STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 94-3545

)

DIANE SHUMWAY RILES, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on January 11, 1995, in Orlando, Florida. The parties, witnesses, and court reporter attended the hearing in Orlando. The undersigned participated by video conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Lisa S. Santucci, Esquire

Department of Insurance and Treasurer Division of Legal Services

612 Larson Building

Tallahassee, Florida 32399-0333

For Respondent: R. Patrick Phillips, Esquire

Post Office Box 1153 Orlando, Florida 32802-1153

STATEMENT OF THE ISSUE

The issues for determination in this proceeding are whether Respondent committed the acts alleged in the Administrative Complaint and, if so, what, if any, penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner filed a one-count Administrative Complaint against Respondent on April 5, 1994. Respondent requested a formal hearing.

At the formal hearing, Petitioner presented no witnesses. Petitioner submitted one exhibit for admission in evidence. Petitioner's exhibit is a composite exhibit of court proceedings involving Respondent and Respondent's application for licensure.

At the formal hearing, Respondent's counsel objected to the admissibility of Petitioner's exhibit on the grounds that counsel had not been provided with a copy of the exhibit and did not have adequate time to review the exhibit at the

formal hearing. Ruling was reserved to allow Respondent's counsel to review Petitioner's exhibit and raise any objections in Respondent's proposed recommended order ("PRO").

Respondent stated in her PRO that she has no objection to the admissibility of Petitioner's exhibit. Petitioner's exhibit is admitted in evidence without objection. Respondent testified in her own behalf and submitted no exhibits for admission in evidence.

A transcript of the formal hearing was not requested by either party. The parties timely filed their PROs on January 23, 1995. Proposed findings of fact in the PROs submitted by both parties are accepted in this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for regulating persons certified as fire fighters and fire safety inspectors. Respondent is certified in the state as a fire fighter and fire safety inspector. She is currently employed by Volusia County Fire Services as an Emergency Medical Technician.

   
   

2. On or about October 16, 1980, Respondent was charged in circuit court with vehicular manslaughter and driving under the influence of alcohol. Vehicular manslaughter is a felony under Sections 860.01(1)and (2), Florida Statutes. 1/ Driving under the influence of alcohol is a misdemeanor under Section 316.193.

   
   

3. On or about April 15, 1981, Respondent entered a plea of nolo contendere to the charge of "Manslaughter by Operation of a Motor Vehicle while Intoxicated or Deprived of Full Possession of Normal Faculties." The court withheld adjudication, placed Respondent on probation for two years, and restricted her driver's license to business purposes for the first three months of her probation. Respondent successfully completed her probation on April 15, 1983.

   
   

4. On or about September 15, 1992, Respondent completed an application for certification as a fire fighter. The application asked, "Do you have a record of conviction of a felony or a misdemeanor?" Respondent answered, "No."

   
   

5. Respondent did not answer the foregoing questions untruthfully. Respondent was advised by counsel that there had never been an adjudication of guilt and that she should state that she had never been convicted of the charges in 1981.

   
   

6. On or about September 10, 1993, Respondent completed an application for certification as a fire safety inspector. The application asked, "Have you ever been convicted of a felony, or a misdemeanor involving moral turpitude?" Respondent answered, "No." Respondent believed that she had never been convicted of such an offense because adjudication of guilt had been withheld, and she had successfully completed her probation.

   
   

7. Petitioner certified Respondent as a fire fighter and as a fire safety inspector. Petitioner relied, in part, upon Respondent's answers to the questions quoted in the preceding paragraphs.

   
   

8. Respondent did not intentionally misrepresent her criminal history to Petitioner on either application. Respondent relied on advice of counsel and a good faith belief in the truthfulness and correctness of her responses.

9. Respondent is actively employed as a fire fighter. She is seeking certification as a fire safety inspector to further her career and to obtain employment closer to her residence.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. The parties were duly noticed for the formal hearing.

    
    

11. The burden of proof is on Petitioner. Petitioner must show by clear and convincing evidence that Respondent is guilty of the acts alleged in the Administrative Complaint and the appropriateness of any disciplinary action to be taken against Respondent's certification. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

1. Misrepresentation

   
   

   1. Respondent did not misrepresent a material fact on any of her applications. She answered the questions asked on the application truthfully and accurately. Respondent is not an untruthful applicant who lacks sufficient moral character for certification.

      
      

   2. A plea of nolo contendere is a plea of convenience. Respondent is not considered "convicted" if adjudication of guilt is withheld. Ayala v. Department of Professional Regulation, 478 So.2d 1116, 1117 (Fla. 1st DCA 1985).

      
      

   3. Petitioner asserts that a plea of nolo contendere must be considered as a conviction for purposes of the questions asked on applications required by Petitioner. In Ayala, a statute provided that a plea of nolo contendere "shall be considered a conviction." The court interpreted the term "shall" to mean "may" in order to avoid the unconstitutional result of impermissibly converting a plea of nolo contendere into a conviction. Ayala, 478 So.2d at 1118; Cf. McNair v. Criminal Justice Standards And Training Commission, 518 So.2d 390, 391 (Fla. 1st DCA 1987) (citing Ayala for the stated proposition).

      
      

   4. Petitioner can not accomplish through an application that which the legislature is constitutionally prohibited from accomplishing by statute. For Petitioner to consider a plea of nolo contendere as a "conviction" on its applications has the effect of impermissibly converting a plea of nolo contendere into a conviction in violation of the holding in Ayala. Such a definition would also create an unwritten definition of the term "conviction" for which neither Respondent nor her attorney had adequate notice.

      
      

2. Nolo Contendere And Moral Turpitude

   
   

   16. Petitioner correctly argues that it may revoke or suspend Respondent's license if Respondent enters a plea of nolo contendere to a crime involving moral turpitude without regard to whether a judgment of conviction has been entered. Section 633.081(2)(b). However, Petitioner fails to cite authority for its implicit assumption that the charges to which Respondent plead nolo contendere involved crimes of moral turpitude.

3. Mitigation Of Penalty

   
   

   1. Assuming arguendo that the criminal charges against Respondent both involved crimes of moral turpitude, Section 633.081 provides that Petitioner "may" suspend or revoke Respondent's license if Respondent pled nolo contendere to a felony; whether or not a judgment of conviction was entered. Section

      633.081 does not make suspension or revocation mandatory. Revocation and suspension are permissive.

      
      

   2. Respondent is entitled to present evidence in mitigation of the penalties permitted in Section 633.081. Cf. Ayala, 478 So.2d at 1118-1119 (holding that a respondent's explanation and evidence of the circumstances surrounding the criminal charges may always be considered in mitigation of the administrative penalty). Respondent showed that suspension or revocation is inappropriate in this proceeding.

      
      

   3. Respondent is not an untruthful applicant. Respondent answered the questions asked on her applications truthfully and correctly.

      
      

   4. The criminal charges against Respondent were filed over 14 years ago. Respondent successfully completed her probation. There is no evidence of any transgression since 1980. Petitioner is a valuable addition to fire fighting and fire inspection, as evidenced by her current occupation and career.

   
   

4. Public Employees

1. Respondent is a public employee within the meaning of Section 112.011. She is employed by Volusia County as an Emergency Medical Technician.

   
   

2. Section 112.011(1)(b) prohibits the state from denying a certificate to a public employee solely on the basis of a prior criminal conviction unless the criminal conviction directly relates to the employee's specific occupation. Revocation or suspension of a certificate effectively denies the certificate for the period of revocation or suspension. 2/ The legislature authorizes Petitioner to deny certification to Respondent only if Respondent was convicted of a crime and the crime directly relates to Respondent's employment as a fire safety inspector.

   
   

3. Petitioner seeks to expand, by administrative action, the conjunctive prerequisites for denying certification to Respondent that are legislatively prescribed in Section 112.011(1)(b). Petitioner seeks to convert a plea of nolo contendere into a "conviction." Such an expansive definition of the term "conviction" was determined in Ayala to be constitutionally impermissible when it was attempted by legislative enactment. Ayala, 478 So.2d at 1118; Cf. McNair, 518 So.2d at 391. It is equally impermissible when it is attempted through administrative action.

   
   

4. Assuming arguendo that Respondent was convicted of a crime in 1981, Petitioner seeks to deny certification to Respondent without showing by clear and convincing evidence that the crimes to which Respondent pled nolo contendere in 1980 directly relate to the occupation of a fire safety inspector in 1995.

   In effect, Petitioner seeks to administratively repeal the legislative requirement that a crime must directly relate to Respondent's occupation as a fire safety inspector.

   
   

5. Even if Respondent had been convicted of a felony and the felony directly related to the occupation of a fire safety inspector, it is

   unreasonable to exclude Respondent from such employment by a fire department for

   12 years after she successfully completed her probation. Section 112.011(2)(b) excludes anyone having a prior felony conviction from employment with a local fire department for four years from the expiration of the sentence or parole. At the end of the four year limitation, a prior felony conviction no longer constitutes good cause for discharge from employment. Jackson v. Stinchcomb, 635 F.2d 462, 474 (5th Cir. 1981).

   
   

6. The legislative intent for Section 112.011(2)(b) is to encourage rehabilitation of felons by removing the prior felony conviction as a disqualification for public employment. The legislative intent for Section 112.011(2)(b) is a relevant consideration in determining the proper application of Section 112.011(1)(b) in this proceeding.

   
   

7. Sections 112.011(1)(b) and 112.011(2)(b) are subsections of Section

   112.011. Section 112.011 addresses the subject of public officers and their employment. Sections 112.011(1)(b) and 112.011(2)(b) relate to the same subject matter and were enacted in the same act. 3/

   
   

8. Statutes enacted in the same act and relating to the same subject matter are imbued with the same legislative spirit and actuated by the same legislative policy. Pfeiffer v. City of Tampa, 470 So.2d 10, 15 (Fla. 2d DCA 1985). Thus, Sections 112.011(1)(b) and 112.011(2)(b) must be considered in pari materia in a manner that harmonizes them and gives effect to legislative intent for Section 112.011 as a whole. See, Major v. State, 180 So.2d 335, 337 (Fla. 1965); Abood v. City of Jacksonville, 80 So.2d 443, 444-445 (Fla. 1955); Tyson v. Stoutamire, 140 So 454, 456 (Fla. 1932).

   
   

9. Suspension or revocation of Respondent's certificate as a fire safety inspector would exclude Respondent from her chosen occupation by denying her an essential prerequisite for employment by a fire department. Petitioner's proposed administrative action would determine legislative intent for Section 112.011(1)(b) by disregarding the time limit prescribed in Section 112.011(2)(b) for excluding convicted felons from employment by a fire department.

1. Petitioner seeks to exclude a person who has never been convicted a felony for a period three times longer than the period prescribed in Section 112.011(2)(b) for excluding a convicted felon. In effect, Petitioner seeks to expand the period in which Respondent can be excluded from employment as a fire safety inspector from four years to twelve years. 4/

   
   

2. After 12 years, even a felony conviction would no longer constitute good cause for excluding Respondent from employment as a fire safety inspector. Cf. Jackson, 635 F.2d at 475. In Jackson, a felony conviction in 1966 was not disclosed by a fire fighter at the time he applied for employment. The fire fighter disclosed the felony conviction to the fire department in 1978 and was terminated from his employment. The court held that a 12 year old felony conviction was not cause for discharging the fire fighter.

   
   

3. Petitioner's proposed agency action would frustrate the legislative spirit and policy for Section 112.011 as a whole. It would exceed Petitioner's statutory authority by denying certification for reasons other than a prior criminal conviction that directly relates to the occupation of a fire safety inspector. It would also exclude Respondent from her chosen occupation for an unreasonable period. Finally, it would not encourage rehabilitation because it would not remove a prior plea of nolo contendere as a disqualification for public employment.

   RECOMMENDATION

   Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not

   guilty of all of the charges in the Administrative Complaint except the charge of pleading nolo contendere to a felony within the meaning of Section 633.081(6)(d). It is further recommended that Petitioner enter a Final Order authorizing the issuance of a written reprimand.

   
   

   RECOMMENDED this 9th day of January, 1995, in Tallahassee, Florida.

   
   

   
   

   DANIEL S. MANRY

   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 9th day of January, 1995.

   
   

   ENDNOTES

   
   

   1/ All section references are to Florida Statutes (1993) unless otherwise stated.

   
   

   2/ The statutory framework under which Petitioner seeks revocation of Respondent's certificate further illustrates how revocation or suspension of a certificate operate as a denial of the certificate. Sec. 633.081(6), in relevant part, provides that the State Fire Marshall:

   . . . may . . . suspend or revoke the certificate of a 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 Marshall.

3/ Section 112.001(2)(b) relates to the exclusion of employment by a fire department for certain criminal convictions. Under the facts in this proceeding, Section 112.001(1)(b) relates to the certification necessary for employment by a local fire department as a fire safety inspector. Revocation or suspension of such a certificate would effectively exclude the holder of the certificate from such employment by a fire department.

4/ It has been approximately 12 years since Respondent successfully completed her probation in 1983.

COPIES FURNISHED:

Lisa S. Santucci, Esquire

Department of Insurance and Treasurer Division of Legal Services

612 Larson Building

Tallahassee, Florida 32399-0333

R. Patrick Phillips, Esquire Post Office Box 1153 Orlando, Florida 32802-1153

The Honorable Bill Nelson State Treasurer and Insurance

Commissioner

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Dan Sumner, Esquire Acting 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.

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

AGENCY FINAL ORDER

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

OFFICE OF THE TREASURER DEPARTMENT OF INSURANCE

IN THE MATTER OF: DOAH NO. 94-3545

DIANE SHUMWAY RILES, CASE NO. 94-L-337C&S

/

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 April 5, 1994, 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 633.081(6)(a) and (d), Florida Statutes. The Respondent timely 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 January 11, 1995, in Orlando, Florida before Division of Administrative Hearings Officer Daniel Manry.

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(6) (d), Florida Statutes, and recommending that Petitioner enter a Final Order authorizing the issuance of a written reprimand.

The Petitioner filed exceptions which have been considered herein.

RULING ON PETITIONER'S EXCEPTION

Petitioner first excepts to the Hearing Officer's ruling on Conclusion of Law 15. Petitioner argues that the question on the application in question is merely paraphrasing Section 633.081(2)(b), Florida Statutes and that the Respondent and her attorney should not be excused from giving an incorrect response to the question. The application asks "Do you have a record of conviction of a felony or a misdemeanor? " The question is answered "No". The question on the application is unambiguous. It seeks only to finds but if the applicant has been "convicted" of a felony or misdemeanor. The Respondent in the criminal matter entered a plea of nolo contendere with adjudication of guilt withheld. The Respondent cannot be considered "convicted" if adjudication of guilt is withheld. Avala v. Department of Professional Regulation, 478 So.2d 1116, 1117 (Fla. 1st DCA 1985). Therefore, the response was neither misleading nor incorrect. The Petitioner's exception is rejected.

2. Petitioner excepts to the Hearing Officer's ruling on Conclusion of Law

16. The Petitioner argues that the Hearing Officer has apparently confused Sections 633.081(2) and (6), Florida Statutes with Section 633.081(6)(d), Florida Statutes. Section 633.081(2) and (6), Florida Statutes are concerned solely with the qualifications that an applicant to be a Fire Safety Inspector must meet in order to be certified. These are not disciplinary statutes. Rather, it is Section 633.081(6)(d), Florida Statutes that authorizes suspension or revocation of Respondent's certificate in the event of his being found guilty, or having pleaded guilty or nolo contendere to a felony. Petitioner correctly points out that under this statute, there is no requirement that the felony involve moral turpitude. The Petitioner's exception is accepted.

3. The Petitioner next excepts to the Hearing Officer's receiving of evidence in mitigation of any possible penalties. The Hearing Officer always has the discretion to hear evidence that may mitigate any possible penalties that may be imposed should the Respondent be adjudicated guilty of any statutory

violations. Ayala v. Department of Professional Regulation, 478 So.2d 1116 (Fla. 1st DCA 1985) at p. 1119. Therefore, the Petitioner's exception is rejected.

1. The Petitioner next excepts to the Hearing Officer's application of Section 112.011, Florida Statutes as being irrelevant to these proceedings. (Exceptions 9, 10, 11, 12, and 13). The Petitioner, citing Section 112.011(2)(b), Florida Statutes expressly, argues that this statute is related to firefighters only, and not firesafety inspectors. However, the relevant statue is this case is Section 112.011(1)(b), Florida Statutes which clearly provides that a person whose civil rights have been restored shall not be disqualified to practice, pursue, or engage in any occupation, trade, vocation, profession, or business for which a license, permit, or certificate is required to be issued by the state, any of its agencies or political subdivisions, or any municipality solely because of a prior conviction for a crime. This section, as pointed out by the hearing officer, clearly applies to a person seeking to retain a firesafety inspector certificate. In this case, the Respondent, as discussed previously, was never convicted of any crime and there was no evidence presented to show that she lost her civil rights. The Petitioner's exception that Section 112.011(2)(b), Florida Statutes makes this section inapplicable to the employment practices of any fire department relating to the hiring of firemen is not relevant in light of the Petitioner's failure to introduce any evidence to show that a firesafety inspector is considered by the Petitioner to be a fireman for purposes of this statute and to show that Respondent was seeking employment with a fire department. Furthermore, Section 112.011(1)(b), Florida Statutes continues on to state that a person who has had his civil rights restored may be denied a certificate by reason of a prior conviction for a crime if the crime was a felony or first degree misdemeanor and directly related to the specific occupation for which the certificate is sought. But neither has there been such a showing by the Petitioner in the present case, nor has the Petitioner shown that it seeks to revoke the Respondent's certificate for any reason other than the Respondent's entry of the plea of nolo contendere. It is specifically noted at this juncture that the Petitioner seems to suggest that the Respondent was untruthful on her application by not revealing the nolo plea and that this is relevant to Respondent's fitness of character to hold a certificate. See Petitioner's Exception 9. However, as discussed earlier, the Respondent was not untruthful on her application as she did not have a record of conviction. Furthermore, the Respondent was advised by her attorney that she did not have a record of conviction and that she could truthfully answer it in the manner that she did. See Finding of Fact 5. Petitioner's Exceptions 9 through 14 are, therefore, rejected.

   
   

2. All other exceptions filed by Petitioner not already previously addressed are hereby rejected as irrelevant and immaterial.

RULING ON PETITIONER' EXCEPTION TO THE RECOMMENDED PENALTY

1. The Petitioner also excepts to the recommended penalty of a written reprimand as being without statutory authority. The Petitioner urges that the Respondent's certificate as a firesafety inspector should be revoked as there has been a finding by the hearing Officer that the Respondent is guilty of violating Section 633.081(6)(d). The Petitioner is correct in its assertion that there is a lack of any statutory authority for such a written reprimand. Section 633.081(6), Florida Statutes only provides that the State Fire Marshall may deny, refuse to renew, suspend, or revoke the certificate of a firesafety inspector if a violation of any of its subsections is found. No other penalty is provided for. To this extent, the Petitioner's exception is accepted.

2. However, even though Respondent violated Section 633.081(6)(d), Florida Statutes revocation of the Respondent's certificate would be clearly inappropriate in light of the absence of any evidence that the crime that Respondent entered her nolo plea on was directly related to the occupation of firesafety inspector as required by Section 112.011(1)(b), Florida Statutes, and, in fact, it clearly was not related.

   
   

3. It is specifically noted that the entry of the plea of nolo contendere by the Respondent took place in 1980; that she completed her judgement of sentence without incident; and that there has been no showing that the crime for which Respondent entered her plea was in any way related or would have had any bearing on her job as a fire safety inspector.

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, except as previously modified herein, as the Department's Conclusions of Law.

   
   

3. The Hearing Officer's recommendation that the of a written reprimand is REJECTED for the reasons set forth above.

ACCORDINGLY, DIANE SHUMWAY RILES, is deemed to have violated Sections 633.081(6)(d), Florida Statutes. However, for the reasons stated above, suspension or revocation of the Respondent's firesafety inspector certificate would be in contravention of the letter and intent of Section 112.011(1)(b), Florida Statutes, and as no lesser penalty is provided for in Section 633.081, Florida Statutes, this action is, therefore, DISMISSED.

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 3rd day of April, 1995.

Bill Nelson Treasurer and

Insurance Commissioner

COPIES FURNISHED:

Daniel Manry, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

R. Patrick Phillips, Esquire

P. O. Box 1153

Orlando, Florida 32802

Lisa S. Santucci, Esquire Division of Legal Services 612 Larson Building

Tallahassee, Florida 32399-0300

Docket for Case No: 94-003545

Orders for Case No: 94-003545