02-001268 Ronald J. Palamara vs. Department Of Business And Professional Regulation Status: Closed Recommended Order on Thursday, December 9, 2004.

Summary: Greater weight of the evidence shows applicant to be a person of good moral character.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD J. PALAMARA, )

)

Petitioner, )

)

vs. )

) Case No. 02 - 1268

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

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

on June 21, 2002, in Fort Lauderdale, Florida, before

Administrative Law Judge Michael M. Parrish.

APPEARANCES

For Petitioner: James E. Brown, Esquire

Brown, Sharkey & Associates, P.A.

2700 W. Atlantic Boulevard, Suite 204

Pompano Beach, Florida 33069

For Respondent: Joseph S. Garwood, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399 - 2202

STATEMENT OF THE ISSUE

Whether the application of Ronald J. Palamara (“Palamara”)

for licensure as a yacht and ship broker under Chapter 326,

Florida Statutes, should be granted or denied.

PRELIMINARY STATEMENT

On June 7, 2000, 1 Respondent filed a Notice of Intent to

Deny License Application on the grounds that the Petitioner did

not furnish proof satisfactory to the Respondent that he is of

good moral character.

At the final hearing on June 21, 2002, the Petiti oner

presented the testimony of Barry Silver (Petitioner’s attorney

in other matters), Betty Green (former office manager for

Petitioner’s yacht brokerage company), Spencer Lloyd (a marine

insurance writer), Reina Sang (staff member at Petitioner’s

yacht b rokerage company), Samuel Abraham (former coworker), and

Richard Maulion, M.D. (physician and personal friend). The

Petitioner introduced ten (10) exhibits, of which six (6) were

entered into evidence. (Petitioner’s Exhibits 5, 6, 8, and 9

were not admit ted because they are hearsay documents that no

witness could authenticate.)

Respondent presented the testimony of Robert Badger,

Section Head for the Yacht and Ship section within the Division

of Land Sales, Condominiums, and Mobile Homes. Respondent

intr oduced two exhibits, both of which were entered into

evidence.

FINDINGS OF FACT

1. The Petitioner was previously a licensed yacht and ship

broker in Florida, holding Yacht Broker License No.324. On

April 28, 1999, the Petitioner’s prior license expired .

2. The Petitioner reapplied for a Yacht Broker license on

February 24, 2000.

3. Robert Badger (Badger), at that time an investigator

with the Division, investigated the application for form

pursuant to Rule 61B - 60.003(2), Florida Administrative Code, a nd

found that there were no problems with the form of the

application.

4. Badger also reviewed the application for moral

character of the applicant pursuant to Rule 61B - 60.003(3),

Florida Administrative Code.

5. On the application, the Petitioner indi cated that he

had a criminal background, but failed to disclose the nature of

the criminal background on the application. In a letter from

the Division addressed to the Petitioner, additional information

was requested regarding his criminal background. T he Petitioner

replied in a letter that he had been convicted of a misdemeanor

for resisting an officer without violence.

6. The Petitioner also disclosed on the application that

he had a civil Final Judgment against him in the matter of

Chinnock Marine, I nc. v. Barthelemy & Palamara , Case No. 98 -

19512 (Fla. 17th Cir. 1999). He did not fully disclose the

details relating to events that led to the judgment. Instead,

he stated on the application that the claims were “unfounded”

and that Chinnock Marine “mis led the court.”

7. The subject application is dated February 22, 2000. On

that application, the Petitioner was specifically required to

disclose any “pending” civil suits involving a yacht.

8. At the time of his application, another civil matter

was p ending against the Petitioner in World Class Yachts v.

Palamara , Case No. 99 - 12923 (Fla. 17th Cir. 2001), which was

filed on July 22, 1999. The Petitioner failed to disclose the

pending World Class Yachts civil suit. 2

9. Subsequent to the filing of the subject application, a

non - final order was entered against the Petitioner finding that

he was in default and rendering judgment for World Class Yachts

in the amount of $157,500.

10. The Petitioner took an interlocutory appeal of the

circuit court’s non - fi nal order of default to the Florida Fourth

District Court of Appeal. The Fourth District Court of Appeal

affirmed the trial court's order of default. Palamara v. World

Class Yachts , Case No. 4D01 - 3260 (Fla. 4th DCA 2001).

11. The Petitioner admits that the World Class Yachts case

relates to a yacht. Although the circuit court had not entered

a Final Judgment against the Petitioner in the amount of

$157,500.00 at the time of the hearing in this case, the World

Class Yachts civil litigation involving a ya cht should have been

disclosed on the application pursuant to Rule 61B - 60.003(3)(a)6,

Florida Administrative Code. In both Chinnock Marine and World

Class Yachts , the Petitioner has moved to vacate the default

judgments, alleging that he was not properly served.

12. The Petitioner has worked in the yacht brokerage

business in South Florida for many years. He has never had any

disciplinary action taken against his license. In the community

in which he lives and works he enjoys a reputation for being a

pe rson of integrity, honesty, and good moral character.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

14. The Respondent, the Department of Business and

Professional Regulation, Division of Land Sales, Condominiums,

and Mobile Homes, is the state agency charged with regulating

and licensing yacht and ship brokers under Section 326.002(2),

Florida Statutes.

15 . Pursuant to Section 326.004(6)(a), Florida Statutes,

the Respondent is authorized to deny a license to an applicant

who does not furnish proof satisfactory to the Division that he

is of good moral character. Rule 61B - 60.003(3)(a), Florida

Administrativ e Code, provides criteria to be considered when

making a determination regarding an applicant’s moral character.

The Rule states, in pertinent part:

For the purposes of this rule, the following

factors bear upon good moral character: . .

. 2. Civil lawsui ts and administrative

actions bearing upon moral character (e.g.

fraud, misrepresentation, theft, assault and

battery) . . . and . . . 6. Failure of the

applicant to provide full and complete

disclosure, or to provide accurate

information, on the applicat ion for

licensure.

16. In this proceeding, Petitioner has the burden of

proving by a preponderance of the evidence that he is entitled

to a license pursuant to Rule 28 - 107.003, Florida Administrative

Code. Dep’t of Bus. & Prof’l Regulation, Div. of Sec . &

Investor Prot. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996) The Legislature has delegated to the Division the

authority to deny an application for licensure based on the

failure of the applicant to show that he is of good moral

character. Secti on 326.004(6)(a), Florida Statutes. The

Division has set forth in its rules matters that may be

considered in making a determination of the applicant’s moral

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

17. The Petitioner asserts that he is a person of good

moral character and, by the evidence offered on his behalf, has

made out a prima facie case that he is such a person. The

Respondent's evidence that the Petitioner lacks good moral

character is based on information regarding two ci vil actions

against the Petitioner and on the Petitioner's failure to fully

disclose the details of the two civil actions when he filed his

application.

18. Addressing first the issue of lack of full disclosure,

it is first noted that in his application the Petitioner did

disclose information about one of the civil actions and, when

asked, provided additional information. With regard to the

second civil action, it is not clear from the record in this

case that the Petitioner was aware of the filing of th e second

civil action at the time he filed his application. Assuming for

the moment that the Petitioner was aware that the second civil

action was pending at the time he filed his application, there

is nevertheless no evidence that the Petitioner's failur e to

disclose was due to anything other than oversight. There is no

evidence in the record of this case which would tend to show

that any such failure to disclose was motivated by any intent to

conceal information from the Respondent. Therefore, any

shor tcomings in the Petitioner's disclosures regarding pending

civil actions do not rise to the level of casting doubts upon

the quality of his character.

19. The primary bases for the Respondent's contentions

that the Petitioner lacks good moral character a re several

documents from the two civil actions against the Petitioner.

Official recognition has been taken of those documents and they

are part of the record in this proceeding. One of the documents

is a certified copy of the Complaint filed in World Cl ass

Yachts, Inc. v. Ron Palamara , in which it is alleged, among

other things, that the Petitioner engaged in various acts of

fraud in connection with the sale of a yacht. Another document

is the Final Judgment in Chinnock Marine, Inc. v. Jacques

Barthelem y and Ronald J. Palamara , in which the court finds that

certain funds given to the Petitioner to pay for repairs to a

customer's yacht were converted by the Petitioner to his own

use. The court goes on to state: 3

The Court further finds that the conduct

of RONALD J. PALAMARA in misappropriating

the funds was fraudulent, deceitful and

dishonest and was committed in the conduct

of a transaction involving a yacht in

violation of Florida Statute 326.004(11),

and Florida Statute 326.006(2)(e)(5) and

(6), bec ause RONALD J. PALAMARA commingled

funds of his principal, JACQUES BARTHELEMY,

with his own funds.

A third document is an appellate court opinion in Ron Palamara

v. World Class Yachts, Inc. , which includes the following:

The trial court found that appel lant had

attempted to evade service by running away

from the process server. There was evidence

showing that, as the server attempted to

serve appellant outside his place of

business, appellant ran inside and would not

come out.

20. The Respondent argu es that the "facts" recited in the

documents described immediately above all demonstrate that the

Petitioner lacks good moral character. The Respondent further

argues that, inasmuch as official recognition has been taken of

those documents, the "facts" re cited in those documents must be

taken as established in this proceeding. For the reasons which

follow, the undersigned is of the view that the "facts" asserted

in the officially recognized documents have not been established

by persuasive competent subst antial evidence in this case. In

Maradie v. Maradie , 680 So. 2d 538 (Fla. 1st DCA 1996), a case

in which a parent's moral fitness was at issue, the court

advises:

In our system of justice, the practice of

taking judicial notice of adjudicative facts

sho uld be exercised with great caution.

Makos v. Prince , 64 So. 2d 670, 673 (Fla.

1953). This caution arises from our belief

that the taking of evidence, subject to

established safeguards, is the best way to

resolve disputes concerning adjudicative

facts. When a matter is judicially noticed

"it is taken as true without the necessity

of offering evidence by the party who should

ordinarily done so." Id. Thus,

historically, "judicial notice applies to

self - evident truths that no reasonable

person could quest ion, truisms that approach

platitudes or banalities." Hardy v. Johns -

Manville Sales Corp. , 681 F.2d 334, 347 - 48

(5 th Cir. 1982).

The Maradie decision goes on to discuss at length the reasons

for which it concludes that a factual matter such as the factua l

matter sought to be proved here by official recognition "is an

inappropriate subject for judicial notice. . . ." 4

21. And as noted in Department of State, Division of

Licensing v. Stephen A. Shields , DOAH Case No. 95 - 5321

(Recommended Order issued Febr uary 9, 1996):

It is well - settled in this state that "a

judgment of conviction is not admissible in

a subsequent civil case to prove the truth

of the facts in question." Romano v.

Trucking Employees of North Jersey Welfare

Fund, Inc. , 427 So.2d 802 (Fla. 4th DCA

1983). Stated otherwise, Florida law

prohibits "the use of a criminal conviction

as conclusive proof of the facts underlying

the conviction in a civil suit arising from

those same facts." Trucking Employees v.

Romano , 450 So.2d 843 (Fla. 1984). See also

Boshnack v. World Wide Rent - A - Car , 195 So.2d

216 (Fla. 1967); Moseley v. Ewing , 79 So.2d

776 (Fla. 1955); Stevens v. Duke , 42 So.2d

361 (Fla. 1949).

22. On the basis of the cases discussed immediately above,

it is concluded that official recogn ition of documents such as

those described in paragraph 19, above, is sufficient to

establish, without the need for other evidence, the fact that

such documents exist; the fact that a complaint was filed, the

fact that a trial court judgment was entered, t he fact that an

appellate court decision was issued. But official recognition

of such documents is not competent substantial evidence of any

of the facts recited in those documents. Such being the case,

the evidence submitted by the Respondent is insuffi cient to

overcome the prima facie case made by the Petitioner, and the

greater weight of the evidence (the preponderance of the

evidence) in this case is to the effect that the Petitioner is a

person of good moral character.

RECOMMENDATION

Based on the fo regoing findings of fact and conclusions of

law, it is recommended that a Final Order be issued in this case

granting the license sought by the Petitioner.

DONE AND ENTERED this 3rd day of September, 2002 , in

Tallahassee, Leon County, Florida.

___________________________________

MICHAEL M. PARRISH

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 3rd day of September, 2002 .

ENDNOTES

1/ For reasons not explained in the record of this case, a

notice of intent to deny, issued on June 7, 2000, was not

forwarded to the Division of Administrative Hearings for hearing

until March 25, 2002.

2/ Although the World Class Yachts civil action was pending

when the Petitioner filed his application, it is not clear that

the Petitioner was aware that his case was pending when he filed

his application.

3/ It is important to remember that the judgment containing

these "facts" was a default judgment. There was no trial in the

Chinnock Marine case, and no evidence of such "fact s" was

presented to the trial court.

4/ In view of the similarities between "judicial notice" and

"official recognition," cases providing guidance regarding the

appropriate use of judicial notice are useful guides in the

application of official recogniti on.

COPIES FURNISHED:

James Brown, Esquire

Brown, Sharkey & Associates, P.A.

2700 W. Atlantic Boulevard, Suite 204

Pompano Beach, Florida 33069

Joseph S. Garwood, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, S uite 60

Tallahassee, Florida 32399 - 2202

Ross Fleetwood, Division Director

Division of Florida Land Sales, Condominiums,

and Mobile Homes

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Hardy L. Roberts, III, General Counsel

Department of Busi ness and

Professional Regulation

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 excep tions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.