        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
