STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 92-7262

) FRANCIS EDWARD NEUZIL, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written 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 April 27, 1993, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Daniel T. Gross, Esquire

Division of Legal Services 612 Larson Building

Tallahassee, Florida 32399-0300

For Respondent: Richard Baron, Esquire

11077 Biscayne Boulevard, Suite 307

Miami, Florida 33161 STATEMENT OF THE ISSUE

The issue for determination at final hearing is whether Respondent is guilty of misconduct as alleged in the administrative complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On August 20, 1992, the Insurance Commissioner, as State Fire Marshal of the State of Florida (Petitioner), filed an administrative complaint against Francis Edward Neuzil, Jr. (Respondent). Petitioner alleged in the administrative complaint that Respondent had pled nolo contendere to a felony charge and because of that (1) his license as a certified firefighter should be revoked until a time certain pursuant to Subsection 633.351(2), Florida Statutes; (2) he lacks one or more of the qualifications for a firesafety inspector: being convicted of a felony [Subsection 633.081(2)(a), Florida Statutes] and not possessing good moral character as determined by the department [Subsection 633.081(2)(d), Florida Statutes]; and (3) his license should be disciplined pursuant to Subsection 633.081(6), Florida Statutes, for a cause for which his certificate at the time of issuance could have been denied [Subsection 633.081(6)(a), Florida Statutes] and for pleading nolo contendere to a felony [Subsection 633.081(6)(d), Florida Statutes].

On or about September 14, 1992, Respondent filed an answer in which Respondent admitted the facts alleged in the administrative complaint, asserted affirmative defenses and requested a formal hearing. The matter was filed with the Division of Administrative Hearings on December 7, 1992, for assignment of a Hearing Officer. On January 8, 1993, Petitioner filed a motion to relinquish jurisdiction which was denied by Order dated January 20, 1993. A formal hearing was scheduled on April 27, 1993, pursuant to Notice of Hearing.

At the formal hearing, Respondent again admitted the facts alleged in the administrative complaint and asserted that only mitigating facts and evidence, having a bearing on an appropriate penalty, would be presented. Petitioner presented the testimony of three witnesses, and Respondent presented the testimony of three witnesses and testified in his own behalf. Petitioner entered two exhibits into evidence, and Respondent had one exhibit which was marked for identification only.

No transcript of the formal proceeding was ordered. Petitioner timely filed its proposed findings of fact and conclusions of law. Respondent requested and was granted an extension of time in which to file his proposed findings of fact and conclusions of law, to which Petitioner did not object. Subsequently, Respondent timely filed his proposed findings of fact and conclusions of law. The appendix to this recommended order addresses all proposed findings of fact.

FINDINGS OF FACT

1. At all times material hereto, Francis Edward Neuzil, Jr. (Respondent), was certified as a firefighter and firesafety inspector in the State of Florida, holding certificates 7360 and FI-39965, respectively. Respondent's firefighter certification was issued on or about February 22, 1979, and his firesafety inspector certification was issued on or about January 9, 1985.

   
   

2. On or about December 20, 1991, Respondent was charged by Information with one count of grand theft in the Circuit Court, Seventeenth Judicial Circuit, Broward County, Florida, in Case No. 91-23492CF10.

   
   

3. On or about May 11, 1992, Respondent plead nolo contendere to grand theft for violating Subsection 812.014(1)(a), Florida Statutes, a third degree felony. Adjudication was withheld, and Respondent was placed on 18 months probation with special conditions of 50 hours of community service and no consumption of drugs or alcohol.

   
   

4. On or about January 14, 1993, the court terminated Respondent's probation, approximately 10 months prior to the scheduled time for his probation to end.

   
   

5. The incident which led to Respondent's felony charge occurred on or about December 7 or 8, 1991, at a Sam's store in Broward County after 11:00 p.m. A sprinkler system was being installed and was sufficiently completed for inspection by a firesafety inspector. Respondent went to Sam's store acting in the capacity of a firesafety inspector. Originally, he had estimated that only

   10 minutes would be needed to accomplish his task--check the water gauges--but the sprinkler installers were behind schedule and it took approximately an hour.

   
   

6. Prior to arriving at Sam's, Respondent had consumed approximately 10 beers. While waiting to perform the inspection, Respondent, who was not in

   uniform, walked around in the store, consuming an unknown quantity of beers that he had brought into the store with him.

   
   

7. Respondent was observed by an electrical worker and several of Sam's employees who either saw him drinking beer or smelled the alcohol on his person and who either knew who he was or were told by other workers or employees who he was. These same individuals witnessed Respondent take several items to the rear entrance--through which everyone working that night or morning was coming and going--and out of the store. Respondent did not attempt to conceal the items.

   
   

8. None of the individuals questioned Respondent about the items or stopped him. However, one employee contacted a Sam's manager who was present. They discovered store items were missing, went to Respondent's vehicle which was parked at the rear entrance, as was everyone else's vehicle, and saw the items inside his vehicle.

   
   

9. Law enforcement was called, and Respondent was arrested.

   
   

10. All the people who saw Respondent at Sam's store believe that he was intoxicated.

    
    

11. Respondent has little or no recollection of the incident, and what he does recall is vague. He does not recall taking the items, all of which were items that he had seen before in Sam's and wanted for the Boy Scouts with whom he volunteers. However, he does recall picking up a light bulb and an electrical cord with no ends to it.

    
    

12. As a result of the incident, Respondent was suspended by the Fire Chief of the City of Miramar and has not acted in the capacity as a firesafety inspector since December 1991.

    
    

13. Even though Respondent pled nolo contendere to the felony charge of grand theft, mitigating circumstances exist, both at the time of the incident and subsequent thereto. Medically, Respondent is diagnosed as an alcoholic, having the disease alcoholism. During the incident, he suffered an alcoholic blackout and, as a result, has little or no recollection of taking the items. Furthermore, Respondent was incapable of forming the requisite intent to steal the items.

    
    

14. Additionally, immediately after the incident, he sought treatment and checked himself into a rehabilitation center. Respondent is now a recovering alcoholic. He regularly attends meetings of Alcoholics Anonymous and is monitored by a sponsor who is also a professional firefighter (10 years) and a recovering alcoholic (approximately six years). Further, since January 1992, Respondent has been receiving medical assistance with his alcoholism. Even though he needs to remain in a recovery program, he does not pose a threat to his profession. 1/

    
    

15. Moreover, during Respondent's career as a firefighter (almost 15 years) and firesafety inspector (almost nine years), his certifications have never been disciplined and he has been actively participating in his community. Through his community involvement, Respondent established the City of Miramar's Fire Prevention Bureau and raised money to fund the Bureau. Additionally, he has received many job-related commendations and service recognitions and he has volunteered extensively to work with service organizations, such as the Boy Scouts.

16. Petitioner's consistent policy is to not consider mitigating factors in disciplinary action against a firesafety inspector's certification. In matters involving a plea of nolo contendere, the consistent policy is that an applicant for firesafety inspector will not be issued a certification and that, if the individual has been issued a certification, Petitioner will seek revocation of the certification, regardless of mitigating circumstances.

    
    

17. Petitioner is not seeking to discipline Respondent's certification as a firefighter since his certification, by statute [Section 633.351(2), Florida Statutes], was revoked until termination of his probation which occurred on January 14, 1993.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

19. License revocation proceedings are penal in nature, and the Petitioner has the burden of proof to establish the truthfulness of the allegations of the administrative complaint by clear and convincing evidence. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977), and Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

20. Respondent was charged in the administrative complaint with violating Subsections 633.351(2), 2/ 633.081(2)(b) and (d) and 633.081(6)(a) and (d), Florida Statutes. Subsection 633.351(2) provides in pertinent part:

    
    

    The certification of a firefighter . . . 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.

    
    

    Subsection 633.081(2) provides in pertinent part:

    
    

    Every firesafety inspection conducted pursuant to state or local firesafety requirements shall be by a person certified as having met the inspection training requirements set by the State Fire Marshal. Such person shall: . . .

    
    

    (b) Not have been convicted of a misdemeanor involving moral turpitude or a felony in this state . . . For purposes of this paragraph, a plea of . . . nolo contendere . . . shall be considered a conviction even if adjudication was withheld or sentence was suspended . . .

    
    

    (d) Have good moral character as determined by the department.

    Subsection 633.081(6) provides in pertinent part:

    
    

    The State Fire Marshal may deny, refuse to renew, suspend, or revoke the certificate of a firesafety inspector or special state firesafety inspector if it finds that any of the following grounds exist:

    
    

    (a) Any cause for which issuance of a certificate could have been refused had it then existed and been known to the State Fire Marshal . . .

    
    

    (d) [H]aving pleaded . . . nolo contendere to a felony, whether or not a judgment of conviction has been entered. (emphasis added)

    
    

    Respondent has admitted the allegations of fact in the administrative complaint and that the facts of the administrative complaint constitute a violation of the aforementioned statutory provisions; therefore, Petitioner has met its burden of proof.

    
    

21. As for discipline, Petitioner contends that its consistent policy of revoking the certificate of a firesafety inspector who has violated the aforementioned statutory provisions should be adhered to. Respondent contends that mitigating factors exist and, therefore, Petitioner's policy should not be followed.

    
    

22. Respondent's action cannot be condoned. However, notwithstanding Petitioner's policy, the mitigating factors in the case at hand dictate a departure from Petitioner's policy.

    
    

23. Because of the violations committed by Respondent, Petitioner "may" suspend or revoke Respondent's certification as a firesafety inspector. Subsection 633.081(6), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order:

1. Suspending Respondent's certification as a firesafety inspector for a period of two years, retroactive to May 11, 1992, the date of Respondent's plea of nolo contendere.

   
   

2. Reinstating Respondent's certification at the conclusion of the suspension and thereafter, for a period of one year, placing Respondent's certification on probation under whatever terms and conditions that Petitioner deems just and appropriate.

   DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of December 1993.

   
   

   
   

   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 16th day of December 1993.

   
   

   ENDNOTES

   
   

   1/ Expert medical testimony was presented on this issue. 2/ See Finding of Fact 15.

   
   

   APPENDIX

   
   

   The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact

   1 & 2. Substantially adopted in Finding of Fact 1.

3. Adopted in part in Findings of Fact 1 and 13: years as firefighter; rejected in part: years as firesafety inspector; remainder subordinate.

4. Substantially adopted in Finding of Fact 13.

5. Substantially adopted in Finding of Fact 2.

6. Substantially adopted in Finding of Fact 3.

7. Substantially adopted in Finding of Fact 4.

8 & 9. Substantially adopted in Finding of Fact 13.

1. Substantially adopted in Findings of Fact 7 and 8.

2. Second sentence substantially adopted in Finding of Fact 6; remainder rejected as contrary to the evidence.

3. Rejected as contrary to the evidence.

4. Rejected as contrary to the evidence.

5. Substantially adopted in Finding of Fact 14.

Respondent's Proposed Findings of Fact

1 & 2. Substantially adopted in Finding of Fact 1.

1. Adopted in part in Findings of Fact 1 and 13: years as firefighter; rejected in part: years as firesafety inspector; remainder subordinate.

2. Substantially adopted in Finding of Fact 12.

3. Substantially adopted in Finding of Fact 13.

4. Substantially adopted in Finding of Fact 2.

5. Substantially adopted in Finding of Fact 3.

6. Substantially adopted in Finding of Fact 4.

9 & 10. Substantially adopted in Finding of Fact 13.

1. Substantially adopted in Findings of Fact 7 and 8.

2. Adopted as to Respondent's intoxication and access to store as Fire Inspector; remainder rejected as contrary to the evidence.

3. Rejected as contrary to the evidence.

14 & 15. Substantially adopted in Finding of Fact 13.

1. Substantially adopted in Finding of Fact 14.

2. Rejected as recitation of testimony.

3. Substantially adopted in Finding of Fact 13.

4. Substantially adopted in Finding of Fact 13.

COPIES FURNISHED:

Daniel T. Gross, Esquire Division of Legal Services 612 Larson Building

Tallahassee, Florida 32399-0300

Richard Baron, Esquire Suite 307

11077 Biscayne Boulevard

Miami, Florida 33161

Tom Gallagher

State Treasurer and Insurance Commissioner

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Bill O'Neil General Counsel

Department of Insurance The Capitol, PL-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 10 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.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF INSURANCE OFFICE OF THE TREASURER

IN THE MATTER OF:

CASE NO. 90-L-409DTG

FRANCIS EDWARD NEUZIL, JR. DOAH CASE NO. 92-7262

/

FINAL ORDER

THIS CAUSE came before the undersigned Treasurer and Insurance Commissioner of the State of Florida, acting in his capacity as State Fire Marshal, for consideration and final agency action. On August 20, 1992, the Department filed an Administrative Complaint against Respondent alleging that Respondent had pled nolo contendere to a felony charge in violation of Sections 633.081(2)(b) and

1. and 633.081(6)(a) and (d), Florida Statutes. On or about September 14, 1992, Respondent filed his Election of Rights disputing the allegations of the Administrative Complaint and requesting a formal proceeding pursuant to Section 120.57(1), Florida Statutes. Pursuant to notice, this administrative action proceeded to hearing on April 27, 1993, before Division of Administrative Hearings Officer Errol H. Powell.

   
   

   After consideration of the evidence, and after further consideration of the Proposed Findings of Fact and Conclusions of Law submitted by the parties, the Hearing Officer, on December 16, 1993, issued his Written Report and Recommended Order (attached as Exhibit "A"). The Hearing Officer recommended that a Final Order be entered finding that Respondent had violated Sections 633.081(2) and (6), Florida Statutes, and that the Respondent's certification as a firesafety inspector be suspended for a period of two years, retroactive to May 11, 1992, the date of entry of his plea of nolo contendere, and upon reinstatement of his certification, that the certification be placed on probation for a period of one year.

   
   

   The Petitioner filed two (2) exceptions which have been considered herein.

   
   

   RULING ON PETITIONER'S EXCEPTION

   
   

   Petitioner first excepts to the Hearing Officer's rulings on it's Proposed Findings of Fact contained in the Appendix to the Recommended Order to the extent that these rulings, as numbered, are inconsistent with the Hearing Officer's findings and the Hearing Officer's failure to address paragraph fifteen (15) of the Petitioner's proposed findings.

   
   

   The Petitioner has not set out how the Hearing Officer's findings differ and are inconsistent with his rulings on the Petitioner's proposed findings. A comparison of the Hearing Officer's rulings on the Petitioner's proposed findings with the Hearing Officer's own findings of fact does not reveal any significant inconsistencies. Furthermore, the Hearing Officer substantially

   addressed and adopted paragraph fifteen (15) of Petitioner's proposed findings in finding of fact 14 of the Recommended Order.

   
   

   It is the Hearing Officer's function, as trier of fact, to:

   
   

   . . . consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence.

   
   

   Heifetz v. Dept. of Business Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985).

   
   

   The Hearing Officer has fulfilled this function and his findings are based upon competent, substantial evidence. These findings will not be disturbed.

   Therefore, the Petitioner's Exception to the Rulings on Findings as submitted by the Petitioner and his request for clarification on these rulings is REJECTED.

   
   

   RULING ON PETITIONER' EXCEPTION TO THE RECOMMENDED PENALTY

   
   

   The Petitioner also excepts to the recommended penalty of two years suspension applied retroactively from May 11, 1992 and, upon reinstatement, the imposition of a one year period of probation. The Petitioner instead requests that the Respondent's firesafety inspection certificate be revoked.

   
   

   The Respondent entered a plea of nolo contendere to a charge of Grand Theft, a third degree felony involving moral turpitude, in violation of Section 633.081(6)(d), Florida Statutes.

   
   

   The Hearing Officer, in his recommended order, placed great emphasis on the language of Section 633.081(6), Florida Statutes, which provides in pertinent part:

   
   

   The State Fire Marshal may deny, refuse to renew, suspend, or revoke the certificate of a firesafety inspector or special state firesafety inspector if it finds that any of the following grounds exist:

   1. Any cause for which issuance of a certificate could have been refused had it then existed and been known to the State Fire Marshal . . .

(d) [H]aving plead . . . nolo contendere to a felony, whether or not a judgement of conviction has been entered. (emphasis added)

In matters involving a pleas of nolo contendere, as found by the Hearing Officer, the consistent policy of the department has been that an applicant for firesafety inspector will not be issued a certificate. Section 633.081(2)(b), Florida Statutes.

The more appropriate penalty in this case is the revocation of the Respondent's certificate. The Respondent used his firesafety certificate to gain entry to the building. Upon his entry, he then committed the theft. (F. of F. 7 and 8) This makes his act all the more egregious. For these reasons, the penalty assessed in this matter shall be enhanced to a revocation.

It is the primary function of the Department to determine the appropriate punishment for the misconduct of its certificate holders. Florida Department of Law Enforcement v. Hood, 601 So. 2d 1194 (Fla. 1992) at 1195. As long as the statute under which a professional agency operates provides guidelines for imposing penalties, the agency complies with section 120.57(1)(b)10., [Florida Statutes], and the increased penalty falls within the guidelines established by its statute, a professional board or agency has the discretion to increase the recommended penalty. Criminal Justice Standards v. Bradley, 596 So. 2d 661 (Fla. 1992). The assessment of a revocation in this matter is well within the discretion of the department as the increased penalty fall within the penalty guidelines of Section 633.081(6)(a) and (d), Florida Statutes.

Upon consideration of the foregoing and the record, and being otherwise fully advised in the premises, it is:

ORDERED:

1. The Findings of Fact of the Hearing Officer are adopted in full as the Department's Findings of Fact.

   
   

2. The Conclusions of Law of the Hearing Officer are adopted in full as the Department's Conclusions of Law.

   
   

3. The Hearing Officer's recommendation that the Respondent's firesafety certificate be suspended for two years retroactively from May 11, 1992 and then be placed on one years probation is REJECTED for the reasons set forth above.

ACCORDINGLY, FRANCIS EDWARD NEUZIL, is deemed to have violated Sections 633.081(2)(b) and (d); and 633.081(6)(a) and (d), Florida Statutes. As a result of these violations, the Respondent's firesafety inspector certificate shall be REVOKED.

Any party to these proceedings adversely affected by this ORDER is entitled to seek review of this ORDER pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Fla. R. App. P. Review proceedings must be instituted by filing a Notice of Appeal with the General Counsel, acting as the agency clerk, at 612 Larson Building, Tallahassee, Florida, 32399-0333, and a copy of the same and filing fee, with the appropriate District Court of Appeal within thirty (30) days of rendition of the Order.

DONE and ORDERED this 26th day of April, 1994.

TOM GALLAGHER

Treasurer and Insurance Commissioner

Copies Furnished To:

Errol H. Powell, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Richard Barons, Esquire Suite 307

11077 Biscayne Boulevard

Miami, Florida 33161

Daniel T. Gross, Esquire Division of Legal Services 612 Larson Building

Tallahassee, Florida 32399-0300

Docket for Case No: 92-007262

Orders for Case No: 92-007262