STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on November 17, 2005, in Deland, Florida, before Carolyn S. Holifield, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Stephen M. Morris

162 Warren Avenue

New Smyrna Beach, Florida 32168

For Respondent: Stefan Thomas Hoffer, Esquire

Department of Business and Professional Regulation

Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-2202

STATEMENT OF THE ISSUES

The issues are: (1) whether Petitioner is qualified for a pari-mutuel wagering occupational license as a greyhound owner;

and, (2) whether Petitioner is entitled to waiver of the provisions in accordance to Chapter 550, Florida Statutes (2004).

PRELIMINARY STATEMENT

By letter dated June 14, 2005, Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Division), notified Petitioner, Stephen M. Morris (Petitioner), that his application for a pari-mutuel wagering occupational license as a greyhound owner and request for waiver were denied. According to the letter, the basis of the denial was Petitioner's criminal record, which consisted of the following three felony convictions: (1) possession and sale of a controlled substance, (2) trafficking in controlled substance (cannabis) in excess of 100 pounds and carrying a concealed firearm, and (3) dealing in stolen property. With regard to the application and waiver request, the denial letter also stated that the "application and waiver package does not sufficiently establish rehabilitation and present good moral character." Petitioner timely challenged the denial of his application and the request for waiver and requested a formal hearing.

On or about July 5, 2005, the matter was forwarded to the Division of Administrative Hearings to conduct a formal hearing. By notice issued September 15, 2005, the final hearing was scheduled for November 17, 2005.

At the final hearing, Petitioner presented the testimony of David J. Roberts, director of the Division, and Stephen E. Toner, an investigator with the Division. Petitioner offered and had four exhibits received into evidence. The Division presented the testimony of Stephen E. Toner and had four exhibits received into evidence.

A Transcript of the hearing was filed on November 29, 2005.

The Division timely filed a Proposed Recommended Order on December 9, 2005. Petitioner did not file a proposed recommended order, but on December 14, 2005, filed a letter which stated that the Division should issue a pari-mutuel wagering license to him.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at hearing, the following Findings of Fact are made:

1. Petitioner, Stephen M. Morris, submitted an application for a pari-mutuel wagering occupational license as a greyhound owner on or about February 24, 2005.

2. On his application for a pari-mutuel wagering occupational license, Petitioner accurately reported that he had been convicted of the following three felonies: (1) possession and sale of a controlled substance, (2) trafficking in controlled substance (cannabis) in excess of 100 pounds, and

   (3) dealing in stolen property. The foregoing felony

   convictions were in or about 1976, 1984, and 1993, respectively, and were the result of offenses that occurred in Florida.

3. Due to Petitioner's felony convictions, as noted in paragraph 2 above, his application for a pari-mutuel wagering occupational license was subject to denial. Consequently, on February 24, 2005, in addition to his application for a

   pari-mutuel wagering occupational license, Petitioner also requested that a waiver be granted so that he could obtain the license.

4. Petitioner's application and his request for waiver did not include any information which would establish his rehabilitation or demonstrate that he has good moral character.

5. As part of the Division's review of Petitioner's request for waiver, on or about April 5, 2005, Mr. Toner interviewed Petitioner. During the interview with Mr. Toner, Petitioner had the opportunity to present information that established his rehabilitation and demonstrated his present good moral character, but he did not produce such information.

6. In light of the information regarding Petitioner's felony convictions, which are undisputed and included in Petitioner's application, Petitioner does not meet the eligibility requirements for the license which he seeks.

7. By Petitioner's own admission, he was convicted of the felony offenses noted in paragraph 2 above. The number of

   felony convictions and the times that the offenses were committed, show a pattern of serious criminal behavior and recidivism.

8. Petitioner may be rehabilitated and may have present good moral character. However, Petitioner did not testify at the final hearing and presented no evidence that he has been rehabilitated and has present good moral character. Absent from the record is any testimony from Petitioner or from Petitioner's friends, relatives, business associates, employers, or church members regarding Petitioner's good conduct and reputation subsequent to the date of his last felony conviction.

9. In absence of any evidence that Petitioner has been rehabilitated and has present good moral character, the Division has no basis to grant Petitioner a waiver.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Section 120.569 and Subsections 120.57(1), Florida Statutes (2004).

11. The Division is authorized to issue or deny

    
    

    pari-mutuel wagering occupational licenses pursuant to Section 550.105, Florida Statutes (2004).

12. As an applicant, Petitioner has the burden of proving he is entitled to the license he seeks. Florida Department of

    Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). Petitioner has failed to meet that burden.

13. The reasons for which the Division may deny an applicant a pari-mutuel wagering occupational license are enumerated in Subsection 550.105(5)(b), Florida Statutes (2004), which provides in relevant part the following:

    [T]he division may deny suspend, revoke, or declare ineligible any occupational license if the applicant for such license has been convicted in this state, in any other state, or under the laws of the United States of a capital felony, a felony, or an offense in any other state which would be a felony under the laws of this state involving arson; trafficking in, conspiracy to traffic in, smuggling, importing, conspiracy to smuggle or import, or delivery, sale, or distribution of a controlled substance; or a crime involving lack of good moral character. . . .

    
    

14. Here, the Division denied Petitioner's application for a pari-mutuel wagering occupational license based on the fact that Petitioner had three felony convictions.

15. The evidence established that Petitioner was convicted of three felonies. Petitioner does not dispute that he was convicted of possession and sale of a controlled substance, trafficking in a controlled substance, and dealing in stolen property and was forthright in listing these convictions on his application. Based on these convictions, the Division has established a valid basis for denial of Petitioner's

    application for a pari-mutuel wagering occupational license. See § 550.105(5)(b), Fla. Stat. (2004).

16. Petitioner's felony convictions are not necessarily a permanent bar to his obtaining a pari-mutuel wagering occupational license. Pursuant to its rulemaking authority granted in Subsection 550.0251(3), Florida Statutes (2004), the Division adopted Florida Administrative Code Rule 61D-5.006, which allows applicants for occupational licenses, who are subject to denial based on felony convictions, to seek a waiver of denial from the Division director.

17. Florida Administrative Code Rule 61D-5.006 provides in pertinent part the following:

    Waiver of Criminal Convictions or Other Offenses.

    
    

    1. Any applicant for an occupational license who is subject to denial on the basis of a criminal conviction or discipline by any racing jurisdiction may seek a waiver from the division director. The applicant shall submit an Individual Occupational License Application BPR Form 15-027, incorporated by Rule 61D-10.001, Florida Administrative Code, the annual license fee and fingerprint fee, a complete set of fingerprints on a card supplied by the division, and a Request for Waiver BPR Form 15-022, incorporated by Rule 61D-10.001, Florida Administrative Code. The applicant must also schedule a waiver interview with the Bureau of Investigations. Failure to participate in a waiver interview or to disclose any pertinent information regarding convictions, rulings, revocations or denials

       from other jurisdictions will result in a denial of the request for waiver.

       
       

    2. The applicant must establish rehabilitation and must demonstrate present good moral character. The waiver applies to convictions or enforcement actions disclosed to the division, unless revoked by the division for violation of Chapter 550, Florida Statutes, or these rules.

       
       

18. Notwithstanding Petitioner's felony convictions, pursuant to Florida Administrative Code Rule 61D-5.006, quoted above, the Division director may grant Petitioner a waiver. However, in order to obtain such waiver, Petitioner "must establish rehabilitation and demonstrate present good moral character."

19. In the instant case, Petitioner did not testify and presented no evidence regarding his rehabilitation or present good moral character. Therefore, the record is completely void of any evidence or testimony regarding Petitioner's employment records or any other activities subsequent to his felony convictions that establish that he is rehabilitated. Furthermore, Petitioner presented no evidence that demonstrates his present good moral character.

20. In light of the foregoing, Petitioner failed to meet his burden of proof and, thus, he is not entitled to the

pari-mutuel wagering occupational license under the waiver provisions of Florida Administrative Code Rule 61D-5.006.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of Law, it is

RECOMMENDED that Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order denying Petitioner, Stephen M. Morris', application for a pari-mutuel wagering occupational license and his request for waiver.

DONE AND ENTERED this 30th day of December, 2005, in Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 2005.

COPIES FURNISHED:

Stefan Thomas Hoffer, Esquire Department of Business and

Professional Regulation Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-2202

Stephen M. Morris

162 Warren Avenue

New Smyrna Beach, Florida 32168

David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Josefina Tamayo, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

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 that will issue the final order in this case.

Docket for Case No: 05-002408

Orders for Case No: 05-002408