Andrew Thomas Giamberini v. Department of Financial Services

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ANDREW THOMAS GIAMBERINI,

Appellant,

v.

DEPARTMENT OF FINANCIAL SERVICES,

Appellee.

No. 4D13-4648

[ April 22, 2015 ]

Appeal from the State of Florida Department of Financial Services,

Division of State Fire Marshal; Robert C. Sneip, Chief of Staff; L.T. Case

No. 135079-13-FM.

G. Michael Keenan of G. Michael Keenan, P.A., West Palm Beach, for

appellant.

Linje Rivers, Tallahassee, for appellee.

TAYLOR, J.

Appellant, Andrew Thomas Giamberini, appeals a final order of the

Department of Financial Services denying his application for certification

as a firesafety inspector. Because appellant’s 1993 no contest plea to a

felony charge disqualified him from being certified as a firesafety inspector

under the relevant statutes, we are constrained to affirm.

Appellant has been certified as a firefighter in the State of Florida since

1996. At the time the Department initially certified appellant as a

firefighter, the Department was aware that appellant had pleaded no

contest to a felony charge of aggravated battery without a firearm in 1993.

The criminal court withheld adjudication of guilt and sentenced appellant

to probation. Appellant’s 1993 plea to the felony charge did not disqualify

him from obtaining his initial certification as a firefighter in 1996.

In November 2012, appellant applied to the Department for certification

as a firesafety inspector. In April 2013, the Department notified appellant

in writing that his application for firesafety inspector certification had been

denied due to his 1993 no contest plea to a felony charge. The denial was

based upon Chapter 633 of the Florida Statutes. The Department

conceded that it did not consider section 112.011, Florida Statutes.

The case proceeded to an informal hearing, where the Department

submitted various exhibits, including the Order Withholding Adjudication

of Guilt. The Department also offered the testimony of a supervisor at the

State Fire Marshal Bureau of Fire Standards and Training.

Appellant called several witnesses who testified regarding his character

and history as a firefighter. As just one example, appellant’s direct

supervisor, Chief Haubert, testified that appellant is an exemplary

firefighter, a person of integrity, and a true public servant.

Appellant also testified on his own behalf and explained that, to the

best of his knowledge, he never lost his civil rights.

The hearing officer issued a written report recommending that the

Department enter a final order affirming the denial of appellant’s

application for certification as a Florida firesafety inspector “based on his

felony criminal history [from the 1993 plea] and pursuant to Sections

633.216(2) and 633.412(1)(b), Florida Statutes (2013).” The hearing officer

also rejected the argument that section 112.011, Florida Statutes,

prohibited the Department from denying appellant’s firesafety inspector

certification.

In November 2013, the Department issued a final order, adopting the

hearing officer’s findings. This appeal ensued.

On appeal, appellant argues that the Department erred as a matter of

law in its construction of the statutes governing his application for

certification as a firesafety inspector. He maintains that when construed

in harmony to give effect to each statute, sections 633.216(2),

633.412(1)(b) and 112.011(1)(b) compel that his application for

certification be granted. Appellant reasons that because he is a certified

firefighter, he also meets the qualifications for certification as a firesafety

inspector.

For the reasons that follow, we disagree with appellant’s interpretation

of the relevant statutes.1

1 Without further comment, we also reject appellant’s argument that the

Department is estopped from denying his application for certification as a

firesafety inspector.

2

Standard of Review

“Although we conduct a de novo review of cases involving an agency’s

statutory interpretation, we defer to the agency’s interpretation of a statute

it is given the power and duty to administer when that interpretation is

reasonable.” Conservation Alliance of St. Lucie Cnty. Inc. v. Fla. Dep’t of

Envtl. Prot., 144 So. 3d 622, 624 (Fla. 4th DCA 2014). “If the agency’s

interpretation is within the range of possible and reasonable

interpretations, it is not clearly erroneous and should be affirmed.” Fla.

Dep’t of Educ. v. Cooper, 858 So. 2d 394, 396 (Fla. 1st DCA 2003).

“However, judicial adherence to the agency’s view is not demanded when

it is contrary to the statute’s plain meaning.” Capo v. Fla. Pub. Emps.

Council 79, 82 So. 3d 1116, 1119 (Fla. 4th DCA 2012).

Principles of Statutory Interpretation

“As with the interpretation of any statute, the starting point of analysis

is the actual language of the statute.” Brown v. City of Vero Beach, 64 So.

3d 172, 174 (Fla. 4th DCA 2011). “Where a statute is clear and

unambiguous, courts will not look behind the statute’s plain language for

legislative intent.” Archstone Palmetto Park, LLC v. Kennedy, 132 So. 3d

347, 351 (Fla. 4th DCA 2014) (citation and internal quotation marks

omitted).

But “a statutory provision should not be construed in such a way that

it renders the statute meaningless or leads to absurd results.” Warner v.

City of Boca Raton, 887 So. 2d 1023, 1033 n.9 (Fla. 2004). Thus, a

“statute’s plain and ordinary meaning must control, unless this leads to

an unreasonable result or a result clearly contrary to legislative intent.”

Daniels v. Fla. Dep’t of Health, 898 So. 2d 61, 64 (Fla. 2005).

“A statute should be interpreted to give effect to every clause in it, and

to accord meaning and harmony to all of its parts.” State ex rel. City of

Casselberry v. Mager, 356 So. 2d 267, 269 n.5 (Fla. 1978). A single word

or provision of a statute cannot be read in isolation. See Jones v. ETS of

New Orleans, Inc., 793 So. 2d 912, 915 (Fla. 2001).

When statutes appear to conflict, however, a specific statute “covering

a particular subject matter is controlling over a general statutory provision

covering the same and other subjects in general terms.” Adams v. Culver,

111 So. 2d 665, 667 (Fla. 1959). Similarly, “a more recently enacted

statute will control over older statutes.” Fla. Virtual Sch. v. K12, Inc., 148

So. 3d 97, 102 (Fla. 2014). This is because “the later promulgated statute

should prevail as the last expression of legislative intent.” McKendry v.

3

State, 641 So. 2d 45, 46 (Fla. 1994).

Constitutional Limitations on Per Se Denials of Licensure

“[A] statute precluding licensure or certification for a particular

occupation due to the conviction of a crime may not be interpreted as

imposing an automatic bar against the licensure of those who have

received a pardon or restoration of rights under the clemency power

granted to the Governor in article IV, section 8(a) of the Florida

Constitution.” Kauk v. Dep’t of Fin. Servs., 131 So. 3d 805, 808 (Fla. 1st

DCA 2014). A statute may not be interpreted as imposing a per se bar

against certification of a pardoned or restored felon, as such a construction

would render the statute an unconstitutional infringement on the

executive’s clemency power. Id. at 809. Therefore, a licensing agency may

not deny “a license to a restored felon due to prior convictions when the

licensing agency has made findings of complete rehabilitation and fitness

to hold a license.” Id. at 810. A restored felon’s “complete rehabilitation

renders the prophylactic purpose of the statute inapplicable to him.” Id.

The Relevant Statutes

With a limited exception, “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.” § 633.216(2), Fla. Stat. (2013).2 “Such person shall

meet the requirements of s. 633.412(1)(a)-(d),” and must have satisfactorily

completed an examination and a training program. § 633.216(2), Fla. Stat.

(2013). Thus, to be certified as a firesafety inspector, an applicant must

first meet the requirements for certification as a firefighter set forth in

section 633.412(1)(a)-(d), Florida Statutes (2013).

Under section 633.412(1)(b), Florida Statutes (2013), a person applying

for certification as a firefighter must not have been convicted of a felony.

For purposes of section 633.412, the term “convicted” is defined as “a

finding of guilt or the acceptance of a plea of guilty or nolo contendere, in

2Because the final agency action occurred in November 2013, we apply the 2013

statutes. See Agency for Health Care Admin. v. Mount Sinai Med. Ctr. of Greater

Miami, 690 So. 2d 689, 691 (Fla. 1st DCA 1997) (“The agency must apply the law

in effect at the time it makes its final decision.”). We note, however, that even

before the 2013 amendments to Chapter 633, a statutory requirement of

certification as a firesafety inspector was that the applicant must not have

pleaded guilty or nolo contendere to a felony. See § 633.081(2)(b), Fla. Stat.

(2012).

4

any federal or state court or a court in any other country, without regard

to whether a judgment of conviction has been entered by the court having

jurisdiction of the case.” § 633.412(1)(b), Fla. Stat. (2013).

Section 112.011(1)(b), Florida Statutes (2013), states in relevant part:

[A] person may be denied a license, permit, or certification to

pursue, practice, or engage in an occupation, trade, vocation,

profession, or business by reason of the prior conviction for a

crime if the crime was a felony or first-degree misdemeanor

that is directly related to the standards determined by the

regulatory authority to be necessary and reasonably related to

the protection of the public health, safety, and welfare for the

specific occupation, trade, vocation, profession, or business

for which the license, permit, or certificate is sought.

Section 112.011(2)(b), Florida Statutes (2013), in turn states that “[t]his

section does not apply to the employment practices of any fire department

relating to the hiring of firefighters.” The present case, however, involves

a certification rather than an initial hiring.

Analysis

Under the plain language of sections 633.216(2) and 633.412(1)(b),

Florida Statutes (2013), one of the requirements for becoming a firesafety

inspector is that the applicant has not entered a plea of nolo contendere

to a felony. Here, because appellant pleaded nolo contendere to a felony,

the plain language of these statutes precluded him from obtaining a

certification as a firesafety inspector as a matter of law. These statutes

require a firesafety inspector to meet most of the current requirements for

certification as a firefighter. The fact that appellant was previously

certified as a firefighter under an earlier statutory scheme is irrelevant.

Moreover, contrary to appellant’s argument, section 112.011, Florida

Statutes (2013), does not change the result in this case. Even if it were

necessary to look beyond the plain language of Chapter 633 and consult

section 112.011, the rules of statutory construction support the

Department’s conclusion that appellant was disqualified from serving as a

firesafety inspector. To the extent that section 112.011 conflicts with the

provisions of Chapter 633, it is axiomatic that a specific statute controls

over a general statute. Sections 633.216(2) and 633.412(1)(b) are the

statutes that specifically address qualifications for certification as a

firesafety inspector, and they therefore control over the general provisions

of section 112.011.

5

We acknowledge that a federal court has held that an older version of

section 112.011 modified the provisions of Chapter 633. See Jackson v.

Stinchcomb, 451 F. Supp. 494, 496 (M.D. Fla. 1978). But the version of

section 112.011 at issue in Jackson contained a specific provision to the

effect that a firefighter “may be employed even though he has a prior felony

conviction if there is a four year hiatus between either the discharge from

probation or the expiration of the sentence and the date of application for

employment.” Id. at 495 (paraphrasing § 112.011(2)(b), Fla. Stat. (1973)).

That four-year provision is not present in the 2013 version of section

112.011. In fact, in 2013, the Legislature deleted that provision from

section 112.011(b)(2). See Laws of Fla. 2013-183, § 90 (deleting sentence

which had read: “An applicant for employment with any fire department

who has a prior felony conviction shall be excluded from employment for

a period of 4 years after expiration of sentence or final release by the Parole

Commission unless the applicant, before the expiration of the 4-year

period, has received a full pardon or has had his or her civil rights

restored.”).

The 2013 amendments to Chapter 633 and section 112.011—which

reflect the last expression of legislative intent—suggest that the legislature

no longer intends for section 112.011 to modify Chapter 633. Thus, while

the version of section 112.011 at issue in Jackson modified the provisions

of Chapter 633, the current version of section 112.011 does not.

We also find that appellant’s reliance upon Kauk is misplaced. Here,

appellant did not receive a pardon or a restoration of his civil rights. In

fact, appellant never lost his civil rights, as confirmed by his own testimony

and the fact that adjudication was withheld on the felony charge. See

Bernhardt v. State, 288 So. 2d 490, 495 (Fla. 1974) (the purpose of

withholding adjudication “is rehabilitation of one who has committed the

crime charged without formally and judicially branding the individual as

a convicted criminal and without consequent loss of civil rights and other

damning consequences”) (emphasis added). Thus, because appellant never

received a pardon or a restoration of his civil rights, applying the statute

to appellant would not unconstitutionally infringe on the governor’s

clemency power.

We do not agree with appellant’s suggestion that the Department’s

interpretation of the relevant statutes leads to absurd results. It cannot

be said that it would be absurd for the legislature to bar applicants with

felony histories from receiving certification as a firesafety inspector (even

if the applicant had already obtained certification as a firefighter under an

earlier statutory scheme that did not disqualify the applicant), so long as

6

the automatic denial is not an unconstitutional infringement on the

governor’s clemency power as applied to a particular applicant.

Although we cannot conclude that the statutory scheme in this case

reaches the level of absurdity, we have serious doubts about the wisdom

of denying an individual who is already certified as a firefighter the ability

to serve as a firesafety inspector simply because that person would not

initially qualify to serve as a firefighter under current law. This is

particularly true in the present case. Appellant’s no contest plea is over

two decades old, and there is substantial record evidence that he has had

an exemplary career as a firefighter.

We also find it anomalous that a felony offender who received an

“adjudication withheld” (and never lost his civil rights) is in a worse

position under Chapter 633 than a felony offender who was actually

adjudicated guilty but later had his civil rights restored.3 A restored felon

may not be automatically disqualified from licensure, see Kauk, but—

absent a pardon—an offender whose adjudication was withheld on a felony

would never have the opportunity to establish rehabilitation and fitness to

hold a certification.

Conclusion

While we sympathize with appellant’s plight, it is the prerogative of the

legislature, not the judiciary, to establish the qualifications for certification

as a firesafety inspector. Based on the plain language of the relevant

statutes, we affirm the Department’s denial of appellant’s application for

certification as a firesafety inspector.

Affirmed.

STEVENSON and CIKLIN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

3 We emphasize, however, that appellant has not raised an equal protection

challenge to the relevant provisions of Chapter 633.

7