04-000905 Department Of Business And Professional Regulation vs. Luis A. Taboada, Jr. Status: Closed Recommended Order on Wednesday, July 14, 2004.

Summary: Petitioner failed to disclose fully his criminal history on his application for a yacht salesperson`s license. His plea to a felony and his absence of candor showed a lack of good moral character.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LUIS A. TABOADA, JR., )

)

Petitioner, )

)

vs. ) Case No. 04 - 0905

)

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

before Larry J. Sartin, an Administrative Law Judge of the

Division of Administrative Hearings, on May 4, 2004, by video

teleconferencing between West Palm Beach and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Luis A. Taboada, Jr., pro se

9924 Orange Park Trail

Boca Raton, Florida 33428

For Respondent: Joseph S. Garwood, Esquire

Department of Business and

Pro fessional Regulation

The Augusta Building, Suite 100

8685 Northwest 53rd Terrace

Miami, Florida 33166

STATEMENT OF THE ISSUE

The issue in this case is whether an application for a

yacht salesperson license filed by Petitioner, Luis A. Taboada,

Jr., s hould be granted by Respondent, the Division of Florida

Land Sales, Condominiums, and Mobile Homes, Department of

Business and Professional Regulation.

PRELIMINARY STATEMENT

On December 15, 2003, Petitioner filed an application for a

yacht salesperson's li cense. The application was found to be in

order and, therefore, a temporary salesperson's license No. 5344

was issued by Respondent. Respondent subsequently concluded,

during its review for "good moral character,” that Petitioner

lacked good moral charac ter. This conclusion was based upon

Respondent's determination that Petitioner had failed to provide

a full and complete disclosure of information requested on the

application and that Petitioner's criminal history included a

plea of nolo contendere to a felony. On February 11, 2004, the

Respondent issued a Notice of Intent to Deny License

Application.

In response to the Notice of Intent to Deny License

Application, Petitioner filed a letter with Respondent

requesting a formal administration hearing to co ntest the

allegations of the Notice of Intent to Deny License.

On March 18, 2004, Respondent filed the Notice of Intent to

Deny License and Petitioner's request for hearing with the

Division of Administrative Hearings. Respondent requested

assignment of t he matter to an administrative law judge. The

matter was designated DOAH Case No. 04 - 0905 and was assigned to

Administrative Law Judge Robert E. Meale. The case was

subsequently transferred to the undersigned to conduct the final

hearing.

At the final he aring, Respondent agreed to present its case

first. Respondent presented the testimony of Victoria

Mergenthal, an investigator employed by Respondent, and Robert

Badger, head of the yacht sales section of Respondent.

Respondent also had one exhibit admit ted. Petitioner testified

on his own behalf, but offered no exhibits.

At the close of the final hearing, Respondent agreed to

allow Petitioner to file affidavits after the conclusion of the

hearing that would support his claim of rehabilitation.

Petition er has not filed any affidavits of the date of this

Recommended Order.

By Notice of Filing of Transcript issued June 3, 2004, the

parties were informed that the Transcript of the final hearing

had been filed on June 2, 2004. The parties, pursuant to

agree ment, therefore, had until June 14, 2004, to file proposed

recommended orders. On June 14, 2004, Respondent filed

Respondent's Proposed Recommended Order. Petitioner did not

file a post - hearing pleading. The post - hearing submittal of

Respondent has been fully considered.

FINDINGS OF FACT

1. Respondent, the Division of Florida Land Sales,

Condominiums, and Mobile Homes, Department of Business and

Professional Regulation (hereinafter referred to as the

"Division"), is charged with the responsibility for, among other

things, licensing yacht salespersons and brokers in the State of

Florida pursuant to the "Yacht and Ship Brokers' Act," Chapter

326, Florida Statutes (2003), and Florida Administrative Code

Chapter 61B - 60.

2. At the times pertinent to this mat ter, Petitioner, Luis

A. Taboada, Jr., was an applicant for a yacht salespersons'

license, having filed an Application for a Yacht and Ship

Employing Broker, Broker or Salesperson's License (hereinafter

referred to as the "Application") with the Division o n

December 15, 2003.

3. Consistent with Florida Administrative Code Rule 61B -

60.003(2), the Division reviewed the Application and found it to

be in "acceptable form." The Division, therefore, issued a

temporary salesperson's license, license number 5344, to

Mr. Taboada.

4. As required by Florida Administrative Code Rule 61B -

60.003(3), the Division proceeded to "evaluate the application

and make appropriate inquiry to determine [Mr. Taboada's] moral

character."

5. As a part of its review, the Division no ticed that

Mr. Taboada had answered question 14 of the Application with a

"yes" but had not provided information concerning his answer,

which the Application directed him to do. In particular, the

Application instructed Mr. Taboada to "attach your complet e

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" if he answered "yes" to question 14.

6. Question 14, which Mr. Taboada answered affirmatively,

requeste d the following criminal history information:

14. 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?

NOTE: This question appl ies to any

violation of the laws of any municipality,

county, state, or nation, including traffic

offense (but not parking, speeding,

inspection or traffic signal violations),

without regard to whether you were placed on

probation, had adjudication withhel d,

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. (Emphasis added).

7. Mr. Taboada was contacted by Victoria Mergenthal, a n

investigator for the Division, and requested to provide the

missing explanation. In response to this request, on or about

December 11, 2003, Mr. Taboada filed the following signed

statement with the Division:

QUESTION #14

I was arrested for possesion [s ic] of

fraudelent [sic] I.D. and fraudulent [sic]

credit cards.

I did 1 1/2 years probation.

This happen [sic] in 1999 - 2000 in Broward

(Deerfield Beach).

8. After receiving Mr. Taboada's statement and in

furtherance of the Division's review process, Ms . Mergenthal

obtained a criminal history report on Mr. Taboada (hereinafter

referred to as the "Criminal History Report") from the Florida

Department of Law Enforcement. The Criminal History Report was

received on or about December 31, 2003.

9. The Crimi nal History Report disclosed that Mr. Taboada

had an extensive criminal history, including matters not

reported to the Division in his December 11, 2003, statement.

Those arrests and the charges included the following:

a. Arrest for retail theft on Janua ry 16, 1995;

b. Arrest for shoplifting on September 7, 1995;

c. Arrest for burglary on November 7, 1995; and

d. Arrest on September 15, 2000, for possession of blank

fictitious unlawfully issued driver license; fraudulent - illegal

use of credit cards; an d possession of stolen property.

10. As to the September 15, 2000, arrest, some of details

of which Mr. Taboada had disclosed in his December 11, 2003,

statement, the Criminal History Report showed that Mr. Taboada

had pled nolo contendere to unauthorized possession of

unlawfully issued driver license I.D. cards in violation of

Section 322.212, Florida Statutes, a felony; and forgery of a

credit card in violation of Section 817.60(6)(a), Florida

Statutes, a felony. Adjudication was withheld on these offen ses

and Mr. Taboada was sentenced to one and a half years’ probation

beginning April 6, 2001.

11. The foregoing arrests, and their judicial outcome,

were not fully and completely disclosed to the Division by

Mr. Taboada.

12. On February 11, 2004, the Div ision issued a Notice of

Intent to Deny License Application. The Division's action was

based upon its conclusion that Mr. Taboada lacked good moral

character. This conclusion was premised upon the fact that he

had pled nolo contendere to a felony and the fact that he had

failed to provide full and complete disclosure, or accurate

information pertaining to his criminal history, on the

Application.

CONCLUSIONS OF LAW

A. Jurisdiction .

13. The Division of Administrative Hearings has

jurisdiction over the su bject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2003).

B. The Burden and Standard of Proof .

14. Florida Administrative Code Rule 61B - 60.003(2)

provides that when an application for a yacht salesperson

license is filed and "determined to be in acceptable form" the

Division "shall issue a temporary 90 - day license." That was

done in this case.

15. Although Mr. Taboada possessed a temporary license,

Florida Administrative Code Rule 61B - 60.003(3) requires that the

Division "evaluate the application and make appropriate inquiry

to determine the applicant's moral character." Once that review

is completed, if it is found that the applicant does not posses

good moral character, "the divisio n shall issue a notice of its

intent to deny the application." That is also what occurred in

this case.

16. Based upon the foregoing, Mr. Taboada, by seeking a

license as a yacht salesperson, had the burden of proof. See

Fla. Admin. Code R. 28 - 107.003; Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996); See also

Espinoza v. Department of Business and Professional Regulation ,

739 So. 2d 1250 (Fla. 3rd DCA 1999). Mr. Taboa da was required

to meet his burden by proving by a preponderance of the evidence

that he is entitled to the license he seeks.

C. The Division's Grounds for Denial of Mr. Taboada's

License .

17. In its Notice of Intent to Deny, which the Division

was r equired by Florida Administrative Code Rule 28 - 107.003 to

provide to Mr. Taboada, the Division notified Mr. Taboada of the

grounds for its proposed denial of his Application. The

Division notified Mr. Taboada that the following constituted the

factual bas is for its decision:

On December 15, 2003, the Division received

an application for a yacht salesperson's

license from you. The application was found

to be in correct form and temporary

salesperson's license no. 5344 was issued.

On the application, quest ion number

fourteen, relating to criminal history, was

answered "yes." Along with your

application, you included a brief statement

explaining that you had been arrested for

possession of fraudulent identifications and

credit cards and had served 1 1/2 yea rs

probation for these crimes. A criminal

background report from the Florida

Department of Law Enforcement revealed that

you had a prior arrest record, which

included theft and burglary charges along

with a conviction involving the possession

of fraudulen t identifications and credit

cards. These charges were not disclosed on

your application. It was also noted that

you served 1 1/2 years probation that ended

in October 2002.

18. The Division notified Mr. Taboada that, legally, it

was denying his Appl ication pursuant to Section 326.004(6)(a),

Florida Statutes. That provision provides, in pertinent part,

the following:

(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.

19. The Division also notified Mr. Taboada that its

conclusion that he had failed to provide proof satisfactory to

the Division that he was of good moral character was based upon

Florida Administrative Code Rule 61B - 60.003(3) (a)1 and 6, which

provide "factors" to consider in determining whether an

applicant has good 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 - feloniou s offense involving moral

turpitude, fraud, theft, dishonesty, assault

and battery, or false statement; and

. . . .

6. Failure of the applicant to provide

full and complete disclosure, or to provide

accurate information, on the application for

lice nsure.

. . . .

20. The facts proved in this proceeding support the

Division's conclusion that Mr. Taboada had failed to satisfy the

Division of his good moral character. Mr. Taboada's criminal

history disclosed that he had pled nolo contendere to two

felonies. This fact bears on Mr. Taboada's moral character

pursuant to Florida Administrative Code Rule 61B - 60.003(3)(a)1.

Mr. Taboada also failed to provide full and complete disclosure,

or to provide accurate information on his Application. This

fact also bears on Mr. Taboada's moral character pursuant to

Florida Administrative Code Rule 61B - 60.003(3)(a)6.

21. Mr. Taboada failed to offer any proof to overcome the

factors relied upon by the Division in concluding that he lacked

good moral character.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by the

Division of Florida Land Sales, Condominiums, and Mobile Homes,

Department of Business and Professional Regulation, denying the

application for a yacht salesperson license filed by Luis A.

Taboada, Jr.

DONE AND ENTERED this 14th day of July, 2004, in

Tallahassee, Leon County, Florida.

___________________________________

LARRY J. SARTIN

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 th e

Division of Administrative Hearings

this 14th day of July, 2004.

COPIES FURNISHED:

Luis A. Taboada, Jr.

9924 Orange Park Trail

Boca Raton, Florida 33428

Joseph S. Garwood, Esquire

Department of Business and

Professional Regulation

The Au gusta Building, Suite 100

8685 Northwest 53rd Terrace

Miami, Florida 33166

Ross Fleetwood, Division Director

Division of Florida Land Sales,

Condominiums, and Mobile Homes

Department of Business and

Professional Regulation

Northwood Centre

1940 Nor th Monroe Street

Tallahassee, Florida 32399 - 0792

Leon Biegalski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

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 Recommended Order should be filed with the agency that

will issue the Final Order in this case.