09-005367 Soon Young P. Jennings vs. Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering Status: Closed Recommended Order on Monday, June 28, 2010.

Summary: Applicant for pari-mutuel license convicted of grand theft in 1995 but failed to disclose conviction in application. She failed to prove rehabiliatation and present good moral character to qualify for waiver of conviction. Application should be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOON YOUNG P. JENNINGS, )

)

Petitioner, )

)

vs. ) Case No. 09-5367

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATON, )

DIVISION OF PARI-MUTUEL )

WAGERING, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

on April 9, 2010, by video teleconference, with the parties

appearing in Fort Lauderdale, Florida, before Patricia M. Hart,

a duly-designated Administrative Law Judge of the Division of

Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Bart T. Heffernan, Esquire

Law Offices of Bart T. Heffernan, P.A.

750 South Dixie Highway

Boca Raton, Florida 33432

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 the Petitioner's application for a Pari-Mutuel

Wagering occupational license and request for a waiver should be

granted or denied for the reasons set forth in the Respondent's

letter dated August 20, 2009.

PRELIMINARY STATEMENT

In a letter dated August 20, 2009, the Department of

Business and Professional Regulation, Division of Pari-Mutuel

Wagering ("Division"), notified Soon Young P. Jennings that her

application for a pari-mutuel wagering occupational license and

request for a waiver were denied pursuant to the provisions of

Chapters 550 and 849, Florida Statutes (2009). 1 The Department

further stated in the denial letter: "This Denial is based upon

your January 26, 1995 felony conviction in Broward County,

Florida, for Grand Theft. Review of your application and waiver

package does not sufficiently establish rehabilitation and

present good moral character." Ms. Jennings timely requested an

administrative hearing involving disputed issues of material

fact, and the Department transmitted the matter to the Division

of Administrative Hearings for assignment of an administrative

law judge. Pursuant to notice, the final hearing was held on

April 9, 2010.

At the hearing, Ms. Jennings testified in her own behalf

and presented the testimony of Soon Elizabeth Olson, Misuk Yim,

and Stewart Hart; she did not offer any exhibits into evidence.

The Department presented the testimony of Christopher Johnston,

and Respondent's Exhibits A, B, and C were offered and received

into evidence.

The transcript of the proceedings was filed with the

Division of Administrative Hearings on May 20, 2010.

Ms. Jennings has not, to date, filed proposed findings of fact

and conclusions of law. The Department timely filed its

proposed findings of fact and conclusions of law, which have

been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Division is the state agency responsible for

issuing occupational licenses to employees of pari-mutuel

facilities in Florida. See § 550.105(1), Fla. Stat.

2. On or about April 2, 2009, Ms. Jennings submitted an

application for a pari-mutuel wagering license, specifically for

a cardroom license that would allow her to be a dealer in the

poker room of a pari-mutuel facility. Ms. Jennings indicated on

the application form that she had never held a pari-mutuel

license in Florida.

3. In the section of the license application entitled "To

Be Completed by Cardroom Applicants Only," Ms. Jennings answered

"no" to the following question: "Have you ever been convicted

of, or had adjudication of guilt withheld for, a felony or

misdemeanor involving forgery, larceny, extortion or conspiracy

to defraud or filing false reports to government agency, racing

or gaming commission or authority, in this state or any other

stated under the laws of the United States?"

4. In the section of the application entitled "Background

Information", Ms. Jennings answered "no" to the following

question: "Have you ever been convicted of or had adjudication

withheld for any crime, or pled guilty or nolo contendere to any

criminal charges against you? If yes, give details in the space

provided below."

5. In the space provided, Ms. Jennings wrote: "Had

adjudication; As part of a prosecution of someone else, I

cooperated and gave testimony. However, I was personally not

convicted of any wrongdoing."

6. Upon investigation, the Division learned that

Ms. Jennings had been adjudicated guilty of one count of grand

theft in the third degree on January 26, 1995, in Brevard

County, Florida. She was sentenced to two years' probation and

required to report monthly to her probation officer.

Ms. Jennings spent approximately three months in jail prior to

her conviction because she could not pay for her bail.

7. On April 22, 2009, Ms. Jennings submitted a request for

a waiver from the Division so she could obtain her pari-mutuel

wagering license. A waiver must be obtained by, among others,

any new applicant for a Florida pari-mutuel license who has been

convicted of any felony.

8. Ms. Jennings was 27 years of age when she was convicted

of grand theft. She explained that, at the time of the offense,

she was involved with a boyfriend who had threatened to kill her

and her family when she first became involved with him. She

stated that she became "brainwashed and co-dependent on him and

basically scared for my life." 2 As a result, Ms. Jennings did

whatever her boyfriend wanted her to do.

9. According to Ms. Jennings, she was charged with grand

theft because, at her boyfriend's direction, she obtained a cell

phone under a false name.

10. Ms. Jennings testified that she answered "no" to the

question asking if she had been convicted of a crime because she

was told by a federal prosecutor named Larry Turner that she

would "have a clean record" if she testified against her

boyfriend, who had been charged with murder. 3 Ms. Jennings

testified, and her boyfriend was convicted. Ms. Jennings

assumed, therefore, that she would not have "anything in [her]

background as a criminal record." 4

11. Ms. Jennings gave the following testimony at the final

hearing:

a. She told the Division's investigators about the

circumstances of her criminal conviction but did not tell them

that she believed her criminal record had been sealed.

b. She was shocked when the Division's investigators told

her they had found records of her conviction: "I was like,

Huh?" 5 She had to go look up the records of the conviction and

then her recollection of the arrest and conviction "came back to

[her] . . . eventually." 6

c. She was shocked when the Division's investigators told

her they had found this conviction because she thought the

conviction had been erased.

12. Ms. Jennings has a high school education. After her

conviction, Ms. Jennings tried to go to school, but she did not

finish. For a time, she worked at a restaurant as a waitress;

she had a part-time job doing promotional work for night clubs;

and she also worked as a blackjack dealer at a nightclub where

blackjack was played for entertainment. When asked what she had

done with her life, Ms. Jennings responded: "I had boyfriends

and long-term relationships and basically I was taking care of

them." 7

13. Ms. Jennings's current boyfriend, her sister, and her

best friend testified that Ms. Jennings had always been honest

with them.

14. The totality of the evidence presented by Ms. Jennings

is insufficient to establish she is rehabilitated and possesses

good moral character: She failed to disclose her conviction for

grand theft in her application for licensure; her explanations

of the reasons for failing to disclose the conviction are

inconsistent; her explanation of the act underlying her

conviction of grand theft, procuring a cell phone under a false

name, is unconvincing; and her vague description of her life

since the conviction fails to demonstrate any accomplishments or

any positive change in her circumstances since her conviction.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

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

Florida Statutes.

16. Because Ms. Jennings has applied for a license, she

has the burden of proving by a preponderance of the evidence

that she meets all the criteria for a pari-mutuel wagering

license. See Department of Banking & Fin. v. Osborne Stern ,

670 So. 2d 932, 934 (Fla. 1996)("[W]hile the burden of producing

evidence may shift between the parties in an application dispute

proceeding, the burden of persuasion remains upon the applicant

to prove her entitlement to the license."); § 120.57(1)(j),

Fla. Stat. ("Findings of fact shall be based upon a

preponderance of the evidence, except in penal or licensure

disciplinary proceedings or except as otherwise provided by

statute . . . .").

17. The preponderance of the evidence standard requires

proof by "the greater weight of the evidence," Black's Law

Dictionary 1201 (7th ed. 1999), or evidence that "more likely

than not" tends to prove a certain proposition. See Gross v.

Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on American

Tobacco Co. v. State , 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997)

quoting Bourjaily v. United States , 483 U.S. 171, 175 (1987)).

18. Section 550.105(5)(b), Florida Statutes, provides in

pertinent part:

[T]he division may deny, suspend, revoke, or

declare ineligible any occupational license

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 involving

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.

19. Based on the findings of fact herein and pursuant to

the terms of Section 550.105(5)(b), Florida Statutes, the

Division may, in its discretion, deny Ms. Jennings's application

for a pari-mutuel wagering license simply because of her

conviction for grand theft in the third degree.

20. To provide guidance for the exercise of its discretion

in approving or denying licenses to persons who have been

convicted of a felony, the Division has provided by rule that an

applicant may obtain a waiver of a criminal conviction if

the applicant can "establish proof of rehabilitation and

demonstrate good moral character." Fla. Admin. Code R. 61D-

5.006(1) and (2).

21. Based on the findings of fact herein, Ms. Jennings has

failed to demonstrate by a preponderance of the evidence that

she is rehabilitated and is of good moral character.

22. The special powers of the Division with respect to the

issuance of licenses allowing persons to work in pari-mutuel

wagering facilities were addressed by the court in Jacques v.

Department of Business & Professional Regulation , 15 So. 3d 793,

797-798 (Fla. 1st DCA 2009), as follows:

[T]he legislature has broad discretion in

regulating and controlling gambling under

its police powers, and the state may

exercise its police power in a more

arbitrary manner because gambling is

inherently dangerous to society. Div. of

Pari-Mutuel Wagering, Dep't of Bus.

Regulation v. Fla. Horse Council, Inc. , 464

So. 2d 128, 130 (Fla. 1985). . . . Because

gambling historically has been susceptible

to criminal influences, the legislature

could reasonably conclude that denying

licensure to those with felony convictions

would promote the safe and lawful operation

of slot machine gaming facilities.

Under the circumstances in this case, the Department should

exercise its discretion and deny Ms. Jennings's application for

a pari-mutuel wagering license.

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 denying the application of Soon Young P. Jennings

for a pari-mutuel wagering license.

DONE AND ENTERED this 28th day of June, 2010, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA M. HART

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of June, 2010.

ENDNOTES

1 / All references herein to the Florida Statutes are to the 2009

edition unless indicated otherwise.

2 / Transcript at page 16-17.

3 / Transcript at page 15.

4 / Transcript at page 15.

5 / Transcript at page 22.

6 / Transcript at page 22.

7 / Transcript at page 29.

COPIES FURNISHED:

David Perry, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 40

Tallahassee, Florida 32399-2202

Bart T. Heffernan, Esquire

Law Offices of Bart T. Heffernan, P.A.

750 South Dixie Highway

Boca Raton, Florida 33432

Milton Champion, Director

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 40

Tallahassee, Florida 32399-2202

Reginald Dixon, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 40

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.