DAVID J. GIBBY, )
vs. )
Respondent. )
Case No. 03-0219
Upon due notice, a disputed-fact hearing was held on April 3, 2003, in Tallahassee, Florida, by Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: David J. Gibby, pro se
For Respondent: Joseph M. Helton, Jr., Esquire
Whether Petitioner is eligible for a waiver of his 1996 conviction for cruelty to animals in order to receive a pari- mutuel wagering occupational license.
In a letter dated September 20, 2002, the Division of Pari- Mutual Wagering (Division) notified Petitioner that it was denying his application for a pari-mutuel occupational license and request for waiver of his conviction of cruelty to animals, because he was ineligible for a waiver under Section 550.105(5)(c), Florida Statutes, due to the relationship between his conviction and pari-mutuel wagering.
After receiving a Certificate of Restoration of Civil Rights, dated October 25, 2002, Petitioner filed an Election of Rights, dated December 3, 2002, in which he requested a disputed-fact hearing, pursuant to Section 120.57(1), Florida Statutes. The case was referred to the Division of Administrative Hearings on January 23, 2003.
At the disputed-fact hearing, Petitioner testified on his own behalf and had one exhibit admitted in evidence. The Division presented the oral testimony of Stephen Toner and had two exhibits admitted in evidence, portions of which were only conditionally accepted, pursuant to the hearsay pronouncement at Section 120.57(1)(c), Florida Statutes.
A Transcript was filed on April 17, 2003. Each party's timely-filed Proposed Recommended Order has been considered.
Petitioner is an applicant for a pari-mutual wagering occupational license who wishes to be licensed as a greyhound owner in Florida.
Respondent is the Department of Business and Professional Regulation, Division of Pari-Mutual Wagering, an executive agency of the State of Florida created by Section 20.165(2)(f), Florida Statutes.
Petitioner's application, filed June 27, 2002, candidly disclosed a previous felony conviction of cruelty to animals.
On or about June 20, 1996, Petitioner was, in fact, found guilty of a third degree felony (cruelty to animals: refusing medical care to a greyhound) under Section 828.12(2), Florida Statutes, by a jury in the Seventh Judicial Circuit in and for Volusia County in Case No. 96-30581CFAES. He was 26 years old at the time.
Petitioner's conviction for cruelty to animals arose from the death of a greyhound puppy named "He's My Denny." The puppy was in Petitioner's care at the Daytona Beach Kennel Club. "He's My Denny" was bred and raised to be a racing greyhound.
As a result of his aforementioned felony conviction, Petitioner served 57 days in the Volusia County Jail and the balance of five years via out-of-state probation.
Petitioner entered into a Consent Order with the Division, whereby he was declared to be ineligible for any pari- mutuel occupational license under Section 550.105, Florida Statutes, for three years.
On July 1, 2002, after his three-year suspension had run, Petitioner requested a waiver of his conviction of cruelty to animals, for the purpose of re-licensure.
Stephen Toner, an Investigator for the Division, interviewed Petitioner on August 5, 2002, regarding his request for a waiver. During the interview, Mr. Toner completed a waiver interview form. Each page, with the exception of the last page of the form which contained Mr. Toner's comments, was initialed and dated by Petitioner.
In commenting upon the interview and its form at hearing, Petitioner expressed concern that Mr. Toner had misunderstood him during the interview when he said something to the effect of "If I had known there would be this much trouble with such serious consequences, I would have just put the dog down." I accept that Petitioner meant, by this, or similar language, that he would have humanely euthanized "He's My
Denny," rather than allowing the beast to suffer. However, this information is largely irrelevant.
Petitioner received the Division's letter of license denial on September 20, 2002.
The National Greyhound Association will not permit Petitioner to register a greyhound for racing purposes in any state unless the State of Florida will re-license him. Therefore, Petitioner is effectively precluded from his chosen line of work throughout the United States, by Florida's denial of his occupational license application.
After being denied re-licensure by the Division, Petitioner received a Certificate of Restoration of Civil Rights, dated October 25, 2002. The Certificate states, in pertinent part:
"grants [Petitioner] restoration of civil rights, except the specific authority to possess or own a firearm for any and all felony convictions in the State of Florida."
Petitioner testified, without refutation, that, except for his cruelty to animals conviction, he has had no other trouble with the law except that when he was 19 years old, he was caught driving without a license and represented himself to police as his older brother, who did have a driver's license.
At hearing, Petitioner did not list, or elaborate on, any signs of good moral character or rehabilitation since his 1996 Florida conviction for cruelty to animals.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), Florida Statutes.
The Division of Pari-Mutuel Wagering is authorized to issue or deny pari-mutuel wagering occupational licenses pursuant to provisions of Section 550.105, Florida Statutes.
Petitioner has the ultimate burden of proving his entitlement to the license he seeks. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996).
Section 550.105(5)(c), Florida Statutes, provides:
The division may deny, declare ineligible, or revoke any occupational license if the applicant for such license has been convicted of a felony or misdemeanor in this state, in any other state, or under the laws of the United States, if such felony or misdemeanor is related to gambling or bookmaking as contemplated in Section 849.25, or involves cruelty to animals. If the applicant establishes that she or he is of good moral character, that she or he has been rehabilitated, and that the crime or offense she or he was convicted of is not related to pari-mutuel wagering and is not a capital offense, the restrictions excluding offenders may be waived by the director of the division.
The felony of which Petitioner was convicted clearly involved cruelty to animals. Therefore, the first sentence of the foregoing statute means that the Agency may deny Petitioner's application. The crucial language is,
"the division may deny . . . any occupational license if the applicant ... has been convicted of a felony . . . in this state . . . if such felony . . . involves cruelty to animals." (Emphasis supplied)
The Agency is not required to deny the application, but it has the discretion to do so. Here, there was a consent order and the Agency has chosen to deny the re-application.
For the purpose of a waiver, the crucial language of the statute is
"If the applicant establishes that . . . he is of good moral character, that . . . he has been rehabilitated, and that the crime or offense . . . he was convicted of is not related to pari-mutuel wagering and is not a capital offense, the restrictions excluding offenders may be waived by the director of the division."
Therefore, in order to prevail herein, Petitioner must establish: (1) that he is of good moral character; (2) that he has been rehabilitated; (3) that his conviction is not related to pari-mutuel wagering; and (4) that his conviction is not a capital offense.
It is clear he was not convicted of a capital offense.
That said, the last sentence of Section 550.105(5)(c), Florida
Statutes, vests the Division with the authority to waive a disqualifying conviction of animal cruelty only if the applicant establishes that he is of good moral character, that he has been rehabilitated, and that the crime is not related to pari-mutuel wagering.
Proof that one has completed five years of probation without incident is not even threshold proof of current good moral character or rehabilitation. Unlike most efforts to establish good moral character or rehabilitation, Petitioner herein presented no evidence concerning what he had been doing since 1996; no evidence of spiritual enlightenment; no evidence of job reliability; no evidence of an emotional support network; no evidence of anger management classes; no evidence of further professional training; no evidence of contribution to the civic order or society; and no character witnesses.
Petitioner presented only his Certificate of Restoration of Civil Rights, signed by Florida's Governor and two Cabinet members. The Certificate makes no finding of good moral character or of rehabilitation. Article IV, Section 8, Constitution of the State of Florida, which authorizes such certificates, does not specify that any presumption of good moral character or rehabilitation arises from the granting of such a certificate. Petitioner has asserted no legal theory or
case law equating the restoration of his civil rights with good moral character or rehabilitation.
Even a full pardon does not remove the fact of a conviction. See Randall v. Florida Department of Law Enforcement, 791 So. 2d 1238 (Fla. 1st DCA 2001), which stands for the proposition that even a full pardon, signed by the Governor and approved by three cabinet members, does not have the effect of wiping out guilt so that the conviction is treated as though it had never occurred. It merely removes all legal punishment for the offense.
Therefore, Petitioner has not affirmatively demonstrated either good moral character or rehabilitation.
Moreover, Section 550.2415(6)(d), Florida Statutes, provides, in pertinent part:
It is the intent of the legislature that animals that participate in races in this state on which pari-mutuel wagering is conducted and animals are bred and trained in this state for racing be treated humanely, both on and off racetracks, throughout the lives of the animals.
* * *
(d) A conviction of cruelty to animals pursuant to Section 828.12 involving a racing animal constitutes a violation of this chapter.
Factually, the greyhound involved in the incident for which Petitioner was convicted of cruelty to animals was a
greyhound being trained to race at his kennel located at Daytona Beach Kennel Club. Legally, under Section 550.2415(6), Florida Statutes, a conviction of cruelty to animals involving a racing animal is related to pari-mutuel wagering.
Receiving a pari-mutuel wagering occupational license is a privilege, not a right. Cohen v. Dept of Business
Regulation, Division of Pari-Mutuel Wagering, 584 So. 2d 1083 (Fla. 1st DCA 1991). The Legislature has the authority to determine the qualifications necessary for persons to hold licenses for occupations related to the public welfare. Lambert
v. State ex rel. Mathis, 77 So. 2d 869 (Fla. 1955). Legalized gambling is an area in which the state has a strong police power interest to regulate. Division of Pari-Mutuel Wagering, Department of Business Regulation, State of Florida v. Caple,
362 So. 2d 1350 (Fla. 1978). Regulation of animal welfare is also within the police power of the state. C.E. America, Inc. v. Antinori, 210 So. 2d 443 (Fla. 1968).
Because racing for money could be prohibited altogether in Florida, the Legislature may condition a license to engage in legalized racing upon compliance with any rule that is reasonably appropriate to the accomplishment of the purposes of the Act. Division of Pari-Mutuel Wagering, Department of
Business Regulation, State of Florida v. Caple, supra. Due to the state's interest in controlling gambling and preventing
cruelty to animals, Section 550.105(5)(c), Florida Statutes, disqualifies as licensees those persons convicted of cruelty to animals in incidents related to pari-mutuel wagering.
In Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering v. Haber, DOAH Case
No. 01-0852PL (RO June 29 2001; FO July 27, 2001) it was held that Section 550.105(5)(c), Florida Statutes, limited the Division's discretion in dealing with persons convicted of cruelty to animals. Therein, Haber, a trainer, was convicted of cruelty to animals resulting from the death of four racing greyhounds under his care at a greyhound track. The Administrative Law Judge found that Haber's unblemished record would otherwise result in a penalty under the Administrative Complaint which would be less than a revocation of his license. However, she also interpreted the second/last sentence of Section 550.105(5)(c), Florida Statutes, to limit the discretion to determine an appropriate penalty conferred in the first sentence of the statute, and found that Haber could not qualify for a waiver under Section 550.105(5)(c), Florida Statutes, because his conviction of cruelty to animals was related to
pari-mutuel wagering. Her Recommended Order was adopted in toto in the Final Order. The Final Order was affirmed, per curium
without opinion, in Haber v. Department of Business and
Professional Regulation, Division of Pari-Mutuel Wagering, 816 So. 2d 640 (Fla. 4th DCA 2002).
Without adopting the whole of the Haber Recommended Order with regard to the first sentence of Section 550.105(5)(c), Florida Statutes, it is here concluded that the second last sentence alone is clear that the Division may deny a license if the felony conviction involves cruelty to animals and may not waive restrictions where the conviction for cruelty to animals is related to pari-mutuel wagering.
Accordingly, Petitioner could not establish his entitlement to a waiver qualifying him to receive a pari-mutuel license as a greyhound owner under Section 550.105(5), Florida Statutes, because his 1996 Florida conviction for cruelty to animals was related to pari-mutuel wagering even if he had affirmatively demonstrated his good moral character and rehabilitation, which he has not.
Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering enter a Final Order denying Petitioner's application for a
pari-mutuel occupational license.
DONE AND ENTERED this 15th day of May, 2003, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 2003.
David J. Gibby
Joseph M. Helton, Jr., Esquire Department of Business and
David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and
Hardy L. Roberts, III, General Counsel Department of Business and
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.
