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.
Findings Of Fact Petitioner, Department of Professional Regulation, Division of Real Estate (Department), is a state governmental licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Jeffrey D. Ahl, is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0155081. The last license issued was as a broker-salesperson, c/o Data Pak Systems & Services, Inc., 1050 South Federal Highway, Delray Beach, Florida 33483. On September 12, 1991, respondent was found guilty of eleven counts of lewd assault, a second degree felony, in violation of Section 800.04(1), Florida Statutes. The Circuit Court of Palm Beach County, Florida, adjudicated the respondent guilty on each count and committed the respondent to the Palm Beach County Jail for a term of 364 days, followed by a term of probation of 10 years. Notwithstanding his conviction on September 12, 1991, it was not until March 13, 1992, that respondent, through his attorney, informed petitioner of his conviction of the aforesaid felony. According to respondent, whose testimony is credited, the myriad of personal problems that befell him during this time period, including the remorse he was suffering, his divorce, a foreclosure, and his conviction, preoccupied his mind such that he overlooked his obligation to notify petitioner upon his conviction. Notably, respondent did not practice such profession following his conviction, and upon receipt of the renewal notice for his broker's license immediately recognized his oversight and had his attorney promptly inform petitioner of his conviction. Respondent served eight months and one week of his 364-day sentence in the Palm Beach County Jail, and was released from custody in May 1992. Currently, pursuant to the court's commitment order, respondent is on probation for a term of 10 years, the first year of which he is under community control. So controlled, respondent is required to report to his probation officer every Monday and secure approval of his weekly schedule of activities. Except for work, church and two hours of shopping each week, respondent is confined to his residence. Following successful completion of community control, respondent will be on a more relaxed form of probation, with monthly reporting to his probation officer. The court's commitment order further required that respondent continue psychological/psychiatric treatment, pay any medical expenses for his daughter's psychological/psychiatric treatment, and remain current on his child support payments. Respondent has duly abided by such obligations. The offense for which respondent stood convicted involved the touching and fondling of his daughter during times when he believed her to be asleep. Such activity occurred during the period of time she was 9 to 13 years of age, and ceased in approximately 1986, when respondent realized his daughter knew what was occurring. Disclosure of his activities apparently occurred in September 1990, during the course of his divorce proceedings. Upon disclosure of what had occurred, respondent was referred by the Department of Health and Rehabilitative Services to Helen Bush, a marriage, family and sex therapist, for counseling. Since such initial referral in September 1990, respondent has been regularly and responsibly counseled through Ms. Bush, except for that period of time in which he was incarcerated. In the opinion of Ms. Bush, which is credited, respondent suffers from a psychological disorder, regressed pedophilia, which, precipitated by stress, was the cause for his misconduct towards his daughter. Such disorders are treatable and where, as here, the offender is genuinely remorseful about what occurred, has the motivation to rehabilitate himself, and the support of his family, the likelihood of respondent being successfully treated is great. Currently, respondent has remarried, and continues to fulfill his responsibilities to continue treatment and to remain current in his support obligations. It is respondent's desire to once again practice as a real estate broker so that he might reasonably support his new family, as well as remain current with his obligations, and he would like to associate himself with William W. Harris, another licensed real estate broker. Mr. Harris testified at hearing, is aware of respondent's conviction, and is most amenable to respondent being associated with his office. Considering the quality of proof offered in this case, it is found that, notwithstanding respondent's conviction of a crime involving moral turpitude, respondent possesses the requisite honesty, truthfulness, trustworthiness, good character and good reputation for fair dealing required for licensure as a real estate broker. In reaching such conclusion the seriousness of the offense with which respondent stands convicted has not been overlooked; however, neither has the fact that the conduct which precipitated such offense had its genesis in a psychiatric disorder that is treatable and that respondent is currently experiencing success in such treatment. Under such circumstances, respondent's conviction does not detract from the conclusion that he possesses those worthy attributes of honesty, trustworthiness and fair dealing the public is entitled to expect when dealing with a real estate broker.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered finding respondent guilty of violating Section 475.25(1)(f) and (p), Florida Statutes, not guilty of violating Section 475.25(1)(n), Florida Statutes, and imposing the penalty set forth in paragraph 18, supra. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 8th day of September 1992. WILLIAM J. KENDRICK 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 8th day of September 1992.
The Issue This is a license discipline case in which the Petitioner, by means of a three count Administrative Complaint, seeks to take disciplinary action against the Respondent on the basis of alleged violations of subsections (2), (14), and of Section 475.624, Florida Statutes.
Findings Of Fact The Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Beverly J. Merchant is currently a Florida state certified general appraiser, having been issued license number 000141 in accordance with Chapter 475, Part II, Florida Statutes. The last license issued to Respondent was as a state certified general appraiser with a home address of 548 San Esteban Avenue, Coral Gables, Florida 33146. On January 14, 1994, Graimark/MIG Joint Venture and/or Crown Revenue, Inc., ordered Respondent to perform an appraisal of Sunrise Gardens, an adult congregate living facility (ACLF), in Miami, Florida. On March 31, 1994, the Respondent completed the appraisal of the property. The Respondent's appraisal report made several references to zoning "variances." The use of the term "variances" was reasonable under the circumstances of the subject appraisal. The Respondent's appraisal report stated that the highest and best use of the property was not as an adult congregate living facility (ACLF), but as some other institutional use. Under the circumstances of the subject appraisal, the Respondent provided adequate support to indicate that under the applicable zoning provisions "another institutional use" was probably permissible by variance. The Respondent's appraisal report included a cost approach that utilized a cost factor for "convalescent hospital space," even though the highest and best use was a use other than an ACLF. The use of that cost factor was reasonable under the circumstances of the subject appraisal.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be entered in this case dismissing all charges against the Respondent. DONE AND ENTERED this 5th day of September, 1996, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, 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, 1996.
The Issue Whether Petitioner entered a plea of nolo contendere to a felony thereby triggering the statutory mandate that the Department of State revoke his Security Officer's license for a period set by statute?
Findings Of Fact Chapter 493, Florida Statutes, governs the private security, investigative and recovery industries. The industries were found by the Legislature when it passed Chapter 90-364, Laws of Florida, in 1990, to be "rapidly expanding fields that require regulation to ensure that the interests of the public will be adequately served and protected." Section 493.6100, Florida Statutes. Among the findings announced by the Legislature in the enactment of the chapter was that "persons who are not of good moral character engaged in the private security, investigative or recovery industries are a threat to the welfare of the public if placed in positions of trust." Id. Petitioner, the Department of State, (the "Department") is the agency of the State of Florida conferred with administrative authority under Chapter 493, Florida Statutes. Among its duties are the receipt of applications for Security Officer licenses and their processing (including a background investigation) ultimately culminating in either issuance of the license or denial of the application. After issuance of a license to a new licensee, the Department has authority based on certain grounds to take disciplinary action against the licensee ranging from a reprimand to revocation of the license. Respondent, Louis Palmieri, holds a Class "D" Security Officer License issued by the Department. Bearing the license number D91-04959, the current license has been effective since March 25, 1997. On or about April 7, 1994, in Duval County, Florida, Respondent entered a plea of nolo contendere to the offense of "lewd and lascivious act upon a child," in the Circuit Court of Duval County, Florida, in Case No. 94-2507CF. An order of probation was rendered under which adjudication of guilt was withheld in favor of probation for five years under the supervision of the Department of Corrections. Neighbors and long-time friends of the family of Mr. Palmieri are aware that he entered the plea of nolo contendere to a felony. They are also aware of the nature of the felonious charges and his status as with regard to the criminal case as being "on probation." Still, they hold him in high regard. He is seen as reliable and a good worker. Those who occasionally drive him to work or have seen his workplace were quick to point out that there are no children present at the place where he is currently employed as a security officer. Mr. Palmieri has not shielded his neighbors from his misdeed. In fact, he has confided in them that the circumstances leading to his nolo plea involved exposing himself in public in the presence of a twelve-year old girl. Nonetheless, one of his neighbors, the grandmother of a five year-old girl who frequently cares for the child, stated that she would not hesitate to invite Mr. Palmieri over to her house for dinner in the presence of her granddaughter so long as Mr. Palmieri and the child were never left alone. Despite his neighbor's willingness to issue such an invitation, and to his credit, Mr. Palmieri informed his neighbor that he could not be in the child's presence consistent with the terms of his probation. Mr. Palmieri remains under the supervision of the Department of Corrections to this day. Absent a violation of probation, April 6, 1999, will be the last day of probationary supervision.
Recommendation Based on the foregoing findings of fact and conclusions of law, its is RECOMMENDED: That the Department of State enter a final order revoking the Class "D" Security Officer License of Louis Palmieri, License No. D91-04959, and that he not be able to reapply for a license pursuant to Chapter 493, Florida Statutes, until a period of three years has expired since his final release from supervision, whenever that may be. DONE AND ENTERED this 30th day of April, 1998, in Tallahassee, Leon County, Florida. _ DAVID M. MALONEY Administrative Law Judge Hearings Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1998. COPIES FURNISHED: Douglas D. Sunshine Assistant General Counsel Office of the General Counsel Department of State The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 Cathleen B. Clarke, Esquire Melbourne Financial Centre, Suite 102 1990 West New Haven Avenue Melbourne, Florida 32904 Honorable Sandra B. Mortham Secretary of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250 Don Bell, General Counsel Department of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250 John M. Russi, Director Division of Licensing Department of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250
Recommendation Based on 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 dismissing the charges against respondent, R. Hughes, Inc. d/b/a The Odyssey, contained in the Notice To Show Cause in this case. RECOMMENDED this 6th day of December, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9673 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1984.
The Issue At issue is whether Respondent's Florida real estate license should be disciplined upon charges that: (1) Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction in violation of Section 475.25(1)(b), Florida Statutes, as set forth in Count I of the Administrative Complaint; and (2) Respondent is guilty of having had a registration suspended, revoked, or otherwise acted against in any jurisdiction in violation of Section 475.225(1)(s), Florida Statutes, as set forth in Count II of the Administrative Complaint.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Chapters 455, and 475, Florida Statutes. Respondent, Washington Moises Quinones, is and was at all times material to the Administrative Complaint a licensed Florida real estate salesperson, issued license number 0650737 in accordance with Chapter 475, Florida Statutes. Respondent, Washington Moises Quinones, was also a member of the Florida Bar. On or about August 29, 1997, the Florida Bar petitioned the Florida Supreme Court for an emergency suspension of Respondent's bar license. The petition filed with the Florida Supreme Court reflects that Respondent's "trust records reveal losses which approximate $350,000.00." On or about September 11, 1997, the Florida Supreme Court granted the petition for emergency suspension of Respondent's bar license, and suspended Respondent from the practice of law for the reasons set forth in the Petition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violation Section 475.25(1)(b), Florida Statutes, and 475.25(1)(s), Florida Statutes, as charged in the Administrative Complaint, and that Respondent's real estate license be revoked in accordance with Section 475.25(1), Florida Statutes. DONE AND ENTERED this 8th day of December, 1998, in Tallahassee, Leon County, Florida. RICHARD A. HIXSON 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1998. COPIES FURNISHED: Ghunise Coaxum, Senior Attorney Department of Business and Professional Regulation 400 West Robinson Street, Suite N-308 Orlando, Florida 32801 Washington Moises Quinones 5119 Agora Street Sebring, Florida 33872 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this case are whether Respondent has violated Section 466.028(1)(bb), Florida Statutes, by practicing dentistry without an appropriate, active license to practice dentistry and, if so, what penalty should be imposed for such a violation.
Findings Of Fact Based on the exhibits received in evidence and on the testimony of the witness called at the hearing, I make the following findings of fact. At all times relevant hereto, Respondent, James Wilson, D.D.S., held a dental license, number DN0002819, issued by the State of Florida, Department of Professional Regulation, Board of Dentistry. Respondent was awarded a licensed certificate to practice dentistry in the state of Florida on August 10, 1959, by the Florida State Board of Dental Examiners. Respondent was licensed to practice dentistry in the state of Florida for the 1982/83 biennial period which ended on December 31, 1953. The license of Respondent expired on January 1, 1984. Respondent was advised by Department personnel, on April 23, 1984, that his license was delinquent. Respondent was also advised of the procedures required to renew said delinquent license. Respondent made payment to the Board of Dentistry in the amount of $200 on July 23, 1984, for renewal of his expired license, which payment applied toward the 1984/85 biennial period. The amount of $200 reflects the sum of the renewal charge of $150, plus $50 for his late renewal. Respondent, from the period January 1, 1984, to August 8, 1984, was actively practicing dentistry, during which time his license was expired.
Recommendation Based upon all of the foregoing, it is recommended that the Board of Dentistry enter a Final Order in this case to the following effect: Finding Respondent guilty of a violation of Section 466.028(1)(bb), Florida Statutes, as charged in the Administrative Complaint; Reprimanding Respondent for being guilty of such violation; Imposing an administrative fine in the amount of $250 on Respondent; and Allowing the Respondent 30 days from the date of entry of the final order in this case within which to pay the administrative fine. DONE AND ENTERED this 30th day of September, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1986. COPIES FURNISHED: Nancy M. Snurkowski, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Wilson, D.D.S. 3116 Moncrief Road Jacksonville, Florida 32209 James Wilson, D.D.S. 7145 Dostie Drive East Jacksonville, Florida 32209 Wings Slocum Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Pat Guilford, Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
The Issue By letter dated July 18, 1977 the Division of Alcoholic Beverages and Tobacco disapproved Petitioner's application for transfer of beverage license for the stated reason that corporate officer Anthony DuVal was not believed to be of good moral character. By letter dated July 25, 1977 DuVal contested the denial of the license transfer and requested a hearing. Two witnesses including DuVal testified in behalf of Petitioner, two witnesses were called by Respondent, and 4 exhibits were admitted into evidence.
Findings Of Fact Red Wing Enterprises, Inc., a Florida corporation, acquired ownership of the Red Road Lounge and the beverage license appurtenant thereto. Anthony DuVal and his wife own fifty percent of the stock of Red Wing Enterprises although Exhibit 3 shows DuVal to own one hundred percent of the applicant. Exhibit 3 shows DuVal was born in 1933; he testified that he is now 46. He changed his name to DuVal from Anthony Anello. On his original application, Exhibit 3, under his arrest record DuVal showed arrests in 1961 for FHA fraud and worthless check for which he was placed on probation and in 1965 a conviction for buying receiving, and concealing stolen property for which he was sentenced to one year in the county jail. During the investigation of his application DuVal was questioned at the Miami Division of Beverage office in April, 1977 regarding various arrests. He then denied having been arrested in New Jersey under the name of Anello and had no recall of various other arrests prior to 1960. Exhibit 4, Personnel Questionnaire, was prepared by DuVal with assistance of counsel on December 9, 1977 at the time of his previously scheduled hearing which was then continued until December 15. Exhibit 4 shows 6 worthless check offenses between March and August, 1960 for which he pleaded guilty and was placed on two year's probation; worthless check conviction in 1961 for which he was given probation; PEA fraud conviction 1961, for which he was given probation; a grand larceny charge dismissed for want of prosecution 10-7-63; aggravated assault, 1966 for which he was found not guilty; possession of firearms by a convicted felon, 1966 which was dismissed for want of prosecution; buying, receiving or concealing stolen property, 1965 and 1967 for which he was found not guilty; worthless check, 1967 for which he was found not guilty; buying and receiving or concealing stolen property, 1965, found guilty and sentenced to one year in county jail; and buying and receiving stolen property, 1969 for which he was found not guilty. In his testimony DuVal admitted arrests and convictions in New Jersey under the name of Anello plus numerous arrests from the operation of his store "Tony's Trading Post" in Miami as well as citations for not keeping his property clean of trash. His explanation of Exhibit 3 not including numerous arrests was that he thought only convictions need to be reported. His explanation for not listing the arrests prior to 1960 was that he thought he only needed to go back fifteen years in disclosing his record. DuVal described his trading post as a borderline operation by which he obviously implied that he often bought stolen property but could only take the seller's affidavit that the property was rightfully his to tell. For complaints stemming from this operation he was arrested perhaps 20 times but was not convicted. Numerous other times he was arrested for municipal code violations when trash was dumped on his property. In 1972 DuVal had his civil rights restored that had been -lost by reason of his convictions of the worthless check offenses and FHA fraud in 1961, and for the 1965 conviction of buying, receiving and concealing stolen property. The one witness who testified regarding DuVal's character had worked for DuVal as bookkeeper and bartender when he first took over the Red Road Lounge. Although she testified DuVal's reputation was good and people spoke highly of him, her observations were limited generally to the patrons of the bar. She had never spoken to the police, to patrons of Tony's Trading Post, or to any of the local politicians she knew, about DuVal's reputation. DuVal's explanation for failure to bring in various witnesses whose names he dropped as good friends, was that he didn't want them to know about his criminal record. DuVal owns motels, apartments, the Trading Post, and several lots in Miami in addition to the interest he acquired in the Red Road Lounge.
The Issue Whether Petitioner's application for licensure as a Class "D" Security Officer should be denied on the grounds set forth in the Department of State, Division of Licensing's (Department's) March 26, 1992, letter to Petitioner?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Petitioner is 56 years of age. He has had numerous brushes with the law, many of them alcohol-related, dating back to 1956, but he has never been convicted of a felony. In June of 1956, Petitioner attempted to purchase a beer in Sacramento, California. He was 19 years old at the time and, although in the military, under the legal drinking age. Petitioner was arrested and charged with a misdemeanor violation of California's alcoholic beverage control law. He received a ten-day suspended sentence. In November of 1956, when Petitioner was stationed on a military base in Amarillo, Texas, he and friend, without authorization, went into a room on the base where weapons were stored. They took possession of a .38 calibre firearm and started "playing with it." Petitioner was arrested and charged with the misdemeanor offenses of unlawful entry and wrongful appropriation. He received a bad conduct discharge, which was suspended. After attending a rehabilitation training program, he returned to active military service. In May of 1962, Petitioner was arrested for operating a motor vehicle under the influence of alcohol, a misdemeanor. He was subsequently convicted of the offense. His license was suspended for ten days and he was ordered to pay $25 in court costs. In the early part of 1964, Petitioner, along with several others, charged $700 worth of merchandise in a department store in Indianapolis, Indiana using credit card slips they had forged. Petitioner was arrested and charged with the felony offense of uttering a forged instrument. Adjudication of guilt on this charge was withheld and Petitioner was placed on three years probation. In October of 1968, while in Anderson Indiana, Petitioner was arrested and charged with theft by deception for having written checks in amounts that exceeded the balance of his checking account. The checks were actually written by Petitioner's estranged wife without his knowledge. The charge against Petitioner was dropped after restitution was made. In January of 1969, Petitioner was again arrested in Anderson, Indiana and charged with theft by deception for having written bad checks. These checks were written by Petitioner, but he did not realize at the time he wrote them that, because of his wife's check writing, he had insufficient funds in his account. Adjudication of guilt on this charge was withheld and Petitioner was placed on probation for a year. In February of 1970, Petitioner stayed in a Naples, Florida hotel for approximately three or four days. When he checked out, he did not have enough money to pay his bill. Petitioner was arrested and charged with the misdemeanor offense of defrauding an innkeeper. Less than a week later, Petitioner made restitution and the charge against him was dropped. The following month, while in Miami Beach, Florida, Petitioner was again unable to pay a hotel bill and, as a result, arrested and charged with defrauding an innkeeper. This charge was also dropped after Petitioner made restitution. In May of 1970, Petitioner was arrested and charged with breaking and entering a Naples, Florida restaurant with intent to commit grand larceny. The charge was unfounded and it was subsequently dropped. In January of 1971, Petitioner was driving a motor vehicle in Fort Myers, Florida that had an expired inspection sticker affixed to it. He was stopped by the police and a firearm belonging to a passenger was discovered in the vehicle. Petitioner was arrested and charged with unlawful possession of a firearm and driving a vehicle with an expired inspection sticker. The former charge was dropped. With respect to the latter charge, Petitioner was fined $30 or $35. In October of 1971, Petitioner was arrested in Naples, Florida and charged with writing a worthless check. The check was in the amount of $20 or $25. At the time he wrote the check, Petitioner was unaware that he did not have enough money in his account to cover the check. Petitioner subsequently made restitution and the charge was dropped. In February of 1976, in Lauderhill, Florida, Petitioner was arrested and again charged with writing a worthless check. The amount of this check was less than $50. Petitioner pled guilty to this misdemeanor offense and was fined $10. In addition to paying the fine, Petitioner made restitution. That same month, Petitioner was arrested in Sunrise, Florida and charged with battery on his wife. The charge was unfounded and it was subsequently dropped. In July of 1976, in Fort Lauderdale, Florida, Petitioner was arrested and charged with aggravated assault, assault and battery and petty larceny. All of these charges were unfounded; however, as a matter of convenience and pursuant to a plea agreement, Petitioner pled no contest to the assault and battery charge. Adjudication of guilt on this charge was withheld. Petitioner received a 90-day suspended sentence and a $352 fine, which was also suspended. The remaining charges against Petitioner were dropped. In December of 1977, Petitioner was again arrested in Fort Lauderdale, Florida. On this occasion, he was charged with two counts of writing worthless checks under $50. Petitioner subsequently made restitution and the charges were dropped. In February of 1980, in Jasper, Florida, Petitioner was arrested and charged with driving while intoxicated, speeding, driving without a valid drivers license and refusing to sign a summons. The latter charge was dropped. Petitioner pled guilty to the remaining charges and was adjudicated guilty on these charges by the trial court. For speeding and driving without a valid drivers license, he was fined. For driving while intoxicated, he was also fined and, in addition, his drivers license was suspended and he was ordered to attend DWI school. In May of 1985, in West Palm Beach, Florida, Petitioner was arrested on a Dade County, Florida warrant that had been issued in 1980, when he had been charged with two felony counts of writing worthless checks. The checks had actually been written by Petitioner's daughter. After his arrest, Petitioner made restitution and the charges against him were dropped. In November of 1985, Petitioner was arrested in West Palm Beach, Florida and charged with driving while intoxicated. He pled guilty to this misdemeanor charge. The trial court adjudicated Petitioner guilty and suspended his license for six months and ordered him to attend DWI school. Petitioner has not been in trouble with the law since. He is now a law-abiding citizen, who is better able to control is intake of alcohol. In filling out Section 5 of his application for licensure, which addressed the subject of criminal history, Petitioner did not intentionally make any misrepresentations or omit any required information. It was his understanding that he was required to disclose information relating only to felony convictions in this section of the application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding that Petitioner should not be denied licensure as a Class "D" Security Officer on the grounds cited in the Department's March 26, 1992, denial letter. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of August, 1992. STUART M. LERNER 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 18th day of August, 1992.
The Issue The issue in this case is whether Petitioner is entitled to issuance of an occupational license, pursuant to section 550.105, Florida Statutes.
Findings Of Fact The Parties Petitioner, John A. Short, is an applicant for a general individual occupational license, pursuant to section 550.105(2)(a), which would authorize him to work as a blacksmith and farrier at licensed pari-mutuel facilities in Florida.4/ Respondent is the state agency charged with issuing occupational licenses to employees of pari-mutuel wagering facilities in the state of Florida pursuant to chapter 550. Petitioner's Application for Occupational License and Waiver On December 11, 2017,5/ Petitioner filed with Respondent DBPR PMW-3120, Individual Occupational License Application, seeking to obtain a pari-mutuel wagering general individual occupational license. Also on December 11, 2017, Petitioner filed DBPR PMW-1380, Request for Waiver, seeking a waiver, pursuant to section 550.105(5)(c) and rule 61D—5.006, of disqualification from occupational licensure under section 550.105(5)(b) on the basis of a felony conviction. In his license application filed on December 11, 2017, Petitioner disclosed that he had a prior felony conviction that was adjudicated on September 22, 1998, in Jefferson County, Kentucky.6/ Subsequently, on March 5, 2018, Petitioner filed an amended application page on which he disclosed two other criminal offenses: receiving stolen property, and possession of marijuana. Both of these offenses, which were misdemeanors, were adjudicated on November 24, 1991, in Kentucky. On June 13, 2018, Petitioner participated in a waiver interview conducted by Respondent, as required under rule 61D-5.006. At the interview, Petitioner disclosed that he had several other criminal convictions, some of which had not been listed on his license application. In the Denial Letter, Respondent notified Petitioner that it was denying his application on the basis of his felony conviction for third degree assault on a police officer and his failure to disclose all of his convictions on his license application. Respondent also notified Petitioner that it was denying his request for a waiver. Evidence Adduced at the Final Hearing As noted above, Petitioner is a blacksmith and farrier, and he currently works in that trade in Florida, where he now resides full time. Specifically, Petitioner works with Marshall Hudson, also a blacksmith and farrier, who is a subcontractor to the Wellington Equestrian Federation at Equestrian Sport Productions in Wellington, Florida. Petitioner has worked with Hudson for four or five seasons, shoeing horses of many different breeds, including thoroughbreds, quarter horses, standardbreds, walking horses, saddlebreds, and carriage horses, at the barns, showgrounds, and other venues at which the horses are located. The competent, credible evidence establishes that Petitioner is, or has been, licensed by the Kentucky Horse Racing Commission as a blacksmith and farrier over a period of several years,7/ with the exception of a short period in 2016 during which his license had lapsed. Pursuant to his Kentucky occupational license, Petitioner is, or has been, authorized to conduct his trade at licensed racing facilities in Kentucky, including Churchill Downs and other tracks. Petitioner credibly testified——and no countervailing evidence was presented——that he has never been subject to licensure discipline during the entire time he has been licensed in Kentucky. Petitioner's Criminal Offenses At the final hearing, Petitioner was forthright regarding his criminal record. He testified that he had been convicted of third degree assault on a police officer, a felony, in Jefferson County, Kentucky in 1998,8/ and credibly explained the circumstances surrounding that conviction. His account of that incident provided at the final hearing is consistent with that provided in his June 13, 2018, waiver interview.9/ Petitioner also readily acknowledged that he had been convicted of numerous misdemeanor offenses, some of which have been expunged from his criminal record. These include theft by deception, receiving stolen property, shoplifting, carrying a concealed weapon, possession of marijuana, driving under the influence, and several traffic—related offenses. With the exception of the possession of marijuana and some traffic—related offenses, Petitioner's criminal offenses were committed during the 1990s. His most recent arrest was in 2011, for misdemeanor possession of marijuana, which was resolved by paying a $150.00 fine. Since then, Petitioner has not been convicted of any crimes.10/ There was no evidence presented showing that Petitioner has ever engaged in criminal activity regarding pari— mutuel wagering, gambling, bookmaking, cruelty to animals, or that is a capital offense.11/ Evidence Regarding Petitioner's Character Hudson testified regarding Petitioner's character. He attested that Petitioner is a good person who has a talent for working with horses. He has never known Petitioner to have a conflict with any owner, rider, or veterinarian in connection with any of the horses that Petitioner has worked with over the years. At the final hearing, Petitioner acknowledged that in 2016, he engaged in pari-mutuel work for a short period of time in Kentucky without being licensed. Petitioner's Kentucky Horse Racing Commission occupational license had lapsed while he was not working in—state. He renewed it later that year, but during the time his license had lapsed, he occasionally worked at Churchill Downs in order to make enough money to apply for a new occupational license. On those occasions, he rode into the facility in the truck of another racetrack employee who was licensed, and no one questioned his presence because they knew him from having previously worked there, while he was licensed. He acknowledged that he knew he was legally required to hold a license to gain access to the backside of pari-mutuel racetracks in Kentucky, but testified that it was commonplace for unlicensed persons to work in the backside at Churchill Downs, except on large racing event days. No evidence was presented that Petitioner has ever accessed the backside of, or engaged in activities requiring occupational licensure at, pari-mutuel facilities in Florida while not being licensed to do so.12/ Findings of Ultimate Fact Petitioner's Felony Conviction As discussed above, Petitioner readily acknowledged that he was convicted of third degree assault on a police officer, a felony, in Kentucky in 1998. Respondent is authorized, pursuant to section 550.105(5)(b), to deny Petitioner's application for an occupational license on the basis of his felony conviction. Waiver of Disqualification from Licensure Section 550.105(5)(c) authorizes Respondent to waive licensure disqualification under section 550.105(5)(b) if "the applicant establishes that she or he is of good moral character, that she or he has been rehabilitated, and that the crime she or he was convicted of is not related to pari—mutuel wagering and is not a capital offense." As discussed above, there is no evidence showing that Petitioner has been convicted of any crime involving pari—mutuel wagering or that is a capital offense. Therefore, the question becomes whether the preponderance of the evidence shows that Petitioner is rehabilitated and of good moral character such that, pursuant to section 550.105(5)(c) and rule 61D—5.006, he is entitled to a waiver from licensure disqualification. The question whether a person is rehabilitated from his or her criminal conviction primarily focuses on the person's behavior subsequent to committing the offense, rather than focusing solely——or even primarily——on whether the person committed the offenses.13/ As discussed above, Petitioner was forthright in acknowledging that he had committed numerous criminal offenses in the past——one of them a serious felony that, pursuant to statute, has effectively excluded him from obtaining an occupational license. This is his only felony offense, and was committed over 20 years ago. Although Petitioner committed several offenses subsequent to his 1998 felony conviction, they were misdemeanors, the majority of which were committed in the 1990s and many of which subsequently have been expunged from his record. His most recent offense, misdemeanor possession of marijuana, for which he paid a small fine to resolve, occurred in 2011, some eight years ago. There is no evidence that he has engaged in criminal behavior since then. Based on the foregoing, the undersigned finds, as a matter of ultimate fact, that Petitioner is rehabilitated from his 1998 felony in Kentucky, which is the basis on which Respondent has proposed to deny his occupational license application. See J.D. v. Fla. Dep't of Child. & Fams., 114 So. 3d 1127, 1131 (whether an applicant is rehabilitated is an issue of ultimate fact to be determined by the trier of fact). Marshall Hudson, a colleague with whom Petitioner has worked for a few years now, vouched for Petitioner's character. Petitioner testified, credibly, that he has never had any "problems" associated with his work as a blacksmith and farrier. Respondent presented no evidence to the contrary. Petitioner admitted to working without a license in the backside of Churchill Downs in Kentucky for a short time, approximately three years ago. The evidence establishes that he did so because he needed the work in order to make enough money to apply for an occupational license, since his had lapsed while he had not been working in—state. Under these circumstances, it is understandable that Petitioner would accept the opportunity to make money that would enable him apply for an occupational license that would allow him to legally practice his trade. Once Petitioner had earned enough money to obtain an occupational license, he did so. It is further noted that there was no evidence presented that Petitioner has since engaged in the unlicensed practice of his trade in Kentucky or in any other state. The evidence also does not show that Petitioner has ever engaged in the unlicensed practice of his trade at licensed pari—mutuel facilities in Florida. Importantly, too, no evidence was presented showing that Petitioner has ever engaged in conduct involving gambling, bookmaking, or cruelty to animals, and none of his criminal offenses involved pari—mutuel wagering——conduct that would rightfully raise significant concerns as to whether he should be licensed. Based on these considerations, the undersigned determines, as a matter of ultimate fact, that Petitioner is of good moral character for purposes of obtaining a waiver, pursuant to section 550.105(5)(c) and rule 61D—5.006. See Albert v. Fla. Dep't of Law Enf., 573 So. 2d 187 (Fla. 3d DCA 1991)(except where a specific provision of statute has categorically——i.e., absolutely and without qualification—— disqualified an applicant from consideration for licensure, the question of what constitutes "good moral character" is a question of fact to be determined by the trier of fact).14/ Failure to Disclose Criminal History Respondent proposes to deny Petitioner's application on the basis that he did not disclose his entire criminal history, as required by the "Background Information" section of the occupational license application form. The evidence establishes that Petitioner did not disclose his entire criminal history on the application form filed on December 11, 2017, as supplemented on March 5, 2018. However, this is a de novo proceeding designed to formulate agency action, not review action taken earlier and preliminarily. As such, Petitioner was entitled to present, at the final hearing in this proceeding, information regarding his criminal history additional to that provided in his application. At the final hearing, in response to Respondent's questioning in its case in chief, Petitioner testified regarding each criminal offense he had committed. Petitioner's testimony regarding his complete criminal history at the de novo final hearing in this proceeding satisfies the requirement in the occupational license application Background Information section, that his complete criminal history be disclosed. Accordingly, failure to disclose his criminal history is not a basis for denying his application pursuant to section 559.791.
Conclusions For Petitioner: John A. Short, pro se 3701 Quantum Lakes Drive, Suite 109 West Palm Beach, Florida 33426 For Respondent: James A. Lewis, Esquire Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399—2202
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's application for a pari-mutuel wagering occupational license. DONE AND ENTERED this 6th day of August, 2019, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 2019.
