05-001314PL Department Of Financial Services, Division Of State Fire Marshal vs. Ricardo Cabrera Status: Closed Recommended Order on Thursday, July 21, 2005.

Summary: Respondent did not answer the question regarding a criminal plea accurately on his application in violation of Section 633.162(4)(g), Florida Statutes. He did not violate Section 633.162(4)(f) by not meeting Section 633.061(3)(c)6.c., Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1314PL

)

RICARDO CABRERA, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to not ice, the parties agreed, on June 8, 2005, to

forego a final hearing and, in lieu thereof, to file proposed

recommended orders in this case before Larry J. Sartin, an

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petit ioner: Casia R. Sinco, Esquire

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

For Respondent: Anthony Dieguez, Esquire

Anthony Dieguez, P.A.

Royal Oaks Professional Center

7950 Northwest 155th Street, Suite 207

Miami Lakes, Florida 33016

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Ricardo

Cabrera, committed the offenses alleged in an Administrative

Complaint issued by Petitioner, the Department of Financial

Ser vices, on March 9, 2005, and, if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

On March 9, 2005, Petitioner issued an Administrative

Complaint alleging that Respondent had violated certain

statutory provisions governing the application process of

Florida fire equipment dealers. On March 28, 2005, Respondent

filed a document titled Election of Proceedings, disputing the

factual allegations of the Administrative Complaint and

requesting a hearing pursuant to Section 120.57(1), Florida

Statutes (2 004). A copy of the Administrative Complaint and the

Election of Proceedings was filed with the Division of

Administrative Hearings on April 12, 2005. The matter was

designated DOAH Case No. 05 - 1314PL and was assigned to the

undersigned.

The final hearing , to be conducted by video teleconference,

was scheduled for June 10, 2005, by Notice of Hearing issued

April 19, 2005.

On May 31, 2005, Petitioner filed a Motion to Relinquish

Jurisdiction claiming that there were no longer any disputed

issues of material fact to be resolved in this case. A hearing

on the Motion was held by telephone on June 8, 2005. During the

hearing Petitioner indicated that a Motion for Leave to Amend

the Administrative Complaint, requesting leave to add

allegations of prior discipli nary action against the Respondent

to the Administrative Complaint, had been filed. That Motion

was granted.

As to the Motion to Relinquish Jurisdiction, Respondent

agreed that the factual allegations of the Administrative

Complaint, as amended, were not in dispute. Despite this

concession, Respondent suggested that there still remained mixed

issues of law and fact concerning the application of Section

633.061(3)(c)6.c., Florida Statutes, 1 which should be addressed

in a recommended order. It was agreed, therefore, that the

final hearing of this case would be cancelled and that the

parties would be given an opportunity to file proposed

recommended orders or memoranda of law addressing in general the

charges against Respondent and, in particular, the applic ation

of Section 633.061(3)(c)6.c., Florida Statutes, to Respondent

based upon the facts alleged in the Administrative Complaint, as

amended. The Motion to Relinquish Jurisdiction was, therefore,

denied.

The parties were given until July 8, 2005, to file proposed

recommended orders. Both parties filed Proposed Recommended

Orders, which have been fully considered in entering this

Recommended Order.

FINDINGS OF FACT

A. The Parties .

1. Petitioner, the Department of Financial Services

(hereinafter referred to as the "Department"), is the agency of

the State of Florida charged with the responsibility for, among

other things, the licensure of individuals who wish to install

and maintain fire suppression equipment and the investigation

and prosecution of compla ints against individuals who have been

licensed in Florida. See Ch. 633, Fla. Stat.

2. Respondent, Ricardo Cabrera, is and has been at all

times material hereto a licensed Fire Equipment Dealer, Class C,

in the State of Florida.

3. Mr. Cabrera, who firs t applied for licensure as a Fire

Equipment Dealer, Class C, on or about October 10, 1989, was

issued license number 70219300011990 on January 17, 1990.

4. The Department has jurisdiction over Mr. Cabrera’s

licenses.

B. Criminal Case .

5. On or about Octo ber 20, 1989, after Mr. Cabrera had

first applied for licensure by the Department, a criminal

Information was filed in case number 89 - 38498, in the Circuit

Court of the Eleventh Judicial Circuit in and for Dade County,

Florida, charging that on September 3 0, 1989, Mr. Cabrera,

unlawfully and feloniously had in his actual or constructive

possession cocaine, a controlled substance.

6. On or about December 12, 1989, Mr. Cabrera pled nolo

contendere to possession of cocaine, a third degree felony, in

the Circu it Court of the Eleventh Judicial Circuit in and for

Dade County, Florida. Adjudication was withheld on the charge,

and Mr. Cabrera was sentenced to probation for a period of one

year and was ordered to successfully complete the T.A.S.C. drug

program, a n arcotics treatment program.

7. As a result of the fact that the court withheld

adjudication of guilt, Mr. Cabrera did not lose any civil

rights.

C. Mr. Cabrera's 1998 License Renewal Application;

Count I .

8. Mr. Cabrera applied for renewal of his li cense as a

Fire Equipment Dealer, Class C, on or about December 5, 1998.

9. Mr. Cabrera was asked and answered in the negative the

following question on the application for renewal he filed with

the Department: “Have you ever been convicted or pled nolo

contendere to a felony?”

10. The question, "[h]ave you ever been convicted or pled

nolo contendere to a felony” is clear and understandable. Given

Mr. Cabrera's plea of nolo contendere to the felony of

possession of cocaine on December 12, 1989, the only reasonable

response to this question Mr. Cabrera should have given was

"yes." Mr. Cabrera has given no explanation as to why he failed

to answer the question truthfully.

11. Mr. Cabrera's license renewal application was received

by the Department on or about December 21, 1998, and the renewal

of his Fire Equipment Dealer, Class C, license was granted on

June 14, 1999.

D. Mr. Cabrera's 1999 License Renewal Application;

Count II .

12. Mr. Cabrera again applied for renewal of his license

as a Fire Equi pment Dealer, Class C, on or about December 6,

1999.

13. Mr. Cabrera was asked and answered in the negative the

following question on the application for renewal he filed with

the Department: “Have you ever been convicted or pled nolo

contendere to a fel ony?”

14. The question, "[h]ave you ever been convicted or pled

nolo contendere to a felony” is clear and understandable. Given

Mr. Cabrera's plea of nolo contendere to the felony of

possession of cocaine on December 12, 1989, the only reasonable

respons e to this question Mr. Cabrera should have given was

"yes." Mr. Cabrera has given no explanation as to why he failed

to answer the question truthfully.

15. Mr. Cabrera's license renewal application was received

by the Department on or about December 13, 1999, and the renewal

of his Fire Equipment Dealer, Class C, license was granted on

December 15, 1999.

E. Mitigating/Aggravating Factors .

16. An Administrative Complaint was filed against

Mr. Cabrera on or about December 30, 1994, as Qualifier for BC &

A BC Fire Extinguisher Maintenance, alleging that he maintained

two places of business without separate Fire Equipment Dealer

licenses and qualifiers for each, and that he allowed an

unlicensed person to conduct the business of a Fire Equipment

Dealer. On o r about August 8, 1995, Mr. Cabrera was placed on

probation for two years and ordered to pay a fine of $1,000.00.

17. An Administrative Complaint was filed against

Mr. Cabrera on or about June 29, 2004, as Qualifier for BC & ABC

Fire Extinguisher Maintena nce, alleging that he allowed the

insurance required to be carried by Section 633.061, Florida

Statutes, for the business to lapse. On or about February 11,

2005, Mr. Cabrera was placed on probation for one year and

ordered to pay a fine of $1,000.00.

CON CLUSIONS OF LAW

A. Jurisdiction .

18. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2004).

B. The Burden and St andard of Proof .

19. In the Administrative Complaint, the Department has

sought, among other penalties, the revocation of Mr. Cabrera’s

Fire Equipment Dealer, Class C. license. Therefore, the

Department has the burden of proving the allegations in the

Ad ministrative Complaint by clear and convincing evidence. See

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Co. , 670 So. 2d 932

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987);

and McKi nney v. Castor , 667 So. 2d 387 (Fla. 1st DCA 1995).

20. Clear and Convincing evidence has been defined as

evidence which:

[r]equires that the evidence must be found

to be credible; the facts to which the

witnesses testify must be distinctly

remembered; th e testimony must be precise

and explicit and the witnesses must be

lacking in confusion as to the facts in

issue. The evidence must be of such weight

that it produces in the mind of the trier of

fact a firm belief or conviction, without

hesitancy, as to t he truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983).

C. The Department’s Authority to Discipline Fire

Equipment Dealers; The Charges Against

Mr. Cabrera.

21. Section 633.162 (1), Flo rida Statutes, gives the head

of the Department, acting in his capacity as the State Fire

Marshall, the power to revoke, or suspend the license of any

person holding a fire equipment dealer license , if he or she is

guilty of certain acts specified in the s tatute.

22. The Department has alleged in Counts I and II that

Mr. Cabrera, has violated the following acts proscribed in

Section 633.162(4)(f) and (g), Florida Statutes:

(4) In addition to the grounds set forth

in subsection (1), it is cause for deni al,

nonrenewal, revocation, or suspension of a

license or permit by the State Fire Marshal

if she or he determines that the licensee or

permittee has:

. . . .

(f) Failed to obtain, retain, or maintain

one or more of the qualifications for a

license or permit as specified in this

chapter.

(g) Made a material misstatement,

misrepresentation, or committed a fraud in

obtaining or attempting to obtain a license

or permit.

23. In support of the Department's allegation that

Mr. Cabrera violated Section 633.162(4)(f), Florida Statutes,

the Department has alleged that Mr. Cabrera has failed to retain

or maintain the qualification for licensure specified in Section

633.061(3)(c)6.c., Florida Statutes:

D. The Alleged Violation of Section 633.162(4)(f),

Florida Statutes .

24. Section 633.061(3)(c)6.c., Florida Statutes, the

qualification for licensure which the Department has alleged

that Mr. Cabrera violated, provides that a licensee "[m]ust not

have been convicted of, or pled nolo contendere to, any fe lony.

. . ."

25. Section 633.061(3)(c)6.c., Florida Statutes, goes on

to provide an exception to the disqualification from licensure

proscribed therein: "If an applicant has been convicted of any

such felony, the applicant must comply with s. 112.011(1)( b)."

26. Section 112.011(1)(b), Florida Statutes, provides, in

pertinent part, the following:

(b) Except as provided in s. 775.16, 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. However, a p erson

whose civil rights have been restored 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 and directly

related to the specific occupation, trade,

vocation, profession, or business for which

the license, permit, or certificate is

sought.

27. Although somewhat awkwardly worded, when read as a

whole it is clear that, while a person convicted, or who pled

nolo contendere to, any felony will not qualify for licensure as

a fire equipment dealer, if that person has his or her civil

rights restored, he or she will not be disqualified from

licensure as a fire equipment deale r unless the felony related

to the person's fire equipment dealer business.

28. Based upon a strict application of Section

633.061(3)(c)6.c., Florida Statutes, Mr. Cabrera does not

qualify for licensure as a fire equipment dealer, because of his

plea of n olo contendere to the possession of cocaine in 1989.

This literal reading of the statute gives the Department

authority to discipline Mr. Cabrera's license pursuant to

Section 633.162(4)(f), Florida Statutes.

29. Mr. Cabrera, while not disputing the fore going

conclusion, contends that the Department is attempting to

misapply Section 633.061(3)(c)6.c., Florida Statutes, because

the Department's interpretation and application of the statute

will render it unconstitutional.

30. Mr. Cabrera's argument is bas ed upon the fact that the

Department's strict facial reading of Section 633.061(3)(c)6.c.,

Florida Statutes, denies him the equal protection of the law.

In particular, Mr. Cabrera convincingly argues that the

Department's interpretation creates two classe s of people which

it treats in an arbitrarily different way: (a) those who are

convicted of a felony or who have been adjudicated guilty after

entering a plea of nolo contendere ; and (b) those who plea nolo

contendere but for whom the court withholds adju dication of

guilt.

31. An individual in the first class, who has been found

or adjudicated guilty of a felony, will lose his or her civil

rights as a result thereof and, will, therefore, be eligible to

have his or her civil rights restored under Section 1 12.011(b),

Florida Statutes. Such an individual will, upon restoration of

his or her civil rights, be eligible for licensure as a fire

equipment dealer.

32. Individuals, such as Mr. Cabrera, who have not been

found or adjudicated guilty of a felony, will not lose their

civil rights. As a consequence, those individuals, including

Mr. Cabrera, can never have their civil rights restored. Those

individuals, including Mr. Cabrera, will, therefore, never be

eligible to obtain a license.

33. The Department's interpretation of the statute allows

the use of the exemption from disqualification from licensure

provided in Section 112.011(b), Florida Statutes, by the worst

offenders, those who have been found or adjudicated guilty of a

felony, while denying any poss ible use of the exemption for

lesser offenders, those for whom adjudication has been withheld.

The Department's interpretation of Section 633.061(3)(c)6.c.,

Florida Statutes, by denying any possibility that a lesser

offender, such as Mr. Cabrera, who pled nolo contendere but was

not adjudicated guilty, will ever become eligible to obtain a

license, leads to an absurd result.

34. This forum does not have the authority to hold

statutes unconstitutional. See Central Florida Investments,

Inc. v. Orange Count y Code Enforcement Board , 790 So. 2d 593

(Fla. 5th DCA 2001); and Department of Revenue v. Young American

Builders , 330 So. 2d 864 (Fla. 1st DCA 1976). Nor does this

forum have the authority to recommend that the Department find a

statute unconstitutional . This forum, however, is not

prohibited from suggesting to the Department, in the exercise of

its discretion to interpret the statutes which it has been

charged with enforcing, that it interpret a statute in a manner

which would avoid the possibility of the statute being declared

unconstitutional by a court of competent jurisdiction.

35. Surely, the Legislature could not have intended to

preclude a person who has pled nolo contendere without being

adjudicated guilty to never be eligible to obtain a licen se as a

fire equipment dealer, while allowing a person who was found or

adjudicated after entering a plea of nolo contendere guilty to

obtain such a license. It is well - settled law in Florida that

the courts will not attribute to the Legislature an intent to

create an absurd result, and that the strict letter of the law

might be required to yield to the obvious legislative intent .

See Foley v. State ex rel. Gordon , 50 So. 2d 179 (Fla. 1951).

36. In order to avoid the absurd result which would be

result i n this case under the Department's interpretation of

Section 633.061(3)(c)6.c., Florida Statutes, the Department

should conclude that Section 633.061(3)(c)6.c., Florida

Statutes, only applies to prohibit licensure where an individual

has either been found guilty or has pled nolo contendere and

been adjudicated guilty, to a felony.

37. Based upon the foregoing, it is concluded that the

Department has failed to prove clearly and convincingly that

Mr. Cabrera has violated Section 633.162(4)(f), Florida

Statut es, by failing to retain or maintain to qualification for

licensure set out in Section 633.061(3)(c)6.c., Florida

Statutes.

E. The Alleged Violation of Section 633.162(4)(g),

Florida Statutes .

38. The evidence in this case supports a conclusion that

Mr. Cabrera violated Section 633.162(4)(g), Florida Statutes.

The Department clearly and convincingly proved that Mr. Cabrera

m ade a “material misstatement or misrepresentation” when he

answered the question, “[h]ave you ever been convicted or pled

nolo contendere to a felony?” in the negative on his 1998 and

1999 license renewal applications.

39. The question was clear and understandable.

Mr. Cabrera knew or should have known that on October 20, 1989,

he had pled nolo contendere to the felony of unlawf ully and

feloniously actual or constructive possession of cocaine, a

felony. Despite this knowledge, he answered the question

incorrectly and provided no explanation for why he did so.

F. The Appropriate Penalty .

40. The Department is authorized, upon f inding a violation

of Section 633.162, Florida Statutes, to impose discipline upon

a fire equipment dealer’s license for any violation of Section

633.162, Florida Statutes. That discipline may include, in

relevant part, the revocation or suspension of a l icense.

41. Section 633.162(1), Florida Statutes, limits a

suspension to two years from the date of the suspension order

and a license revocation to a period not exceeding five years

from the date of the revocation.

42. The Florida Administrative Code Ru les governing

Chapter 633, Florida Statutes, do not set forth guidelines

concerning violations of Section 633.162, Florida Statutes.

43. Consistent with the statutory limits, the Department

has recommended that Mr. Cabrera’s Fire Equipment Dealer, Class

C , license be revoked for five years. This recommendation,

however, was based upon a finding that Mr. Cabrera had violated

Section 633.162(4)(f) and (g), Florida Statutes. Given the fact

that it has been concluded in this Recommended Order that Mr.

Cabrer a has only violated Section 633.162(4)(g), Florida

Statutes, and taking into account the severity of that

violation, Mr. Cabrera’s Fire Equipment Dealer Class C license

should be revoked for a period of four years.

RECOMMENDATION

Based on the foregoing Fin dings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by the

Department:

1. Finding that Mr. Cabrera, did not violate Section

633.162(4)(f), Florida Statutes, as alleged in Counts I & II of

the Administrative Complaint;

2. Finding that Mr. Cabrera, violated Section

633.162(4)(g), Florida Statutes, as alleged in Counts I & II of

the Administrative Complaint; and

3. Revoking Mr. Cabrera's license for a period of four

years from the date of the final order.

DONE AND ENTERED this 21st day of July, 2005, in

Tallahassee, Leon County, Florida.

S

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 306 0

(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 21st day of July, 2005.

ENDNOTE

1/ All references to statutes are to the Florida Statutes

applicable during the relevant time periods that the events at

issue in this case took place, unless otherwise noted.

COPIES FURNISHED :

Honorable Tom Gallagher

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Flori da 32399 - 0300

Carlos G. Muniz, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Casia R. Sinco, Esquire

Department of Financial Services

200 East Gaines Street, Room 612

Tallahassee, Florida 32399 - 0333

Anthony Dieguez, Esquire

Anthony Dieguez, P.A.

7950 Northwest 155th Street, Suite 207

Miami Lakes, Florida 33016

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of t his Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.