Cirnigliaro v. FLORIDA POLICE STANDARDS, ETC.

409 So. 2d 80
CourtDistrict Court of Appeal of Florida
DecidedJanuary 14, 1982
DocketAB-61
StatusPublished
Cited by5 cases

This text of 409 So. 2d 80 (Cirnigliaro v. FLORIDA POLICE STANDARDS, ETC.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cirnigliaro v. FLORIDA POLICE STANDARDS, ETC., 409 So. 2d 80 (Fla. Ct. App. 1982).

Opinion

409 So.2d 80 (1982)

Robert A. CIRNIGLIARO, Appellant,
v.
FLORIDA POLICE STANDARDS AND TRAINING COMMISSION, Appellee.

No. AB-61.

District Court of Appeal of Florida, First District.

January 14, 1982.

Bert J. Harris, III, of Dunty & Harris, Lake Placid, for appellant.

Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

This is an appeal from a final order of the Florida Police Standards and Training Commission ("Commission") revoking appellant Cirnigliaro's certificate which had been issued under Section 943.14, Florida Statutes. On April 11, 1980, a formal hearing was held pursuant to Section 120.57(1)(b), Florida Statutes, and the hearing officer issued the recommended order on October 21, 1980. The Commission accepted the hearing officer's findings of fact, but rejected some of the conclusions of law as well as the recommendation that the certificate not be revoked.

The facts as found by the hearing officer and accepted by the Commission are as follows. Appellant was employed during the summer of 1972 as an assistant manager and new business development officer with the Security National Bank in Brentwood, New York. John Laura, a friend of appellant who was selling franchises in a Golden Products distributorship, sent potential franchisees to appellant to apply for loans. Laura told appellant that for each loan application approved he would give appellant $100.00 from his commission for selling the franchises. After accepting $900.00, appellant discovered the money was coming not from Laura's commission, but directly from the loan applicants. He stopped accepting the payments. When one of the loans went into default the applicant disclosed the kickback.

*81 The United States District Attorney for the Eastern District of New York filed an information charging appellant with violating 18 U.S.C. § 656 by knowingly and willfully embezzling, abstracting, purloining and misapplying less than $100.00 of the bank's money. Appellant pled guilty, was adjudged guilty and convicted, received a suspended sentence, and was placed on probation. The probation expired in April 1974 after he fulfilled all of the terms.

Appellant moved to Florida in March 1973 and worked as a vice-president at a Homosassa Springs Bank. He did not initially inform the bank of the conviction. The bank learned of the conviction in 1975 through the Citrus County Sheriff's office and appellant was allowed to resign.

Having an interest in becoming a police officer, appellant sought training sponsorship from the Chief of the Crystal River Police Department. The hearing officer found that appellant:

explained to Chief Matthews that he had been convicted of a misdemeanor "involving about $100.00 in dealing with a bank" as the chief remembers the conversation. Chief Matthews spoke with someone named Ken at the [Commission] headquarters in Tallahassee about Mr. Cirnigliaro's conviction, and asked him if he could become a police officer. Ken said to send his prints (fingerprints) in and he, Ken, would take it from there. Chief Matthews did as he was instructed. He also sent in an application form on which he checked a box indicating that the applicant "is of good moral character and has not been convicted of a felony or a misdemeanor involving moral turpitude. A thorough background investigation has been conducted and is attested to by John A. Matthews, Chief of Police, Crystal River Police Department."
... .
At the time of Mr. Cirnigliaro's application for certification, the Commission did not conduct independent background investigations on the applicants' good moral character. It relied on the sponsoring police agency to conduct those investigations. Mr. Cirnigliaro's application was accompanied by a set of his fingerprints as required by the Commission.

Appellant completed police training and was issued a certificate. He worked part-time for the Crystal River Police Department and was also deputized by the Citrus County Sheriff's Department. The Sheriff fingerprinted all new employees and in this way learned of appellant's conviction, but hired him anyway.

The hearing officer noted the testimony of a number of witnesses as to appellant's good moral character and found that he was in fact of good moral character at the time of the hearing.

In his conclusions of law in the recommended order the hearing officer noted that in order to be a police officer one must not have been convicted of a misdemeanor involving moral turpitude, § 943.13(4).[1] Further, before July 1, 1980, the effective date of Section 943.145, Fla. Stat., the Commission arguably had only the implied authority to revoke certificates. Authority for such implied power is found in State Board of Education v. Nelson, 372 So.2d 114 (Fla. 1st DCA 1979). The hearing officer concluded that pursuant to Section 943.145, however, the Commission has express authority to deny or to revoke certification for certain enumerated reasons. Under that Section certificates can be denied (or reactivation refused) for failure to meet the qualifications of Section 943.13 or of standards promulgated in Commission rules; certificates can be revoked for failure to maintain the qualifications of Section 943.13 or of standards promulgated in Commission rules. The hearing officer, by reading the two sections in pari materia, attributed significance to the use of the words "meet" in Section 943.145(2)(b) and "maintain" in Section 943.145(3)(a), giving the Commission authority to revoke certificates only for *82 failure to maintain Section 943.13 qualifications. The hearing officer concluded that appellant had not failed to maintain good moral character since his certification and the Commission was without authority to decertify for failure to initially meet Section 943.13 qualifications, especially in light of the principle that grounds for license revocation are to be strictly construed in favor of the licensee citing Lester v. Department of Professional and Occupational Regulation, 384 So.2d 923 (Fla. 1st DCA 1977). The hearing officer further noted that courts have held that legislative provision for exercising an administrative power in a particular way precludes its exercise in any other way, citing Kirk v. Publix Super Markets, 185 So.2d 161 (Fla. 1966) and Bloch v. Board of Business Regulation, 321 So.2d 447 (Fla.2d DCA 1975). Finally the hearing officer noted that while appellant's certificate could be revoked for failure to disclose a fact, the facts showed appellant had told his sponsoring agency about the conviction, and provided fingerprints to the Commission — no other disclosures were required. The hearing officer recommended dismissing the complaint against appellant.

The Commission, in the final order, accepted the hearing officer's findings of fact and his conclusion that under Section 943.13(4) Fla. Stat., to be a police officer one must not have been convicted of a misdemeanor involving moral turpitude as the term is defined by law. The remainder of the conclusions were rejected as inconsistent with the facts as found and accepted. Specifically, the Commission found the conclusions inconsistent with the fact that appellant had pled guilty to and been convicted of violating 18 U.S.C. § 656.

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