98-005655 Richard Badolato vs. Florida Land Sales, Condominiums, And Mobile Homes Status: Closed Recommended Order on Monday, August 16, 1999.

Summary: Applicant did not disclose three felony convictions. He failed to prove good moral character as a result, and his license should be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD A. BADOLATO, )

)

Petitioner, )

)

vs. ) Case No. 98-5655

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF FLORIDA LAND SALES, )

CONDOMINIUMS, AND MOBILE HOMES, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

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

on May 3, 1999, in Tallahassee, Florida, before Patricia Hart

Malono, the duly-designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Clyde M. Taylor, Esquire

200 West College Avenue

Suite 302

Tallahassee, Florida 32301

For Respondent: William Oglo

Assistant General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-1007

STATEMENT OF THE ISSUE

Whether the Petitioner's application for licensure as a

yacht and ship salesman should be approved or denied.

PRELIMINARY STATEMENT

In a Notice of Intent to Deny License Application (Amended)

dated November 20, 1998, the Department of Business and

Professional Regulation, Division of Florida Land Sales,

Condominiums, and Mobile Homes ("Division"), notified Richard

Anthony Badolato that it intended to take administrative action

against him, specifically, to deny his application for licensure.

The Division alleged in the notice that Mr. Badolato had been

convicted of at least two felony violations of narcotics law;

that he had disclosed only one violation on his application for

licensure; and that the Division has authority to deny the

license of an applicant who does not prove that he or she is of

good moral character, of an applicant who does not certify that

he or she has never been convicted of a felony, and of an

applicant who has falsely sworn on the application to a material

statement.

Mr. Badolato timely requested a formal hearing, and the

Division referred the matter to the Division of Administrative

Hearings for assignment of an administrative law judge. Pursuant

to notice, the final hearing was held on May 3, 1999.

At the hearing, Mr. Badolato testified in his own behalf but

offered no exhibits into evidence. The Division presented the

testimony of Peter P. Butler, Sr., and Robert Badger, both

Division employees. Respondent's Exhibits 1A through 1D, 2A

through 2E, 3, and 4 were offered and received into evidence.

The transcript of the hearing was filed with the Division of

Administrative Hearings, and the Respondent timely filed proposed

findings of fact and conclusions of law. The Petitioner filed

proposed findings of fact and conclusions of law on June 24,

1999, six days after the deadline for filing proposals. 1 Both

proposals have been duly considered in the preparation of this

Recommended Order.

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:

1. 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).

2. On July 28, 1998, the Division received an application

for a yacht and ship salesperson's license from Richard Badolato.

3. 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.

4. 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."

5. 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."

6. 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.

7. 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.

8. 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.

9. 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.

a. 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.

b. 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.

c. 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.

10. Mr. Badolato was released from prison in 1991 and

successfully completed parole in December 1996 with respect to

the 1989 conviction.

11. 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

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties pursuant to Sections 120.569 and .57(1), Florida

Statutes (1997).

18. Mr. Badolato has the burden of proving by a

preponderance of the evidence that he is entitled to licensure as

a yacht and ship salesperson. Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

and Co. , 670 So. 2d 932, 933 (Fla. 1996).

19. Section 326.004(1), Florida Statutes, prohibits anyone

from acting as a yacht and ship broker or salesperson without a

license. Section 326.004(6), Florida Statutes, provides in

pertinent part that the Division

may deny a license to any applicant who does

not:

(a) Furnish proof satisfactory to the

division that he or she is of good moral

character.

(b) Certify that he or she has never been

convicted of a felony.

20. Rule 61B-60.003, Florida Administrative Code, contains

guidelines which the Division must use to evaluate the good moral

character of an applicant and provides in pertinent part:

(3) Review for Good Moral Character.

(a) When the application has been

determined to be in acceptable form, the

division 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;

* * *

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

purpose of licensure under chapter 326,

Florida Statutes, if they comply with the

following guidelines:

a. The disposition of criminal charges

shall be considered is [sic] such constitutes

a felony, or if such constitutes a

misdemeanor involving moral turpitude, fraud,

theft, dishonesty, assault and battery, or

false statement.

* * *

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.

* * *

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.

21. Based on the findings of fact herein, and upon

consideration of the factors set out above, Mr. Badolato has

failed to prove his good moral character by a preponderance of

the evidence because the uncontroverted evidence establishes that

he failed to disclose his complete criminal history in his

application for licensure. See Gentile v. Department of Business

and Professional Regulation, Board of Medical Examiners , 448

So. 2d 1087 (1st DCA 1984). In ad dition, Mr. Badolato, cannot

certify that he has not been convicted of a felony because five

years have not elapsed since his parole was terminated in

December 1996 and because he has not finished paying the $30,000

fine ordered in 1981. See Rule 61B-60.003(3)(a)7.c., Florida

Administrative Code. Accordingly, the Division should exercise

its discretion and deny Mr. Badolato's application for licensure

as a yacht and ship salesperson pursuant to Section 326.004(6)(a)

and (b), Florida Statutes.

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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of August, 1999.

ENDNOTES

1 The Department filed a Motion to Strike the Petitioner's

proposed order on the grounds that it was not timely filed. The

Department did not assert in the motion that it would be

prejudiced by the late filing, and, after considering the grounds

for the motion and the record in this case, the undersigned can

discern no such prejudice. The motion is DENIED, with a reminder

to Mr. Badolato's counsel that "motions for extensions of time

shall be filed prior to the expiration of the deadline sought to

be extended and shall state good cause for the request." Rule

28-106.204, Florida Administrative Code.

2 / Although the Department presented evidence regarding the

disposition of Mr. Badolato's application for clemency, such

disposition is not relevant to the issues to be resolved in this

proceeding.

3 / In his trial in Miami federal district court in 1981,

Mr. Badolato was acquitted of the charge of possession of cocaine

with intent to distribute.

COPIES FURNISHED:

Clyde M. Taylor, Jr., Esquire

200 West College Avenue

Suite 302

Tallahassee, Florida 32301

William Oglo

Assistant General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-1007

William Woodward, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-1007

Philip Nowick, Director

Division of Florida Land Sales,

Condominiums, and Mobile Homes

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-1007

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this R ecommended O rder. Any exceptions to

this R ecommended O rder should be filed with the agency that will

issue the F inal O rder in this case.

1 The Respondent filed a Motion to Strike the Petitioner's

proposed order on the grounds that it was not timely filed. The

Respondent did establish in the motion that it would be

prejudiced by the late filing, and, after considering the grounds

for the motion and the record in this case, the undersigned can

discern no such prejudice. The motion is DENIED, with a reminder

to Mr. Badolato's counsel that "motions for extensions of time

shall be filed prior to the expiration of the deadline sought to

be extended and shall state good cause for the request." Rule

28-106.204, Florida Administrative Code.

2 Although the Department presented evidence regarding the

disposition of Mr. Badolato's application for clemency, such

disposition is not relevant to the issues to be resolved in this

case.

3 In his trial in Miami federal district court in 1981,

Mr. Badolato was acquitted of the charge of possession of cocaine

with intent to distribute.