05-003208 Joseph L. Nacca vs. Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering Status: Closed Recommended Order on Tuesday, January 31, 2006.

Summary: Petitioner`s felony conviction warrants denial of a pari-mutuel occupational license, where Petitioner failed to establish rehabilitation or present good moral character.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH L. NACCA, )

)

Petitioner, )

)

vs. ) Case No. 05 - 3208

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF PARI - MUTUEL )

WAGERING, )

)

Respondent. )

)

RECOMMENDED ORDER

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

by video teleconference on January 6, 2006, at sites in

Lauderdale Lakes and Tallahassee, Florida, before Florence

Snyder Rivas, a duly - designated Admin istrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph L. Nacca, pro se

268 West Walk

West Haven, Connecticut 06516

For Respondent: S. Thomas Peavey Hoff er

Department of Business and

Professional Regulation

Division of Pari - Mutuel Wagering

1940 North Monroe Street

Tallahassee, Florida 32399 - 220 2

STATEMENT OF THE ISSUES

The issues are: (1) whether Petitioner is qualified for a

pari - mutuel wagering occupational license; and (2) whether

Petitioner is entitled to waiver of his felony conviction in

accordance with Chapter 550, Florida Statutes (2 006 ).

PRELIMINARY STATEMENT

By letter dated June 30, 2005, Respondent, Department of

Business and Professional Regulation, Division of Pari - Mutuel

Wagering (Division), notified Petitioner, Joseph L. Nacca

(Petitioner), that his application for a pari - mutu el wagering

occupational license as a racehorse owner and request for waiver

were denied. Petitioner timely requested a formal hearing to

challenge the denial of his application and request for waiver.

At the hearing, Petitioner testified in his own behal f.

Petitioner did not offer any exhibits. The Division presented

the testimony of its investigator Dennis Badillo and offered

three Exhibits, which were received into evidence without

objection.

The parties elected not to provide a transcript of the

proc eedings. The parties were afforded an opportunity to submit

a proposed recommended order on or before January 23, 2006. The

Division timely filed a Proposed Recommended Order which has

been duly - considered; Petitioner did not file a p roposed

r ecommended o rder.

FINDINGS OF FACT

1. Petitioner submitted an application for a pari - mutuel

wagering occupational license as a racehorse owner on or about

March 30, 2005. On his application, Petitioner accurately

reported that he had been convicted on one count of Conspiracy

to Transport Stolen Property and Evade Taxes, a felony.

2. Due to Petitioner’s felony conviction, his application

for a pari - mutuel wagering occupational license was subject to

denial. Consequently, Petitioner also requested that a waiver

be granted so that he could obtain the license.

3. Petitioner's application and his request for waiver

failed to include any information which would establish his

rehabilitation or demonstrate that he is of good moral

character.

4. In the regular course of the Division's review of

Petitioner's application and request for waiver, on or about

April 11, 2005, Petitioner was interviewed by Dennis Badillo, an

investigator for the Division. During the interview,

Mr. Badillo completed a waiver interview form based upon the

answers provided by Petitioner. Petitioner was afforded a full

and fair opportunity to present information to establish his

rehabilitation and to demonstrate his present good moral

character, but Petitioner did not provide such information.

5. In light of the information regarding Petitioner’s

felony conviction, which is undisputed and admitted by

Petitioner on his application form and at the final hearing,

Petitioner does not meet the eligibility requirements for the

license he seeks.

6. At h earing, Petitioner attempted to minimize his role

in the crime of which he was convicted, and expressed the view

that he "doesn't have much time" to fulfill his desire to

"participate in the racing industry" in Florida, inasmuch as he

has passed his 70th b irthday.

7. Petitioner failed to present any testimony from

friends, relatives, associates, employers, probation officers,

or other individuals to establish good conduct and reputation

subsequent to the date of his felony conviction. Absent such

evidence , the Division has no basis upon which to conclude that

Petitioner is rehabilitated or that Petitioner is of present

good moral character.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matt er of this

proceeding pursuant to Section 1 20.57(1), Florida Statutes

(2006 ).

9. The Division is authorized to issue or deny pari - mutuel

wagering occupational licenses pursuant to the provisions of

Section 550.105, Florida Statutes (2006 ).

10. As an app licant, Petitioner bears the burden of

proving his entitlement to the license he seeks. Department of

Banking and Finance, Division of Securities and Investor

Protection v. Osborne Stern and Co. , 670 So. 2d 932, 934, (Fla.

1996); Florida Department of Tra nsportation v. J.W.C., Co.,

Inc. , 396 So. 2d 778 (1st DCA 1981). Petitioner has failed to

meet this burden.

11. The reasons for which the Division may deny an

application for a pari - mutuel wagering occupational license are

set forth in Section 550.1 05(5 )(b), Florida Statutes (2006 ),

which provides in pertinent part:

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 license if the applicant

for such license has been convicted in this

state, in a ny 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 involving arson; trafficking in,

conspiracy to traffic in, smuggling,

importing, con spiracy 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.

12. Here, Petitioner’s application for licensure was

properly denied on the basis of Petitioner’s criminal record;

Petitioner does not dispute that he was convicted of Conspiracy

to Transport Stolen Property and Evade Taxes, a felony. This

conviction established a valid basis for the Division’s denial

of Petitioner’s application for a pari - mutuel wagering

occupational license. See Section 550.105(5)(b), Florida

Statutes (2006 ).

13. Petitioner's felony conviction is not necessarily a

p ermanent bar to his obtaining a pari - mutual wagering

occupational license. Pursuant to the Division’s rulemaking

authority set forth in Section 550.0251(3), Florida Statutes

(2004), the Division adopted Florida Administrative Code Rule

61D - 5.006, which pr ovides in relevant part:

(1) Any applicant for an occupational

license who is subject to denial on the

basis of a criminal conviction or discipline

by any racing jurisdiction may seek a waiver

from the division director. The applicant

shall submit an I ndividual Occupational

License Application BPR Form 15 - 027,

incorporated by Rule 61D - 10.001, Florida

Administrative Code, the annual license fee

and fingerprint fee, a complete set of

fingerprints on a card supplied by the

division, and a Request for Waive r BPR Form

15 - 022, incorporated by Rule 61D - 10.001,

Florida Administrative Code. The applicant

must also schedule a waiver interview with

the Bureau of Investigations. Failure to

participate in a waiver interview or to

disclose any pertinent information regarding

convictions, rulings, revocations or denials

from other jurisdictions will result in a

denial of the request for waiver.

(2) The applicant must establish

rehabilitation and must demonstrate present

good moral character. The waiver applies to

convictions or enforcement actions disclosed

to the division, unless revoked by the

division for violation of Chapter 550,

Florida Statutes, or these rules. . . .

14. In this case, Petitioner has been afforded an

opportunity, pursuant to Florida Adminis trative Code Rule 61D -

5.006, to obtain a waiver. The waiver was properly denied

because Petitioner failed to establish rehabilitation and failed

to demonstrate present good moral character.

15. In light of the foregoing, Petitioner failed to meet

his bur den of proof and, thus, he is not entitled to the pari -

mutuel wagering occupational license under the waiver provisions

of Florida Administrative Code Rule 61D - 5.006.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECO MMENDED that the Division enter a final order

denying Petitioner’s application for a pari - mutuel wagering

occupational license and his request for waiver.

DONE AND ENTERED this 31st day of January 2006, in

Tallahassee, Leon County, Florida.

S

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 31st day of January, 2006.

COPIES FURNISHED :

S. Thomas Peavey Hoffer

Department of Business and

Professional Regulation

Division of Pari - Mutuel Wagering

1940 North Monroe Str eet

Tallahassee, Florida 32399 - 2202

Joseph L. Nacca

268 West Walk

West Haven, Connecticut 06516

David J. Roberts, Director

Division of Pari - Mutuel Wagering

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Flori da 32399 - 0792

Josefina Tamayo, General Counsel

Department of Business 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 exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.