responsible for the correct payment of firefighters pursuant to the provisions of this section. The division may review, in a postaudit capacity, any action taken by an agency in administering the educational incentive program. The employing agency shall take appropriate action when a postaudit shows that an action taken by the employing agency was in error.

          
          

       2. Each agency employing firefighters who are eligible for this compensation shall submit reports containing information relating to compensation paid as a result of this section to the division on March 31, June 30, September 30, and December 31 of each year.

          
          

       3. There is appropriated from the Police and Firefighter's Premium Tax Trust Fund to the Firefighters' Supplemental Compensation Trust Fund, which is hereby created under the Department of Revenue, all moneys which have not been distributed to municipalities and special fire control districts in accordance with s. 175.121 as a result of the limitation contained in s. 175.122 on the disbursement of revenues collected pursuant to chapter 175 or as a result of any municipality or special fire control district not having qualified in any given year, or portion thereof, for participation in the distribution of the

          revenues collected pursuant to chapter 175. The total required annual distribution from the Firefighters' Supplemental Compensation Trust Fund shall equal the amount necessary to pay supplemental compensation as provided in this section, provided that:

          
          

          1. Any deficit in the total required annual distribution shall be made up from accrued surplus funds existing in the Firefighters' Supplemental Compensation Trust Fund on

             June 30, 1990, for as long as such funds last. If the accrued surplus is insufficient to cure the deficit in any given year, the proration of the appropriation among the counties, municipalities, and special fire service taxing districts shall equal the ratio of compensation paid in the prior year to county, municipal, and special fire service taxing district firefighters pursuant to this section. This ratio shall be provided annually to the Department of Revenue by the Division of State Fire Marshal. Surplus funds that have accrued or accrue on or after July 1, 1990, shall be redistributed to municipalities and special fire control districts as provided in subparagraph 2.

          2. By October 1 of each year, any funds that have accrued or accrue on or after July 1, 1990, and remain in the Firefighters' Supplemental Compensation Trust Fund following the required annual distribution shall be redistributed by the Department of Revenue pro rata to those municipalities and special fire control districts identified by the Department of Management Services as being eligible for additional funds pursuant to s. 175.121(3)(b).

          
          

       4. Salary incentive payments to firefighters shall commence in the first full calendar month following the initial date of certification of eligibility by the Division of State Fire Marshal.

          
          

       5. Special fire service taxing districts are authorized and empowered to expend the

       funds necessary to ensure correct payment to firefighters.

       
       

    5. Legislative findings.--The payment of supplemental compensation and expenses of the administration provided by this section is found to serve a state, county, district, and municipal purpose and to provide benefit to the state and to its counties, municipalities, and districts.

       
       

11. The "policy guidelines of the division" referenced in subsection (2)(a)2 of Section 633.382, Florida Statutes, are found in Rule Chapter 4A-37, Part VI, Florida Administrative Code, which contains the following provisions, among others:

    4A-37.082 Purpose.

    
    

    The purpose of this part is to implement Section 633.382, Florida Statutes, and to provide for the operation of the Firefighters Supplemental Compensation Program in the State of Florida, the application and administration thereof.

    
    

    4A-37.083 Scope.

    
    

    This part establishes procedures for eligibility requirements, enrollment procedures, cessation of, re-entry and forms for the Firefighters Supplemental Compensation Program.

    
    

    4A-37.084 Definitions.

    
    

    For purposes of this part, terms used in Rules 4A-37.082-4A-37.089 are as defined in Section 633.382(1), Florida Statutes, and terms which are not otherwise defined in said statutes are defined as follows:

    
    

    1. "Accrediting Agency" means those accrediting agencies belonging to the Council on Post-Secondary Accreditation.

       
       

    2. "Associate Degree" means an Associate of Arts or Associate of Science degree conferred

       by an accredited post-secondary institution in which the firefighter successfully completed at least 18 semester hours or 27 quarter hours of courses identified in subsection (5) of this rule.

       
       

    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.

       
       

       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.

          
          

    4. "Bureau" means the Bureau of Fire Standards and Training of the Division of State Fire Marshal of the Department of Insurance.

       
       

    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.

       
       

    6. "Post-Secondary Institution" means Universities, Colleges, Community Colleges and Junior Colleges which are accredited by an accrediting agency.

    7. "Supplemental Compensation" means monies paid to individual firefighters, as defined in Section 633.382(1)(c), Florida Statutes, and who meet the criteria and provisions set forth in Section 633.382(2) and (3), Florida Statutes, and this rule chapter.

       
       

       1. The Supplemental Compensation shall be in addition to any compensation now paid by an employing agency to any firefighter; and shall not be used to circumvent any current or proposed base salary increases.

          
          

       2. No firefighter shall be eligible to receive compensation for more than one degree. If the firefighter holds more than one eligible degree, compensation will be paid for the higher degree.

          
          

          4A-37.085 Eligibility Requirements for Supplemental Compensation.

          
          

          To be eligible to receive the Supplemental Compensation provided for by Section 633.382(3), Florida Statutes, the following requirements must be met:

          
          

          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.

             
             

             4A-37.086 Enrollment Procedures for Supplemental Compensation.

             
             

             To receive the Supplemental Compensation provided for by Section 633.382(3), Florida Statutes, the following procedures must be followed:

             
             

             1. Firefighter must transmit completed "Transcript Request Form" to the Post- Secondary Institution from which the degree was conferred.

             2. Post-Secondary Institution shall transmit one official sealed transcript with "Transcript Request Form" to the Bureau of Fire Standards and Training.

                
                

             3. Firefighter must submit to the Bureau of Fire Standards and Training a complete job description from the employing agency.

                
                

             4. The Bureau of Fire Standards and Training will, upon approval of the transcript, send the "Official Acceptance Notification Form" to the employing agency with a copy to the firefighter. The Official Notification Acceptance Form, Form DI4A-2 (9/91) (FSTE-2), is incorporated by reference in Rule 4A- 37.089. This form must be received by the employing agency before the firefighter's name can be included in the Supplemental Compensation Program.

12. If Respondent preliminarily determines to deny an application for entry in the Firefighters Supplemental Compensation Program, it must advise the applicant of its proposed action and of the applicant's opportunity to request an administrative hearing pursuant to Chapter 120, Florida Statutes, at which the applicant will be able to make a presentation in an attempt to change Respondent's mind. See Florida League of Cities v. Administration Commission, 586 So. 2d 397, 413 (Fla. 1st DCA 1991)("Until proceedings are had satisfying [S]ection 120.57, or an opportunity for them is clearly offered and waived, there can be no agency action affecting the substantial interests of a person."); Capeletti Brothers, Inc. v. Department of General Services, 432 So. 2d 1359, 1363 (Fla. 1st DCA 1983)("Capeletti misconceives the purpose of the Section 120.57 hearing. The rejection of bids never became final agency action. As we have

    previously held, APA hearing requirements are designed to give affected parties an opportunity to change the agency's mind."); Capeletti Brothers, Inc. v. Department of Transportation, 362 So. 2d 346, 348 (Fla. 1st DCA 1978)("[A]n agency must grant affected parties a clear point of entry, within a specified time after some recognizable event in investigatory or other free-form proceedings, to formal or informal proceedings under Section 120.57."); Couch Construction Company, Inc. v. Department of Transportation, 361 So. 2d 172, 176 (Fla. 1st DCA 1978)("APA hearing requirements are designed to give affected parties an opportunity to change the agency's mind."). If Respondent provides such a "clear point of entry" and the applicant fails to timely request an administrative hearing, Respondent may proceed to take final agency action without such a hearing being conducted. See Fortune Life Insurance Company v. Department of Insurance, 569 So. 2d 1325, 1327 (Fla. 1st DCA 1990)("The department could have followed non-emergency procedure by announcing intended agency action, giving the adversely affected party a clear point of entry and the opportunity to elect formal or informal proceedings. If that election is not made, of course, the intended action will become final.").

13. Where "there is a disputed issue of material fact which formed the basis for the proposed final action," the applicant is entitled to an evidentiary hearing held in accordance with Section 120.57(1), Florida Statutes. Florida Sugar Cane League

    v. South Florida Water Management District, 617 So. 2d 1065, 1066 (Fla. 4th DCA 1993). At the hearing, the applicant bears the burden of establishing, by a preponderance of the evidence, his or her entitlement to supplemental compensation. 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); Section 120.57(1)(j), Florida Statutes ("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute.").

14. In the instant case, after receiving notice sufficient to afford him a "clear point of entry" to pursue an administrative hearing on Respondent's proposed denial of his Second Application for entry in the Firefighters Supplemental Compensation Program, Petitioner requested such an administrative hearing. Respondent thereafter referred the matter to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct the hearing Petitioner had requested. Two days before the hearing was scheduled to commence, Respondent, having changed its mind regarding Petitioner's entitlement to supplemental compensation, announced that it was granting Petitioner's Second Application and accepting him in the Firefighters Supplemental Compensation

    Program effective June 1, 1999. Petitioner, however, indicated (at the outset of the hearing) that he was not satisfied with such action. He claimed (for the first time in this proceeding) that his acceptance in the Firefighters Supplemental Compensation Program should be effective, not June 1, 1999, but rather "sometime in 1994" ("based on [his] 1994 [Application]," which, in his view, was "improperly denied") and that, in addition, he should receive "compensat[ion] for [his] expenses incurred in the [administrative] process." Respondent disputed Petitioner's entitlement to such further relief. In view of the parties' disagreement, they were given the opportunity to present evidence (at the hearing) and written argument (in post-hearing submittals) in support of their respective positions.

15. Having carefully considered the parties' presentations in light of the applicable law, the undersigned is not persuaded that Petitioner is entitled to the additional relief he is seeking.

16. Petitioner contends that he is entitled to supplemental compensation retroactive to "sometime in 1994" because Respondent erroneously denied his 1994 Application. This determination to deny Petitioner's 1994 Application became final as a result of Petitioner's failure to have taken advantage of the "clear point of entry" he had been given (in 1994) to request an administrative hearing on the matter. See Rudloe v. Florida Department of Environmental Regulation, 517 So. 2d 731, 733 (Fla.

    1st DCA 1987)("In the present case, DER's intent to issue a permit remained constant, and after the administrative petition was filed by Sadousky, appellants were put on notice that the final conditions of the permit might be different from those proposed. We agree with DER that appellants have missed their clear point of entry and are not entitled to a second chance."); Prime Orlando Properties, Inc. v. Department of Business Regulation, Division of Land Sales, Condominiums and Mobile Homes, 502 So. 2d 456, 458 (Fla. 1st DCA 1986)("[W]hen a clear point of entry is provided in a notice to show cause, the affected party must affirmatively seek a hearing within the permissible time frame. Failure to do so has been construed as a waiver of the right to a hearing."); Florida Medical Center v.

    Department of Health and Rehabilitative Services, 484 So. 2d 1292, 1295 (Fla. 1st DCA 1986)("We regard the reasoning applied to the appellants in NME equally applicable to appellants at bar: because the record does not disclose that appellants availed themselves of a clear point of entry provided to them by the administrative process, they must be considered to have waived their rights to such hearing."); Henry v. Department of Administration, 431 So. 2d 677 (Fla. 1st DCA 1983)("An agency seeking to establish waiver based on the passage of time following action claimed as final must show that the party affected by such action has received notice sufficient to commence the running of the time period within which review must

    be sought."). Respondent has jurisdiction to revisit this final determination only upon a showing of "extraordinary circumstances" justifying such reconsideration. See Russell v. Department of Business and Professional Regulation, 645 So. 2d 117, 119 (Fla. 1st DCA 1994)("Appellant has failed to demonstrate in his motion to set aside the 'extraordinary circumstances' which are a prerequisite for revisiting a closed case.").

    Petitioner has failed to make such a showing. Moreover, even if he had, and Respondent, upon reconsideration, determined that it had erred in denying Petitioner's 1994 Application, Respondent would still be without authority to make Petitioner's acceptance in the Firefighters Supplemental Compensation Program effective retroactive to "sometime in 1994" inasmuch as Section 633.382(4)(d), Florida Statutes, specifies that "[s]alary incentive payments to firefighters shall commence in the first full calendar month following the initial date of certification of eligibility by the Division of State Fire Marshal."

17. With respect to Petitioner's claim that he is entitled to "compensat[ion] for [his] expenses incurred in the [administrative] process," he has not cited, nor has the undersigned's research revealed, any statutory provision that would authorize an award of "expenses" to Petitioner under the circumstances of the instant case. Absent such statutory authority, such an award may not be made. Cf. Wolf v. County of Volusia, 703 So. 2d 1033, 1034 (Fla. 1998)("Cost provisions are a

    creature of statute and must be carefully construed. This Court has held for over a century that cost provisions against the State must be expressly authorized: It may be premised that at common law neither party could be charged with the costs of the other, and it was only by statute that such a charge came to be allowed, but even after that in England and in this country the sovereign or the State was not chargeable with costs, either in civil or criminal cases, unless there was express provision of law to authorize it.").

18. In view of the foregoing, Respondent should close the instant case without granting Petitioner the additional relief he is seeking.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that Respondent enter a final order finding that Petitioner is not entitled to the additional relief he is seeking.

DONE AND ENTERED this 5th day of January, 2000, in Tallahassee, Leon County, Florida.

STUART M. LERNER

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 2000.

ENDNOTES

1/ Rule 4A-37.084, Florida Administrative Code, was subsequently amended on March 20, 1995. The definition of "Bachelor's Degree" found in the current version of the rule is not identical to the definition set forth in Respondent's August 23, 1994, letter to Petitioner.

2/ Section 633.30(1), Florida Statutes, defines the term "firefighter" as follows:

"Firefighter" means any person initially employed as a full-time professional firefighter by any employing agency, as defined herein, whose primary responsibility is the prevention and extinguishment of fires, the protection and saving of life and property, and the enforcement of municipal, county, and state fire prevention codes, as well as of any law pertaining to the prevention and control of fires.

COPIES FURNISHED:

Shiv Persaud, Esquire Department of Insurance Division of Legal Services

200 East Gaines Street 612 Larson Building

Tallahassee, Florida 32399

James E. Kemp

10851 Southwest 164th Street Miami, Florida 33157

Honorable Bill Nelson

State Treasurer and Insurance Commissioner 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

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: 99-003486

Orders for Case No: 99-003486