STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 94-5457

)

MICHAEL J. HOLLAND, )

)

Respondent. )

)

RECOMMENDED ORDER

Following notice to all parties, Don W. Davis, a Hearing Officer for the Division of Administrative Hearings, held a final hearing in the above-styled case on March 8, 1995, in Daytona Beach, Florida.

APPEARANCES

For Petitioner: Michael K. McCormick, Esquire

Division of Legal Services 612 Larson Building

Tallahassee, Florida 32399-0333

For Respondent: Lawrence G. Walters, Esquire

Doran, Walters, et al. Post Office Drawer 15110

Daytona Beach, Florida 32115 STATEMENT OF THE ISSUES

Whether Respondent committed violations of Chapter 633, Florida Statutes, sufficient to support the impositions of licensure discipline.

PRELIMINARY STATEMENT

By Administrative Complaint dated September 1, 1994, Respondent was charged by Petitioner with failure to reveal his guilty plea to a felony offense in the State of New York in 1972, in the course of obtaining initial certification by Petitioner as a firefighter in 1973 and 1977. As a result, Petitioner seeks revocation of Respondent's certification.

On September 21, 1994, Respondent timely requested formal adversarial proceedings to contest the allegations of the Administrative Complaint.

Subsequently, the matter was forwarded to the Division of Administrative Hearings for the conduct of formal proceedings pursuant to Section 120.57, Florida Statutes.

At the final hearing, Petitioner presented testimony of two witnesses and five exhibits. Respondent testified in his own behalf and presented three exhibits. Although ruling upon admission of some exhibits was reserved at hearing, all exhibits are determined admissible at this time. A transcript of the final hearing was filed on March 31, 1995. Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent has been a firefighter for over 29 years, beginning his career in Brentwood, New York in 1965. He is currently certified in Florida as a firefighter.

   
   

2. On January 13, 1972, Respondent entered a plea of guilty to the felony crime of unlawful imprisonment in the State of New York. Thereafter, he was sentenced to five years probation on March 3, 1972. He was discharged from probation on May 15, 1974.

   
   

3. On October 10, 1977, the State of New York issued Respondent a "Certificate from Disabilities." The certificate purportedly relieves Respondent from "all disabilities and bars to employment, excluding the right to be eligible for public office."

   
   

4. On or about December 30, 1994, the State of Florida, Office of Executive Clemency, certified the restoration of civil rights to Respondent. This certification grants "restoration of civil rights in the State of Florida for any and all felony convictions in any state other than Florida, or in any United States court or military court. . ."

   
   

5. Following his legal difficulties in New York, Respondent came to the State of Florida and, in 1973, applied for employment with the St. Cloud Fire Department in St. Cloud, Florida. Concerned about whether his New York legal problems posed a problem, Respondent revealed his criminal history. A determination was made by the employing authority that further revelation of Respondent's criminal record on certification forms was not required. Respondent was informed of this decision. Subsequently, the St. Cloud Fire Department completed and provided certification forms to the State of Florida Office of Fire Marshal which did not reveal Respondent's criminal record, resulting in Respondent's certification on October 23, 1974, as a firefighter. Respondent has maintained in his certification to the present date.

   
   

6. Following employment with the St. Cloud Fire Department, Respondent was employed at the Holden Heights Fire Department in Orange County, Florida, and subsequently other fire departments. Later, he worked at one time as an emergency medical technician. He eventually worked for the Deltona Fire District in the unincorporated town of Deltona, Florida.

   
   

7. Respondent did not intend to mislead any employer regarding his criminal past. Further, no certification form was ever submitted by Respondent to Petitioner in order to obtain certification which denied his criminal past until February 27, 1977, when he executed a document entitled "Fire Fighters Standards Counsel Compliance of New Employees, FFSC Form #C-1." In response to the question on the form requesting information regarding conviction of a felony or a misdemeanor involving moral turpitude, Respondent relied on the assurances he had received from the St. Cloud Fire Department and checked the "no" box. This document was then signed and submitted by Respondent not to obtain

   certification, but to advise the State Fire College in Ocala, Florida of his status as a volunteer with the Holden Heights Fire Department. The certification also served to maintain Respondent's certification since, at the time, he was not employed as a firefighter.

   
   

8. At the time of Respondent's initial certification, Florida law prohibited certification of applicants with a felony conviction or a misdemeanor involving moral turpitude. Petitioner did not, however, conduct independent background checks of applicants at that time, relying instead upon the submitting authorities for verification of this information.

   
   

9. Petitioner became aware of Respondent's criminal past in February of 1994, when Respondent was employed in Deltona, Florida, and had become active in the issue of incorporation for the town. A political opponent of Respondent named Robert C. Hoffman apprised Petitioner of Respondent's past. Verification by Petitioner followed, culminating in the issuance of the Administrative Complaint.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

11. At the time of Respondent's certification in 1974, Section 163.490(3), Florida Statutes (1973) read, in pertinent part, as follows:

    
    

    After July 5, 1969, any person initially employed as a fire fighter must: Not have been convicted of a felony or of a misdemeanor involving moral turpitude, as the term is defined by law.

    
    

12. The foregoing statutory bar is considered to address only those felonies and misdemeanors which involved the element of moral turpitude. A decision with regard to the nature of the offense committed by Respondent is pivotal to a determination of whether his certification in 1973 was barred by Florida Law. The issue of whether unlawful imprisonment (known as false imprisonment in the State of Florida) is a crime of moral turpitude has not been addressed by Florida courts. Petitioner has provided no direct evidence of Respondent's crime beyond the allegations contained in a copy of the indictment entered in evidence. Therefore, absent presentment of proof of the underlying facts of the criminal acts with which Respondent was charged with committing in New York, a determination of whether the crime of unlawful imprisonment in the present instance is one of moral turpitude is declined. To constitute moral turpitude, a criminal act must grievously offend the moral code of mankind. Everett v. Mann, 113 So. 2d 758 (Fla. 2d DCA 1959).

    
    

13. Petitioner contends that revocation of certification is dictated by Section 633.351(1), Florida Statutes, which reads as follows:

    
    

    The certification of a firefighter shall be revoked if evidence is found that the certi- fication was improperly issued by the division or if evidence is found that the certification was issued on the bases of false, incorrect, or misleading information.

14. As noted, an insufficient factual basis exists upon which to determine whether the certification was improperly issued. Further, a determination of whether certification issued on the basis of false, incorrect, or misleading information, requires a showing that Respondent intentionally misrepresented his status. Jackson v. Stinchcomb, 635 F.2d 462 (1981). The evidence fails to show that Respondent made such an intentional misrepresentation.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing the Administrative Complaint.

DONE and ENTERED this 26th day of April, 1995, at Tallahassee, Florida.

DON W. DAVIS, 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 26th day of April, 1995.

APPENDIX

In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties.

Petitioner's Proposed Findings 1.-2 Accepted.

3. Rejected, subordinate.

4.-11. Accepted, but not verbatim.

12. Rejected, allegations are not proof, relevance. 13.-17. Accepted, not verbatim.

1. Rejected, no factual basis.

2. Rejected, subordinate.

Respondent's Proposed Findings

1.-8. Accepted, not verbatim.

9. Rejected, relevance. 10.-14. Accepted, not verbatim.

15. Rejected, relevance. 16.-18. Accepted, not verbatim.

COPIES FURNISHED:

Michael K. McCormick, Esq. Division of Legal Services 612 Larson Building

Tallahassee, FL 32399-0333

Lawrence G. Walters, Esq. Doran, Walters et al.

P. O. Drawer 15110 Daytona Beach, FL 32115

Bill Nelson

State Treasurer and Insurance Commissioner

The Capitol, Plaza Level Tallahassee, FL 32399-2152

Dan Sumner

Acting General Counsel Dept. of Insurance

The Capitol, PL-11 Tallahassee, FL 32399-2152

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: 94-005457

Orders for Case No: 94-005457