STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Petitioner, )

vs. ) CASE NO. 92-4921

)

CLETIS GALE BROWNING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on November 5, 1992, in Orlando, Florida.

APPEARANCES

For Petitioner: Daniel T. Gross

Division of Legal Services

Department of Insurance and Treasurer

412 Larson Building

Tallahassee, Florida 32399-0300

For Respondent: Joseph Egan, Jr.

918 Lucerne Terrace Post Office Box 2231 Orlando, Florida 32802

STATEMENT OF THE ISSUES

The central issue in this case is whether Respondent is guilty of the violations alleged in the administrative complaint dated July 23, 1992; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began when the Department of Insurance and Treasurer (Department) filed an administrative complaint against the Respondent that alleged he had violated provisions of Section 633.081, Florida Statutes. More specifically, the complaint alleged Respondent lacked one or more of the qualifications for certification as a firesafety inspector. The complaint charged that Respondent had been convicted of a misdemeanor involving moral turpitude or a felony; had failed to have good moral character; and had falsified his records relating to certification.

Subsequently, the Respondent filed an election of rights which disputed the material allegations of fact, and requested an administrative hearing. The matter was then forwarded to the Division of Administrative Hearings for formal proceedings on August 12, 1992.

At the hearing, the Department presented the testimony of Louis S. Puka, the field representative supervisor in charge of fire standards for the Department. The Department's exhibits numbered 2 and 3 were admitted into evidence.

The Respondent testified in his own behalf, and his exhibits numbered 1, 2, and 3 were also admitted into evidence. A transcript of the hearing was filed with the Division of Administrative Hearings on November 18, 1992.

Originally, the parties were to file their proposed recommended orders within ten days of the transcript filing. However, the Petitioner, with agreement from Respondent, requested that additional time be afforded the parties. Such motion was granted by order entered on November 20, 1992, and the parties were given until 5:00 p.m., December 18, 1992, to file their proposals.

The Petitioner filed a proposed recommended order which has been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the appendix at the conclusion of this order. To date, the Respondent has not filed a proposed recommended order.

FINDINGS OF FACT

1. The Respondent filed an application for fire safety inspector certification on or about March 4, 1992.

   
   

2. One of the questions on the application for fire safety inspector certification posed the following: Have you ever been convicted of a felony, or a misdemeanor involving moral turpitude? Respondent answered the foregoing question by marking the space before "NO."

   
   

3. On or about March 8, 1989, Respondent was charged by information issued through the State Attorney's Office in Lake County, Florida, with aggravated assault. Aggravated assault is a felony.

   
   

4. On or about June 2, 1989, the information referenced above was amended but continued to allege aggravated assault.

   
   

5. On June 8, 1989, the Respondent entered a plea of nolo contendere to the offense of aggravated assault and was placed on probation for a period of three years. Adjudication of guilt was withheld at that time.

   
   

6. Subsequently, the Respondent was discharged from probation and the proceedings in the criminal case were terminated.

   
   

7. Respondent had completed his probation at the time his application for certification as a firesafety inspector was made.

   
   

8. Respondent is currently certified as a firesafety inspector, certificate number FI-66318.

   
   

9. Additionally, Respondent is employed as a firefighter with the Reedy Creek Fire Department.

   
   

10. Subsequent to the receipt of Respondent's application for certification, the Department requested information from the Florida Department of Law Enforcement and the Federal Bureau of Investigation regarding

    Respondent's criminal record. The information received from those sources led to the discovery of the facts addressed in paragraphs 3, 4, 5, and 6 above and the initiation of these proceedings.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

12. Section 633.081, Florida Statutes, provides, in pertinent part:

    
    

    (2) 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 the state, or of any offense committed elsewhere which, if committed in Florida, would be a misdemeanor involving moral turpitude or a felony under the laws of Florida. For purposes of this paragraph, a plea of guilty or nolo contendere or a finding of guilty shall be considered a conviction even if adjudication was withheld or sentence was suspended;

    * * *

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

    * * *

    1. 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.

    * * *

    1. Falsification of records relating to the certificate.

    2. Having been found guilty of or having pleaded guilty or nolo contendere to a felony, whether or not a judgment of conviction has been entered. (emphasis added)

    
    

13. In the case at issue, the Department has established by clear and convincing evidence that the Respondent pled nolo contendere to a felony in the State of Florida. By statute, he is not qualified to be certified as a firesafety inspector.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Department of Insurance and Treasurer enter a final order revoking Respondent's certification as a firesafety inspector.

DONE AND RECOMMENDED this 27th day of January, 1993, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

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 27th day of January, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4921

Rulings on the proposed findings of fact submitted by the Petitioner:

1. Paragraphs 1 through 11 are accepted.

Rulings on the proposed findings of fact submitted by the Respondent: None submitted.

COPIES FURNISHED:

Joseph Egan, Jr.

EGAN, LEV & SIWICA, P.A.

Post Office Box 2231 Orlando, Florida 32802

Daniel T. Gross

Division of Legal Services

412 Larson Building

Tallahassee, Florida 32399-0300

Tom Gallagher, Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Bill O'Neil, General Counsel Department of Insurance and Treasurer 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.

Docket for Case No: 92-004921

Orders for Case No: 92-004921