01-000256PL Department Of Insurance, Division Of State Fire Marshall vs. Walter Gwiazda Status: Closed Recommended Order on Wednesday, April 18, 2001.

Summary: A certified firefighter was convicted of a felony. Statute requires that certification be lifted. Recommended revocation until probation is served.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, )

DIVISION OF STATE FIRE MARSHAL )

)

Petitioner, )

)

vs. ) Case No. 01- 0256PL

)

WALTER GWIAZDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in

Gainesville, Florida, on April 3, 2001, before the undersigned

Administrative Law Judge.

APPEARANCES

For Petitioner : William Fred Whitson, Esquire

Department of Insurance

Division of Legal Services

200 East Gaines Street

612 Larson Building

Tallahassee, Florida 32399-0333

For Respondent : No appearance

STATEMENT OF THE ISSUE

Whether the Department of Insurance, Division of State Fire

Marshal, should revoke Respondent's Firefighter Certificate

because of Respondent's conviction of a felony.

PRELIMINARY STATEMENT

On October 2, 2000, Petitioner filed an administrative

complaint against Respondent. Petitioner charged Respondent with

violating Section 633.351, Florida Statutes. Respondent, on

October 23, 2000, disputed the allegations of fact in the

administrative complaint and requested a formal hearing. On

January 17, 2001, Petitioner referred the matter to the Division

of Administrative Hearings.

At the hearing, Petitioner presented the testimony of one

witness and offered three exhibits which were accepted into

evidence. Respondent did not appear personally or through

counsel at the final hearing.

No transcript was filed. Petitioner timely filed a Proposed

Recommended Order. The Respondent did not.

FINDINGS OF FACT

1. Respondent is currently certified as a firefighter in

the State of Florida by the Department of Insurance, Division of

State Fire Marshal.

2. Respondent was initially certified as a firefighter in

the State of Florida while employed by the Palatka Fire

Department.

3. On or about January 12, 1991, Respondent resigned from

the Palatka Fire Department and went to work for the Gainesville,

Florida Fire Department.

4. On August 29, 2000, Respondent was convicted by a jury

of the felony of aggravated fleeing and attempting to elude in

violation of Section 316.193(5), Florida Statutes. Adjudication

was withheld. The conviction occurred in the Circuit Court of

the Eighth Judicial Circuit in and for Bradford County, Florida.

5. Respondent was placed on community control for two

years, to be followed by probation for a period of three years.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction

over the subject matter. Section 120.57(1), Florida Statutes.

7. Pursuant to Chapter 633 and Section 20.13, Florida

Statutes, the Department of Insurance, Division of State Fire

Marshal, has jurisdiction over Respondent's certification as a

firefighter.

8. The material allegations set forth in the administrative

complaint must be proven by Petitioner by clear and convincing

evidence. Department of Banking and Finance v. Osborne Stern and

Company, Inc. , 670 So. 2d 932 (Fla. 1996) and Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

9. Section 633.351(2), Florida Statutes, provides as

follows:

(2 ) 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 fire fighter's certification

shall be revoked until she or he completes any

probation.

10. The facts adduced at the hearing demonstrated by clear

and convincing evidence that Respondent, while a certified fire

fighter, was found guilty of a felony.

RECOMMENDATION

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

is

RECOMMENDED:

That the Insurance Commissioner and Treasurer enter a Final

Order revoking Respondent's Certificate as a Firefighter until

such time as his probation is completed.

DONE AND ENTERED this 18th day of April, 2001, in

Tallahassee, Leon County, Florida.

________________________________

HARRY L. HOOPER

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of April, 2001.

COPIES FURNISHED :

Walter Gwiazda

Route 1, Box 163

Florahome, Florida 32140

William Fred Whitson, Esquire

Department of Insurance

Division of Legal Services

200 East Gaines Street

612 Larson Building

Tallahassee, Florida 32399-0333

Honorable Tom Gallagher

State Treasurer/Insurance Commissioner

Department of Insurance

The Capitol, Plaza Level 02

Tallahassee, Florida 32399-0300

Mark Casteel, 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.