04-003039PL Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering vs. Jerry M. Bonett Status: Closed Recommended Order on Friday, December 17, 2004.

Summary: Respondent failed to completely disclose felony convictions on an application filed with Petitioner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF PARI - MUTUEL )

WAGERING, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3039PL

)

JERRY M. BONETT, )

)

Respondent. )

)

RECOMMENDED ORDER

On November 4, 2004, an administrative hearing in this

case was held in St. Petersburg, Florida, before William F.

Quattlebaum, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Stefan Thomas Peavey Hoffer

Qualified Representative

Ralf E. Michels, Esquire

Division of Pari - Mutuel Wagering

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Jerry M. Bonett, pro se

7801 Willowbrook Court

Hudson , Florida 34667

STATEMENT OF THE ISSUES

The issues in the case are whether the allegations of the

Administrative Complaint are correct, and, if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated July 1, 2004, t he

Department of Business and Professional Regulation, Division of

Pari - Mutuel Wagering (Petitioner) alleged that Jerry M. Bonett

(Respondent) failed to disclose a complete history of criminal

convictions when he applied for licensure as a dealer in a card

room.

Respondent disputed the allegations and requested an

administrative hearing. Petitioner forwarded the matter to the

Division of Administrative Hearings, which scheduled and

conducted the hearing.

At the hearing, Petitioner presented no witnesses and had

Exhibits 1 through 6 admitted into evidence. Respondent

testified on his own behalf.

The Transcript of the hearing was filed on December 2,

2004. Both parties filed proposed recommended orders.

FINDINGS OF FACT

1. Petitioner is the state age ncy charged with regulation

of pari - mutuel wagering pursuant to Chapter 550, Florida

Statutes (2003), and is responsible for licensing employees of

pari - mutuel facilities.

2. Respondent is a card dealer holding Florida

occupational license number 6927724 - 1012 for employment as a

card dealer at the Tampa Bay Downs racetrack.

3. By application filed at the racetrack on December 3,

2003, Respondent applied for the referenced license. Persons

unknown apparently conducted the application process for all

em ployees of the facility. Employees completed the applications

and submitted them at the racetrack, again to persons unknown.

4. The application includes a section titled "Background

Information." Question 1 asks in relevant part the following

question :

Have you ever been convicted of a crime,

found guilty, or entered a plea of guilty or

nolo contender (no contest) to, even if you

received a withhold of adjudication?

5. Question 1 further provides as follows:

YOUR ANSWER TO THIS QUESTION WILL BE CHE CKED

AGAINST LOCAL, STATE AND FEDERAL RECORDS.

FAILURE TO ANSWER THIS QUESTION ACCURATELY

MAY RESULT IN DENIAL OR REVOCATION OF YOUR

LICENSE. IF YOU DO NOT FULLY UNDERSTAND

THIS QUESTION, CONSULT WITH AN ATTORNEY OR

CONTACT THE DEPARTMENT.

6. Respond ent answered the question in the affirmative.

The question provides that if the applicant responds in the

affirmative to the question, "form 0050 - 1" should be completed

to disclose additional information about the convictions.

7. Form 0050 - 1 includes sp ace to list three criminal

convictions. The application instructions related to the form

state: "[i]f you have more than seven offenses to document on

form 0050 - 1, attach additional copies . . . as necessary."

8. Respondent completed a form 0050 - 1. O n the form, he

stated that he had been convicted of a misdemeanor in 1987. The

Respondent identified the offenses as "trespassing," "suspended

license," and "cashed check." Respondent stated that the

penalty had been probation, which was violated, and th at he was

required to finish the sentence. Respondent initially

identified the location of the conviction as Pasco County, but

crossed through the writing and changed it to Hillsborough

County.

9. Above Respondent's signature on the application is a

st atement that in material part provides as follows:

I hereby certify that every statement

contained herein is true and correct and

that I understand that any misstatement or

omission in this application may result in

denial or revocation of my pari - mutuel

l icense.

10. Other than the information on the application, there

was no evidence offered at the hearing that Petitioner was

convicted of a misdemeanor in 1987 in Hillsborough County.

11. Petitioner asserts that at the time he filed the

application, he completed a second form 0050 - 1 on which he

disclosed additional information related to felony convictions.

At the hearing, he testified that an unidentified person

allegedly involved in the application process instructed him to

make the felony disclosure s on a second form. Although there is

no evidence contradicting Respondent's account of the events,

the application submitted through the racetrack to Petitioner

did not include a second form 0050 - 1.

12. In 1983, Respondent was adjudicated guilty of fe lony

charges, including Forgery and Uttering a Forged Check in Pasco

County, Florida (Circuit Court, Sixth Judicial Circuit, Case

No. 8101927CFAWS).

13. In 1990, Respondent was adjudicated guilty of a felony

charge of Grand Theft, Third Degree in Hillsbor ough County,

Florida (Circuit Court, Thirteenth Judicial Circuit, Case

No. 90 - 279).

14. In 1991, Respondent was adjudicated guilty of a felony

charge of Grand Theft in Pasco County, Florida (Circuit Court,

Sixth Judicial Circuit, Case No. 8701762CFAWS).

1 5. A few days after the application was completed,

Respondent met with an employee of Petitioner (identified as

"Nick") to discuss the felony convictions. "Nick" did not

testify at the hearing.

16. As filed with Petitioner, Respondent's application

fa iled to include a second form 0050 - 1 and did not disclose the

felony convictions identified herein.

17. There is no evidence that Respondent has had any

involvement in criminal activity since 1991.

CONCLUSIONS OF LAW

18. The Division of Administrati ve Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. § 120.57, Fla. Stat. (2003).

19. Subsection 550.105(10), Florida Statutes (2003), in

relevant part provides as follows:

Upon application for an occupational

licen se, the division may require the

applicant's full legal name; any nickname,

alias, or maiden name for the applicant;

name of the applicant's spouse; the

applicant's date of birth, residence

address, mailing address, residence

address and business phone nu mber, and

social security number; disclosure of any

felony . . . .

20. Subsection 550.105(5)(b), Florida Statutes (2003),

provides as follows:

The division may deny, suspend, revoke, or

declare ineligible any occupational license

if the applicant for or holder thereof has

violated the provisions of this chapter or

the rules of the division governing the

conduct of persons connected with racetracks

and frontons. In addition, the division may

deny, suspend, revoke, or declare ineligible

any occupational l icense if the applicant

for such license has been convicted in this

state, in any other state, or under the laws

of the United States of a capital felony, a

felony, or an offense in any other state

which would be a felony under the laws of

this state invol ving arson; trafficking in,

conspiracy to traffic in, smuggling,

importing, conspiracy to smuggle or import,

or delivery, sale, or distribution of a

controlled substance; or a crime involving a

lack of good moral character, or has had a

pari - mutuel license revoked by this state or

any other jurisdiction for an offense

related to pari - mutuel wagering.

21. Section 559.791, Florida Statutes (2003), provides as

follows:

False swearing on application; penalties. --

Any license issued by the Department of

Busines s and Professional Regulation which

is issued or renewed in response to an

application upon which the person signing

under oath or affirmation has falsely sworn

to a material statement, including, but not

limited to, the names and addresses of the

owners o r managers of the licensee or

applicant, shall be subject to denial of the

application or suspension or revocation of

the license, and the person falsely swearing

shall be subject to any other penalties

provided by law.

22. Petitioner has the burden of p roving by clear and

convincing evidence the allegations set forth in the

Administrative Complaint filed against Respondent. Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987). Clearly, Petitioner did

not receive a form 0050 - 1 upon which the information rel ated to

Respondent's felony convictions was disclosed. Because the

application submitted to Petitioner failed to include

information related to Respondent's felony convictions, the

burden has been met.

23. Respondent asserts that he included information

related to the felony convictions on a second form 0050 - 1 that

he completed at the time of the application. In support of the

assertion, Respondent testified that within a few days of making

the application, he was required to meet with a state employee

(identified as "Nick") allegedly assigned to review the

applications and obtain information related to felony

disclosures, thereby suggesting that the felonies were disclosed

on the application. "Nick" did not testify at the hearing.

24. In response to a question from the administrative law

judge, counsel for Petitioner indicated that in cases where an

applicant has a felony conviction, an investigator reviews the

matter and signs off on an application before further processing

occurs.

25. As to Resp ondent's meeting with "Nick," Petitioner

offered its Exhibit 6 into evidence (purportedly a form

completed by "Nick" after his meeting with Respondent) to

suggest that the meeting was related to felony convictions that

were allegedly undisclosed on the app lication. The exhibit is

one page of apparently seven from a form used by Petitioner.

The page is undated and unsigned. Counsel for Petitioner

offered the only information identifying the exhibit. No

evidence supporting admissibility under the business records

exception to the rule against hearsay was offered. See

Subsection 90.803(6)(a), Florida Statutes (2003), as to

admissibility of the document. The exhibit is uncorroborated

hearsay, is insufficient to form the basis for a finding of

fact, and has not been considered in the preparation of this

Recommended Order.

26. The evidence is insufficient to support any finding of

fact as to the purpose of Respondent's meeting with "Nick," and

fails to establish whether the meeting was triggered by

informati on included on a now - missing disclosure form or by

information obtained by Petitioner after the application was

submitted.

27. A review of Petitioner's rules as set forth in Florida

Administrative Code Chapter 61 did not establish that persons

disclosing felony convictions on an application are required to

meet with a state official prior to the application being

processed.

28. It appears that Florida Administrative Code

Rule 61D - 5.006 provides a process by which Respondent may seek a

waiver of disqual ification related to criminal convictions from

the director of the Division of Pari - Mutuel Wagering, but the

issues in this case are framed by the Administrative Complaint

and the issue of a waiver is outside the scope of this

proceeding.

29. In the Pro posed Recommended Order, Petitioner seeks

revocation of Respondent's licensure and disqualification from

re - licensure for a period of five years. The suggested penalty

seems inappropriately harsh under the circumstances. The

evidence fails to establish t hat Respondent attempted to deceive

Petitioner by making an incomplete disclosure of a criminal

record. Based on Respondent's testimony at the hearing, it

appears that time and circumstances have confused the details of

inappropriate activities that cease d approximately 13 years ago.

It also appears that Respondent provided information during the

application process sufficient to put Petitioner on notice of

the past activities.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

L aw, it is

RECOMMENDED that the Department of Business and Professional

Regulation enter a final order suspending Respondent's

occupational license for a period of three months.

DONE AND ENTERED this 17th day of December, 2004, in

Tallahassee, Leon Coun ty, Florida.

S

WILLIAM F. QUATTLEBAUM

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 (8 50) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of December, 2004.

COPIES FURNISHED :

Ralf E. Michels, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Stefan Thomas Hoffer

Division of Pari - Mutuel Wagering

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Jerry M. Bonett

7801 Willowbrook Court

Hudson, Florida 34667

Leon Biegalski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

David J. Roberts, Director

Division of Pari - Mutuel Wagering

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. A ny exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.