18-005338PL Department Of Financial Services, Division Of State Fire Marshal vs. Edward G. Whitaker, Jr. Status: Closed Recommended Order on Friday, February 15, 2019.

Summary: Nolo contendere plea to a felony required permanent revocation of Respondent's firefighter certification.

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL

SERVICES, DIVISION OF STATE FIRE

MARSHAL,

Petitioner,

vs. Case No. 18 - 5338PL

EDWARD G. WHITAKER, JR.,

Respondent.

_______________________________/

RECOM MENDED ORDER

Administrative Law Judge D. R. Alexander conducted a hearing

in this case by video teleconference on January 14, 2019, at

sites in Sarasota and Tallahassee, Florida.

APPEARANCES

For Petitioner: Catherine Thrasher, Esquire

Co lleen D. Mullen, Esquire

Department of Financial Services

Office of the General Counsel

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

For Respondent: Edward G. Whitaker, Jr., p ro se

5012 Woodlawn Circle West

Palmetto, Florida 34221 - 8531

STATEMENT OF THE ISSUE

The issue is whether Respondent's certification as a

Firefighter II Compliance should be permanently revoked for the

reasons stated in the Administrative Complaint (Complaint) , dated

June 6, 2018.

PRELIMINARY STATEMENT

On June 6, 2018, the Department of Financial Services,

Division of State Fire Marshal (Department), issued its Complaint

alleging that Respondent, certified as a Firefig hter II

Compliance, had entered a plea of nolo contendere to aggravated

assault with a weapon, a third - degree felony punishable by

imprisonment of one year or more. The Complaint alleges further

that Respondent's plea requires that his firefighter's

certi fication be permanently revoked. Respondent timely

requested a hearing, and, after disputed facts arose during an

informal hearing, the matter was referred by the Department to

the Division of Administrative Hearings to resolve the dispute.

On October 25 , 2018, the case was transferred from former

Administrative Law Judge J. L. Johnston to the undersigned.

At the hearing, the Department presented the testimony of

four witnesses. Department Exhibits 1 through 27 were accepted

in evidence. Respondent test ified on his own behalf.

A one - volume Transcript of the hearing was prepared.

Proposed findings of fact and conclusions of law were filed by

the Department, and they have been considered in the preparation

of this Recommended Order.

FINDING S OF FACT

1. The Department is the state agency responsible for

licensing and regulating firefighters in the State.

2. Respondent is certified in Florida as a Firefighter II

Compliance. He holds Certificate No. 139586. Until the incident

underlying this contr oversy arose, Respondent was employed by the

Sarasota County Fire Department as a firefighter/paramedic. He

now is working in the emergency room of a local hospital.

3. The parties have stipulated that on March 21, 2018,

Respondent entered a plea of nolo contendere to aggravated

assault with a weapon, a third - degree felony punishable by

imprisonment of one year or more under Florida law. Adjudication

was withheld, Respondent was placed on probation for a period of

two years, and he was ordered to pay cou rt costs, fines, and fees

in the amount of $1,525.00. See also Dep't Ex. 19.

4. In response to the Complaint, Respondent essentially

argues that : (a) he should not have been charged with the

underlying criminal offense because he was defending himself

against an aggressor in a road rage incident, and (b) he entered

a nolo contendere plea based on bad advice from his attorney.

5. At hearing, Respondent gave his version of the events

resulting in his arrest. Also, two police officers involved with

hi s arrest testified to what they observed and reported. Their

testimony conflicts in many respects with Respondent's testimony.

The undersigned will not attempt to reconcile the conflicts, as

this proceeding is not the appropriate forum in which to

reliti gate the criminal charge.

6. During the criminal case, Respondent was represented by

a criminal law attorney who presented him with two options:

enter into a plea arrangement or go to trial and risk a harsher

penalty if he w ere found guilty. Responden t says he accepted his

counsel's recommendation that he enter a plea of nolo contendere

on the belief that he would not have a felony arrest on his

record.

7. After the plea agreement was accepted by the court,

Respondent learned that the plea required revocation of his

certification and loss of his job. Respondent also testified

that even though he paid counsel a $15,000.00 fee, his counsel

did little or no investigation regarding what happened, as he

failed to depose a single witness before making a recommendation

to take a plea. 1/ In hindsight, Respondent says he would have

gone to trial since he now believes he had a legitimate claim to

the "castle defense," and the so - called victim in the incident

(the driver of the other car) has a long criminal history and is

now incarcerated. At this point, however, if Respondent believes

an error in the legal process occurred, his only remedy, if one

exists at all, is through the court system and not in an

administrative proceeding.

8 . A felony plea constitut es noncompliance with the

certification statute and requires permanent revocation of a

certification. According to a Department witness, however, five

years after all requirements of the court's sentencing have been

met, the Department has the authority " in a formal process" to

make a "felony conviction review" that may result in the

reissuance of a certification.

9 . Except for this incident, Respondent has no other

blemishes on his record. He served in the United States Marine

Corps, with combat tours of duty in Iraq and Afghanistan, he was

honorably discharged, and he was honored for saving a life at a

Target store while off - duty. He has apologized for his actions,

taken an anger management course, and received further treatment

for Post - traumatic St ress Disorder at a local Veteran's

Administration facility.

CONCLUSIONS OF LAW

10 . The Department has the burden of proving by clear and

convincing evidence that Respondent's certificate must be

revoked.

1 1 . Section 633.426(3)(a)2. , Florida Statutes (201 8),

provides that the certification of an individual "shall be

permanently revoked" if the individual is "[c]onvicted of a

felony or a crime punishable by imprisonment of 1 year or more

under the law of the United States or any state thereof."

1 2 . Secti on 633.426(1)(c) defines "convicted" as "a finding

of guilt, or the acceptance of a plea of guilty or nolo

contendere, in any federal or state court or a court of another

country, without regard to whether a judgment of conviction has

been entered by the c ourt having jurisdiction of the case."

1 3 . Respondent argues that he should be allowed to present

the circumstances surrounding his nolo contendere plea and

convince the Department that he is not guilty of a crime. See

Ay ala v. Dep 't of Prof 'l Reg . , 47 8 So. 2d 1116 (Fla. 1st DCA

1985). Under the statutory scheme in place when A yala was

decided, a nolo contendere plea was considered conclusive proof

that a crime had been committed and justified disciplinary action

by the agency against a doctor's licens e. In reversing that

decision, the court held that the agency could presumptively

consider the plea as evidence of a conviction, but it must allow

the licensee the opportunity to rebut this presumption and assert

his innocence of the underlying criminal c harges. 478 So. 2d

at 1118.

1 4 . Under the statutory scheme in chapter 633, however, the

Department does not consider a plea of nolo contendere conclusive

evidence of the wrongdoing. Rather, the entry of a plea creates

noncompliance with section 633 .426(3), which, under section

633.426(3)(a)2., results in revocation of certification.

Therefore, the Department did not improperly convert Respondent's

plea of nolo contendere into a conviction of a felony. See

McNair v. Crim. Just. Stds. & Tr. Comm'n , 518 So. 2d 390, 391

(Fla. 1st DCA 1987) (revocation of license permitted where

licensee pled nolo contendere to a felony and entry of plea

created noncompliance with the licensing statute). Pursuant to

section 633.426(3)(a)2., permanent revocation of the

certification is required.

RECOMMENDATION

Based on the foregoing Findings of Fac t and Conclusions of

Law, it is

RECOMMENDED that the Department of Financial Services enter

a final order permanently revoking Respondent's certification.

DONE AND ENTER ED this 15th day of February , 2019 , in

Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 323 99 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of February , 2019 .

ENDNOTE

1/ Department Exhibit 16 reflects that on November 20, 2017,

Respondent's co unsel noticed for deposition on January 18, 2018,

the alleged victim and five witnesses. Presumably, the

depositions were never taken because subsequent settlement

negotiations with the state resulted in the plea arrangement.

COPIES FURNISHED:

Julie Jo nes, CP, FRP, Agency Clerk

Division of Legal Services

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0390

(eServed)

Catherine Thrasher, Esquire

Department of Financial Services

Office of the General Counsel

200 East Ga ines Street

Tallahassee, Florida 32399 - 0333

(eServed)

Colleen D. Mullen, Esquire

Department of Financial Services

Office of the General Counsel

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

Edward G. Whitaker, Jr.

5012 Woodlawn Circle West

Pal metto, Florida 34221 - 8531

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 th at

will issue the Final Order in this case.