09-003400 Paula M. Boyle vs. Department Of Business And Professional Regulation Status: Closed Recommended Order on Monday, February 8, 2010.

Summary: Petitioner has shown by a preponderance of evidence that she is rehabilitated and of good moral character, so as to receive a waiver from disqualification from receiving an owner occupational license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAULA M. BOYLE, )

)

Petitioner, )

)

vs. ) Case No. 09-3400

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held before

Daniel M. Kilbride, Administrative Law Judge of the Division of

Administrative Hearings (DOAH), on August 18, 2009, by video

teleconference between St. Petersburg, Florida, and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Paula M. Boyle, pro se

2533 Victarra Circle

Lutz, Florida 33559

For Respondent: David Perry, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 40

Tallahassee, Florida 32399-2202

STATEMENT OF THE ISSUE

Whether Petitioner has presented, by a preponderance of

evidence, that she is of good moral character and has shown

sufficient evidence of rehabilitation, so as to receive a waiver

from disqualification from receiving a professional occupational

license in order to obtain access to the backside of a

racetrack, pursuant to Subsection 550.105(5), Florida Statutes

(2009). 1

PRELIMINARY STATEMENT

Petitioner filed an application for a pari-mutuel wagering

occupational license and request for waiver on December 5, 2008.

Her application and waiver request was denied by Respondent by

letter dated February 12, 2009. Thereafter, Petitioner timely

requested a formal hearing, and this matter was referred to DOAH

on June 22, 2009. This matter was set for hearing, and an

exchange of documents was conducted.

At the hearing, Petitioner represented herself and

testified in her own behalf. Petitioner offered six exhibits,

which were received into evidence without objection. Respondent

offered the testimony of Investigator Supervisor James A. Decker

and offered three exhibits, which were received into evidence

without objection. The hearing was recorded, and a Transcript

was filed on September 15, 2009.

Although both parties were given the opportunity to file

proposed findings of fact and conclusions of law, neither party

has filed its proposals as of the date of this Recommended

Order.

FINDINGS OF FACT

1. Petitioner is seeking a waiver from disqualification

from obtaining a professional occupation license as an owner of

thoroughbred horses, in order to gain admission to the backside

of a racetrack. The license is necessary before a professional

person is permitted to go in the stable area, jockey’s room, or

other limited access areas of a racetrack.

2. The denial of Petitioner’s application for an

occupational license is the result of Petitioner’s entry of a

plea of guilty to the federal charge of Obtaining Morphine by

Deception, a felony, in the United States District Court, Middle

District of Florida, Tampa Division, on August 1, 2003. The

court adjudicated Petitioner guilty of the charge and placed her

on supervised probation for one year with significant

conditions.

3. Petitioner is a registered nurse in the State of

Florida, and her license has not been subject to suspension or

revocation. Petitioner has worked for the U.S. Department of

Veteran’s Affairs at the James A. Haley Veterans’ Hospital in

Tampa, Florida, for more than 33 years. She is still employed

at that facility and works in the Nursing Home Care Unit for

elderly and disabled veterans.

4. Sometime in 2000 or 2001, Petitioner became addicted to

morphine (a controlled substance), due to the stresses on the

job and in her family life. She obtained the morphine

surreptitiously at work, until her use of the drug was

discovered in the summer of 2002.

5. Petitioner voluntarily joined the Intervention Program

for Nurses (IPN) and entered a residential treatment program,

operated by the Health Care Connection of Tampa, Inc., where she

successfully completed the primary treatment program from

July 22, 2002, to September 22, 2002, for her chemical

dependency. She then successfully completed outpatient therapy

on December 22, 2002, and attended aftercare for an additional

12 months.

6. On August 1, 2003, at her sentencing hearing,

Petitioner was placed on supervised probation for a term of one

year. During her term of probation, Petitioner continued to

participate in the IPN, attended Narcotics Anonymous (NA), and

was tested for the detection of substance use or abuse. On

July 31, 2004, Petitioner was released from supervised

probation, after successfully completing all the terms of her

probation.

7. Petitioner remained in the IPN program for five years,

until September 17, 2007, when it was determined that she had

successfully completed the program. During that period, in

addition to her other obligations, she attended weekly meetings

and was subject to work performance evaluations and random drug

tests. At the time of the completion of the program, the chief

nurse, her immediate supervisor, rated Petitioner as excellent

in 11 areas in her final IPN Work Performance Evaluation. She

stated that Petitioner was dedicated to her work and her

patients and that it was safe for her to continue to practice

nursing. There are no restrictions placed on her access to or

dispensing of controlled substances while at work.

8. Since that time, Petitioner has enhanced her nursing

skills by adding two certifications to her credentials. She

continues to teach skin care, wound management, and personal

hygiene to nursing assistants and gerontology to licensed

practical nurses.

9. Petitioner has been evaluated as having outstanding

nursing skills and is a valued member of the Veterans’

Administration facility’s staff. Petitioner continues to be

part of management, serving as the assistant to the nurse

manager in the center, where she works full-time.

10. Petitioner has been open and forthright concerning her

addiction, and the steps she has taken to control it, and

recognizes that she cannot be “cured.” Her testimony is

credible that she has been sober for more than seven years and

continues to regularly attend NA meetings and communicate with

her sponsor. She is subject to random drug testing at her work

place, if there are any indicators that she has not remained

sober.

11. No evidence has been offered, or even suggested, that

Petitioner, at any time in the past, trafficked in, distributed,

sold, or gave away to another person a controlled substance.

12. Petitioner seeks an occupational license from

Respondent in order to participate at a racetrack in Florida, as

an owner of thoroughbred horses, and to have free access to the

backside of the track.

13. Petitioner, in partnership with her husband, sister,

and brother-in-law, own and operate a 55-acre farm, near

Gainesville, Florida, where they breed and raise thoroughbred

horses for the racetrack. After work on Fridays, and every

weekend, Petitioner works at the farm and actively participates

in the care of the animals, currently standing at 23.

14. Petitioner has met her burden, and the evidence is

persuasive that Petitioner has been rehabilitated and is of good

moral character. It is persuasive that Petitioner will not

present a danger to the community, if she is granted the

occupational license.

CONCLUSION OF LAW

15. DOAH has jurisdiction over the subject matter of and

the parties to this proceeding, pursuant to Section 120.569 and

Subsection 120.57(1), Florida Statutes (2009).

16. Respondent’s Division of Pari-Mutuel Wagering is

charged with the duty of regulating and issuing occupational

licenses to persons or entities with access to the backside,

racing animals or other restricted locations at racetracks or

other facilities where pari-mutuel wagering is permitted.

§ 550.105, Fla. Stat.

17. Persons who require heightened state scrutiny are

required to obtain an occupational license from Respondent.

This includes owners of race horses. § 550.105(2)(b), Fla.

Stat. Respondent may deny a license if the applicant for such

license has been convicted in the state, in any other state, or

under the laws of the United States, of a felony involving

“. . . 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

Stat.

18. It is undisputed that Petitioner was convicted of a

felony under the laws of the United States in 2003. The

disqualifying felony, which Petitioner fully disclosed, was not

for trafficking in or otherwise distributing a controlled

substance, but was rather “a crime involving a lack of good

moral character . . . ,” since the charge was “Obtaining

Morphine by Deception.” § 505.105(5)(b), Fla. Stat.

19. Subsection 550.105(5)(c), Florida Statutes, states, in

pertinent part:

If the applicant establishes that she or he

is of good moral character, that she or he

has been rehabilitated, and that the crime

she or he has been convicted of is not

related to pari-mutuel wagering and is not a

capital offense, the restrictions excluding

offenders may be waived by the director of

the division.

20. Therefore, Petitioner has the burden of proof in this

proceeding. Petitioner must show by a preponderance of the

evidence that she is of good moral character and that she has

been rehabilitated. § 120.57(1)(j), Fla. Stat. See generally

Haines v. Department of Children and Family Services , 983 So. 2d

602 (Fla. 5th DCA 2008).

21. There is no dispute that the crime for which she was

convicted is not related to pari-mutuel wagering and is not a

capital offense.

22. In granting waivers to the disqualifying criteria set

out in the statute, the statute gives discretion to the Division

director to grant the individual a waiver, if the person

demonstrates sufficient evidence of rehabilitation and is of

good moral character. Although the Division has been delegated

broad discretion to grant or deny the waiver, the Division’s

discretion must be reasonable. Cf. B.J. v. Department of

Children and Family Services , 983 So. 2d 11 (Fla. 1st DCA 2008).

See K.J.S. v. Department of Children and Family Services , 974

So. 2d 1106 (Fla. 1st DCA 2007)

23. In this case, Petitioner has met her burden by more

than a preponderance of evidence. Petitioner has convincingly

demonstrated that she has been sober for more than seven years;

recognizes her dependency; is currently and actively

participating in a program that will prevent a recurrence of her

addiction; is maintaining her employment in a professional

manner; and is therefore rehabilitated. Petitioner has also

shown she is again a person of good moral character.

24. Respondent has a legitimate concern for the prevention

of the introduction of illegal drugs into the backside of a

racetrack. However, in this case, Petitioner has demonstrated

that she is rehabilitated and of good moral character, will not

pose a risk to state security, and should be granted a waiver

pursuant to Florida Administrative Code Rule 61D-5.006.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Business and

Professional Regulation, Division of Pari-Mutuel Wagering, enter

a final order, granting Petitioner’s request for a waiver of her

criminal conviction, and issue a professional occupational

license to her as an owner of thoroughbred horses.

DONE AND ENTERED this 8th day of February, 2010, in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of February, 2010.

ENDNOTE

1/ All statutory references are to Florida Statutes (2009),

unless otherwise noted.

COPIES FURNISHED :

David Perry, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 40

Tallahassee, Florida 32399-2202

Paula M. Boyle

2533 Victarra Circle

Lutz, Florida 33559

Milton Champion, Director

Division of Pari-Mutuel Wagering

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

Reginald Dixon, General Counsel

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. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.