STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, )

)

Petitioner, )

)

vs. ) Case No. 00-0203

)

JAMES F. MATHIS, )

)

Respondent. )

)

RECOMMENDED ORDER

On August 18, 2000, a formal administrative hearing was held in this case by televideo before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings. (The Administrative Law Judge and counsel for Petitioner were in a specially-equipped hearing room in Tallahassee, and the other hearing participants were in a specially-equipped hearing room in Fort Myers, Florida. The two hearing rooms were connected by televideo.)

APPEARANCES

For Petitioner: Lisa S. Santucci, Esquire

Department of Insurance

200 East Gaines Street 612 Larson Building

Tallahassee, Florida 32399-0333

For Respondent: Terrence F. Lenick, Esquire

9200 Bonita Beach Road, Suite 208 Bonita Springs, Florida 34135

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent's certification as a firefighter should be revoked.

PRELIMINARY STATEMENT

On December 10, 1999, Petitioner, the Department of Insurance, filed an Administrative Complaint against Respondent, James F. Mathis, in DOI Case No. 32860-99-FM, alleging that Respondent's certification as a firefighter should be revoked because he pled guilty to a felony and was on probation.

Respondent disputed the charges and requested a formal administrative proceeding.

The matter was referred to the Division of Administrative Hearings (DOAH), and was set for final hearing by televideo on April 3, 2000. But Petitioner moved to place the case in abeyance to allow time for settlement, and the motion was granted, with the requirement that the parties report on the status of the case by April 17, 2000. The parties requested another month to reduce their verbal settlement to writing. But on May 9, 2000, the parties reported that they were unable to conclude a settlement, and the case was rescheduled for final hearing by televideo on August 18, 2000.

At final hearing, Petitioner called no witnesses but had Petitioner's Exhibits A through D admitted in evidence.

Respondent testified, called three witnesses, and had Respondent's composite Exhibit A admitted in evidence. Petitioner requested a transcript of the final hearing, and the parties were given ten days from the filing of the transcript in which to file proposed

recommended orders. The Transcript was filed on September 29, 2000. The proposed recommended orders have been considered.

FINDINGS OF FACT

1. Respondent, James F. Mathis, is a certified firefighter.

   
   

2. On April 7, 1997, Respondent pled guilty to the charge of unlawful sexual battery upon a child under the age of 16, contrary to Section 800.04(3), Florida Statutes. Respondent was sentenced to 180 days in jail, ten years' probation, no contact with the victim, no allowance for early termination of probation, admission to sex offender treatment, and payment of court costs. However, adjudication was withheld.

3. Respondent presented evidence to show: the factual basis for the charge; his rehabilitation; the unlikelihood of a repeat offense; how his plea of guilty came to Petitioner's attention; Respondent's dedication and commitment to quality service as a firefighter; the quality of Respondent's service as a firefighter; and the desire of the Bayshore Fire Protection and Rescue Service District and the local community to have the benefit of Respondent's services as an employed firefighter. Petitioner did not contest Respondent's evidence but took the position that the evidence was irrelevant. As reflected in the Conclusions of Law, it is agreed that the evidence was irrelevant, and no additional findings are necessary.

   CONCLUSIONS OF LAW

   
   

4. Section 633.351(2), Florida Statutes (1999), provides:

   
   

   The certification of a firefighter who is convicted of a felony, or who is convicted of a misdemeanor relating to misleading or false statements, 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 or such misdemeanor charge is suspended or adjudication is withheld, the firefighter's certification shall be revoked until she or he completes any probation.

5. Respondent contends that Section 633.351(2) does not apply to him. Respondent contends that the first sentence of Section 633.351(2) does not apply to him because he pled guilty (not nolo contendere) and adjudication was withheld. Citing Pazo v. State, 684 So. 2d 898 (Fla. 5th DCA 1996), Respondent contends that he was not "convicted" of a felony. Respondent contends that the second sentence of Section 633.351(2) does not apply to him because "such felony" refers back to the felonies described in the first sentence--either a felony conviction or a plea of nolo contendere to a felony. Respondent argues that his interpretations of Section 633.351(2) are preferred because Section 633.351(2) is a penal statute and must be strictly construed in Respondent's favor. See Davis v. Dept. of Prof. Reg., 457 So. 2d 1074 (Fla. 1st DCA 1984).

6. While colorable on first blush, Respondent's statutory interpretation arguments gloss over more compelling rules of statutory interpretation. The polestar of statutory

   interpretation is the legislative intent. See Metropolitan Dade County v. Chase Federal Housing Corp., 737 So. 2d 494 (Fla. 1999); Cassoutt v. Cessna Aircraft Co., 742 So. 2d 493 (Fla. 1st DCA 1999). In seeking to give effect to the legislative intent, "[c]ourts are bound to interpret ambiguous statutes in the most logical and sensible way. If possible, the court must avoid an interpretation that produces an unreasonable consequence." Dept. of Business and Prof. Reg. v. Investment Corp. of Palm Beach, 747 So. 2d 374, 379 (Fla. 1999). See also State v. Hamilton, 660

   So. 2d 1038, 1045 (Fla. 1995)("basic tenet of statutory construction . . . compels a court to interpret a statute so as to avoid a construction that would result in unreasonable, harsh, or absurd consequences"); City of St. Petersburg v. Siebold, 48

   So. 2d 291 (Fla. 1950)(same).

   
   

7. Under Respondent's interpretation of Section 633.351(2), a firefighter who pleads nolo contendere to a felony is decertified but one who pleads guilty is not. In other statutes, the Legislature has clearly expressed its desire to avoid such an illogical result. See, e.g., Section 648.45(1) and (2)(k), Florida Statutes (1999). Although the Legislature did not use the same clear language in Section 633.351(2), it is nonetheless concluded that the Legislature did not intend the illogical result urged by Respondent in this case.

8. Petitioner did not contest Respondent's argument that Respondent was not "convicted" of a felony. But the case law is

   far from clear. As stated in Raulerson v. State, 699 So. 2d 339,

   
   

   340 (Fla. 5th DCA 1997)(interpreting a statute providing for increased penalties for repeat violations):

   By embracing the concept of withholding adjudication, Florida courts have created some confusion because there is uncertainty as to the meaning and ramifications of such a disposition. However, our supreme court has made it clear that one may be "convicted" without being adjudicated guilty:

   [T]he term "conviction" means a determination of guilt by verdict of the jury or by plea of guilty, and does not require adjudication by the court. It is important to distinguish a "judgment of conviction" which is defective unless it contains an adjudication of guilt.

   State v. Gazda, 257 So.2d 242, 243-244 (Fla.1971).

   The above definition is consistent with rule 3.701(d)(2) of the Florida Rules of Criminal Procedure, which provides:

   "Conviction" means a determination of guilt resulting from plea or trial, regardless of whether adjudication was withheld or whether imposition of sentence was suspended.

   In Smith v. Bartlett, 570 So.2d 360 (Fla.

   5th DCA 1990), rev. denied, 581 So.2d 1310 (Fla.1991), Judge Harris aptly noted that, after Gazda, the term "conviction" was similarly defined and applied in other contexts. See Jones v. State, 502 So.2d 1375 (Fla. 4th DCA 1987)(adjudication withheld is a conviction for double jeopardy purposes); Johnson v. State, 449 So.2d 921 (Fla. 1st DCA), rev. denied, 458 So.2d 274 (Fla.1984) (an adjudication withheld constitutes valid impeachment evidence).

   A common sense reading of the instant statute indicates that the legislature intended the term "conviction" to mean a determination of a defendant's guilt by way of plea or verdict. There appears to be no

   requirement that there be an adjudication. The obvious legislative intent of section

   322.34 is to increase the penalty for repeat violations of the statute. The legislative goal is accomplished by application of the Gazda definition of conviction.

   
   

   See also Ryals v.State, 516 So. 2d 1092, 1093 (Fla. 5th DCA 1987)(Florida Rule of Criminal Procedure 3.701(d)(2) provides, "'Conviction' means a determination of guilt resulting from plea or trial, regardless of whether adjudication was withheld or whether imposition of sentence was suspended.")

9. Similarly, it was stated in Proffitt v. Unemployment Appeals Com'n, 658 So. 2d 185, 187-188 (Fla. 5th DCA 1995)(on the issue whether it was misconduct for a person who pled guilty and had adjudication withheld to deny on an employment application that he had a prior conviction):

   This court previously has considered the issue of whether an adjudication withheld is a conviction. For example, this court has noted that the Florida Supreme Court "has distinguished a 'judgment of conviction' (which requires an adjudication) from a 'conviction' (which does not necessarily require an adjudication)." Smith v. Bartlett,

   570 So.2d 360, 361 (Fla. 5th DCA 1990) (citing State v. Gazda, 257 So.2d 242, 243-44 (Fla.1971)), review denied, 581 So.2d 1310 (Fla.1991). In Smith, which involved section 775.089(8), Florida Statutes (1989), we held that one who pleads guilty or is found guilty by a jury has been "convicted," even in the absence of an adjudication. In contrast, in a case involving a different statute, this court held that the defendant had not been convicted. Clinger v. State, 533 So.2d 315,

   316 (Fla. 5th DCA 1988). In Clinger, the defendant was not adjudicated guilty and no judgment of conviction was entered because the imposition of sentence had been stayed and

   withheld and the defendant placed on probation under section 948.01(3) of the Florida Statutes. Under those circumstances, we concluded that no costs of prosecution could be included and entered in the judgment against the defendant, inasmuch as no judgment was rendered and the defendant was not a convicted person within the statute. These cases demonstrate, therefore, that the term "conviction" has different meanings in Florida.

   * * *

   At best, the definition of "conviction" in Florida is ambiguous not only for a lay person, but for lawyers and judges as well.

   
   

   (It is noted, incidentally, that the Clinger decision was cited in Pazo, the case cited by Respondent, which also dealt with assessment of costs of prosecution against a defendant who pled guilty and had adjudication withheld.)

10. Where there is a conflict between rules of statutory interpretation, the rule relied on by Respondent "is subordinate to the rule that the intention of the legislature must be given effect." State ex rel. Washington v. Rivkind, 350 So.2d 575 (Fla. 3d DCA 1977)." Valdes v. State, 443 So. 2d 221, 222 (Fla. 1st DCA 1984). Further, "'construction of a statute which would lead to an absurd or unreasonable result or would render a statute purposeless should be avoided.' State v. Webb, 398 So. 2d 820, 824 (Fla. 1981)." Id. See also Hicks v. State, 595 So. 2d 976, 977 (Fla. 1st DCA 1992); Associated Dry Goods Corp. v. Dept. of Revenue, 335 So. 2d 832, 833-834 (Fla. 1st DCA 1976).

11. In this case, it is concluded that, for the reasons expressed in Raulerson, Respondent's guilty plea should be

    considered to a conviction for purposes of Section 633.351(2). Use of the Gazda definition of "conviction" accomplishes the logical legislative goal. Alternatively, even if Respondent's guilty plea were not considered to be a conviction, it would be more logical for the Legislature to treat felony guilty pleas the same as felony nolo contendere pleas. In contrast, the statutory

    interpretations urged by Respondent are illogical. The illogic of the statutory interpretations urged by Respondent compels the conclusion that they were not intended by the Legislature. The intent of the Legislature must prevail over the strict construction urged by Respondent.

12. It is clear that when the second sentence of Section 633.351(2) applies, a firefighter's certification must be revoked "until she or he completes any probation." Since Respondent is still on probation, his certificate must be revoked. Mitigating factors are irrelevant.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Insurance enter a final order revoking Respondent's certification as a firefighter.

DONE AND ENTERED this 20th day of October, 2000, in Tallahassee, Leon County, Florida.

J. LAWRENCE JOHNSTON Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 2000.

COPIES FURNISHED:

Terrence F. Lenick, Esquire Post Office Box 430

Bonita Springs, Florida 34133

James F. Mathis 11260 Shirley Lane

North Fort Myers, Florida 33917

Lisa S. Santucci, Esquire Department of Insurance

200 East Gaines Street 612 Larson Building

Tallahassee, Florida 32399-0333

Honorable Bill Nelson,

State Treasurer and Insurance Commissioner The Capitol, Plaza Level 02

Tallahassee, Florida 32399-0300

Daniel Y. Sumner, General Counsel Department of Insurance

The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 00-000203

Orders for Case No: 00-000203