06-000736PL Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering vs. Jose Paradelo Status: Closed Recommended Order on Monday, July 10, 2006.

Summary: The evidence did not clearly establish that Respondent falsified his application. The other allegation was not sufficiently pled. Recommend that the Administrative Complaint be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF PARI - MUTUEL )

WAGERING, )

)

Petitioner, )

)

vs. ) Case No. 06 - 0736PL

)

JOSE PARADELO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this

case on May 2, 2006, in Ocala, Florida, before Barbara J.

Staros, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Stefan Thomas Hoffer, Esquire

Department of Business and

Professional Regulation

Division of Pari - Mutuel Wagering

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Larry Collins, E squire

4326 Northeast County Highway 329

Anthony, Florida 32617

STATEMENT OF THE ISSUE

Whether Petitioner committed the offenses alleged in the

Administrative Complaint and, if so, what discipline should be

imposed against Respondent's Pari - Mutuel Wagering Occupational

License?

PRELIMINARY STATEMENT

On December 14, 2005, Petitioner issued an Administrative

Complaint against Respondent which charged Respondent with

falsifying his license application in violation of Sections

559.791 and 550.105(10), Florida Statutes. Respondent disputed

the material facts in the Administrative Complaint and requested

a hearing pursuant to Section 120.57(1), Florida Statutes.

Petitioner transmitted the case to the Division of

Administrative Hearings on or about February 28, 2006. The case

was assigned to Administrative Law Judge Charles C. Adams. On

March 28, 2006, Judge Adams issued a Notice of Hearing

scheduling the final hearing for May 2, 2006.

Prior to t he hearing, Petitioner instituted discovery.

Petitioner sought to shorten the time for responses to the

discovery. On April 4, 2006, an Order was entered requiring

Respondent to provide answers and responses to the pending

discovery no later than April 2 4, 2006. On April 25, 2006,

Petitioner filed a Motion to Relinquish Jurisdiction.

Respondent filed a response in opposition. On April 27, 2006,

an Order was entered denying the Motion to Relinquish

Jurisdiction.

At hearing Petitioner presented the testimony of Steven

Toner. Petitioner offered Exhibits numbered 1 through 3.

Petitioner's Exhibits 1 and 3 were admitted into evidence.

Respondent testified on his own behalf and did not offer any

exhibits into evidence.

A Transcript consisting o f one volume was filed on May 26,

2006.

On June 12, 2006, the parties filed proposed recommended

orders, which were considered in the preparation of this

Recommended Order. All references to the Florida Statutes are

to 2005 unless otherwise indicat ed.

FINDINGS OF FACT

1. Respondent submitted an application to Petitioner, the

Department of Business and Professional Regulation, Division of

Pari - Mutuel Wagering (Division) on or about October 6, 2004,

for a pari - mutuel wagering occupational license. The Division

issued license number 7244830 - 1021, at Ocala Jai - Alai to

Respondent. The nature of the license is an "owner's license"

regarding owning racehorses.

2. The Division is the state agency charged with

regulation of pari - mutuel wagering pursuan t to Chapter 550,

Florida Statutes, and is responsible for licensing employees of

pari - mutuel facilities.

3. The following question appeared on Respondent's

application for licensure:

Have you ever been convicted of a crime,

found guilty, or entered a p lea of guilty or

nolo contendere (no contest) to, even if you

received a withhold of adjudication? This

question applies to any violation of the

laws of any municipality, county, state or

nation, including felony, misdemeanor and

traffic offenses (but not parking, speeding,

inspection, or traffic signal violations),

without regard to whether you were placed on

probation, had adjudication withheld, were

paroled, or pardoned. If you intend to

answer "NO" because you believe those

records have been expunged or sealed by

court order pursuant to Section 943.058,

Florida Statutes, or applicable law of

another state, you are responsible for

verifying the expungement or sealing prior

to answering "NO." YOUR ANSWER TO THIS

QUESTION WILL BE CHECKED AGAINST LOCAL,

S TATE AND FEDERAL RECORDS. FAILURE TO

ANSWER THIS QUESTION ACCURATELY MAY RESULT

IN THE DENIAL OR REVOCATION OF YOUR LICENSE.

IF YOU DO NOT FULLY UNDERSTAND THIS

QUESTION, CONSULT WITH AN ATTORNEY OR

CONTACT THE DEPARTMENT.

4. If an applicant answers "yes" to the above question, he

or she is then required to complete form 0050 - 1.

5. Respondent answered "yes" to the question and submitted

form 0050 - 1 which contained the following explanation:

Offense: Tax Evasion

County: New York

State: New York

Penalty/ Disposition: Restitution

misdemeanor - probation

Date of offense: 1985

Have all sanctions been satisfied: yes

Description: Sold property failed to pay

tax liens - ultimately bank was money damaged

so I had to pay restitution serve 2y

probat ion. [ 1/ ]

6. In April 1995, the United State District Court for the

Western District of New York issued a Judgment against

Respondent finding him guilty of the crime of Bank Larceny and

Theft. The Judgment lists the date the offense concluded as

"03/ 03/89." Respondent was ordered to pay a special assessment

of $25, restitution in the amount of $59,000 in installments to

Empire of America, and was placed on one year probation.

7. Steven Toner is an investigator for the Division. He

was assigned Res pondent's case and conducted an interview of

Respondent.

8. During cross - examination, Mr. Toner described part of

the interview:

Q: Did Mr. Paradelo in the course of your

interview in my office indicate to you that

the entire thin g on his application for 1985

tax evasion, which he stated to you for the

1995 conviction, was all a single case?

A: It was told to me that it was a run - on.

Now, I'm not trying to be evasive, but it

was a run - on between the criminal and the

civil matters that were in the

Landlord/Tenant things that were going, that

were happening during that period of time.

9. Respondent described the general chain of events

leading up to the 1995 Judgment: in 1985, the Inte rnal Revenue

Service (IRS) filed a tax lien against Respondent; in 1988

Respondent applied to Empire of America Bank to refina nce

apartments which he owned; at the closing for the refinancing,

the tax lien was revealed to the bank and to Respondent; the

cl osing went forward; Respondent filed for bankruptcy in 1991;

the bank failed and was taken over by a trust company; in 1991,

the IRS commenced foreclosure proceedings based upon the 1985

tax lien; the matter was ultimately resolved in the criminal

case wh ich resulted in the Judgment wherein Respondent was

required to pay $59,000 in restitution. Respondent considers

the Judgment as a continuation of , and not distinct from , the

tax lien matter that initially arose in the 1980's. The

undersigned finds Respo ndent's testimony in this regard to be

credible.

10. The details of the events leading up to the 1995

judgment are important to the extent that they lend support to

Respondent's position that he did not falsify the license

application. Respondent answer ed "yes" to the question that he

had a criminal conviction. He disclosed that he sold property,

had to pay tax liens, had to pay restitution, and was placed on

probation.

11. While Respondent's description of his criminal

conviction was imprecise, it was not false.

CONCLUSIONS OF LAW

12. DOAH has jurisdiction over the parties and the subject

matter of this proceeding in accordance with Sections 120.569,

120.57(1), and 550.2415(3)(d), Florida Statutes.

13. Because Petitioner seeks to impose discip linary action

against Respondent's license, Petitioner has the burden of

proving the allegations of the Administrative Complaint by clear

and convincing evidenc e. § 120.57(1)(j), Fla. Stat.; Pou v.

Department of Insurance and Treasurer , 707 So. 2d 941 (Fl a. 3rd

DCA 1998); Department of Banking and Finance Division of

Securities and Investor Protection v. Osborne Stern and Co. , 670

So. 2d 932 (Fla. 1996); and Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987). Petitioner has not met its burden.

14. The Adm inistrative Complaint charges Respondent with

violating Sections 559.791 and 550.105(10), Florida Statutes, by

falsifying his license application. Respondent disclosed his

conviction and described it in sufficient detail. He did not

falsely swear to a ma terial statement and, therefore, did not

falsify his application.

15. Additionally, Petitioner cites Section 550.105(5)(b),

Florida Statutes, which authorizes, but does not require, the

Division to deny, suspend, or revoke a license if the applicant

for such license has been convicted of a crime involving a lack

of good moral character. Based upon this statute, Petitioner

argues that Respondent's license should be revoked for

committing bank larceny and theft, which Petitioner

characterizes as a crime in volving a lack of good moral

character.

16. The Administrative Complaint quotes Section

550.105(5)(b) in paragraph 8 and refers to the statute in the

prayer for relief. However, the Administrative Complaint does

not charge Respondent with being convicte d of a crime involving

a lack of good moral character. The Administrative Complaint

only charges Respondent with falsifying the application for

licensure. The reference to the statute without clearly

charging Respondent with being convicted of a crime in volving a

lack of good moral character is insufficient to place Respondent

on notice of the charge against him. See Trevisani v.

Department of Health , 908 So. 2d 11 08 (Fla. 1st DCA 2005); and

Ghani v. Department of Health , 714 So. 2d 1113 (Fla. 1st DCA

19 98).

17. Moreover , the 1995 conviction occurred nine years

prior to the Division's issuance of the license to Respondent.

No evidence was presented that Petitioner inquired about

Respondent's criminal conviction prior to the issuance of the

license. Having failed to prove falsification on Respondent's

part in obtaining the license, the Division cannot now

discipline him for an act committed prior to his licensure. See

Taylor v. Department of Professional Regulation , Board of

Medical Examiners , 534 S o . 2d 782 (Fla. 1st DCA 1988).

RECOMMENDATION

Upon consideration of the facts found and the conclusions

of law reached, it is

RECOMMENDED:

That a final order be entered dismissing the Administrative

Complaint filed against Respondent .

DONE AND ENTE RED this 10th day of July, 2006, in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

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 10th day of July, 2006.

ENDNOTE

1/ Respondent completed form 0050 - 1 by hand and it is difficult

to determine if he wrote "serve 2y probation" or "serve 24

probation." In either event, he disclosed that the court placed

him on probation.

COPIES FURNISHED :

Stefan Thomas Hoffer, Es quire

Department of Business and

Professional Regulation

Division of Pari - Mutuel Wagering

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Larry Collins, Esquire

4326 Northeast County Highway 329

Anthony, Florida 32617

David J. Roberts, Direc tor

Division of Pari - Mutuel Wagering

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Josefina Tamayo, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe St reet

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 wi th the agency that

will issue the final order in this case.