Conclusions This matter came on for determination by the Department upon Respondent’s submission of a Motion to Dismiss as Moot, a copy of which is attached and incorporated by reference in this order. The Motion to Dismiss is GRANTED. Accordingly, it is hereby ORDERED that this case is DISMISSED. DONE AND ORDERED this ON day of March, 2012, in Tallahassee, Leon County, Florida. ie ulje Baker, Chief ureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this _L2Myday of March, 2012 VWakins Vinagelk Nalini Vinayak, Dealer Yicense Administrator Filed March 13, 2012 7:31 AM Division of Administrative Hearings NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within 30 days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jdc Copies furnished: John W. Forehand, Esquire Kurkin Forehand Brandes LLP 800 North Calhoun Street, Suite 1B Tallahassee, Florida 32303 J. Andrew Bertron, Esquire Nelson, Mullins, Riley and Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 Nalini Vinayak Dealer License Administrator Lynne A. Quimby-Pennock Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Barbara J. Staros, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice Of Dismissal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby Filed April 16, 2013 1:54 PM Division of Administrative Hearings ORDERED that this case is CLOSED. DONE AND ORDERED this S& day of April, 2013, in Tallahassee, Leon County, Florida. PADLN Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this_5 day of April, 2013. eos -, Nalini Vinayak, Dealer Kicense Adminietra*~ NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/wev Copies furnished: Nicholas A. Bader, Esquire Bass Sox Mercer, P.A. 2822 Reminton Green Circle Tallahassee, Florida 32308 nbader @dealerlawyer.com C. Everett Boyd, Esquire Nelson, Mullins, Riley And Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 everett.boyd @nelsonmullins.com Barbara J. Staros Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
The Issue Whether or not on or about December 8, 2000, Petitioner possessed the appropriate license to operate a body-piercing salon establishment in accordance with Section 381.0075, Florida Statutes, and Chapter 64E-19, Florida Administrative Code.
Findings Of Fact Based upon the evidence presented, the testimony, and upon the personal inspection of the undersigned, the following findings of fact are made: At all times material hereto, Respondent, Department of Health, Division of Environmental Health, is the state agency charged with implementation of Section 381.0075, Florida Statutes, and Chapter 64E-19, Florida Administrative Code. At all times material hereto, Petitioner, Rita Moroz, operated a manicure-pedicure, nail-lengthening establishment, "A New Adventure of Tampa Bay," located at 11608 North Dale Mabry Highway, Hillsborough County, Tampa, Florida 33618. Section 381.0075(2)(a), Florida Statutes, defines "BodyPiercing" as for commercial purposes the act of penetrating the skin to make, generally permanent in nature, a hole, mark, or scar. "Bodypiercing" does not include the use of a mechanized, presterilized ear-piercing system that penetrates the outer perimeter of lobe of the ear or both. At all times material hereto, Petitioner admitted that she operated a body-piercing establishment salon and provided body-piercing services without first having obtained a body-piercing license as required by law. At all times pertinent hereto, Petitioner possessed a manicure-pedicure license issued by another country and her foreign license also authorized body-piercing services. Petitioner, upon receipt of the Certificate of Violation, discontinued performing body-piercing services. The representative for the Agency stated that the Department would accept, in consideration of Petitioner's admissions and prompt discontinuation of body-piercing services, a reduced fine in an amount not to exceed $500.00.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is
The Issue The issue in this case is whether Petitioner should deny Respondent's application for a yacht salesperson's license on the ground that Respondent failed to furnish proof of his good moral character in violation of Section 326.004(6)(a), Florida Statutes (1999). (All chapter and section references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating yacht and ship salespeople and brokers and for administering and enforcing Chapter 326. Respondent is a licensee applying for renewal of a yacht salesperson's license. Respondent applied for and the Division approved Respondent's initial yacht salesperson's license in 1995. Pursuant to Section 326.004(1), yacht salesperson's licenses are valid for a two-year period. In addition, Respondent formerly held a state contractor's license and a real estate broker's license from Petitioner's agency. The Construction Industry Licensing Board ("CILB") is a division of Petitioner. The CILB served Respondent with an administrative complaint regarding his contractor's license in March 1997. In 1998, the Florida Real Estate Commission ("FREC") revoked Petitioner's real estate license. The Division did not become aware of the administrative proceedings against Respondent's construction and real estate licenses until August 1998. By final order issued March 19, 1998, the CILB fined Respondent and suspended his state contractor's license for five years. The CILB found that Respondent violated Section 489.129(1)(h)(2), (k) and (m). Respondent committed mismanagement that caused financial harm to a customer by accepting deposit money but failing to perform on the contract; abandoned the construction project under contract by failing to begin construction for a period of five months; and engaged in deceitful conduct in the practice of contracting. The CILB also found that Respondent violated Section 489.129(1)(n) by committing incompetence and misconduct in the practice of contracting. The victims in Respondent's CILB case received $22,845.00 from the Construction Industries Recovery Fund as compensation for the harm they suffered due to Respondent's violation of Section 489.129(1)(h)(2). Respondent's obligation to pay restitution to the victims was discharged in bankruptcy. Respondent is still paying the fines and interest ordered in the CILB license suspension case involving his construction license. After the CILB suspended Respondent's contractor's license, FREC, another division of Petitioner, issued an administrative complaint seeking to revoke Respondent's real estate broker's license on the ground that the CILB had suspended Respondent's construction license. Respondent voluntarily surrendered his real estate broker's license for revocation. By final order dated August 19, 1998, FREC revoked Respondent's real estate broker's license. Respondent timely applied for, and the Division approved, the renewal of Respondent's yacht salesperson's license in August 1997. On this renewal application, Respondent answered "N" to question number four which asked whether there were any cases pending against the applicant. In August 1999, Respondent timely applied for renewal of his yacht salesperson's license. Petitioner denied the application on the sole ground that Respondent failed to show that he is of good moral character in violation of Section 326.004(6)(a). Petitioner determined that Respondent failed to show good moral character based on the CILB suspension of Respondent's contractor's license, FREC's revocation of Respondent's real estate license, and Petitioner's conclusion that Respondent had answered question four on his 1997 renewal application untruthfully in violation of Section 326.006(2)(f)1. Petitioner relied solely on a review of the documents in its file and did not conduct an independent investigation or interview Respondent. Respondent did not falsely answer "no" to question four on his 1997 renewal application. Question four asked, in relevant part: Has any judgment or decree of court been entered against you or is there now pending any case, in this or any other state, in which you were charged with any fraudulent or dishonest dealing. Question four limited its scope to judgments, decrees, and cases pending in any court in this or another state and did not ask for disclosure of administrative proceedings. Administrative agencies, including DOAH, are not courts. The administrative complaint filed against Respondent in March 1997 was not a case pending in a court in this or another state. As Petitioner noted on its Investigative Report, ". . . a final order of an agency is not a judgment or decree of court." Respondent construed question four on his 1997 renewal application to be limited to courts. Respondent's interpretation was reasonable and valid. It was not intended to deceive Petitioner. In August 1998, an attorney for FREC informed Respondent that he should disclose administrative proceedings in addition to court cases. Respondent immediately informed Petitioner by telephone and letter of the pending administrative proceedings. In the renewal application filed in 1999, Respondent disclosed the suspension of his construction license, the revocation of his real estate license, and answered "yes" to question four on the application. In an effort toward full disclosure, Respondent answered "yes" to question three when Respondent should have answered "no." Question three asked Respondent if he had been convicted of a crime. The only finding from the suspension of Respondent's construction license by the CILB and the revocation of Respondent's real estate license by FREC that is at issue in this case is a finding by ALJ Daniel M. Kilbride that Respondent committed fraud and deceit by adding a provision for a commission at the end of a construction contract entered into on December 23, 1994. By final order entered on March 16, 1998, the CILB adopted the Recommended Order of Judge Kilbride. The judicial doctrine of equitable estoppel, or estoppel by judgment, bars the re-litigation of factual and legal issues common to both the CILB case and this case. Therefore, the finding that Respondent committed fraud and deceit in 1994 cannot be litigated in this case. The good moral character of Respondent was not at issue in the license suspension case decided by Judge Kilbride. Therefore, Respondent is entitled to present evidence of his good moral character in this case including evidence that explains and mitigates the circumstances of the 1994 transaction in an effort to show that Respondent does not now lack good moral character. The sales commission at issue in the 1994 transaction was to be paid out of Respondent's proceeds from the construction contract. It was not an additional expense to be paid by the buyers. It did not increase the construction price of the house. The commission was to be paid by Respondent for services provided by Castle Real Estate on behalf of Respondent. The buyers did not object to the insertion of the commission provision at the end of the contract. The buyers did not object to the commission being paid at closing. The construction lender released the funds for the commission as part of the construction draw Respondent received. The funds were not separately identified, and Respondent had no knowledge that the lender had released the funds as part of the construction draw. Respondent was an active builder in the local real estate market. He had constructed several "spec" homes. When the real estate market declined, Respondent incurred financial problems attributable to subcontractors and was unable to service the debt he owed on the "spec" homes. Respondent declared bankruptcy in 1996. The buyers in the 1994 transaction did not make any request for refund until after Respondent had declared bankruptcy. Respondent could not make preferential payments to creditors after he declared bankruptcy. More than five years have passed since the 1994 transaction. Even if Respondent lacked good moral character in 1994, he now possesses good moral character. Respondent is now in stable financial condition. Respondent has made all payments due under the license suspension order in a timely manner. Respondent is a licensed captain in the Coast Guard Auxiliary. He has served as a commodore of the local boating club and as a former public affairs officer in charge of public education for the local flotilla. Respondent has conducted himself with integrity in all of his yacht sales. Respondent enjoys an excellent reputation in the boating community for honesty and integrity. Respondent's knowledge about yachts is above average. Over a span of 15 years, Respondent has held licenses with the state as a mortgage broker, real estate salesman, and real estate broker. During that time, no complaints have ever been filed against Respondent for his activities under those licenses. The revocation of Respondent's real estate license was based on the suspension of Respondent's construction license by the CILB. The complaint filed against Respondent's construction license involved a single isolated transaction that occurred more than five years ago for which there were significant mitigating circumstances.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding that Respondent has good moral character, within the meaning of Section 326.004(6)(a), and renewing Respondent's yacht salesperson's license. DONE AND ENTERED this 28th day of June, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 28th day of June, 2000. COPIES FURNISHED: Ross Fleetwood, Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Scott K. Edmonds Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Thomas C. Houck, Esquire 312 South Harbor City Boulevard Melbourne, Florida 32901 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue presented here concerns the entitlement of Foxie's of Orlando, Inc., d/b/a Foxie's lunge to change the corporate officers listed with the State of Florida, Division of Alcoholic Beverages, in License No. 58-1133, Series 2- COP, by substituting the name Carol Valdyke for Wiley U. Pridgen.
Findings Of Fact The Petitioner, Foxie's of Orlando, Inc., is a Florida corporation owned by Carol Valdyke. She is also the President, Secretary and Treasurer of the corporation. Foxie's Lounge of Orlando, Inc., is the record holder of License No. 58-1133, Series 2-COP, which was issued by the Respondent, State of Florida, Division of Alcoholic Beverages and Tobacco. This agency, among other functions, is responsible for the licensure of certain entities who wish to sell alcoholic beverages in the State of Florida. This action arises from the attempt of Foxie's Lounge of Orlando, Inc., to gain the permission of the Respondent to change its corporate officers from Wiley U. Pridgen to Carol Valdyke and the subsequent rejection of that effort, followed by a request by the licensee to be granted a hearing. The Director of the State of Florida, Division of Alcoholic Beverages and Tobacco, asked that the matter be heard by the State of Florida, Division of Administrative Hearings, and there ensued a de novo hearing on June 3, 1980. The facts reveal that License No. 58-1133, Series 2-COP, was held by Wiley U. Pridgen on October 5, 1979. At that time, Pridgen asked the Respondent to grant a transfer of the license from Pridgen as an individual to the corporation, Foxie's of Orlando, Inc. (From the record, it is not clear whether the corporation had been formed effective October 5, 1979; however, it was established that the corporation was in existence on October 31, 1979.) On October 31, 1979, in a transaction which Wiley U. Pridgen, as 100 percent owner, stockholder, President and Secretary of the corporation entered into with Carol Valdyke, the corporation was sold to Valdyke and she became the 100 percent owner. At the time she became the President, Secretary and Treasurer of the corporation, and Pridgen signed over the outstanding shares of stock in favor of Valdyke. Terms and conditions of this sale may be found in the Petitioner's Exhibit 6 and Petitioner's Composite Exhibit 9 admitted into evidence. Following the sale, Pridgen and Valdyke went to the offices of the Division of Alcoholic Beverages and Tobacco in Orlando and indicated to a licensing official, Robert Bishop, a beverage officer, that Valdyke was assuming the corporation, Foxie's of Orlando, Inc. On this occasion, Valdyke filled out a personal questionnaire. A copy of the personal questionnaire may be found as Petitioner's Exhibit 4 admitted into evidence. Pridgen had previously told Bishop that he intended to transfer the corporate license to Valdyke after the corporation had been formed and subsequent to the time that the license had been transferred from Pridgen's name individually into the corporate name, Foxie's of Orlando, Inc., and the October 31, 1979, events were in furtherance of that design. On November 1, 1979, a temporary license in behalf of Foxie's of Orlando, Inc., d/b/a Foxie's Lounge, 2915 South Orange Blossom Trail, Orlando, Florida, was issued in License No. 58-1133, Series 2-COP. This was in response to the October 5, 1979, application for transfer of license from Wiley U. Pridgen to Foxie's of Orlando, Inc. A copy of that temporary license may be found as Petitioner's Exhibit 11 admitted into evidence. A permanent license was issued for the benefit of Foxie's of Orlando, Inc., effective November 26, 1979, related to License No. 58-1133, Series 2-COP. This license authorized the sale of alcoholic beverages at 2015 South Orange Blossom Trail, Orlando, Florida. A copy of the license may be found as Petitioner's Exhibit 12 admitted into evidence. On December 7, 1979, the Respondent received final information from Carol Valdyke, the owner of Foxie's of Orlando, Inc., necessary to effectuate her request to become the President, Secretary and Treasurer and listed owner/stockholder of the license holder, Foxie's of Orlando, Inc., for purposes of complying with Respondent's regulations related to these changes. The materials associated with that request included the Certificate of Incumbency and Declaration of Stock Ownership, a copy of which may be found as the Petitioner's Exhibit 5 admitted into evidence. At that point in time, from the facts presented in the hearing, it is concluded that the agency was aware of the sale of the corporation to Valdyke, as reflected in Petitioner's Composite Exhibit 9, which features the Promissory Note and Security Agreement. A licensee application investigation was commenced after the case had been assigned to an employee within the agency on December 7, 1979. The investigation was completed on January 16, 1980, as established through a copy of the license application investigation which may he found as Petitioner's Exhibit 7 admitted into evidence. The only reservation about granting the request which was made in the investigative report was that comment found in Item 21. This item is a question which solicits comments from the investigator on the subject of reasons for approval or disapproval and, in responding, the comment "Yes" was made and by explanation stated, "See administrative case number 29383 pending". This reference in Item 21 to Petitioner's Exhibit 7 concerning case number 29383, means case number 29383-A, which is a Notice to Show Cause/Administrative Complaint containing allegations of October 31, 1979, and November 7, 1979, which had been placed against Foxie's of Orlando, Inc., License No. 58-1133, Series 2-COP. The exact date of the preparation of the allegations as set forth in a Notice to Show Cause document was not established in the hearing. It was shown that the Notice to Show Cause/Administrative Complaint and Notice of Informal Conference was served on Wiley U. Pridgen on March 17, 1980. A copy of the Notice to Show Cause and Notice of Informal Conference together with the statement of service may be found as the Petitioner's Composite Exhibit 3 admitted into evidence. Case DABT number 29383-A is now pending before the Division of Administrative Hearings as DOAH No. 80-1039. There had been another case, DABT number 29332-A, which had been placed against Foxie's of Orlando, Inc., License No. 58-1133, Series 2-COP. This case was premised upon allegations of violations which occurred in May, 1979, and shows service of the Notice to Show Cause/Administrative Complaint and Notice of Informal Conference on January 2, 1980. A copy of this Notice to Show Cause/Administrative Complaint and Notice of Informal Conference may be found as Petitioner's Composite Exhibit 2 admitted into evidence. This case was subsequently dismissed by order of the Director of the Division of Alcoholic Beverages and Tobacco dated April 7, 1980, a copy of which order may be found as Petitioner's Exhibit 1 admitted into evidence. Sometime between December 7, 1980, the completion date of Carol a1dyke's request for change of officers and ownership/stockholder, and March 7, 1980, the Director of the Division of Alcoholic Beverages and Tobacco issued a memorandum to the corporation, Foxie's Lounge of Orlando, Inc., denying the request to change the officers. This relates to the change of officers from Wiley U. Pridgen to Carol Valdyke. No mention was made in the course of the denial of the application about the subject of the change of ownership/stockholder. A copy of the memorandum of denial may be found as the Petitioner's Exhibit 10 admitted into evidence.
Recommendation It is RECOMMENDED that Petitioner, Foxie's Lounge of Orlando, Inc., d/b/a Foxie's Lounge, holder of License No. 58-1133, Series 2-COP, be allowed to change the officers reflected in its license from Wiley U. Pridgen to Carol Valdyke. DONE AND ENTERED this 26th day of June, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1980.
The Issue The issues are: (1) whether Petitioner is qualified for a pari-mutuel wagering occupational license; and (2) whether Petitioner is entitled to waiver of his felony conviction in accordance with Chapter 550, Florida Statutes (2006).
Findings Of Fact Petitioner submitted an application for a pari-mutuel wagering occupational license as a racehorse owner on or about March 30, 2005. On his application, Petitioner accurately reported that he had been convicted on one count of Conspiracy to Transport Stolen Property and Evade Taxes, a felony. Due to Petitioner’s felony conviction, his application for a pari-mutuel wagering occupational license was subject to denial. Consequently, Petitioner also requested that a waiver be granted so that he could obtain the license. Petitioner's application and his request for waiver failed to include any information which would establish his rehabilitation or demonstrate that he is of good moral character. In the regular course of the Division's review of Petitioner's application and request for waiver, on or about April 11, 2005, Petitioner was interviewed by Dennis Badillo, an investigator for the Division. During the interview, Mr. Badillo completed a waiver interview form based upon the answers provided by Petitioner. Petitioner was afforded a full and fair opportunity to present information to establish his rehabilitation and to demonstrate his present good moral character, but Petitioner did not provide such information. In light of the information regarding Petitioner’s felony conviction, which is undisputed and admitted by Petitioner on his application form and at the final hearing, Petitioner does not meet the eligibility requirements for the license he seeks. At hearing, Petitioner attempted to minimize his role in the crime of which he was convicted, and expressed the view that he "doesn't have much time" to fulfill his desire to "participate in the racing industry" in Florida, inasmuch as he has passed his 70th birthday. Petitioner failed to present any testimony from friends, relatives, associates, employers, probation officers, or other individuals to establish good conduct and reputation subsequent to the date of his felony conviction. Absent such evidence, the Division has no basis upon which to conclude that Petitioner is rehabilitated or that Petitioner is of present good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order denying Petitioner’s application for a pari-mutuel wagering occupational license and his request for waiver. DONE AND ENTERED this 31st day of January 2006, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 31st day of January, 2006. COPIES FURNISHED: S. Thomas Peavey Hoffer Department of Business and Professional Regulation Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-2202 Joseph L. Nacca 268 West Walk West Haven, Connecticut 06516 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 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether the Petitioner's application for licensure as a yacht and ship salesman should be approved or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, is the state agency responsible for licensing and regulating yacht and ship brokers and salespersons in Florida. Section 326.003, Florida Statutes (1997). On July 28, 1998, the Division received an application for a yacht and ship salesperson's license from Richard Badolato. Question 13 on the application solicits information of the applicant's criminal history as follows: Have you ever been convicted of a crime, either pled or been found guilty, or entered a plea of nolo contendere (no contest), even if adjudication was withheld? NOTE: This question applies to any violation of the laws of any municipality, county, state, or nation, including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. Your answer to this question will be checked against local and state records. Failure to answer this question accurately could cause denial of licensure. After Question 15 of the application, the following statement appears in bold type: "If your answer to question 13, 14, or 15 is Yes, attach your complete signed statement of the charges and facts, together with the dates, name and location of the court in which the proceedings were held or are pending." Mr. Badolato answered Question 13 in the affirmative, and he signed the application, thereby certifying that "the foregoing information is true and correct to the best of my knowledge and belief." Mr. Badolato did not provide the statement of particulars which must be submitted by those answering Question 13 in the affirmative. In a letter dated July 28, 1998, the Division notified Mr. Badolato that his application was incomplete and that he should, among other things, provide a complete written explanation of his criminal history. In response to this letter, Mr. Badolato provided a signed statement in which he stated: "I was arrested and charged with possession of marj. in 1981." Mr. Badolato also provided a telephone number on the statement, indicating that he could be contacted at that number if the Division had any questions. Pursuant to the provisions of Section 326.004(15), the Division issued a 90-day temporary license to Mr. Badolato, pending completion of the criminal history analysis that is done on all applicants by the Florida Department of Law Enforcement. The Division subsequently received a report from the Federal Bureau of Investigation which revealed that Mr. Badolato had three drug-related felony convictions, as well as an arrest on June 22, 1977, which resulted in a charge of possession of marijuana with intent to distribute. On August 24, 1981, Mr. Badolato was convicted in federal district court in Brunswick, Georgia, of conspiracy to smuggle marijuana; he was sentenced to ten years in prison and ordered to pay a $30,000 fine. On October 23, 1981, Mr. Badolato was convicted in federal district court in Miami, Florida, of conspiracy to distribute cocaine; he was sentenced to thirty months in prison, to run consecutively with the ten-year sentence in the Georgia case. On January 31, 1989, Mr. Badolato was convicted in federal district court in Maryland of conspiracy to distribute marijuana; he was sentenced to thirty-six months in prison, to run concurrently with any sentence imposed for a violation of parole. Mr. Badolato was released from prison in 1991 and successfully completed parole in December 1996 with respect to the 1989 conviction. In late 1997, Mr. Badolato received a letter advising him that he might be eligible for clemency. An attorney acting on behalf of Mr. Badolato filed an application for clemency with the Florida Parole Commission. Although Mr. Badolato has never seen this application, he assumes that the file developed during review of the application contains complete information regarding his criminal history.2 When the Division received the Federal Bureau of Investigation report, Peter Butler, head of the Division's general enforcement section, contacted Mr. Badolato by telephone, read to him the statement in the application quoted in paragraph 4 above, and asked him if he wanted to amend his application. Because he could not remember the exact dates of his three felony convictions, Mr. Badolato responded by referring Mr. Butler to the Clemency Board if Mr. Butler wanted to obtain further information about Mr. Badolato's criminal history. Mr. Badolato acknowledged in his testimony that he should have been more thorough in completing his application for licensure, that he was lazy and stupid for not being more forthcoming in the application, and that he did not intend to mislead the Division. He believed that, by answering "Yes" to Question 13 and admitting that he was arrested and charged with possession of marijuana in 1981, he had provided enough information to alert the Division that he had a criminal history. He also assumed that it would be very easy for the Division to obtain complete information about his background merely by running a computer check and by reviewing the information in his clemency application file. From 1991, when he was released from prison, until December 1998, Mr. Badolato was involved in the restaurant business in a managerial capacity, and, as part of his duties, he handled large sums of money. No money in his care was ever found missing, and no adverse employment actions were taken against him during this time. In addition, during the time he was on parole, Mr. Badolato periodically submitted to random drug-testing and never failed a test. The evidence presented by Mr. Badolato is not sufficient to establish that he is of good moral character. He admitted in his answer to Question 13 on the application that he had been convicted of a felony, yet he included in the statement which he filed as part of the application a vague, incomplete, misleading, and inaccurate reference to an arrest and charge of possession of marijuana in 1981.3 Furthermore, Mr. Badolato certified by his signature on the application form that the information he provided was "true and correct to the best of [his] knowledge and belief," when he was certainly fully aware that he had three separate felony convictions. Mr. Badolato presented evidence of his good employment history subsequent to his release from prison in 1991, his successful termination of probation, and his faithful payments on the $30,000 fine imposed in 1981, all of which tend to show rehabilitation and good moral character. However, Mr. Badolato's failure to include in his application complete and accurate information regarding his criminal history tends to show lack of rehabilitation and lack of good moral character. On balance, Mr. Badolato's failure to disclose in his application his complete criminal history outweighs the evidence he presented to show rehabilitation and good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Land Sales, Condominiums, and Mobile Homes, enter a final order denying Richard Badolato's application for licensure as a yacht and ship salesperson. DONE AND ENTERED this 16th day of August, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 16th day of August, 1999.
The Issue The issue in this case is whether Respondent is guilty of operating as a broker or salesperson without holding a valid and current license as a broker or salesperson, in violation of Sections 475.25(1)(a) and 475.25(1)(e), Florida Statutes.
Findings Of Fact Respondent was licensed as a real estate salesperson in the State of Florida and held license number 0443677. She placed her license with Active One Realty, Inc. in 1990 for two months in the spring and, after a brief interval during which her license was not with Active One, one month in the early summer. Each time, Respondent terminated her license with Active One. On September 4, 1990, Respondent again placed her license with Active One. Respondent worked as a 100% commission agent. She retained 100% of the commission earned by her broker on sales or purchases on which she participated. In return, Respondent paid Active One $150 monthly and $100 per closed transaction. In late October, 1990, Respondent informed her broker that she had purchased a daycare center, which was taking a lot of her time. Accordingly, Respondent wanted again to terminate her license with Active One. The broker and Respondent agreed that her last day of work would be November 5, 1990. The broker offered to return a $450 deposit to Respondent, but she asked that the broker retain it until she returned to Active One, as she intended to do. Respondent terminated her license with Active One effective November 6, 1990. Since that date, Respondent's license has continuously been on current inactive status, meaning that she may not engage in real estate activities for which a license is required. By letter to Respondent dated November 8, 1990, Active One confirmed the effective date of the termination. The letter contains a copy of a completed form informing Petitioner of the termination of the license. On November 26, 1990, Respondent prepared a standard contract for sale and purchase in connection with a proposed purchase of real property by her husband. Respondent completed the portions of the contract showing the buyer's name, purchase price, and mortgage information. Respondent delivered the contract, together with a business card showing Respondent as a salesperson with Active One, to another salesperson who was employed by the broker representing the sellers. Respondent also signed the contract as a cooperating broker on behalf of Active One. Prior to the sellers' execution of the contract, which had already been signed by Respondent's husband, Respondent informed the sellers' agent that certain provisions of the contract needed to be changed. The sellers' salesperson prepared another contract, which Respondent's husband signed December 2, 1990. Over Respondent's objection, the sellers' salesperson insisted that the contract contain an addendum stating that Respondent would be participating in the commission and her spouse was the buyer. Respondent's husband, as buyer, also signed the addendum on December 2. Respondent failed to inform Active One of the contract, which the sellers signed on December 8, 1990. The closing was set for no later than January 30, 1991. Active One learned of the contract by chance. An employee of the title company writing the title insurance noticed the name of Active One on the contract. He mentioned the fact to his wife, who is a broker with Active One. When the broker called Respondent and asked her why she was writing a contract when she was no longer licensed, Respondent said only that she had not realized that she was not licensed.
Recommendation Based on the foregoing, it is hereby recommended that the Florida Real Estate Commission enter a final order determining that Respondent violated Sections 475.42(1)(a) and, thus, 475.25(1)(e), Florida Statutes, issuing a reprimand, and imposing an administrative fine of $1000. RECOMMENDED this 17th day of June, 1992, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1992. COPIES FURNISHED: Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Steven W. Johnson, Senior Attorney Department of Professional Regulation Division of Real Estate P.O. Box 1900 Orlando, FL 32802 Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Poornawatie Tiwari 9916 N.W. 9th Ct. Plantation, FL 33322
The Issue Whether or not Petitioner may be issued a 2-COP License to operate a business to be known as the 101 Club located at 424 North 11th Street, Palatka, Florida.
Findings Of Fact On September 21, 1987, Petitioner, Johnnie Lee Simmons, submitted a completed application for a new permanent and temporary 2-COP (beer and wine) alcoholic beverage license(s) to the Respondent, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (DABT) at DABT's Gainesville, Florida District Office. The application involved the proposed "101 Club, located at 424 North 11th Street, Palatka, Putnam County, Florida." At the time Petitioner submitted the application(s) he was issued a temporary ninety-day license, numbered 64-00378. By the terms on the face of this first or initial temporary license, it expired on December 19, 1987. This first or initial temporary license likewise indicated on its face that it would expire upon disapproval of the pending permanent license application. The application listed Willie Lee Simmons, Sr., the Petitioner's father, as having a direct interest in the "101 Club" through a personal loan of $1,000.00 by which Petitioner would finance the "101 Club". Also in the Personal Questionnaire portion of the application, Petitioner admitted that he and his father had once held beverage license number 64-00029 for the "Palatka Blue Diamond", a bar previously located at the same address and location as the proposed "101 Club", and further admitted that the prior license had been revoked. Other "Personal Questionnaires" were also submitted simultaneously with, and as part of, the initial application. These had been completed by Petitioner's wife; the father, Willie Lee Simmons, Sr.; and Willie Lee Simmons, Sr.`s wife because the property at 424 North 11th Street, Palatka, Florida is owned together by these four family members. Petitioner and his father, Willie Lee Simmons, Sr., were formerly co- license holders for the "Palatka Blue Diamond". The revocation of that prior license was based upon Department of Business Regulation, Division of Alcoholic Beverage Control v. Willie Lee and G. L. Simmons d/b/a Palatka Blue Diamond, DOAH Case No. 83-3023, resulting in a July 12, 1984 Final Order, which was upheld on appeal to the First District Court of Appeal in Simmons v. Department of Business Regulation, Division of Alcoholic Beverages, 465 So.2d 578 (Fla. 1st DCA 1985). The First District Court of Appeal found, "[T]here was competent substantial evidence to support the hearing officer's findings that the underlying violations had occurred. We also conclude there was sufficient evidence of flagrant, persistent and recurring violations from which the hearing officer could infer that the licensees failed to supervise the premises in a reasonably diligent manner and thus, were culpable." Significant and material undisturbed findings of fact contained in the underlying Recommended Order of that case were that "Respondents did keep a public nuisance on the licensed premises by maintaining it as a place visited by persons for the unlawful use or sale of a controlled substance [marijuana], in violation of Section 823.10, F.S." The hearing officer specifically found that although Petitioner might not have been on the premises of the "Palatka Blue Diamond" when drug sales and gambling were going on, he surely knew about these activities from conversations with his wife who tended bar there. When Petitioner submitted the initial license application for the "101 Club" on September 21, 1987, Sgt. Homer Scroggin, DABT Supervisor of the Gainesville Sub-District, already knew the Petitioner and had knowledge about the revocation proceedings against Petitioner's prior license for the "Palatka Blue Diamond". He led Petitioner to believe that the prior revocation would not impede the new license application for the "101 Club", but he made no specific promise or guarantee of licensure. On December 1, 1987, seventy-one days after receiving Petitioner's application, DABT issued a written request to Petitioner for information concerning an alleged arrest in North Carolina. Subsequently, on December 16, 1987, DABT issued Petitioner a Notice of Intent to Disapprove his application for permanent licensure for failure to furnish information on the alleged North Carolina arrest. On December 23, 1987, ninety-three days after the license application and four days after the first temporary license had expired, but prior to the agency's completing its background checks, DABT's Gainesville office issued Petitioner the second of five temporary licenses. Also on that day, Petitioner signed a waiver, reading: I, Johnnie Lee Simmons, do hereby wave [sic) the 90 day period for my beverage license Sgt. Scroggin testified that if the Petitioner had not signed the foregoing waiver, he, Sgt. Scroggin, would have denied the Petitioner's application for a permanent 2-COP license at that point in time, December 23, 1987, because DABT cannot grant a license without receiving information concerning fingerprints and that information had not arrived. While it is clear that Sgt. Scroggin, told this to Petitioner, thereby inducing him to sign the waiver, the statement itself is erroneous and not credible because the thrust of the entire remainder of Sgt. Scroggin's testimony, the greater weight of the documentary evidence, and much of the testimony of DABT Licensing Bureau Chief, Barry Schoenfeld, is that Sgt. Scroggin's recommendations from the District are not binding on the Bureau of Licensing, located in Tallahassee, that the ultimate decision to grant or deny an application is made by Schoenfeld unless a prior revocation is involved, and that in unusual circumstances, such as appearance of a prior revocation history, an entire committee review procedure, culminating in the signature of the Director of DABT, Leonard Ivey's signature, was in place, and that in each alternative situation, Sgt. Scroggin was only the first recommender.1/ Moreover, the specific terms of the December 16, 1987 Notice of Intent to Disapprove is contrary to Sgt. Scroggin's December 23, 1987 statement to the Petitioner/applicant. That document provided, in pertinent part: The purpose of this letter is to notify you of our intention to recommend disapproval of your application for a license as referenced above. We are giving you ten (10) days in which to correct the deficiencies or supply additional documentation to correct the reason(s) for the recommended disapproval as indicated on the reverse of this letter. The response must be received or postmarked no later than ten (10) days from the date of this letter. If you have not complied within this time period the application will be sent to the Bureau of Licensing and Records in Tallahassee to be disapproved. No amendments or supplements will be accepted after this ten (10) day period unless specifically requested by the Division. Any documentation submitted after this period will be returned. XXX The application is deficient as indicated: 14 day letter was sent to applicant requesting disposition on case #FL0540000 Offense #4999, to date we have not heard from applicant as to his ability to clear up this matter. 14 day letter was dated on December 1, 1987. Despite the agency's characterization of this December 16, 1987 document (R-4, page 2), as an "intent to disapprove/deny," it is clearly nothing more than a repeated untimely agency request for the same information already untimely requested on December 1 (R- 4, page 1; see Finding of Fact No. 6, supra.) It is an untimely request for information, and not a denial of the permanent application. It also is clearly misleading to the applicant concerning his rights with regard to time limits which had become effective by operation of law. It specifically represents that Petitioner had until December 25 to prevent denial of his application, when in fact, the 90-day statutory period starting with the initial application date would lapse on December 20. It is also noted that Schoenfeld and Scroggin agreed, with regard to a subsequent Notice of Intent to Disapprove, that such a notice does not constitute final agency action; therefore, it is clear that both these notices in December, 1987 could not be "final" either. For these reasons and for the reasons set forth in the following Conclusions of Law, Sgt. Scroggin's statement was an erroneous legal conclusion, which either by error or design misled the Petitioner. Sgt. Scroggin also led Petitioner to believe that a backlog in license processing was the reason he needed the waiver signed. Petitioner was subsequently issued three more temporary licenses on March 31, 1988, June 30, 1988, and September 27, 1988. All five temporary licenses clearly notified Petitioner that they expired 90 days from issuance and would expire if the permanent license application were disapproved. The December 23 license lapsed March 22, nine days before the issuance of the March 31 license. The March 31 license lapsed June 28, two days before the June 30 license was issued. All the temporary licenses were issued without fee and permitted Petitioner to continue to operate his bar/nightclub, the "101 Club", pending further license processing which included out of state arrest inquiries, FBI fingerprint processing, and further background checks. Approximately January 22, 1988, the criminal background checks on all four members of Petitioner's family were completed and determined to be no impediment to licensure. On February 4, 1988, Sgt. Scroggin recommended that Tallahassee DABT approve the Petitioner's application and that it issue the requested permanent license. On or about May 18, 1988, Sgt. Scroggin received a memorandum from Mr. Schoenfeld questioning Sgt. Scroggin's February 4 favorable recommendation. Sgt. Scroggin then reconsidered and recommended that Petitioner's application should be disapproved for several reasons. At formal hearing, however, Sgt. Scroggin was unable to provide any evidence supportive of the allegations/reasons contained in this disapproval recommendation. Rather, and contrariwise to those allegations, Sgt. Scroggin admitted that his Gainesville office had received no complaints of any kind relating to the "101 Club" during the 15 months it had operated on its five temporary licenses; that he had, subsequent to his disapproval recommendation, determined that only one police incident report involving the "101 Club" had ever been made; and that that single report had been made by a customer whose boyfriend had slapped her. The DABT witnesses concede that this incident report does not reflect badly in any way on any "101 Club" principal and would not preclude issuing the license. On August 4, 1988, DABT sent Petitioner its "Amended Notice of Intent to Disapprove," naming Petitioner's prior "Palatka Blue Diamond" license revocation as the reason for disapproval. By the terms of that Amended Notice, and in response to it, Petitioner's attorney timely submitted further information, and Sgt. Scroggin, untimely, but by August 19, 1988, advised Tallahassee DABT in favor of licensure approval due to the results of his check of local police incident reports. On September 27, 1988, the fifth temporary license was issued to Petitioner with the approval of Tallahassee DABT. On December 1, 1988, Tallahassee DABT issued its final "Notice of Disapproval," citing the prior license revocation and Petitioner's and his father's lack of good moral character as the only reasons for the license denial. The record as a whole clearly shows that the only unfavorable evidence of moral character that DABT had before it with regard to this license application arose out of the prior license revocation 4-5 years before. Petitioner/applicant, Johnnie Lee Simmons, is 40 years old. He has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) of any offense against the beverage laws of Florida, the United States, or any other state; has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) in this state or any other state or the United States of soliciting for prostitution, pandering, letting premises for prostitution, keeping a disorderly place, or illegally dealing in narcotics; and has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) of a felony in this state, or the United States. Willie Lee Simmons, Sr., Petitioner/applicant's 58 year old father and an interested party, also has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) of any offense against the beverage laws of Florida, the United States, or any other state; has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) in this state or any other state or the United States of soliciting for prostitution, pandering, letting premises for prostitution, keeping a disorderly place, or illegally dealing in narcotics; and has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) of a felony in this state, or the United States. Upon the testimony of Dorothy Carter, accountant- bookkeeper for, and long-time friend of, all the Simmons family members, the testimony of Sgt. Scroggin, and admissible hearsay statements of Palatka Chief of Police Hill and Assistant Chief of Police Rowe (P-12), it is found that as of the date of formal hearing, Petitioner and his father respectively have good reputations for honesty, fair dealing, and personal character in the Palatka, Putnam County community. Both men are reputable and responsible business persons, each employing between 25 and 40 migrant laborers. They pay their taxes. They have established credit. Further, upon the record as a whole, it is found that the Simmons father and son, between them, support three Palatka city-league baseball teams and are also engaged in other activities which benefit the community with an emphasis on youth. Also, Johnnie Lee Simmons, the applicant/Petitioner, has long been active in the local chapter of the NAACP and served two years as its President. In so finding, the undersigned has assessed Mrs. Carter's credibility in several respects. First, it is recognized that as a social friend and business associate of all the Simmons family members, her view of them is favorably weighted by that association. Second, her view of the prior license revocation is also affected in their favor by their business and social association. Mrs. Carter has, in her own mind at least, minimized the importance of the prior license revocation by her belief that all wrongdoing in the "Palatka Blue Diamond" occurred while the Simmons men were out-of-town, for the purpose of transporting laborers to northern farms and while they were not physically within the licensed premises providing active management. This belief of Mrs. Carter is directly contrary to the responsibilities imposed by statute, rule, and case law upon beverage licensees who are required to know and to monitor affairs on their premises, but it is accurate in terms of the factual absence of applicant/Petitioner's absence from the "Palatka Blue Diamond" at times crucial to the prior revocation. However, third, and most importantly, it is found that Mrs. Carter was testifying concerning the status of the Simmons mens' affairs, conduct, and character in 1989, 6-7 years after the prior revocation events, 4-5 years after actual revocation, and at a time when other evidence confirms that Petitioner and his father have centralized all their business and community activities within the Palatka community. The moral character of the principals approximately 5 years after the prior revocation, at the time of the new application and the de novo formal hearing, is material and persuasive. Mrs. Carter, as a long-time local resident, has had opportunity and reason to know the current situation, and her testimony that the Simmons father's and son's character (based on her own experience and opinion) is now "good" is credible and unrefuted. Moreover, her conclusion with regard to their good character and reputation (arising from word of mouth in the community) is reinforced by Sgt. Scroggin's investigation and ultimate favorable recommendation, which in turn was based on the customary predicate for "reputation in the community". Mrs. Carter's evidence of current good character is direct and unrefuted. Sgt. Scroggins' testimony is in the nature of reputation testimony but is bolstered by his personal examination of the police incident reports and corroborates the statements/opinions of Palatka's Chief and Assistant Chief of Police, which, though hearsay, are admissible pursuant to Section 120.58 F.S. Sgt. Scroggins' and the officers' opinions are consistent as to reputation with Mrs. Carter's unrefuted opinion as to character.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Business Regulation, Division of Alcoholic Beverages, issue a Final Order confirming that the permanent 2 COP beverage license was issued to Petitioner pursuant to operation of law on December 20, 1987. DONE and ENTERED this 5th day of September 1989, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1989.
Findings Of Fact At all times relevant and material to this proceeding, the Respondent, Willie Marion Ware (Licensee), held license number 74-00564, series 2-COP, authorizing him to sell alcoholic beverages on the premises doing business as Silver Shadow, located at 918 S. Adelle, Deland, Volusia County, Florida (the premises). Between the dates of July 1, 1989, and October 30, 1991, the Licensee's brother, Earl M. Ware (a/k/a Joe or Little Joe), was a convicted felon. The Licensee's brother, Earl M. Ware, was convicted less than five years ago for selling cocaine inside the licensed premises. The Licensee fully knew that his brother, Earl M. Ware, was and is a convicted felon who is prohibited from being employed as person in charge, bartender, or manager. Contrary to agreements made by Licensee in a previous case with this same charge and despite notice by Deputy Bowman, Licensee has continued to employ his brother, Earl M. Ware, as a person in charge, bartender or manager. At various times relevant to this proceeding, the Licensee's brother, Earl M. Ware, possessed keys to enter the premises and open the locked door to the premises and he opened the premises to the public without any supervision by Licensee or by any other employees. Earl M. Ware worked inside the premises when there were no other employees or the Licensee present inside the premises. In fact, Earl M. Ware was the only person in charge for extended periods of time, particularly on Sundays. The Licensee's brother, Earl M. Ware, worked behind the bar, asked clients what they wanted to drink, retrieved the alcoholic beverage orders, served those alcoholic beverages to clients, charged clients for those alcoholic beverages, and took money from clients for those alcoholic beverages. Between July 1, 1989, and October 30, 1991, the licensed premises were a continuing nuisance. Complaints regarding or involving the premises and its parking lot owned by Licensee were more than double those of the other two licensed premises located within 5 blocks of Licensee's premises. The complaints ranged from possession of drug paraphernalia and sale of narcotics, to armed robbery and attempted murders of law enforcement officers. Deputy Brown, in particular, testified that he purchased crack cocaine right at the front door of the premises. Deputy Brown also observed numerous narcotics transactions taking place inside the premises, while Licensee was inside the premises. Deputy Brown also made several purchases of cocaine in the parking lot of the Silver Shadow when the dealer advised that he was not holding the drugs and he then went inside the Silver Shadow to retrieve the drugs to be sold. Deputy Boltz removed two males under age 21 from the bathroom of the Silver Shadow, one of whom had a gun in his pocket. Deputy Bowman followed up on a complaint by a man who said he was beaten and robbed in the Silver Shadow. Deputy Bowman was advised by "Joe" that a fight occurred and that he had broken it up. The shoe missing from the complainant's foot was found by Bowman in the back corner of the bathroom. Deputy Bowman notified Licensee several times between the dates of July 1, 1989, and October 30, 1991, that the premises was fostering illegal activity, particularly narcotics activity. Every deputy who testified identified multiple occasions when he found containers of cocaine, bags with drug residual, and drug paraphernalia on the premises. They also each smelled marijuana and crack cocaine being smoked on the premises. Licensee was made aware of the incidents and told the law enforcement officers that he couldn't check or control the use of drugs on the premises. The Licensee never contacted the Sheriff's Office and never asked any of the deputy sheriff's specifically assigned to work the area to come inside his premises to enforce any criminal laws. Licensee did not contact the police when he knew that a criminal was hiding the gun used in an attempted murder of a police officer inside the premises. The Licensee denied ever speaking with Deputy Bowman regarding the continued illegal activity inside the premises. According to the Licensee, there is no illegal activity taking place inside the premises. This testimony is simply not worthy of belief. While the Licensee did attend community meetings and did place no trespassing signs in the adjoining parking lot, he had never asked any law enforcement officer to remove anyone from his premises. The Licensee acknowledged that he did not feel it was his duty to police his premises and identify persons who are engaging in illegal activity to the law enforcement authorities. According to the Licensee, that was the job of the police, and not his responsibility. In DABT Case No. AY74870121, Licensee's license was suspended and fined for multiple instances of the sale of crack cocaine on the premises by Earl M. Ware and for keeping an establishment used by persons using controlled substances and thereby deemed a public nuisance. The Final Order in that case was entered on May 25, 1989. In that proceeding, Licensee made various assurances regarding the exclusion of Earl M. Ware from the premises and the implementation of various devices meant to discourage and prevent any sale and use of drugs on the premises. Despite that Final Order and the terms thereof, the proof in this case shows that these same violations continued from July 1, 1989, to November 1, 1991, without cease.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a Final Order and therein: Find that the Licensee, Willie Marion Ware, is guilty of the first count of employing a convicted felon. Find that the Licensee is guilty of the second count of maintaining a nuisance. Find that the previous conviction history of this Licensee for similar offenses is a sufficient aggravating factor to exceed the penalty guidelines Revoke license No. 74-00564, Series 2-COP, issued to Willie Marion Ware d/b/a Silver Shadow. DONE and ENTERED this 29th day of September, 1992, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-3333 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, DABT 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-6(1-6); 7-10(6-9); 11-16(9-14); 17(18); and 18-22(21-24). COPIES FURNISHED: Richard W. Scully, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, FL 32399-1000 Donald D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 Monica Atkins White Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Reginald Moore Attorney at Law Post Office Box 1848 Daytona Beach, FL 32115-1848
