97-000809 Richard E. Parker vs. Florida Land Sales, Condominiums, And Mobile Homes Status: Closed Recommended Order on Tuesday, December 9, 1997.

Summary: Applicant, who showed he had rehabilitated himself since engaging in crime that led to felony conviction, is entitled to licensure as yacht salesperson.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD E. PARKER , )

)

Petitioner , )

)

vs. ) Case No. 97-0809

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

DIVISION OF FLORIDA LAND SALES , )

CONDOMINIUMS, AND MOBILE HOMES , )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in

this case on October 14, 1997, in Tallahassee, Florida, before

Stuart M. Lerner, a duly designated Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Stephen Marc Slepin, Esquire

Slepin and Slepin

114 East Park Avenue

Tallahassee, Florida 33201-2684

For Respondent: Stephen S. Godwin, Esquire

Department of Business and

Professional Regulation

Office of the General Counsel

1940 North Monroe Street

Tallahassee, Florida 32399-1007

STATEMENT OF THE ISSUES

Whether Petitioner's application for licensure as a yacht

salesperson should be granted.

PRELIMINARY STATEMENT

On January 17, 1997, the Department of Business and

Professional Regulation, Division of Florida Land Sales,

Condominiums, and Mobile Homes (Department) issued a Notice of

Intent to Deny License Application, which advised Petitioner of

the following:

You are hereby notified by the Department of

Business and Professional Regulation,

Division of Florida Land Sales, Condominiums,

and Mobile Homes, State of Florida, that the

agency has been presented with evidence

which, if true, is good and sufficient cause

for it, pursuant to chapter 326, Florida

Statutes, to deny your [yacht salesperson's]

license application, and/or take affirmative

action which in the judgment of the Division

will carry out the purpose of chapter 326,

Florida Statutes, said cause being for the

following allegation(s):

1. On September 20, 1996, an application for

a yacht salesperson's license was received

from Richard Parker. Attachments to the

application show he was convicted in the

United States District Court, Southern

District of Florida, of conspiracy to import

cocaine. As such pursuant to Section

326.04(6)(a), [Parker] has failed to

demonstrate good moral character.

2. The application for a yacht salesperson's

license received from Richard Parker failed

to contain all required information. The

Division forwarded a letter noting the

deficiencies to Richard Parker on October 1,

1996. The Division received a response from

John J. Lynch, Esquire, on Richard Parker's

behalf, on December 17, 1996, which corrected

the deficiencies in the application.

The Department's Notice of Intent to Deny License Application

further advised Petitioner of his right to request a Section

120.57(1) hearing on the Department's proposed action. On

February 12, 1997, Petitioner, through counsel, filed with the

Department a request for such a hearing. On February 18, 1997,

the matter was referred to the Division of Administrative

Hearings for the assignment of an administrative law judge to

conduct the hearing Petitioner had requested.

As noted above, the hearing was held on October 14, 1997. 1

Three witnesses testified at the hearing : Peter Butler, head of

the Department's Section of General Regulation; Petitioner; and

Arthur Mass, Esquire, an acquaintance of Petitioner's. 2 In

addition to the testimony of these three witnesses, eleven

exhibits (Joint Exhibits 1 through 5, Petitioner's Exhibits 1

through 5, and Respondent's Exhibit 9) were offered and received

into evidence.

At the conclusion of the evidentiary portion of the final

hearing, the undersigned announced on the record that the

deadline for filing proposed recommended orders was 15 days from

the date of the filing with the Division of Administrative

Hearings of the transcript of the final hearing. The hearing

transcript was filed with the Division of Administrative Hearings

on November 3, 1997. Petitioner and the Department timely filed

their Proposed Recommended Orders on November 24, 1997. In

making the recommendation contained in this Recommended Order,

the undersigned has given careful consideration to these Proposed

Recommended Orders.

Accompanying Petitioner's Proposed Recommended Order was a

document entitled "Petitioner's Post-Hearing Proffer," which

reads as follows:

Petitioner herewith proffers the October 13,

1997 letter to Peter P. Butler, Sr. from

Assistant U.S. Attorney John C. Schlessinger

re: Richard Parker.

Although this letter was purportedly sent to

Mr. Butler that day prior to hearing herein

of 10-14-97, and was supplied to opposing

counsel by letter of 10-15-97,

Schlessinger's October 13, 1997, letter, which was appended to

Petitioner's Post-Hearing Proffer, reads as follows:

I am writing on behalf of Richard Parker, an

applicant for a license before the Dept. of

Business & Professional Regulation.

Mr. Parker sought to cooperate with the

United States Government and the DEA shortly

after his arrest in 1991, and continued to

render assistance in the investigation and

prosecution of persons involved in narcotics

trafficking for a period of several years.

His efforts were outstanding, and included a

mission outside of the United States that was

accomplished at significant personal risk.

As a prosecutor in the case against Mr.

Parker, I participated in numerous

debriefings through which I became well

acquainted with him and can render fair

assessment of this man. It is my sincere

belief that Mr. Parker is a person of good

moral character and would be a credit to the

profession that he now seeks to join. I hope

that in reviewing his application you will

consider his substantial efforts to repay his

debt to society by any means. If you have

any questions about Mr. Parker please feel

free to give me a call . . . .

"Petitioner's Post-Hearing Proffer will be treated as a

motion to reopen the evidentiary record for purposes of receiving

Schlessinger's October 13, 1997, letter into evidence. The

motion is hereby denied inasmuch as the letter contains

inadmissible opinion evidence concerning Petitioner's "good moral

character" and otherwise provides no pertinent information that

the record does not already reveal. See Wyatt v. State , 578 So.

2d 811, 813 (Fla. 3d DCA 1991)("[Section 90.405, Florida

Statutes] does not permit evidence of character to be made by

opinion."); Berry v. Department of Environmental Regulation , 530

So. 2d 1019, 1022 (Fla. 4th DCA 1988)(hearing officer "not

compelled to reopen the hearing to accept . . . testimony" which

"would be merely cumulative of other testimony" that was elicited

at hearing); Southland Corporation v. Anaya , 513 So. 2d 203 (Fla.

1st DCA 1987)("[W]e conclude that there was no abuse of

discretion by the deputy commissioner (dc) in failing to allow

the e/c [employer/carrier] to reopen the case in order that

additional evidence be presented" inasmuch as "[t]he evidence the

e/c sought to introduce was merely cumulative, as considerable

evidence on the same subject had already been introduced at the

hearing.").

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as

a whole, the following findings of fact are made:

1. Petitioner is a 47-year old resident of Hollywood,

Florida.

2. He is married and has a five-year old step-daughter.

3. His wife's father is the minister of the First Methodist

Church in Hollywood.

4. Petitioner is an active member of his father-in-law's

church. In recent years, he has volunteered a significant amount

of his time to perform tasks on behalf of the church.

5. Petitioner is now, and has been since June of 1997,

employed as a salesperson by Rex Yacht Sales (Rex) in Fort

Lauderdale.

6. As a salesperson for Rex, he sells new boats and he also

sells used boats that are 32 feet or less in length. 3

7. Approximately, 75 percent of the sales he makes are of

used boats.

8. Petitioner specializes in the sale of sailboats.

9. He possesses a considerable amount of knowledge

concerning sailboats as a result of the years (since he was a

young child) that he has devoted to sailing.

10. Petitioner owned, lived aboard, and captained a

sailboat named the "Wave Dancer" from 1975 until the late 1980's.

11. He acquired the "Wave Dancer" in return for his

participation in an illicit drug smuggling operation.

12. In 1975, when he was still living in his hometown of

Port Washington, New York, Petitioner was approached by a

childhood friend, Dan Locastro. Locastro advised Petitioner that

he (Locastro) and his associates wanted to buy a sailboat to use

to transport marijuana from St. Thomas in the Virgin Islands to

the New England coast. Locastro promised Petitioner that, if

Petitioner were able locate a sailboat for them to purchase and

if he thereafter successfully captained the newly purchased

sailboat on its journey to and from the Virgin Islands,

Petitioner could keep the sailboat.

13. Approximately a month later, Petitioner notified

Locastro that he had located a sailboat for Locastro and his

associates. The sailboat was the "Wave Dancer."

14. Locastro and his associates subsequently purchased the

"Wave Dancer." They purchased the boat in the name of Richard

Harrison.

15. Following the purchase of the "Wave Dancer,"

Petitioner, accompanied by Locastro, sailed the boat to an island

near St. Thomas. There, 500 pounds of marijuana were loaded onto

the "Wave Dancer." Petitioner then sailed the boat to the New

England coast, where he delivered the marijuana.

16. Petitioner participated in this illicit smuggling

operation because he wanted his own sailboat.

17. He was neither arrested, nor charged, for having

participated in this operation.

18. As promised, Petitioner was allowed by Locastro and his

associates to keep the "Wave Dancer" after the conclusion of

operation.

19. The boat was subsequently titled in Petitioner's name.

20. For approximately 12 or 13 years, Petitioner (who was

then single) lived in the Caribbean aboard the "Wave Dancer." He

earned a living by taking tourists (usually one couple at a time)

out in the water on his boat.

21. In the late 1980's, Petitioner decided to return to the

United States to live with and care for his parents, who, because

of their advanced age, required his assistance.

22. Before moving back to the United States, Petitioner put

the "Wave Runner" up for sale.

23. He was unsuccessful in his efforts to sell the boat.

24. He discussed with a friend of his, Ken Fish, the

possibility of Fish purchasing the boat for $50,000.00, but no

sale was consummated.

25. Petitioner was still the owner the "Wave Runner" when

he flew to the United States and moved in with his parents (in

their home).

26. He left the "Wave Runner" behind in the Virgin Islands

in the care of his friend Fish.

27. Approximately nine months after he left the Virgin

Islands, Petitioner received a telephone call from Fish, who

indicated that he was having financial difficulty and that he

wanted to use the "Wave Runner" in a "marijuana scheme."

28. Approximately six months later, Fish again telephoned

Petitioner. This time he told Petitioner that he wanted "to do a

cocaine smuggling venture with [the "Wave Runner]." At first,

Petitioner told Fish that he (Fish) was "out of his mind." Later

during the conversation, however, Petitioner relented and agreed

to allow Fish to use the "Wave Runner" in the proposed "cocaine

smuggling venture." Petitioner gave his permission without

receiving any promise from Fish that he (Petitioner) would

receive anything in return.

29. The "cocaine smuggling venture" was unsuccessful.

30. The "Wave Runner" was seized by authorities in

Martinique.

31. In the spring of 1991, in United States District Court

for the Southern District of Florida Case No. 91-349-CR-

HIGHSMITH, Petitioner was criminally charged by the United States

government for his role in the "cocaine smuggling venture" with

conspiracy to import cocaine into the United States.

32. Petitioner's role in the "cocaine smuggling venture"

was limited to permitting Fish to use the "Wave Runner" to

transport cocaine into the United States.

33. After his arrest in May of 1991, Petitioner agreed to,

and he subsequently did, cooperate with federal authorities by

participating in federal undercover drug enforcement operations

under the supervision of federal agents. At times during these

operations, he was required to place himself in situations where

his personal safety was compromised.

34. In or around January of 1994, pursuant to a plea

agreement, Petitioner entered a plea of guilty in United States

District Court for the Southern District of Florida Case No. 91-

349-CR-HIGHSMITH to one count of conspiracy to import cocaine.

35. On January 30, 1995, Petitioner was adjudicated guilty

of said crime and, as punishment, placed on probation for five

years and fined $17,500.00.

36. Such punishment constituted a substantial downward

departure from the range provided in the United States Sentencing

Guidelines.

37. At the sentencing hearing, the sentencing judge

explained that he was "constrained to substantially modify the

sentence in this case downward" because of the risks Petitioner

had taken to assist federal authorities in their drug-fighting

efforts.

38. Although under no legal obligation to do so, Petitioner

continued to provide similar assistance to federal authorities

(at a substantial personal risk) after his sentencing.

39. In September of 1996, Petitioner filed with the

Department an application for licensure as a yacht salesperson.

40. Question 13 on the application form read as follows:

CRIMINAL HISTORY: Have you ever been

convicted of a crime, either pled or been

found guilty, or entered a plea of nolo

contendre (no contest), even if adjudication

was withheld?

NOTE:

This question applies to any violation of the

law 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.

Yes ____ No ____

41. The application form instructed those applicants whose

answer to Question 13 was "Yes" to "attach [their] 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 [were] pending."

42. On the application form that he submitted to the

Department, Petitioner answered "Yes" to Question 13, but he did

not attach the required signed statement. He merely appended to

the application form a copy of the judgment entered in United

States District Court for the Southern District of Florida Case

No. 91-349-CR-HIGHSMITH.

43. On or about October 1, 1996, the Department sent the

following letter to Petitioner:

The Department of Business and Professional

Regulation, Section of General Regulation is

in receipt of your application for a yacht

Salesman. A review of your application has

disclosed the following deficiencies:

You answered Yes to question 13 which asked

"Have you been convicted of a crime, either

pled or been found guilty, or entered a plea

of nolo contendre (no contest), even if

adjudication was withheld?"

The paragraph under question 15 further

states "If your answer to question 13, 14, 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."

You will need to submit a signed statement of

the charges and facts, within twenty-one (21)

days to this office before your application

can be checked for form.

Should you have any questions, please contact

me.

44. After receiving the Department's October 1, 1996,

letter, Petitioner telephonically requested additional time to

respond.

45. By letter dated December 13, 1996, Petitioner's

attorney, John J. Lynch, Esquire, responded on Petitioner's

behalf to the Department's October 1, 1996, letter. Lynch's

letter, which was received by the Department on December 17,

1996, read as follows:

I represent the Applicant, Richard E. Parker.

In response to concerns raised by Richard

Parker's application's disclosure of charges

and crimes and the results thereof, please

consider the following as part of the

application process:

The subject matter was limited to involvement

in a conspiracy to import controlled

substances. Mr. Parker voluntarily entered a

guilty plea in the U.S. District Court,

Southern District of Florida, Miami, Florida,

in an action entitled, "United States v.

Richard Parker" Criminal No. 91-349-CR-

Highsmith.

Upon being aware of potential liability, he

cooperated fully with the U.S. Government.

During a four-year period, he provided

extensive assistance to the U.S. Government

in ongoing investigations and provided

training and resources to special agents.

Mr. Parker's participation as a Government

agent put him at considerable risk. His case

remains under court seal to protect

information which may be used by the

Government in future criminal prosecutions.

I cannot provide a complete transcript of the

court proceedings without jeopardizing Mr.

Parker's safety.

To appreciate Mr. Parker's significant

assistance to the U.S. Government, a portion

of the Honorable Judge Highsmith's sentencing

comments has been enclosed. Pages 11, 12, 14

and 15 of the sentencing memorandum specify

the efforts made by Mr. Parker, and

recognized by the Court to rectify his prior

conduct. (Note: All individuals, other than

Mr. Parker, have been redacted to preserve a

measure of safety since the matter remains

under court seal).

In recognition of [his] assistance, Mr.

Parker was placed on probation for five years

and fined on January 30, 1995. The fine was

paid and probation has commenced.

I trust this supplemental response answers

concerns regarding this unfortunate episode

in Mr. Parker's life.

46. As his attorney asserted in the foregoing letter, as of

the date of the letter, Petitioner had paid the $17,500.00 fine

imposed in United States District Court for the Southern District

of Florida Case No. 91-349-CR-HIGHSMITH.

47. On January 17, 1997, the Department issued its Notice

of Intent to deny Petitioner's application for licensure.

48. On February 12, 1997, Petitioner requested a Section

120.57(1) hearing on the matter.

49. On August 12, 1997, Petitioner filed a motion in United

States District Court for the Southern District of Florida Case

No. 91-349-CR-HIGHSMITH requesting that "his period of probation

[be reduced] from a term of 60 months to a term of 32 months

thereby terminating his probation on September 30, 1997." In

support of his motion, he stated the following:

1. On January 30, 1995, Richard Parker was

sentenced by this Court to five years

probation for his participation in a cocaine

conspiracy. The Court imposed this lenient

sentence because of the extraordinary

cooperation Richard Parker had rendered (a

transcript of the sentencing is attached

hereto as Exhibit A). As part of his

cooperation Parker had gone to Columbia in a

sailboat, at great personal risk and with no

protection from law enforcement, and

developed a case involving significant

arrests, convictions, and seizure of cocaine.

2. Since sentencing Parker has remarried and

complied with all terms of probation. Parker

had promised the agents and the Court that

his cooperation would continue regardless of

the sentence imposed by the Courtue to

his word, following sentencing, at the

request of the DEA, Richard Parker traveled

alone to Columbia and negotiated the location

in the Caribbean Sea for an air drop of 300

kilos of cocaine. Parker then captained a

sailboat and traveled to Dominica and

Barbados, St. Kitts and the British Virgin

Islands with DEA agents on board and

participated in the recovery of the 300 kilos

of cocaine as it was dropped from a plane in

50 kilogram packages. Parker received no

payment for this cooperation. Parker

rendered substantial assistance to the

Government after sentencing because of his

moral commitment to cooperation as a form of

restitution, because of his sense of

obligation and gratitude, and because he had

given his word to the Government and this

Court.

3. It is now over 2 1/2 years since Parker

was sentenced. Parker has complied fully

with all conditions of probation. Parker has

committed himself to building a productive

law-abiding life. The Count may well recall

that Parker's marriage ended during his

cooperation and sentence. Parker has

recently married again becoming the father of

a four-year old in the process. Parker has

spent his life working on and sailing boats.

4. Parker has applied to the State of

Florida for a license to be a yacht salesman.

The issuance of these licenses in Florida is

regulated by the Department of Business and

Professional Regulation (DBPR). The DBPR has

denied Parker's request for a license citing

Parker's conviction as irrefutable proof of

moral turpitude as a basis for denial.

Parker has petitioned for review and a

hearing before an administrative law judge is

scheduled for October 14, 1997. Undersigned

counsel has been advised that the hearing

scheduled for October 14, 1997, will be the

final hearing regarding Parker's petition for

a license to sell boats in the State of

Florida. Regarding this issue, undersigned

counsel has become aware of an administrative

decision where an application for a license

as a yacht and ship salesman was granted by

DBPR to an applicant who had been convicted

of a drug felony, sentenced to probation and

had been terminated from probation.

Department of Business and Professional

Regulation, Division of Florida Land Sales,

Condominiums and Mobile Homes v. Orr , Docket

No. YS95025 (Final Order No. BPR-95-03991,

7/20/95). It is respectfully submitted that

evidence of successful completion of

probation by Parker prior to the time of

final hearing on October 14, 1997, will

either result in the DBPR rescinding their

denial of Parker's application or a reversal

of DBPR's denial by the administrative law

judge.

5. Assistant United States Attorney John

Schlessinger has conferred with the United

States Probation Officer Anthony Gagliardi

regarding this motion and has authorized

undersigned counsel to state that the United

States has no objection to a reduction of

probation from 60 months to 36 months.

6. Richard Parker has applied to the State

of Florida for a yacht salesman license so

that he can support himself and his family.

Richard Parker, through his cooperation, has

rebutted any presumption of moral turpitude

that attached to his conviction and has

affirmatively and courageously demonstrated

good moral character; Richard Parker has

honored and will continue to honor his pledge

to the United States and to this Honorable

Court never to break the law again. . . .

50. The Final Order in the Orr case, which was referenced

in Petitioner's Motion to Modify Probation, contained the

following "findings of fact" and "conclusions of law":

FINDINGS OF FACT

1. The Division is the state agency charged

with enforcing Section 326.004, Florida

Statutes (1993), concerning Yacht and Ship

Brokers, and the administrative rules

promulgated thereunder.

2. On or about October 18, 1994, the Section

of the General Regulation received an

application from Geoffry Orr for a Yacht and

Ship Salesman's license wherein he stated

that he had no prior arrests or convictions.

3. On December 27, 1994, the Section of

General Regulation received a criminal

history report from the Federal Bureau of

Investigation revealing a 1988 arrest and

conviction on two counts of narcotics

violations in the state of California.

4. An informal hearing was held and

Respondent stated that he would send

supporting documentation of his outstanding

record regarding the sentence he served for

the conviction.

5. Documents were received from the Los

Angeles County Probation Department stating

that Respondent has served his sentence in an

outstanding manner.

6. Peter P. Butler, Sr. also spoke with

Respondent's probation officer.

7. There is competent, substantial evidence

to support the Division's findings of fact.

CONCLUSIONS OF LAW

1. The Division has jurisdiction over the

parties and the subject matter of this case,

pursuant to Section 326.004(10), Florida

Statutes (1993).

2 Pursuant to Section 326.004, Florida

Statutes, the Division can issue a license to

Respondent.

3. There is competent substantial evidence

to support the Division's conclusions of law.

The records that the Department had received from the Federal

Bureau of Investigation (referenced in Finding of Fact 3 of the

Department's Final Order) revealed that Orr had been arrested on

December 28, 1988, by the Los Angeles County (California)

Sheriff's Office for "poss narc controlled sub for sale" and

"poss marijuana/hashish for sale." The documents from the Los

Angeles County Probation Department (referenced in Finding of

Fact 5) indicated that Orr's three-year period of probation had

expired on September 9, 1993 (approximately 22 months before the

issuance of the Final Order).

51. On August 12, 1997, an Order on Defendant Richard

Parker's Motion to Modify Probation was issued in United States

District Court for the Southern District of Florida Case No. 91-

349-CR-HIGHSMITH. It provided as follows:

On Richard Parker's Motion to Modify

Probation, the Court being fully advised of

the premises herein and noting that Richard

Parker has fully complied with all conditions

of probation and that Richard Parker, since

the imposition of sentence on January 30,

1995, has through his cooperation with the

Government demonstrated good moral character,

it is hereby

ORDERED AND ADJUDGED that the 60-month term

of probation imposed on January 30, 1995 is

hereby reduced to 32 months.

52. Petitioner recognizes that it was wrong for him to

allow his boat to be used in the "cocaine smuggling venture." He

is repentant and remorseful.

53. Petitioner has not committed any similar unlawful acts

in the more than 6 years that have passed since he engaged in

such wrongdoing.

54. It appears that he has rehabilitated himself and that

he is now of good moral character and firmly rooted on the right

side of the law.

CONCLUSIONS OF LAW

55. Petitioner is seeking to be licensed by the Department

as a yacht salesperson.

56. The licensing of yacht salespersons is governed by

Section 326.004, Florida Statutes, 4 which provides, in pertinent

part, as follows:

(6) The [Department] may deny a [yacht

salesperson's] license to any applicant who

does not:

(a) Furnish proof satisfactory to the

[Department] that he or she is of good moral

character.

(b) Certify that he or she has never been

convicted of a felony. . . .

"Moral character" is

not only the ability to distinguish between

right and wrong, but the character to observe

the difference; the observance of the rules

of right conduct, and conduct which indicates

and establishes the qualities generally

acceptable to the populace for positions of

trust and confidence.

Zemour, Inc. v. State Division of Beverage , 347 So. 2d 1102, 1105

(Fla. 1st DCA 1977). An individual demonstrates a lack of "good

moral character" when that individual engages in "acts and

conduct which would cause a reasonable man to have substantial

doubts about [the] individual's honesty, fairness, and respect

for the rights of others and for the laws of the state and

nation." Florida Board of Bar Examiners Re: G. W. L. , 364 So.

2d 454, 458 (Fla. 1978).

57. The Department has adopted rule provisions implementing

Section 326.004, Florida Statutes. Among them are the following

provisions found in Rule 61B-60.003, Florida Administrative Code:

(2) Review for Form.

(a) The [Department] shall review the

application within 10 days of its receipt to

determine if it is in acceptable form,

meaning that the application form is

completed in its entirety and the application

fee, the $33 fingerprint processing fee, a

complete set of fingerprints, and bond or

letter of credit conforming to the

requirements of rule 61B-60.004, Florida

Administrative Code, have been received by

the [Department]. If the application is in

acceptable form, the [Department] shall issue 5

a temporary 90-day license, DBR form 31-011.

(b) If the application is deficient for form

in any way and thereby unacceptable, the

[Department] shall notify the applicant of

the nature of the deficiency, and the

applicant shall have 21 days from receipt of

the deficiency notice to correct the

deficiencies. If an applicant fails to

correct the deficiencies within this period

of time, the [Department] shall issue a

notice of intent to reject license

application.

(c) The applicant will subsequently have 10

days from receipt of said notice to correct

the referenced deficiencies. If the

referenced deficiencies are not corrected

within the allotted time frame, the subject

application shall be rejected and the

applicant shall be so notified by certified

mail without requiring any further

proceeding.

(d) Rejection shall not prejudice any

prospective reapplication; however, such

would then be processed subject to the

requirements as set forth for any initial

filing.

(3) Review for Good Moral Character.

(a) When the application has been determined

to be in acceptable form, the [Department]

shall evaluate the application and make

appropriate inquiry to determine the

applicant's moral character. For the

purposes of this rule, the following factors

bear upon good moral character:

1. The completion of a criminal history

check by the Florida Department of Law

Enforcement that reveals no convictions of a

felony, no convictions of a misdemeanor

involving moral turpitude, and no pleas of

nolo contendere, pleas of guilty, or verdicts

of guilty to a felony charge or of any non-

felonious offense involving moral turpitude,

fraud, theft, dishonesty, assault and

battery, or false statement; and

2. Civil lawsuits and administrative actions

bearing upon moral character (e.g., fraud,

misrepresentation, theft, assault and

battery); and

3. Applicant's prior history of unlicensed

brokering or sales activity in the State of

Florida subject to the provisions of chapter

326, Florida Statutes; and

4. Tendering to the [Department] a bank or

other depository check for payment of any

fee, which check lacks sufficient funds on

deposit in or credit with such bank or

depository with which to pay the same on

presentation, where the applicant, upon

notification of same by the bank or division,

fails to redeem the check or otherwise pay

the fee within 21 days of such notification;

and

5. Other relevant information generated in

the course of the application process which

bears upon the applicant's moral character,

including but not limited to those acts

described by section 326.006(3), (4), Florida

Statutes; and

6. Failure of the applicant to provide full

and complete disclosure, or to provide

accurate information, on the application for

licensure.

7. The foregoing factors shall be considered

in determining whether an applicant is of

good moral character for purposes of

licensure under chapter 326, Florida

Statutes, if they comply with the following

guidelines:

a. The disposition of criminal charges shall

be considered if such constitutes a felony,

or if such constitutes a misdemeanor

involving moral turpitude, fraud, theft,

dishonesty, assault and battery, or false

statement.

b. The disposition of any administrative

action or of any civil litigation involving

fraud, misrepresentation, theft, assault and

battery, or moral turpitude shall be

considered if such results in a determination

against the interests of the applicant.

c. Except as provided in sub-sub-paragraph

7.d. of this rule, no information relating to

criminal, administrative or civil actions

shall be considered if more than 5 years has

elapsed from the satisfaction of the terms of

any order, judgment, restitution agreement,

or termination of any administrative or

judicially-imposed confinement or supervision

of the applicant, whichever is more recent.

d. Any action, proceeding, or grievance

filed against the applicant, individually or

otherwise, which relates to the applicant's

prospective duties, responsibilities, and

obligations of licensure under chapter 326,

Florida Statutes, may be considered with no

limitation as to time.

e. Other considerations such as termination

of probation, compliance with and

satisfaction of any judgment or restitution

agreement may be considered as evidence of

rehabilitation of the applicant's good moral

character.

(b) Within 15 days after the Department has

determined that the application is in

acceptable form, the [Department] shall apply

for a criminal history record with the

Florida Department of Law Enforcement.

(c) After receipt of the criminal history

check, the [Department] shall complete its

evaluation of the moral character of the

applicant. As used herein, "criminal history

check" shall include verification of the

nature and disposition of all criminal

charges and all civil or administrative

actions initiated against the applicant.

Specifically, the inquiry may include the

following:

1. National fingerprint processing;

2. Status as to any supervision of the

applicant (e.g., confinement, probation,

community service requirements);

3. Status as to any restitution agreements;

4. Status as to any civil judgments or final

orders; and

5. Contact with arresting agencies and

responses to requests for clarification by

the[Department].

The applicant shall assist the [Department]

in acquiring the foregoing information.

(d) If upon completion of its evaluation of

the moral character of an applicant, the

[Department] concludes that the applicant

does possess good moral character, the

[Department] shall issue the applicant a

license, DBR form 31-003, YACHT AND SHIP

BROKER LICENSE, effective 11-25-90,

incorporated by reference, upon payment of

all fees owed to the[Department], if any.

(e) The effective date of the original

license will be the date that the license is

actually issued by the[Department]. The

expiration date will be a date 2 years from

date of issuance.

(f) If upon completion of its evaluation of

the moral character of an applicant, the

[Department] concludes that the applicant

does not possess good moral character, the

division shall proceed as provided in rule

61B-60.002(6), Florida Administrative Code.

In determining whether an applicant is eligible for licensure as

a yacht salesperson, the Department must examine the applicant's

application for licensure in light of the foregoing standards set

forth in Rule 61B-60.003, Florida Administrative Code. See State

v. Jenkins , 469 So. 2d 733, 734 (Fla. 1985)("[A]gency rules and

regulations, duly promulgated under the authority of law, have

the effect of law."); Buffa v. Singletary , 652 So. 2d 885, 886

(Fla. 1st DCA 1995)("An agency must comply with its own rules.");

Decarion v. Martinez , 537 So. 2d 1083, 1084 (Fla. 1st

1989)("Until amended or abrogated, an agency must honor its

rules.").

58. An applicant for licensure as a yacht salesperson whose

application is preliminarily denied by the Department bears the

ultimate burden (in a Section 120.57(1) hearing on the

Department's preliminary action) of demonstrating, by a

preponderance of the evidence, entitlement to such licensure.

See Pershing Industries, Inc., v. Department of Banking and

Finance , 591 So. 2d 991, 994 (Fla. 1st DCA 1991); Cordes v.

Department of Environmental Regulation , 582 So. 2d 652, 654 (Fla.

1st DCA 1991); Department of Transportation v. J.W.C., Co. , 396

So. 2d 778, 787 (Fla. 1st DCA 1981); Department of Health and

Rehabilitative Services v. Career Service Commission , 289 So. 2d

412, 414-15 (Fla. 4th DCA 1974). The applicant, however, need

address only those entitlement issues raised in the Department's

notice of intent to deny the applicant's application. See

Woodholly Associates v. Department of Natural Resources , 451

So. 2d 1002 (Fla. 1st DCA 1984).

59. In the Notice of Intent to Deny License Application it

issued in the instant case, the Department indicated that it

intended to deny Petitioner's licensure application because "he

was convicted in the United States District Court, Southern

District of Florida, of conspiracy to import cocaine" and

therefore, "pursuant to Section 326.004(6)(a), [Florida Statutes,

he] has failed to demonstrate good moral character."

60. Pursuant to Section 326.004, Florida Statutes, as

implemented by Rule 61B-60.003, Florida Administrative Code, a

convicted felon may be licensed as a yacht salesperson,

notwithstanding his prior felony conviction, if he presents

sufficient evidence to establish the "rehabilitation of [his]

good moral character," regardless of whether "more than 5 years

has elapsed from the satisfaction of the terms of any order,

judgment, restitution agreement, or termination of any

administrative or judicially-imposed confinement or supervision

of the applicant." 6

61. Petitioner has made such a showing. He has

demonstrated, primarily through his own testimony, 7 that he has

rehabilitated himself since having engaged (more than six years

ago) in the conduct that led to his felony conviction of

conspiracy to import cocaine (in United States District Court for

the Southern District of Florida Case No. 91-349-CR-HIGHSMITH)

and that he is now of "good moral character." 8

62. Accordingly, Petitioner should not be deprived of

licensure as a yacht salesperson because of his prior felony

conviction. 9 See Albert v. Florida Department of Law

Enforcement, Criminal Justice Standards and Training Commission ,

573 So. 2d 187 (Fla. 3d DCA 1991); Aquino v. Department of

Professional Regulation , 430 So. 2d 598 (Fla. 4th DCA 1983).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department issue a final order granting

Petitioner's application for licensure as a yacht salesperson.

DONE AND ENTERED this 9th day of December, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of December, 1997.

ENDNOTES

1 The hearing was originally scheduled to commence on June 27,

1997, but was continued at the request of both parties.

2 Although Robert Badger, the Department investigator who

initially reviewed Petitioner's application for licensure, did

not testify at the hearing, the undersigned, pursuant to the

stipulation of the parties, received into evidence, in lieu of

Badger's live testimony, a proffer made by counsel for the

Department as to the facts he would have elicited from Badger if

Badger had been called to the stand to testify at the hearing.

3 A license from the Department is not required, under Chapter

326, Florida Statutes, to make such sales. Petitioner, however,

must have a license from the Department to be able, in his

capacity as a salesperson for Rex, to sell used boats that are

"propelled by sail or machinery in the water" and which exceed 32

feet in length and weigh less than 300 gross tons. Obtaining

such a license would substantially increase his earning potential

as a Rex salesperson.

4 In his Proposed Recommended Order, Petitioner argues that

Section 326.004(6)(a), Florida Statutes, is unconstitutional.

The undersigned, however, is without authority to, and therefore

will not, pass upon the constitutionality of this statutory

provision. See Palm Harbor Special Fire Control District v.

Kelly , 516 So. 2d 249, 250 (Fla. 1987)("[I]t is axiomatic that an

administrative agency has no power to declare a statute void or

otherwise unenforceable."); Myers v. Hawkins , 362 So. 2d 926, 928

n.4 (Fla. 1978)("Generally speaking, administrative agencies are

not the appropriate forum in which to consider questions of

constitutional import."); Dade County v. Overstreet , 59 So. 2d

862, 865 (Fla. 1952)("[The constitutionality of statutes,

ordinances or resolutions] should not and cannot be adjudicated

by the Beverage Director, or any other Board or Bureau, as these

are clearly judicial questions for determination by the Circuit

Courts."); Holmes v. City of West Palm Beach , 627 So. 2d 52, 53

(Fla. 4th DCA 1993)("[A]ppellee correctly contends that because

it is an administrative agency, rather than a court, it cannot

circumvent unambiguous statutory provisions in the interest of

fairness and due process considerations. . . . It lacks the power

to declare a statute void or otherwise unenforceable."); Long v.

Department of Administration, Division of Retirement , 428 So. 2d

688, 692-93 (Fla. 1st DCA 1983)("The agency [Florida Division of

Retirement] and hearing officer also lacked jurisdiction to hear

appellant's constitutional argument.").

5 In the instant case, Petitioner's initial submission to the

Department was not in "acceptable form" as to form because he

failed to append to his application for licensure a " complete

signed statement of the charges [ against him in United States

District Court for the Southern District of Florida Case No. 91-

349-CR-HIGHSMITH] and facts, together with the dates, name and

location of the court in which the proceedings were held or

[were] pending." He therefore did not receive a "temporary 90-

day license, DBR form 31-011."

6 Neither the statute, nor the rule, prescribes a minimum period

of time which must pass before a convicted felon may be eligible

for licensure following his conviction.

7 Petitioner testified in his own defense concerning his post-

criminal episode rehabilitation. His testimony was credible and

unrebutted by the Department. Notwithstanding its self-serving

nature, the testimony of an applicant for licensure, like that

given by Petitioner in the instant case, may be considered and

relied upon as competent substantial evidence, even if it is

uncorroborated and contrary to the evidence adduced by the

licensing agency. See Falk v. Beard , 614 So. 2d 1086, 1089 (Fla.

1993)("It would be an anomalous situation indeed if the testimony

of the one against whom a complaint is lodged could never form

the basis for competent substantial evidence."); Florida

Publishing Company v. Copeland , 89 So. 2d 18, 20 (Fla.

1956)("There is no doubt that the testimony of the plaintiff,

although uncorroborated, '. . . if reasonable on its face, and

believed and accepted by the jury as true can carry the burden of

proof.'"); Martuccio v. Department of Professional Regulation,

Board of Optometry , 622 So. 2d 607, 609-10 (Fla. 1st DCA

1993)(expert testimony of applicant for licensure was not

incompetent and could be relied upon "as competent substantial

evidence to support [hearing officer's] conclusions"); Raheb v.

Di Battisto , 483 So. 2d 475, 476 (Fla. 3d DCA 1986)("We are not

persuaded, as urged, that the testimony of the plaintiff . . .

should have been rejected by the trial court as inherently

incredible; it was the trial court's function, not ours, to weigh

the testimony and evidence adduced in the cause based on its

observation of the bearing, demeanor, and credibility of the

witnesses appearing in the cause.").

8 The purpose of this proceeding is to determine whether

Petitioner presently meets the "good moral character" requirement

for licensure as a yacht salesperson, not to determine whether

the Department was correct, based upon the information it then

had available to it, to preliminarily deny Petitioner's

application for licensure on the ground that he lacked "good

moral character." See Beverly Enterprises-Florida, Inc. v.

Department of Health and Rehabilitative Services , 573 So. 2d 19,

23 (Fla. 1st DCA 1990)("A request for a formal administrative

hearing commences a de novo proceeding intended to formulate

agency action, and not to review action taken earlier or

preliminarily.").

9 The evidence presented by Petitioner concerning the Orr case

has played no role in the undersigned's recommended disposition

of the instant case. Had Petitioner not submitted proof

establishing that he has rehabilitated himself and that he is now

of "good moral character," the undersigned would have recommended

that Petitioner be denied licensure, even if the Department had

previously granted licensure to a similarly situated applicant.

The Department is not required to grant licensure to an applicant

who does not possess "good moral character" simply because it

erroneously did so in a prior case.

COPIES FURNISHED:

Stephen Marc Slepin, Esquire

Slepin and Slepin

114 East Park Avenue

Tallahassee, Florida 33201-2684

Stephen S. Godwin, Esquire

Department of Business

and Professional Regulation

Office of the General Counsel

1940 North Monroe Street

Tallahassee, Florida 32399-1007

Robert H. Ellzey, Jr., Director

Division of Florida Land Sales,

Condominiums, and Mobile Homes

1940 North Monroe Street

Tallahassee, Florida 32399-1007

Lynda L. Goodgame, General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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.