05-002408 Stephen M. Morris vs. Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering Status: Closed Recommended Order on Friday, December 30, 2005.

Summary: Respondent properly denied Petitioner`s application for a pari-mutuel wagering license based on his three felony convictions and his failure to establish rehabilitation and demonstrate present good moral character.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHEN M. MORRIS, )

)

Petitioner, )

)

vs. ) Case No. 05-2408

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF PARI-MUTUEL )

WAGERING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on November 17, 2005, in Deland, Florida, before Carolyn S.

Holifield, a duly-designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Stephen M. Morris

162 Warren Avenue

New Smyrna Beach, Florida 32168

For Respondent: Stefan Thomas Hoffer, Esquire

Department of Business and

Professional Regulation

Division of Pari-Mutuel Wagering

1940 North Monroe Street

Tallahassee, Florida 32399-2202

STATEMENT OF THE ISSUES

The issues are: (1) whether Petitioner is qualified for a

pari-mutuel wagering occupational license as a greyhound owner;

and, (2) whether Petitioner is entitled to waiver of the

provisions in accordance to Chapter 550, Florida Statutes (2004).

PRELIMINARY STATEMENT

By letter dated June 14, 2005, Respondent, Department of

Business and Professional Regulation, Division of Pari-Mutuel

Wagering (Division), notified Petitioner, Stephen M. Morris

(Petitioner), that his application for a pari-mutuel wagering

occupational license as a greyhound owner and request for waiver

were denied. According to the letter, the basis of the denial

was Petitioner's criminal record, which consisted of the

following three felony convictions: (1) possession and sale of

a controlled substance, (2) trafficking in controlled substance

(cannabis) in excess of 100 pounds and carrying a concealed

firearm, and (3) dealing in stolen property. With regard to the

application and waiver request, the denial letter also stated

that the "application and waiver package does not sufficiently

establish rehabilitation and present good moral character."

Petitioner timely challenged the denial of his application and

the request for waiver and requested a formal hearing.

On or about July 5, 2005, the matter was forwarded to the

Division of Administrative Hearings to conduct a formal hearing.

By notice issued September 15, 2005, the final hearing was

scheduled for November 17, 2005.

At the final hearing, Petitioner presented the testimony of

David J. Roberts, director of the Division, and Stephen E.

Toner, an investigator with the Division. Petitioner offered

and had four exhibits received into evidence. The Division

presented the testimony of Stephen E. Toner and had four

exhibits received into evidence.

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

The Division timely filed a Proposed Recommended Order on

December 9, 2005. Petitioner did not file a proposed

recommended order, but on December 14, 2005, filed a letter

which stated that the Division should issue a pari-mutuel

wagering license to him.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at

hearing, the following Findings of Fact are made:

1. Petitioner, Stephen M. Morris, submitted an application

for a pari-mutuel wagering occupational license as a greyhound

owner on or about February 24, 2005.

2. On his application for a pari-mutuel wagering

occupational license, Petitioner accurately reported that he had

been convicted of the following three felonies: (1) possession

and sale of a controlled substance, (2) trafficking in

controlled substance (cannabis) in excess of 100 pounds, and

(3) dealing in stolen property. The foregoing felony

convictions were in or about 1976, 1984, and 1993, respectively,

and were the result of offenses that occurred in Florida.

3. Due to Petitioner's felony convictions, as noted in

paragraph 2 above, his application for a pari-mutuel wagering

occupational license was subject to denial. Consequently, on

February 24, 2005, in addition to his application for a

pari-mutuel wagering occupational license, Petitioner also

requested that a waiver be granted so that he could obtain the

license.

4. Petitioner's application and his request for waiver did

not include any information which would establish his

rehabilitation or demonstrate that he has good moral character.

5. As part of the Division's review of Petitioner's

request for waiver, on or about April 5, 2005, Mr. Toner

interviewed Petitioner. During the interview with Mr. Toner,

Petitioner had the opportunity to present information that

established his rehabilitation and demonstrated his present good

moral character, but he did not produce such information.

6. In light of the information regarding Petitioner's

felony convictions, which are undisputed and included in

Petitioner's application, Petitioner does not meet the

eligibility requirements for the license which he seeks.

7. By Petitioner's own admission, he was convicted of the

felony offenses noted in paragraph 2 above. The number of

felony convictions and the times that the offenses were

committed, show a pattern of serious criminal behavior and

recidivism.

8. Petitioner may be rehabilitated and may have present

good moral character. However, Petitioner did not testify at

the final hearing and presented no evidence that he has been

rehabilitated and has present good moral character. Absent from

the record is any testimony from Petitioner or from Petitioner's

friends, relatives, business associates, employers, or church

members regarding Petitioner's good conduct and reputation

subsequent to the date of his last felony conviction.

9. In absence of any evidence that Petitioner has been

rehabilitated and has present good moral character, the Division

has no basis to grant Petitioner a waiver.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Section 120.569 and Subsections

120.57(1), Florida Statutes (2004).

11. The Division is authorized to issue or deny

pari-mutuel wagering occupational licenses pursuant to Section

550.105, Florida Statutes (2004).

12. As an applicant, Petitioner has the burden of proving

he is entitled to the license he seeks. Florida Department of

Transportation v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA

1981). Petitioner has failed to meet that burden.

13. The reasons for which the Division may deny an

applicant a pari-mutuel wagering occupational license are

enumerated in Subsection 550.105(5)(b), Florida Statutes (2004),

which provides in relevant part the following:

[T]he division may deny suspend, revoke,

or declare ineligible any occupational

license if the applicant for such license

has been convicted in this state, in any

other state, or under the laws of the United

States of a capital felony, a felony, or an

offense in any other state which would be a

felony under the laws of this state

involving arson; trafficking in, conspiracy

to traffic in, smuggling, importing,

conspiracy to smuggle or import, or

delivery, sale, or distribution of a

controlled substance; or a crime involving

lack of good moral character. . . .

14. Here, the Division denied Petitioner's application for

a pari-mutuel wagering occupational license based on the fact

that Petitioner had three felony convictions.

15. The evidence established that Petitioner was

convicted of three felonies. Petitioner does not dispute that

he was convicted of possession and sale of a controlled

substance, trafficking in a controlled substance, and dealing in

stolen property and was forthright in listing these convictions

on his application. Based on these convictions, the Division

has established a valid basis for denial of Petitioner's

application for a pari-mutuel wagering occupational license.

See § 550.105(5)(b), Fla. Stat. (2004).

16. Petitioner's felony convictions are not necessarily a

permanent bar to his obtaining a pari-mutuel wagering

occupational license. Pursuant to its rulemaking authority

granted in Subsection 550.0251(3), Florida Statutes (2004), the

Division adopted Florida Administrative Code Rule 61D-5.006,

which allows applicants for occupational licenses, who are

subject to denial based on felony convictions, to seek a waiver

of denial from the Division director.

17. Florida Administrative Code Rule 61D-5.006 provides in

pertinent part the following:

Waiver of Criminal Convictions or Other

Offenses.

(1) Any applicant for an occupational

license who is subject to denial on the

basis of a criminal conviction or discipline

by any racing jurisdiction may seek a waiver

from the division director. The applicant

shall submit an Individual Occupational

License Application BPR Form 15-027,

incorporated by Rule 61D-10.001, Florida

Administrative Code, the annual license fee

and fingerprint fee, a complete set of

fingerprints on a card supplied by the

division, and a Request for Waiver BPR Form

15-022, incorporated by Rule 61D-10.001,

Florida Administrative Code. The applicant

must also schedule a waiver interview with

the Bureau of Investigations. Failure to

participate in a waiver interview or to

disclose any pertinent information regarding

convictions, rulings, revocations or denials

from other jurisdictions will result in a

denial of the request for waiver.

(2) The applicant must establish

rehabilitation and must demonstrate present

good moral character. The waiver applies to

convictions or enforcement actions disclosed

to the division, unless revoked by the

division for violation of Chapter 550,

Florida Statutes, or these rules.

18. Notwithstanding Petitioner's felony convictions,

pursuant to Florida Administrative Code Rule 61D-5.006, quoted

above, the Division director may grant Petitioner a waiver.

However, in order to obtain such waiver, Petitioner "must

establish rehabilitation and demonstrate present good moral

character."

19. In the instant case, Petitioner did not testify and

presented no evidence regarding his rehabilitation or present

good moral character. Therefore, the record is completely void

of any evidence or testimony regarding Petitioner's employment

records or any other activities subsequent to his felony

convictions that establish that he is rehabilitated.

Furthermore, Petitioner presented no evidence that demonstrates

his present good moral character.

20. In light of the foregoing, Petitioner failed to meet

his burden of proof and, thus, he is not entitled to the

pari-mutuel wagering occupational license under the waiver

provisions of Florida Administrative Code Rule 61D-5.006.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that Respondent, Department of Business and

Professional Regulation, Division of Pari-Mutuel Wagering, enter

a final order denying Petitioner, Stephen M. Morris',

application for a pari-mutuel wagering occupational license and

his request for waiver.

DONE AND ENTERED this 30th day of December, 2005, in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of December, 2005.

COPIES FURNISHED :

Stefan Thomas Hoffer, Esquire

Department of Business and

Professional Regulation

Division of Pari-Mutuel Wagering

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Stephen M. Morris

162 Warren Avenue

New Smyrna Beach, Florida 32168

David J. Roberts, Director

Division of Pari-Mutuel Wagering

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Josefina Tamayo, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the final order in this case.