09-001917 Joseph Edgerton vs. Department Of Financial Services Status: Closed Recommended Order on Friday, June 19, 2009.

Summary: Petitioner's application for licensure as a firesafety inspector should not be denied on Petitioner's decades-old criminal convictions because his civil rights were restored and he has been fully rehabilitated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH EDGERTON, )

)

Petitioner, )

)

vs. ) Case No. 09-1917

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

May 6, 2009, at sites in Tallahassee and Lauderdale Lakes,

Florida.

APPEARANCES

For Petitioner: Joseph Edgerton, pro se

2101 South Ocean Drive, Penthouse 4

Hollywood, Florida 33019

For Respondent: Regina M. Keenan, Esquire

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner's application

for licensure as a firesafety inspector should be denied based

on Petitioner's criminal convictions, in the 1980s, on drug

related charges.

PRELIMINARY STATEMENT

By a letter dated March 5, 2009, Respondent Department of

Financial Services notified Petitioner Joseph Edgerton that it

intended to deny his application to take the examination for

certification as a Firesafety Inspector, which examination

Mr. Edgerton must pass to fulfill a requirement for licensure.

The Department's decision was based on Mr. Edgerton's criminal

record, which includes two felony convictions for drug-related

crimes that the Department alleges involved moral turpitude.

Mr. Edgerton timely exercised his right to be heard in a

formal administrative proceeding. On April 14, 2009, the

Department referred the matter to the Division of Administrative

Hearings, where the case was assigned to an Administrative Law

Judge.

The final hearing took place as scheduled on May 6, 2009,

with both parties present. Petitioner testified on his own

behalf and offered Petitioner's Exhibit 1, which was admitted

into evidence. The Department presented the testimony of its

employees Charles Brush, Anita Pringle, and Amy Smith, each of

whom works in the Division of State Fire Marshal, Bureau of Fire

Standards and Training. In addition, Respondent's Exhibits R-A

through R-H were received in evidence without objection.

On May 8, 2009, the Administrative Law Judge convened a

telephone conference for the purpose of soliciting the parties'

input regarding the propriety of allowing Mr. Edgerton to submit

documents pertaining to the restoration of his civil rights.

The Department did not object to this, and Mr. Edgerton was

afforded the opportunity to provide such material, which he did.

Subsequently, in an Order Regarding Official Recognition dated

May 11, 2009, the parties were invited to present information,

no later than May 22, 2009, relevant to the propriety of the

undersigned's taking official recognition of the Executive

Orders by which Mr. Edgerton's civil rights were restored.

Having received no information suggesting that it would be

inappropriate to recognize these official actions of the

executive branch of the State of Florida, the undersigned hereby

takes official recognition of the Executive Orders dated,

respectively, July 2, 1987, and September 1, 1993, whereby the

Governor and Cabinet restored Mr. Edgerton's civil rights.

The final hearing transcript was filed on May 22, 2009.

Thereafter, each party timely submitted a Proposed Recommended

Order on or before June 1, 2009, in accordance with the schedule

established at the conclusion of the hearing. On June 8, 2009,

Mr. Edgerton submitted "objections" to the Department's Proposed

Recommended Order. The Department objected in writing to

Mr. Edgerton's objections. The undersigned did not consider

Mr. Edgerton's objections, which were not authorized, in

preparing this Recommended Order.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2008 Florida Statutes.

FINDINGS OF FACT

1. The Denial of Petitioner's Application.

On May 23, 2008, Petitioner Joseph Edgerton ("Edgerton")

submitted an application to the Department of Financial Services

(the "Department" or "DFS") seeking approval to sit for the

state certification examination that must be passed to become

licensed as a Firesafety Inspector.

2. The next month, DFS verbally notified Edgerton that he

would not be permitted to take the certification examination

because of his criminal record, which includes two felony

convictions, from the 1980s, for drug-related offenses. The

Department took the position that each of the crimes of which

Edgerton was convicted involved moral turpitude. Edgerton did

not dispute the convictions, but he did object to the

characterization of his criminal conduct as base and depraved,

and he pressed the Department for a formal decision, in writing,

on his application.

3. By letter dated March 5, 2009, the Department denied

Edgerton's application, "based upon the following factual

allegations:" 1

1. On May 22, 1980, you pled [guilty to]

and were adjudicated guilty . . . [of]

felony possession of cocaine with intent to

sell, . . . a crime of moral turpitude, in

the Fifteenth Judicial Circuit in and for

Palm Beach County, Florida . . . .

2. On April 29, 1988, you pled [guilty to]

and were adjudicated guilty . . . [of]

felony conspiracy to distribute cocaine,

. . . a crime of moral turpitude, in the

United States District Court, Southern

District of Florida, . . . were committed to

the custody of the United States Bureau of

Prisons for a term of forty-two (42) months,

and upon release were placed on supervised

release for a term of thirty-six (36)

months.

4. The foregoing allegations of historical fact concerning

Edgerton's convictions are true and undisputed. (In contrast,

the Department's characterization of the offenses as crimes

involving moral turpitude is sharply contested, but that

particular dispute is not outcome determinative and need not be

decided, for reasons that follow.)

5. The Circumstances Surrounding the Criminal Incidents.

Edgerton's state court conviction followed his arrest in

late 1979, when he was discovered in an airport to be in

possession of five ounces of cocaine. Edgerton testified that

the cocaine was for personal use, and that he did not intend to

sell or distribute the drug. While Edgerton's testimony in this

regard was credible as far as it went, the fact that he pleaded

guilty, in 1980, to the charge of possession with intent to sell

gives rise to a conflict in the evidence regarding his criminal

intent.

6. Even assuming the worst, however, what matters more at

present is that Edgerton genuinely accepts responsibility for,

and is remorseful about, his very old criminal misconduct, which

he readily acknowledges was "stupid" and "wrong." Edgerton

further insists (and the undersigned finds that) he "is a

different person now," at age 50, than the "kid" who "partied

too much" 30 years ago.

7. With regard to the federal conviction for conspiracy to

distribute cocaine, Edgerton testified that his role consisted

of lending money to another person for use in a narcotics

transaction. Edgerton denies having handled, carried, or

delivered any drugs, and the undersigned accepts his testimony

on this point, which was not contradicted by conflicting

evidence. Consistent with his statements concerning the other

matter, Edgerton accepts responsibility for this crime while

maintaining, credibly, that he is "not the same guy" who

committed it and declaring that he "wouldn't do it again."

8. The History of the Applicant Since the Incident.

Edgerton committed the subject crimes a long time ago——

nearly 30 years in the case of the trafficking charge and

approximately 22 years in reference to the conspiracy charge.

Edgerton thus has had ample time fully to restore his reputation

and usefulness to society as a law abiding citizen following his

felony convictions. There is persuasive evidence that he has

done just that.

9. In 1993, Edgerton became licensed by the Florida

Department of Health as a paramedic. His license, numbered PMD

13086, was active as of the final hearing in this case.

10. In October 1995, Edgerton received a Certificate of

Compliance from the State Fire Marshal authorizing him to work

as a firefighter in this state. As of the final hearing in this

case, Edgerton continued to be a state-certified firefighter.

11. For more than 15 years, Edgerton has worked without

adverse incident as a first responder in the emergency medical

and fire rescue fields. He has done so under the constant

regulatory supervision of two separate state agencies. These

facts demonstrate persuasively (and the undersigned finds) that

Edgerton——who has not, as far as the evidence shows, harmed or

endangered actual persons served in the past decade-and-a-half——

is, at this time, an honest man whom the public can safely

trust, and who will not present a danger in the future, should

he become licensed as a Firesafety Inspector.

12. The Restoration of Edgerton's Civil Rights.

By Executive Order dated July 2, 1987, the Governor and

Cabinet, exercising the governor's constitutional authority to

grant clemency, restored all of Edgerton's civil rights, with

the exception of the specific authority to possess or own

firearms, which were lost by reason of any prior felony

convictions.

13. By Executive Order dated September 1, 1993, the

Governor and Cabinet restored all of Edgerton's civil rights,

with the exception of the specific authority to possess or own

firearms, which were lost by reason of his felony conviction in

the U.S. District Court for the Southern District of Florida.

14. Ultimate Factual Determinations.

The undersigned has determined, based on the greater weight

of the evidence, including the circumstances surrounding

Edgerton's prior convictions and the persuasive evidence of his

full and complete rehabilitation, that Edgerton currently

conforms his behavior to societal norms, possesses good moral

character, and is otherwise morally fit to serve as a Firesafety

Inspector.

15. Edgerton meets all of the requirements for

certification as a Firesafety Inspector except one: a passing

score on the state certification examination, which DCF has not

yet permitted him to take.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569 and 120.57(1), Florida Statutes.

17. Section 633.081(2), Florida Statutes, sets forth the

requirements that an applicant must meet to be found eligible

for a firesafety inspector's certificate. This statute provides

as follows:

(2) 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.

Such person shall:

(a) Be a high school graduate or the

equivalent as determined by the department;

(b) Not have been found guilty of, or

having pleaded guilty or nolo contendere to,

a felony or a crime punishable by

imprisonment of 1 year or more under the law

of the United States, or of any state

thereof, which involves moral turpitude,

without regard to whether a judgment of

conviction has been entered by the court

having jurisdiction of such cases ;

(c) Have her or his fingerprints on file

with the department or with an agency

designated by the department;

(d) Have good moral character as determined

by the department;

(e) Be at least 18 years of age;

(f) Have satisfactorily completed the

firesafety inspector certification

examination as prescribed by the department;

and

(g)1. Have satisfactorily completed, as

determined by the department, a firesafety

inspector training program of not less than

200 hours established by the department and

administered by agencies and institutions

approved by the department for the purpose

of providing basic certification training

for firesafety inspectors; or

2. Have received in another state training

which is determined by the department to be

at least equivalent to that required by the

department for approved firesafety inspector

education and training programs in this

state.

(Emphasis added.)

18. In addition, Section 633.081(6) provides in pertinent

part as follows:

(6) The State Fire Marshal may deny, refuse

to renew, suspend, or revoke the certificate

of a firesafety inspector or special state

firesafety inspector if it finds that any of

the following grounds exist:

* * *

(d) Having been found guilty of or having

pleaded guilty or nolo contendere to a

felony, whether or not a judgment of

conviction has been entered.

19. The Department contends that both of Edgerton's

convictions were for drug related crimes which, as a matter of

law, involved moral turpitude, making him per se disqualified

pursuant to Section 633.081(2)(b), Florida Statutes. In the

alternative, the Department argues that even if Edgerton's

felonious conduct were not stained with moral turpitude, he may

still properly be denied a license under Section 633.081(6)(d).

(With regard to its alternative position, the Department did not

offer any evidence, other than proof of Edgerton's convictions

(which were never disputed), upon which a discretionary denial

might be based.)

20. The Department's intended use of the licensing statute

as an absolute bar to Edgerton 's being certified as a

Firesafety Inspector, which seems reasonable on its face, is

nevertheless contrary to settled law. In Sandlin v. Criminal

Justice Standards & Training Comm'n. , 531 So. 2d 1344 (Fla.

1988), the Florida Supreme Court held that because neither "the

legislature nor the judiciary may infringe upon the executive's

authority to grant pardons," id. at 1346, a statute which

purports absolutely to bar all convicted felons from practicing

a certain profession——and thereby to impose a legal disability

that would diminish the effect of a pardon——must if possible be

construed as reaching only felons who have not been pardoned , so

as to achieve a constitutional result. Id. at 1346-47. The

court added the caveat, however, that a pardoned felon may be

refused certification or licensure if he fails to "demonstrate

rehabilitation and good moral character and fitness," id. at

1344, and the agency in its discretion consequently "deems him

to be of bad character, a poor moral risk, or an otherwise unfit

appointee." Id. at 1347. In making this latter determination,

the agency "may take into account and rely upon the facts of

. . . the pardoned convictions and may give weight to the

general policy [against certifying felons] expressed in the"

licensing statute. Id.

21. The First District Court of Appeal has expanded the

rule of Sandlin , holding that the executive's constitutional

authority to restore civil rights, no less than the authority to

grant pardons, may not be abridged by the legislature or the

judiciary. See Padgett v. Estate of Gilbert , 676 So. 2d 440,

443 (Fla. 1st DCA 1996). Thus, "statutes may not

constitutionally provide an absolute disqualification of a

convicted felon who has had his or her civil rights restored[.]"

Id. at 442; see also G.W. Liquors, Inc. v. Department of Businss

Regulation , 556 So. 2d 464, 465 (Fla. 1st DCA 1990)(applicant

for alcoholic beverage license not per se disqualified by prior

conviction where his civil rights had been restored). The

agency may deny a restored felon's application for licensure if

the circumstances surrounding his prior conviction (or other

facts) support a finding that the applicant is of bad character

or otherwise a poor moral risk. G.W. Liquors , 556 So. 2d at

465.

22. The decisions in Sandlin , Padgett , and G.W. Liquors

constrain the undersigned to construe Section 633.081(1)(b),

Florida Statutes, as an absolute bar to licensure with respect

only to felons whose crimes involved moral turpitude and whose

civil rights have not been restored, and Section 633.081(6)(d)

as a discretionary bar that may be applied, based solely on the

fact of a criminal conviction, against unrestored felons only.

This is because, as the referenced authorities make clear,

neither statute may be applied constitutionally as a prohibition

against licensing a convicted felon, qua convicted felon, if the

felon's civil rights have been restored.

23. The controlling precedents discussed above add a

constitutional dimension to the matter of interpreting and

applying Section 633.081, Florida Statutes, which is sufficient,

in itself, to support the conclusion that Edgerton is not per se

disqualified, as a convicted felon, from becoming licensed as a

Firesafety Inspector, even if his crimes involved moral

turpitude. There is, however, an independent statutory basis

for reaching the same conclusion. Section 112.011(1)(b),

Florida Statutes, provides as follows:

(b) Except as provided in s. 775.16, 2 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 person

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.

24. In Section 112.011(1)(b), the legislature effectively

has disclaimed any intention of traducing the executive's

constitutional authority to grant clemency, by specifically

excluding felons whose rights have been restored from any

statute that purports generally to disqualify convicted felons

from obtaining a license, permit, or certificate. Therefore,

when examining a licensing statute, such as Section 633.081,

Florida Statutes, which seemingly would disqualify all convicted

felons (or subject them to possible disqualification) based

solely on their prior convictions and without regard to

subsequent executive actions removing such legal disabilities,

it is necessary simultaneously to consider Section

112.011(1)(b), because the two statutes are in pari materia . As

the Florida Supreme Court has explained:

[It is a] well-settled rule that, where two

statutes operate on the same subject without

positive inconsistency or repugnancy, courts

must construe them so as to preserve the

force of both without destroying their

evident intent, if possible. It is an

accepted maxim of statutory construction

that a law should be construed together with

and in harmony with any other statute

relating to the same subject matter or

having the same purpose, even though the

statute were not enacted at the same time.

Mann v. Goodyear Tire & Rubber Co. , 300 So. 2d 666, 668 (Fla.

1974)(footnotes omitted); see also , e.g. , Mehl v. State , 632 So.

2d 593, 595 (Fla. 1993)(separate statutory provisions that are

in pari materia should be construed to express a unified

legislative purpose); Lincoln v. Florida Parole Comm'n , 643 So.

2d 668, 671 (Fla. 1st DCA 1994)(statutes on same subject and

having same general purpose should be construed in pari

materia ).

25. When Sections 633.081(2)(b) and 633.081(6)(d) are read

together with Section 112.011(1)(b), it becomes apparent that,

as a matter of statutory construction, the latter provision,

which deals with a specific situation (the licensure of

convicted felons whose rights have been restored), operates as

an exception to the former provisions, which prohibit (or

authorize the discretionary denial of) licensure based solely on

an applicant's criminal record. Thus, while it might seem

otherwise at first blush, the two statutes——Sections 633.081 and

112.011——actually are not in conflict or inconsistent with one

another. At bottom, in Section 112.011 the legislature simply

has circumscribed the reach of other enactments, e.g. Section

633.081(2)(b), Florida Statutes, that, absent the limitation in

Section 112.011, would apparently disqualify a convicted felon,

as such, from pursuing a business, occupation, or profession,

without regard to whether the person's civil rights had been

restored. See Calhoun v. Department of Health & Rehabilitative

Services , 500 So. 2d 674, 678-79 (Fla. 3d DCA 1987)(seemingly

unconditional statutory bar to licensure construed, in light of

moral unfitness, which can be overcome by restoration of

rights); cf. Knowles v. Beverly Enterprises-Florida, Inc. , 898

So. 2d 1, 9 (Fla. 2004)(plain language of statute unambiguously

limiting the availability of newly created remedy only to

specific situations in the event of the injured party's death

was enforceable, despite other statute which saves all causes of

action belonging to a person at death). Lending credence to

this understanding of the statutes is that Section 112.011(1)(b)

is roughly coterminous with the constitutional limitation on the

legislature's authority to disqualify pardoned felons, or those

whose civil rights have been restored, as stated in Sandlin ,

Padgett , and G.W. Liquors .

26. It is therefore concluded, based on Section

112.081(1)(b), Florida Statutes, that Edgerton is not per se

disqualified, as a convicted felon, from becoming licensed as a

Firesafety Inspector, even if his crimes involved moral

turpitude.

27. The foregoing conclusion is, of course, contrary to

the Department's view of the law, which the undersigned has not

overlooked. DCF argues that Section 112.011(1)(b) does not

prevent the legislature from enacting absolute bars to

licensure, and that, if the legislature had wanted to restrict

the operation of Section 633.081(2), (6), Florida Statutes, to

unrestored felons only, it could have done so explicitly.

Therefore, DCF contends, because Section 633.081 is not by its

terms limited to unrestored felons, it should be applied as an

"absolute" bar to licensing convicted felons whose crimes

involved moral turpitude. There is, to be sure, plausible logic

behind DCF's position, and so the undersigned will briefly

explain why the Department's argument is unpersuasive.

28. To begin, the argument's first premise is plainly

true, as far as it goes. Section 112.011(1)(b) does not itself

prevent the legislature from enacting a statute that would

purport to disqualify a convicted felon from being licensed to

pursue a particular occupation, even if his civil rights have

been restored. As discussed above, however, the constitution

has been held to check the legislature's power to impose such an

unconditional bar. Under the present state of the law,

therefore, there is good reason to doubt that a statute

purporting to disqualify restored felons based solely on their

prior convictions would pass constitutional muster.

29. The second premise of DCF's argument is also true:

the legislature undeniably could have explicitly restricted the

operation of Section 633.081(2), (6) to unrestored felons. That

it did not do so, however, is an extremely weak basis for

inferring legislative intent that the statute apply to felons

whose rights have been restored because, first , Section

112.011(1)(b) unambiguously and specifically provides that such

felons are not disqualified from licensure based solely on their

prior convictions; and, second , a statute having such reach

probably would be unconstitutional.

30. Thus, the conclusion that DCF urges, i.e. that Section

633.081(2), (6), Florida Statutes, be applied as an "absolute"

bar to licensing convicted felons whose crimes involved moral

turpitude, is not supported by the premises, which fall short of

supplying a persuasive basis to enforce the statute in a

constitutionally suspect manner that effectively would negate

Section 112.011(1)(b). 3

31. The question remains, notwithstanding the absence of

an unconditional bar to licensure, whether Edgerton demonstrated

rehabilitation and good moral character. These are matters of

fact for the undersigned to decide in his capacity as the trier

of fact. See , e.g. , Village Zoo, Inc. v. Division of Alcoholic

Beverages & Tobacco , 450 So. 2d 920, 921 (4th DCA 1984); Aquino

v. Dep't of Prof'l Regulation , 430 So. 2d 598, 599 n.3 (Fla. 4th

DCA 1983). As set forth above, the fact-finder, having

considered all of the evidence presented, including the facts

and circumstances surrounding Edgerton's convictions, has

determined that Edgerton is, as a matter of fact, fully

rehabilitated and morally fit for licensure as a Firesafety

Inspector.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Financial Services

enter a Final Order approving Joseph Edgerton to sit for the

firesafety examination, which he must pass to satisfy the last

remaining requirement for his certification as a Firesafety

Inspector.

DONE AND ENTERED this 19th day of June, 2009, in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of June, 2009.

ENDNOTES

1 / A third allegation was later withdrawn and is not relevant to

this case.

2 / This exception does not apply to Edgerton.

3 / DCF's reliance on Yeoman v. Constr. Indus. Licensing Bd. , 919

So. 2d 542 (Fla. 1st DCA 2005), is misplaced. In that case, the

First DCA held that Section 112.011(1)(b), Fla. Stat., does not

implicitly prohibit the licensure of convicted felons whose

rights have not been restored, solely due to such lack of

restoration. Id. at 545; see also , accord , Vetter v. Dep't of

Bus. & Prof'l Regulation, Elec. Contractors' Licensing Bd. , 920

So. 2d 44 (Fla. 2d DCA 2005). In its opinion, the court

enumerated several statutes which it called "absolute bars to

licensure." Yeoman , 919 So. 2d at 544. The Department has

taken this phrase out of context in asserting, based thereon,

that the legislature is free to "absolutely" prohibit felons

whose rights have been restored from obtaining licenses based on

their prior convictions. In actuality, nothing in the Yeoman

decision suggests that the court meant the term "absolute bars"

to mean statutes exceeding restrictions imposed by the

of the so-called "absolute bars" identified in Yeoman , namely §

561.15(2), Fla. Stat., was held by the First DCA in G.W. Liquors

not to be a per se disqualification of a convicted felon whose

rights had been restored, as a matter of constitutional law.

Moreover, if (contrary to the undersigned's reading of the

opinion) the court were saying that the legislature may

disqualify from licensure convicted felons, as such,

irrespective of the restoration of their civil rights, then its

commentary in this regard was clearly a dictum (for that issue

was not germane to the issue before the court)——and an

unpersuasive one at that, given the clear constitutional law to

the contrary, which the court did not address, as set forth in

cases including the First DCA's own decisions in Padgett and

G.W. Liquors .

COPIES FURNISHED :

Joseph Edgerton

2101 South Ocean Drive, Penthouse 4

Hollywood, Florida 33019

Regina M. Keenan, Esquire

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399

Honorable Alex Sink

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0300

Benjamin Diamond, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0300

Tracey Beal, Agency Clerk

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399-0390

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.