01-000849 Francis J. Ferris vs. Department Of Business And Professional Regulation, Division Of Florida Land Sales, Condominiums, And Mobile Homes Status: Closed Recommended Order on Wednesday, May 16, 2001.

Summary: License should be denied because of recent felony and failure to appropriately disclose same.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANCIS J. FERRIS, )

)

Petitioner, )

)

vs. ) Case No. 01-0849

)

DEPARTMENT OF BUSINESS AND, )

PROFESSIONAL REGULATION, )

DIVISION OF FLORIDA LAND SALES, )

CONDOMINIUMS, AND MOBILE HOMES, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its duly-designated Administrative Law Judge, Claude B.

Arrington, held a formal hearing in the above-styled case on

April 27, 2001, in Tallahassee, Florida. 1/ Petitioner appeared

by telephone from Miami. Respondent appeared in Tallahassee.

APPEARANCES

For Petitioner : Julio Gutierrez, Esquire

1395 Northwest 15 th Street

Miami, Florida 33125-1621

For Respondent : Janis Sue Richardson, Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to the issuance of a yacht

and ship salesperson’s license pursuant to Section 326.006,

Florida Statutes, and Rule 61B-60.003, Florida Administrative

Code.

PRELIMINARY STATEMENT

Petitioner applied to Respondent for licensure as a yacht and

ship salesperson pursuant to the Yacht and Ship Broker's Act,

Chapter 326, Florida Statutes. After reviewing the application,

Respondent issued Petitioner a temporary license. Consistent

with its practice, Respondent next ordered a criminal background

screening from the Florida Department of Law Enforcement and

obtained certain information from the Florida Department of

Corrections. Respondent thereafter issued to Petitioner a Notice

of Intent to Deny his application because he had been convicted of

a felony, his application did not reflect the felony conviction or

subsequent incarceration, and he did not show he possessed good

moral character. In denying the application, Respondent relied on

the provisions of Section 326.004(6)(a) and (b), Florida Statutes,

and Rule 61B-60.003(3)(a), Florida Administrative Code.

Petitioner stipulated to the facts set forth in Respondent's

prehearing statement and to the admission of the exhibits attached

thereto. Petitioner also stipulated that there were no facts in

dispute. Respondent moved to remand the case for an informal

hearing and entry of a final order, which motion was denied

because there was a dispute as to the interpretation of those

facts and as to the application of the relevant law to those

facts.

At the final hearing, Petitioner testified on his own behalf,

but offered no exhibits. Respondent presented the testimony of

its employees, Robert Badger (an investigator) and Peter Butler,

Sr. (a supervising manager). Respondent introduced 13 exhibits,

each of which was entered into evidence without objection.

Official recognition was taken of all relevant statutes and rules.

No transcript of the proceedings was filed. Each party

filed a Proposed Recommended Order, which has been duly

considered by the undersigned in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. By application dated June 23, 2000, Petitioner applied

to Respondent for licensure as a yacht and ship salesperson.

Respondent received the application on July 5, 2000.

2. Consistent with its practice, Respondent issued to

Petitioner a temporary license for the period beginning July 11,

2000, and ending October 11, 2000.

3. On his application, Petitioner answered “YES” to

question 14, which is as follows:

CRIMINAL HISTORY : 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.

4. Immediately below question 14 was the following 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.

5. The following appeared on the application following

question 16:

If your answer to question 14, 15, or 16 is

Yes, attach your complete signed statement

of the charges and facts, together with the

date, name and location of the court in

which the proceedings were held or are

pending.

6. Petitioner attached to the application a list

describing 20 arrests beginning in 1984 and ending in 1998.

Petitioner was adjudicated guilty of driving under the influence

of alcohol following arrests on June 8, 1984; on August 20,

1991; on September 1, 1994; and on December 13, 1997. Following

the entry for the arrest of September 1, 1994, Petitioner

reflected that he had been sentenced to 365 days in BCJ, which

was a reference to the Broward County Jail. Following the entry

of the December 13, 1997, arrest, Petitioner wrote in hand " ADJ-

270 Days DCJ." Petitioner testified that he meant this to

reflect that he had been adjudicated guilty and had served

270 days in the Dade County Jail.

7. On the upper left corner of the attachment to the

application, Petitioner typed his name and, without explaining

its meaning, the following: 97- 12341CF. 2/

8. Consistent with its practice when an applicant responds

in the affirmative to question 14, Respondent obtained a Florida

Criminal History Report (History Report) from the Florida

Department of Law Enforcement ( FDLE) which revealed Petitioner's

arrest history and the disposition of those arrests. The

History Report confirmed the information Petitioner had

supplied. In addition, the History Report reflected that

Petitioner had been incarcerated beginning January 26, 1999, on

a felony conviction of DUI. The History Report reflected that

this was Petitioner's fourth DUI conviction and advised that the

Florida Department of Corrections (DOC) may have additional

information in a Florida Inmate Release Status Report (Status

Report).

9. Respondent next obtained a Status Report for Petitioner

from DOC. This report reflected that Petitioner was

incarcerated for the felony offense of DUI from January 26,

1999, until his release on March 17, 2000.

10. The Status Report also reflected that the case number

assigned to the felony charges in Broward County for which

Petitioner was subsequently convicted and incarcerated

was 97 -12341. Petitioner asserts that he disclosed his felony

conviction and incarceration by placing that case number on the

attachment to the application. That assertion is rejected

because no reasonable person would have known what that series

of numbers and letters meant without an explanation.

11. Petitioner did not reveal the felony conviction and

incarceration on his application. Petitioner was not candid

with Respondent or fully forthcoming as to his conviction and

incarceration on his application.

12. Petitioner's civil rights have not been restored.

13. Petitioner still owes several hundred dollars in

outstanding fines from his prior convictions.

14. The only evidence presented that may be viewed as

relating to the issue of Petitioner's rehabilitation was that he

had completed his term of incarceration.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding, pursuant to Section 120.57, Florida Statutes.

16. Respondent is the state agency charged with regulating

and licensing yacht and ship brokers and salespersons under

Chapter 326, Florida Statutes.

17. Petitioner has the burden of proving his entitlement

to a license by a preponderance of the evidence. Department of

Banking and Fin., Div. of Securities and Investor Protection v.

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

18. Section 326.004(6)(a) and (b), Florida Statutes

(1999), provides as follows:

(6 ) 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.

19. Rule 61B-60.003(3), Florida Administrative Code,

provides:

(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 . . . 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. . . .

* * *

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.

20. Petitioner has failed to establish his entitlement to

a yacht and ship salesperson's license. Petitioner's conviction

of a felony within the past five years, his pattern of arrests

since 1984, his failure to disclose his most recent

incarceration for that felony on his application, and his

failure to provide sufficient evidence of rehabilitation, compel

the conclusion that Petitioner's application for licensure

should be denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

law, it is recommended that a Final Order be entered denying

Petitioner's application for a yacht and ship salesperson's

license.

DONE AND ENTERED this 16th day of May, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of May, 2001.

ENDNOTES

1/ The final hearing was scheduled for Tallahassee because

neither party filed a response to the Initial Order.

2/ This number is the case number assigned to the criminal

proceeding that resulted in Petitioner's conviction and

subsequent incarceration on felony charges of DUI.

COPIES FURNISHED:

Julio Gutierrez, Esquire

1395 Northwest 15th Street

Miami, Florida 33141

Ross Fleetwood, Director

Division of Florida Land Sales,

Condominiums, and Mobile Homes

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-1030

Janis Sue Richardson, Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Hardy L. Roberts, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

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.