02-001282 Christian P. Welvaert vs. Department Of Business And Professional Regulation, Division Of Land Status: Closed Recommended Order on Monday, November 4, 2002.

Summary: Petitioner`s failure to disclose criminal background warrants denial of license as a yacht salesman.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTIAN P. WELVAERT, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1282

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF FLORIDA LAND SALES, )

CONDOMINIUMS AND MOB ILE HOMES, )

)

Respondent. )

______ ____________________________)

RECOMMENDED ORDER

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

on September 10, 2002, by videoteleconference at sites in West

Palm Beach and Tallahassee, Florida, before Administrative Law

Judge Florence Snyder Rivas.

APPEARANCES

For Petitioner: Christian P. Welvaert, pro se

7 Kenmore Lane

Boynton Beach, Florida 33435

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 Respondent, Department of Business and

Professional Regulation, Division of Land Sales, Condominiums,

and Mobile Homes (Respondent or Division), acted arbitrarily or

capriciously in denying Christian Welvaert’s (Petitioner or

Welvaert) application to be licensed as a yacht and ship

salesmen under Chapter 3 26, Florida Statutes.

PRELIMINARY STATEMENT

On January 11, 2002, Respondent filed a Notice of Intent to

Deny License Application (Notice) on the grounds that Petitioner

did not furnish proof satisfactory to the Division that he is of

good moral character. More specifically, the Notice stated that

Petitioner had not fully revealed his criminal history as

required by law in submitting his application for licensure.

Petitioner timely asserted his right to an administrative

hearing in a hand - written document in which he stated, "Please

give me a chance to explain."

The Division moved to dismiss the petition asserting that

the request was untimely, and did not adequately specify the

disputed material facts. The motion was denied without

prejudice, and a final hearing was scheduled for June 12, 2002.

Thereafter, Petitioner advised that he would be "away for the

summer." He provided no details and did not supply a current

address or telephone number.

In preparation for the final hearing, the Division

propound ed a Request for Admissions. Welvaert failed to timely

reply, and he failed to seek an enlargement of time. The

Request for Admissions addressed all the material allegations of

the Notice, and the Division moved for entry of an order deeming

the allegati ons to be admitted. This too was denied without

prejudice, so as to provide Petitioner, who was acting pro se ,

an opportunity to have his case heard on the merits.

Over the Division's objection, the hearing went forward on

September 10, 2002. At that tim e, Petitioner presented his own

testimony. Respondent presented the testimony of its

investigator James Courchaine, and introduced four exhibits, all

of which were entered into evidence.

The transcript of the proceedings was filed on

September 17, 20 02.

Petitioner has not filed a proposed recommended order.

Respondent filed a Proposed Recommended Order on September 23,

2002, which has been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Respondent is the state age ncy charged with regulating

and licensing of yacht and ship brokers under Section

326.002(2), Florida Statutes.

2. On October 16, 2001, Welvaert submitted to the Division

his application for licensure as a yacht and ship salesman.

3. Licensure is a priv ilege granted to individuals who

affirmatively demonstrate good moral character. The Division is

authorized to, and does in fact investigate an applicant's

criminal background if one exists. This is done so that the

state may determine if the individual' s criminal history is of a

nature which would warrant denial of licensure.

4. To facilitate the state's investigation, applicants are

asked to fully disclose any criminal history. It is required

that this question, and all the questions on the applicatio n, be

answered truthfully.

5. Welvaert falsely stated on his application that his

only criminal background was "traffic offense."

6. A Florida Department of Law Enforcement (FDLE)

background check revealed that Welvaert had been arrested on

several occa sions on charges relating to possession of drugs and

drug paraphernalia; domestic battery and resisting an officer

without violence; probation violation by possessing drug

paraphernalia and cannabis; and driving under the influence of

drugs or alcohol.

7. Welvaert did not offer any evidence to contradict the

FDLE's findings in any material way. He asserted that he never

violated probation, claiming that he didn’t know when his court

date was because he had moved.

8. This experience did not teach Welvae rt the importance

of attending to his legal affairs. In this case, he blamed his

landlady for his failure to respond to the Division's Request

for Admissions, which was properly served upon him at the

address he had on file in this case. Welvaert stated, "I

thought the person, the landlady I was staying with, I thought

she was going to call me or tell me if I had something this

important in the mail. I guess she didn't."

9. Petitioner testified that he has "changed his life

around" and is now rehabilita ted. While he did not

unequivocally deny the drug charges, he implied that he "just

[took] the time" on the advice of the presiding judge. He

further stated, "It was at someone's house. I was in a college

town at the time."

10. Nothing in Welvaert's te stimony constitutes a legally

or factually sufficient excuse for his failure to disclose his

criminal background.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding, pu rsuant to Section 120.57(1), Florida Statutes.

12. In this proceeding, Petitioner had 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. Department of Busine ss & Professional Regulation,

Division of Securities & Investor Protection v. Osborne Stern &

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

13. This he has failed to do. Section 326.004(6)(a),

Florida Statutes, authorizes the Division to deny a license to

an applican t who does not furnish satisfactory proof of good

moral character. A key component of good moral character is

that an applicant truthfully report his criminal history in

order to facilitate the Division's efforts to determine whether

the applicant has bee n sufficiently rehabilitated so as to be

granted the privilege of licensure.

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

reasonably mandates that the applicant provide full and complete

disclosure, as well as accurate information, concerning a ny

criminal background on the application for licensure.

15. Although not required to, the Division advises

applicants on the face of the application that the Division will

independently research and confirm the representations made on

the application wit h respect to criminal history. No reasonable

person could have been confused as to the requirements of the

law.

16. The procedural history of this case as set forth in

the preliminary statement reveals that Welvaert seeks second

chances in the form of pr obation in criminal matters and, in

this case, an impartial review of a predicament for which he

alone is responsible, yet cannot be troubled to provide address

changes to the authorities whose indulgence he seeks.

17. Yacht salesmen deal with huge sum s of money in an

industry which is vital to Florida's economy. The state has a

legitimate interest in assuring that individuals who work in

this industry are people of integrity and character. The record

in this case establishes that Welvaert is dishones t and

immature. The Division was well justified in denying his

application for licensure.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

law, it is RECOMMENDED that the Petitioner's application to be

licensed as a yacht and s hip salesman’s be denied.

DONE AND ENTERED this 4th day of November, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

FLORENCE SNYDER RIVAS

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 4th day of November, 2002.

COPIES FURNISHED :

Joseph S. Garwood, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399 - 2202

Christian P. Welvaert

7 Kenmore Lane

Boynton Beach, Florida 33435

Ross Fleetwood, Division Director

Division of Florida Land Sales,

Condominiums and Mobile Homes

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Hardy L. Roberts, III, General Counsel

Department of Business and

Profess ional 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 exceptions

to this Recom mended Order should be filed with the agency that

will issue the Final Order in this case.