10-000380 James L. Ellis vs. Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering Status: Closed Recommended Order on Thursday, April 22, 2010.

Summary: Petitioner did not present sufficient evidence of rehabilitation or good moral character to obtain waiver for pari-mutuel license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES L. ELLIS, )

)

Petitioner, )

)

vs. )

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) Case No. 10-0380

DIVISION OF PARI-MUTUEL )

WAGERING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this

case on March 11, 2010, via video teleconferencing with sites in

Jacksonville and Tallahassee, Florida, before Barbara J. Staros,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: James L. Ellis pro se

Post Office Box 569

Lumbercity, Georgia 31549

For Respondent: David N. Perry, Esquire

Department of Business and

Professional Regulation

Division of Pari-Mutuel Wagering

1940 North Monroe Street

Tallahassee, Florida 32399-2202

STATEMENT OF THE ISSUE

Whether Petitioner should receive a waiver of criminal

conviction, making him eligible to receive an occupational

license from Respondent, the Division of Pari-Mutuel Wagering?

PRELIMINARY STATEMENT

On or about July 25, 2009, Petitioner applied for a pari-

mutuel wagering license. On the application, Petitioner

disclosed a criminal conviction. Petitioner then completed a

waiver application and attended a waiver interview.

In a letter dated December 14, 2009, Petitioner was

notified that his application and request for waiver were

denied. Specifically, the denial letter referenced felony

convictions of May 19, 1997, for Trafficking in Cocaine, and for

Willful Obstruction of Law Enforcement Officer by Use of Threat

or Violence in Dodge County, Georgia.

Petitioner disputed the material facts in the denial letter

and requested a hearing pursuant to Section 120.57(1), Florida

Statutes.

Respondent transmitted the case to the Division of

Administrative Hearings on or about January 26, 2010. On

February 3, 2010, a Notice of Hearing was issued scheduling the

final hearing for March 11, 2010. The hearing was heard as

scheduled.

At hearing, Petitioner testified on his own behalf and did

not offer any exhibits into evidence. Respondent offered

Exhibits lettered A through C which were admitted into evidence.

Respondent presented the testimony of Charles Taylor.

A Transcript consisting of one volume was filed on April 2,

2010.

Respondent timely filed a Proposed Recommended Order, which

was considered in the preparation of this Recommended Order.

Petitioner did not file a post-hearing submission. All

references to the Florida Statutes are to 2009 unless otherwise

indicated.

FINDINGS OF FACT

1. Petitioner submitted an application to Petitioner, the

Department of Business and Professional Regulation, Division of

Pari-Mutuel Wagering (Division) on or about July 25, 2009, for a

pari-mutuel wagering occupational license.

2. The Division is the state agency charged with

regulation of pari-mutuel wagering pursuant 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 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.

4. In the space provided, Petitioner disclosed a 1996

felony conviction for Trafficking Cocaine in Dodge County,

Georgia.

5. In August 1996, in the Superior Court of Dodge County,

Georgia, Petitioner pled guilty to the charges of Trafficking in

Cocaine, a felony, and to the lesser included offense of

Obstruction of an Officer, a misdemeanor. Petitioner was

sentenced to 10 years in prison. 1/

6. On August 13, 2009, Petitioner completed a waiver

application for a pari-mutuel wagering license (PMW license).

7. Charles Taylor is an investigator for the Division. He

was assigned Petitioner's case and conducted a waiver interview

of Petitioner. Mr. Taylor has been an investigator for the

Division for approximately three years. His duties include

conducting investigations of waiver cases, processing any

documents, and obtaining any necessary information. He also

performs other types of investigations for the Division and has

approximately 18 years of experience in the pari-mutuel wagering

industry.

8. Mr. Taylor conducts such interviews to meet the waiver

applicant and obtain any mitigating or aggravating circumstances

regarding their criminal history and to discuss with the

applicant what has happened since the conviction. That is,

Mr. Taylor looks for evidence of rehabilitation and evidence of

good moral character.

9. While Petitioner received a 10-year sentence, he left

prison in 1999 and was placed on parole for six years, which

terminated in 2005. Petitioner attended A.A. and N.A. meetings

while incarcerated. While on parole, he submitted to drug

tests.

10. Since leaving prison, Petitioner has not been in any

trouble with the law. He has been driving a truck and training

horses in Georgia. He wants his Florida PMW license to train

horses at Hialeah.

11. Petitioner believes that he has changed and has turned

his life around from his criminal past. Petitioner has four

children, one of which lives with him. He participates in

church.

CONCLUSIONS OF LAW

12. DOAH has jurisdiction over the parties and the subject

matter of this proceeding in accordance with Sections 120.569

and 120.57(1), Florida Statutes.

13. Section 550.105(5)(b) reads in pertinent part:

. . . 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 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.

14. Florida Administrative Code Rule 61D-5.006 states in

pertinent 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. . . .

(2) The applicant shall establish proof of

rehabilitation and demonstrate good moral

character. The waiver applies to criminal

convictions or discipline by any racing

jurisdiction disclosed to the division,

unless revoked by the division for violation

of Section 550, Florida Statutes, or these

rules.

15. Petitioner is an applicant for an occupational license

who was subject to a denial of said application on the basis of

a criminal conviction. Petitioner has the burden of proving by

a preponderance of the evidence that he should be granted the

waiver and, ultimately, the license he seeks. § 120.57(1)(j),

Fla. Stat.; Department of Banking and Finance Division of

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

So. 2d 932 (Fla. 1996).

16. Respondent denied Petitioner’s request for waiver, and

therefore his application for licensure, because of his criminal

conviction of a felony in the State of Georgia. The Division

relies on as authority Section 550.105(5)(b), Florida Statutes,

which authorizes the Division to deny, suspend, or revoke a

license if the applicant for such license has been convicted of

a crime involving trafficking in cocaine. Further, Florida

Administrative Code Rule 61D-5.006 requires the applicant to

establish proof of rehabilitation and demonstrate good moral

character.

17. Courts have recognized the state’s power to use its

discretion in issuance of licenses. Astral Liquors, Inc. v.

Department of Business Regulation , 463 So. 2d 1130 (Fla. 1985).

Courts have additionally recognized that the state may exercise

greater control and its police power over the pari-mutuel

industry. Hialeah Race Course, Inc. v. Gulfstream Park Racing

Ass’n, Inc. , 37 So. 2d 692, 694. (Fla. 1948).

18. While Petitioner has demonstrated that he has stayed

out of trouble since his release from parole, which happened

only five years ago, Petitioner did not present sufficient

evidence of rehabilitation or sufficiently demonstrate good

moral character to grant him the waiver and, therefore the

license, which he seeks. The undersigned is not aware of any

prohibition to Petitioner from reapplying for a PMW license at a

later time, after more time has passed since his conviction and

period of sentence, and presentation of more evidence of

rehabilitation and of good moral character.

RECOMMENDATION

Upon consideration of the facts found and the conclusions

of law reached, it is

RECOMMENDED:

That a final order be entered denying Petitioner’s

application for a pari-mutuel license at this time.

DONE AND ENTERED this 22nd day of April, 2010, 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

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of April, 2010.

ENDNOTE

1/ At hearing, the Division acknowledged that the denial letter

incorrectly referenced Petitioner’s conviction date as May 19,

1997. The correct conviction date is August 27, 1996. Further,

the denial letter referenced a second felony conviction of

Willful Obstruction of Law Enforcement Officer by Use of Threat

or Violence. However, the Division acknowledged that Petitioner

pled to a lesser offense of Obstruction of an Officer, a

misdemeanor.

COPIES FURNISHED :

David N. Perry, Esquire

Department of Business and

Professional Regulation

Division of Pari-Mutuel Wagering

1940 North Monroe Street

Tallahassee, Florida 32399-2202

James L. Ellis

Post Office Box 569

Lumbercity, Georgia 31549

Milton Champion, Director

Division of Pari-Mutuel Wagering

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Reginald Dixon, 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.