STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE AND )

TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6840

)

WARREN SCOTT JACKMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal administrative hearing was scheduled in this case in Lakeland, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings, for January 8, 1991. But instead of going to hearing, the case was submitted to the Hearing Officer for decision on written evidence and proposed recommended orders.

STATEMENT OF THE ISSUES

The issue for determination in these proceedings is whether the Petitioner, the Department of Insurance and Treasurer, should discipline the Respondent, Warren Scott Jackman, under Section 633.351(2), Fla. Stat. (Supp. 1990), on an Administrative Complaint charging that he has pled nolo contendere to a felony charge.

PRELIMINARY STATEMENT

This case was scheduled for final hearing in Lakeland, Florida, on January 8, 1991. But on January 4, 1991, the Petitioner filed a Motion to

Submit Written Evidence in Lieu of Live Testimony alleging that the parties only intended to submit written evidence, to which neither party objected, and that a hearing was unnecessary. The motion was granted, and the parties were given until January 31 in which to file their written evidence and proposed recommended orders. (The written evidence was to consist of Petitioner's Exhibit 1 and 2 and Respondent's Exhibit A and B, but the Respondent did not file his exhibits.) Explicit rulings on the proposed findings of fact contained in the Petitioner's proposed recommended orders may be found in the attached Appendix to Recommended Order, Case No. 90-6840. (The Respondent did not file a proposed recommended order.)

FINDINGS OF FACT

1. At all times pertinent to this proceeding, the Respondent has been certified as a firefighter, certificate #44701.

   
   

2. On or about March 7, 1990, a two-count criminal information was filed against the Respondent in Case No. CF-90-0604 charging the Respondent with two counts of committing a lewd act in the presence of a child. The information alleged that, on two occasions, the Respondent did handle, fondle or make an assault in a lewd, lascivious or indecent manner or knowingly commit a lewd and lascivious act in the presence of a sixteen year old girl in that he did allow, permit or engage her to fondle, touch or rub his penis, but without committing sexual battery.

   
   

3. On or about August 24, 1990, the Respondent entered a plea of nolo contendere to the charges. Adjudication was withheld, but the Respondent was sentenced to one year of community control, followed by four years probation for each count, to be served concurrently.

   
   

   CONCLUSIONS OF LAW

   
   

4. Section 633.351(2), Fla. Stat. (Supp. 1990), provides in pertinent part:

   
   

   The certification of a firefighter who is convicted of a felony . . . , or who pleads nolo contendere to any charge of a felony shall be revoked until the firefighter complies with s. 112.011(2)(b). However, if sentence upon such felony . . . charge is suspended or adjudication is withheld, the firefighter's certification shall be revoked until he completes any probation.

   
   

5. It is concluded that the 1990 amendments to Section 633.351, enacted by Chapter 90-359, Laws of Florida (1990), in pertinent part replacing the word "voided" in the prior version with "revoked" in the current version, does not signify a change in the meaning of the statute but is only a clarification of the legislative intent. Cf. City of New Smyrna Beach v. Bd. of Trustees of the Internal Improvement Trust Fund, 543 So. 2d 824 (Fla. 5th DCA 1989); Keyes Investors Series 20, Ltd., v. Dept. of State, 487 So. 2d 59 (Fla. 1st DCA 1986). In other words, under either version of the statute, revocation is mandated upon the occurrence of the events described in the statute.

   
   

6. The Petitioner, the Department of Insurance, has the burden of proof in these proceedings to prove the allegations in the Amended Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

   
   

7. The evidence in this case proved clearly and convincingly that the Respondent was convicted of a felony, adjudication was withheld, and sentence was imposed, including one year of community control and four years of probation. Under Section 633.351, it is mandatory that the Respondent's firefighter certificate be revoked until he serves the sentence, including probation. Whether the Respondent's certificate thereafter will be reinstated on application will involve the provisions of Section 112.011.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Insurance, enter a final order revoking the certification of the Respondent, Warren Scott Jackman, as a firefighter.

RECOMMENDED this 11th day of February, 1991, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 11th day of February, 1991.

APPENDIX TO RECOMMENDED ORDER

To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the Petitioner's proposed findings of fact (the Respondent not having filed any):

Petitioner's Proposed Findings of Fact.

1. Accepted and incorporated.

2.-3. Rejected, as stated, as contrary to facts found and the greater weight of the evidence. (The Respondent, not the Petitioner, was charged and entered the plea.)

4. Accepted and incorporated.

COPIES FURNISHED:

Lisa S. Santucci, Esquire Department of Insurance

and Treasurer

Division of Legal Services Room 412, Larson Building Tallahassee, FL 32399-0300

Warren Scott Jackman 1569 Churchill Court

Lakeland, Florida 33801

Tom Gallagher

State Treasurer, Insurance Commissioner and Fire Marshall

The Capitol, Plaza Level Tallahassee, FL 32399-0300

Don Dowdell, Esquire General Counsel

Department of Insurance and Treasurer

The Capitol, Plaza Level Tallahassee, FL 32399-0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE DEPARTMENT OF INSURANCE AND TREASURER 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 CONSULT WITH THE DEPARTMENT OF INSURANCE AND TREASURER CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 90-006840

Orders for Case No: 90-006840