Felony Conviction Disqualifies Florida Firefighter From Promotion

Andrew Thomas Giamberini was initially certified as a firefighter in Florida in 1996. At the time, Florida’s Department of Financial Services, which certifies firefighters in Florida, was aware that Giamberini 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 Giamberini to probation.

Under Florida’s statutes, Giamberini’s 1993 plea to the felony charge did not disqualify him from obtaining his initial firefighter certification. However, by 2012 the certification statutes had changed, and when Giamberini applied to the Department for certification as a fire safety inspector, the Department denied his requested certification because of the no contest plea even though Giamberini’s chief testified that Giamberini was “an exemplary firefighter, a person of integrity, and a true public servant.”

The Florida Court of Appeals upheld the Department’s decision to deny Giamberini’s certification. The Court concluded that with a limited exception, every fire safety inspection conducted pursuant to state or local fire safety requirements shall be by a person certified as having met the inspection training requirements set by the State Fire Marshal. Thus, to be certified as a fire safety inspector, an applicant must first meet the requirements for certification as a firefighter.

“In turn, a person applying for certification as a firefighter must not have been convicted of a felony. For purposes of the statute, the term ‘convicted’ is defined 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 in any other country, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of the case.’

“Because Giamberini pleaded nolo contendere to a felony, the plain language of these statutes precluded him from obtaining a certification as a fire safety inspector as a matter of law. The fact that Giamberini was previously certified as a firefighter under an earlier statutory scheme is irrelevant.

“We do not agree with Giamberini’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 fire safety 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 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 fire safety 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. Giamberini’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. While we sympathize with Giamberini’s plight, it is the prerogative of the Legislature, not the judiciary, to establish the qualifications for certification as a fire safety inspector. Based on the plain language of the relevant statutes, we affirm the Department’s denial of Giamberini’s application for certification as a fire safety inspector.”

Giamberini v. Department of Financial Services, 162 So.3d 1133 (Fla. App. 2015).