16-000854 Francesco Ricchi vs. Department Of Business And Professional Regulation, Division Of Condominiums, Timeshares And Mobile Homes Status: Closed Recommended Order on Monday, July 18, 2016.

Summary: Petitioner proved, by a preponderance of the evidence, that he is of good moral character and therefore is entitled to issuance of a yacht salesperson license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANCESCO RICCHI,

Petitioner,

vs. Case No. 16 - 0854

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF CONDOMINIUMS,

TIMESHARES AND MOBILE HOMES,

Respondent.

_______________________________/

RECOMMENDED ORDER

A hearing was conducted in this case pursuant to sections

120.569 and 120.57(1), Florida Statutes (2016), 1 / before Cathy M.

Sellers, an Administrative Law Judge ( " ALJ " ) of the Division of

Administrative Hearings ( " DOAH " ), on April 27, 2016, by video

teleconference at sites in Lauderdale Lakes a nd Tallahassee,

Florida.

APPEARANCES

For Petitioner: Richard F. Della Fera, Esquire

Entin and Della Fera, P.A .

633 South Andrews Avenue, Suite 500

Fort Lauderdale, Florida 33301

For Respondent: Ryan N. Lumbreras, Esquire

Robin E. Smith, Esquire

Department of Business and

Professional Regulation

19 40 North Monroe Street, Suite 42

Tallahassee, Florida 32399 - 2202

STATEMENT OF THE ISSUE

Whether Petitioner is of " good moral character " as required

by section 326.004(6)(a), Florida Statutes, and Florida

Administrative Code Rule 61B - 60.0 03 , such that he is entitled to

issuance of a yacht salesperson license.

PRELIMINARY STATEMENT

On January 6, 2016, Respondent issued a Notice of Intent to

Deny Petitioner ' s application for a yacht salesperson license.

Petitioner timely requested a hea ring pursuant to sections

120.569 and 120.57(1) to contest Respondent ' s proposed denial of

his license .

The final hearing was held on April 27, 2016. Petitioner

testified on his own behalf and presented the testimony of Helen

Brazier and Giancarlo Ricc hi. Petitioner ' s Exhibits A and B were

admitted into evidence without objection. Respondent presented

the testimony of Che lisa Kirkland and Respondent ' s Exhibits 1

and 2 were admitted into evidence without objection.

The one - volume Transcript was filed on May 3 1, 2016. A

jointly - requested extension for filing the parties ' p roposed

r ecommended o rders was granted. Petitioner ' s Proposed

Recommended Order was timely filed on June 15, 2016, and

Respondent ' s Proposed Recommended Order was timely filed on

June 16, 2016. Both proposed recommended orders were duly

considered in preparing this Recommended Order.

FINDING S OF FACT

I. The Parties

1. Petitioner is an applicant for a yacht salesperson

license, pursuant to the Yacht and Ship Brokers Act, c hapter 326,

Florida Statutes, and Florida Administrative Code C hapter 61B - 60.

He is 22 years old.

2. Respondent is the state agency charged under chapter 326

with licensing yacht salesperson s .

II. The Evidence Adduced at Hearing

3. On October 6, 2 015, Petitioner submitted to Respondent a

complete application for a yacht salesperson license.

4. On January 6, 2016, Respondent sent Petitioner a Notice

of Intent to Deny License Application ( " Notice of Intent " ). The

Notice of Intent stated that Respo ndent was denying Petitioner ' s

application on the basis that he did " not [provide] satisfactory

proof that he is of good moral character . "

5. Respondent based this decision on Petitioner 's

disclos ure, in his criminal history report required as part of

the application, that he previously had pled nolo contende r e to a

felony charge of aggravated assault with a deadly weapon without

intent to kill , a third degree felony under section 784.021 ,

Florida Statutes .

6 . This charge resulted from Petitioner ha ving wav ed a

firearm outside of his vehicle after being involved in a traffic

incident with another driver . Petitioner committed the offense

on November 10, 2012 , when he was 18 years old .

7 . The court withheld adjudication of guilt on the charged

off ense . On January 9, 2014, Petitioner was sentenced , as a

youthful offender , to 120 days in jail and three years ' probation

without the possibility of early termination.

8 . Petitioner completed his jail sentence in April 2014,

and is in the process of completing his probation sentence, which

will terminate in or about January 2017.

9 . Upon sentencing, Petitioner was not allowed to leave the

tri - county area without obtaining a permit and was required to

report once a month to his probation officer.

10 . However, because Petitioner had served his jail

sentence and had fully complied with the conditions of his

probation over a period of more than two years , in March 2016,

the c ircuit c ourt j udge who presided over his criminal case

convert ed his probati on to not - reporting administrative

proba tion. This has enabled Petitioner to engage in cross -

country flight sessions necessary to complet e his commercial and

instrument flight training , discussed in greater detail below .

11 . Subsequent to his commissi on of the offense but before

sentencing, Petitioner accepted the help of Dr. Anthony M.

Castro, a practi cing clinical psychologist and assistant

professor of clinical p sychiatry at the University of Miami's

Miller School of Medicine. Petitioner has been c onsistent ly

involved in treatment sessions with Dr. Castro since he began

seeing him over two years ago. Petitioner continued to

correspond with Dr. Castro via mail while he was serving his jail

sentence , and continued his in - person counseling sessions

im mediately following his release from jail . Over the course of

his treatment, Petitioner has attended sessions with Dr. Castro

on a bi - weekly to monthly basis , has continued to respond well

to the counseling, and has remain ed compliant with all of

Dr. Ca stro ' s recommendations. The evidence shows that Petitioner

has experienced significant personal growth as a result of the

counseling, and that he exhibits more effective problem - solving

skills and better manages his behavi or and emotional responses

than h e did before the counseling .

12 . Since April 2015, Petitioner has taken helicopter

flight lessons . 2 / He is instructed by He len Brazier, an

instructor and assistant chief for h elicopters at Pelican Flight

Training in Pembroke Pines. Petitioner has obtai ned his private

pilot's license and currently is training to receive his

comm ercial and instrument licenses.

13 . At the hearing, Brazier credibly testified that

possessing maturity, good judgment skills , sound ethical values,

self - discipline, motivation , and dependability are essential to

obtain ing a private pilot ' s license. This is because being a

pilot entail s substantial responsibility , in that the pilot has

others ' lives in his or her hands. Brazier testified ,

persuasively, that Petitioner is " a ver y good student . . . and

completed everything in minimum time, and with very good

results. " Brazier testified that she will recommend Petitioner

for his commercial pilot license upon Petitioner's completion of

the requisite coursework , based , among other things, on her

positive evaluation of his moral character.

14 . I n order to obtain a pilot 's license, applicants must

be determined by the Federal Aviation Administration ( " FAA " ) to

have good moral character , in addition to providing all required

document ation and successfully completing flying examinations.

Evaluation of an applicant ' s character begins with a

recommendation from the flight instructor, but the FAA has the

ultimate authority to accept or deny the applicant based on a

review of the applican t ' s criminal history. The FAA found

Petitioner to have good moral character , as evidenced by their

approval of his private pilot license.

15 . Petitioner's progress in flight school and his display

of personal growth over the past two years led the cir cuit court

judge presiding over his criminal case to modify Petitioner's

probation, thus enabling Petitioner to fly out of the tri - county

area without obtain ing a permi t and not requiring him to continue

to report monthly to his probation officer.

1 6 . At the hearing, Petitioner credibly explained the

circumstances under which he committed the offense. Petitioner

had been frustrated by several unfortunate events in his life

that culminated in the road rage incident that resulted in his

felony charge. Petitioner testified that a motorcycle incident 3 /

and the decline of his profits at work increased his overall

frustration prior to his poor decision to wave a firearm outside

of his vehicle. He explained, persuasively , that it was more an

" ignorant " act than one of malice, and that it was more of an act

of "not knowing any better" than one of bad moral character. He

characterized the consequences of his actions as a " wake - up

call." He expressed regret and remorse for his behavior in

committing the offen se.

17 . Petitioner testified, credibly and persuasively , that

through his counseling sessions with Dr. Castro , he has learned

to be patien t , to "wait for the dust to settle" before acting ,

and not to overreact to circumstances and situations .

18 . Pet itioner currently is employed full - time as a

production manager at Pro Marine, a boat - building company. His

responsibilities entail supervising the construction process for

each vessel and consigning completed vessel s to client s .

19 . The evidence establ ishes that apart from the matter

discussed above, Petitioner does not have any other criminal

history. There is no evidence in the record indicating that

Petitioner has ever engaged in any fraudulent conduct or that he

is in any manner dishonest. 4/

2 0 . Che lisa Kirkland, supervisor of Respondent's Yacht and

Ship Broker's Section, testif ied regarding Respondent's proposed

denial of Petitioner's yacht salesperson license.

21 . In evaluating Petitioner ' s application for licensure ,

Respondent applied r ule 61B - 60.003 . Kirkland testified that

Respondent's decision to deny Petitioner's license was based on

his criminal history as disclosed in his application . She noted

that Petitioner did not submit any information in his application

regarding his rehabi litation, and that had such information been

s ubmitted, Respondent would have consi dered it in determining

whether he possessed good moral character for purposes of

grant ing or deny ing his application for a yacht salesperson

license .

22. Respondent did not present any evidence at the final

hearing countering or rebutting Petitioner's evidence of his

rehabilitation that was presented at the final hearing .

III. Findings of Ultimate Fact

2 3 . Upon full consideration of the competent substantial

evidence in the record , it is determined that Petitioner has

demonstrated, by a preponderance of the evidence, that he is

rehabilitated from his prior criminal offense such that he

possesses good moral character for purposes of being entitled to

issuance of a yacht salesperson license under chapter 326 and

rule 61B - 60.003 .

2 4 . Petitioner has been honest and forth coming regarding

h is criminal offense . As noted above, h e fully disclosed his

criminal h istory in his application and , at the hearing,

acknowledged that h is conduct was inexcusable and expressed

remorse at having committed the offense.

2 5 . Petitioner showed , by credible and compelling evidence

presented at the final hearing , that he recognized his anger

management issues , and he took the initiative to turn his life

around by voluntarily obtaining the assistance of Dr. Castro for

mental health counseling. The evidence establishes that

Petitioner has learned effective strategies and appropriate

behaviors for dealing with stressful situations. The evidence

f urther shows that he likely will continue to improve as he work s

toward and meet s his personal and professional goals. Petitioner

has shown that he understands that the behavior he exhibited when

he was 18 years old that led to his criminal record is

unac ceptable.

2 6 . Petitioner has further shown good moral character

through his actions involved in obtaining his private pilot

license and by receiving positive evaluations regarding his moral

character from the FAA. Petitioner's and Brazier's credible and

persuasive testimony establish that Petitioner possesses the

sound judgment , strong ethic al values, maturity, focus, mental

and behavioral stability, and self - discipline that are essential

to demonstrating rehabilitation and establishing that he

possesses good moral character .

2 7 . For these reasons, it is determined that Petitioner has

shown , by a preponderance of the competent substantial evidence

in the record, that he is rehabilitated such that he possesses

good moral character and, thus, is entitled to issuance of a

yacht salesperson license under chapter 326 and rule 61B - 60.003 .

CONCLUSIONS OF LAW

2 8 . DOAH has jurisdiction over the parties to, and subject

matter of, this proceeding pursuant to sections 120.569 and

120.57(1).

2 9 . This is a de novo proceeding, the purpose of which is

to " formulate agency action, not to review action taken earlier

and preliminarily. " Dep ' t of Transp. v. J.W.C. Co. , 396 So. 2d

778, 785 (Fla. 1st DCA 1981); Capeletti Bros. Inc. v. Dep ' t of

Transp. , 362 So. 2d 346, 348 (Fla. 1st DCA 1978); McDonald v.

Dep ' t of Banking and Fin. , 346 So. 2d 569, 584 (Fla. 1st DCA

1977). Accordingly, the undersigned is charged with determining

anew, based on the evidence presented at the final hearing , 5 /

whether Petitioner has met the stat utory and rule requirements

such that he is entitled to issuance of a yacht salesperson

license.

30 . As the applicant for a yacht salesperson license,

Petitioner bears the burden to demonstrate, by a preponderance of

the evidence, 6/ that he meets all app licable licensure

requirements such that he is entitled to issuance of the license.

J.W.C. Co. , 396 So. 2d at 787.

3 1 . Section 326.004(6)(a), which sets forth the

requirements for licensure of yacht salespersons, provides in

pertinent part: " [t] he divi sion may deny a license to any

applicant who does not [f]urnish proof satisfactor y to the

division that he or she is of good moral character. "

3 2 . Rule 61B - 60.003 , governing applications for yacht

salespersons ' licenses, requires , among other things, a

d etermination o f the applicant ' s moral character . Th is rule

provides in pertinent part:

(3) Review for Good Moral Character.

(a) When the application has been determined

to be in acceptable form, the division shall

evaluate the application and make appr opriate

inquiry to determine the applicant ' s mo ral

character. For the purposes of this rule, the

following factors bear upon good moral

character:

1. The completion of a criminal history check

by the Florida Department of Law Enforcement

that reveals no convictions of a felony, no

convictions of a misdemeanor involving moral

turpitude, and no pleas of nolo contendere,

pleas of guilty, or verdicts of guilty to a

felony charge or of any non - felonious offense

involving moral turpitude, fraud, theft,

dishone sty, assault and battery, or false

statement [ . ]

* * *

6. Failure of the applicant to provide full

and complete disclosure, or to provide

accurate information, on the application for

licensure.

7. The foregoing factors shall be considered

in d etermining whether an applicant is of

good moral character for purposes of

licensure under Chapter 326, F.S., if they

comply with the following guidelines:

a. The disposition of criminal charges shall

be considered if such constitutes a felony, or

if suc h constitutes a misdemeanor involving

moral turpitude, fraud, theft, dishonesty,

assault and battery, or false statement.

* * *

c. Except as provided in sub - sub - paragraph

7.d. of this rule, no information relating to

criminal, administrative or civil actions

shall be considered if more than 5 years has

elapsed from the satisfaction of the terms of

any order, judgment, restitution agreement, or

termination of any administrative or

judicially - imposed confinement or supervision

of the applicant, whi chever is more recent.

* * *

e. Other considerations such as termination

of probation, compliance with and satisfaction

of any judgment or restitution agreement may

be considered as evidence of rehabilitation of

the applicant ' s good moral charac ter.

3 3 . As discussed above, Petitioner fully disclosed in his

application that he had pled nolo contender e to assault with a

deadly weapon without intent to kill.

3 4 . R ule 61B - 60.003(3)(a)7. lists factors that " shall " be

considered in determining w hether the applicant is of good moral

character.

3 5 . Pursuant to sub - sub - paraqraph a., disposition of felony

criminal charges must be considered. As noted above, the

evidence establishes that adjudication of Petitioner's guilt for

that offense was wit hheld.

3 6 . Pursuant to sub - sub - paragraph c. of the rule,

Petitioner ' s criminal history must be considered because it

involved a felony and five years has not elapsed since

Petitioner ' s satisfa ction of the terms of the judgment against

him .

3 7 . However, the plain language of rule 61B - 60.003

(3) (a) 7.e . makes clear that even when an applicant has a criminal

h istory and five years have not elapsed since satisfaction of the

terms of judgment, he or she still may be determined to be

rehabilitated and, thus, of good moral character, based on other

considerations.

3 8 . As discussed in detail above, Petitioner presented

competent, credible, and persuasive evidence at the final hearing

showing that he is rehabilitat ed from his criminal offense and

that he is of " good moral character " pursuant to r ule 61B - 60.003

and as required by section 326. 004(6)(a). 7/

39 . Based on the foregoing, it is concluded that Petitioner

is entitled to issuance of a yacht salesperson license under

chapter 326 and rule 61B - 6 0.003 .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Business and

Professional Regulation issue a final o rder approving

Petitioner ' s a pplication for a yach t salesperson license.

DONE AND ENTERED this 1 8 th day of Ju ly , 2016 , in

Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalache e Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 8 th day of July , 2016 .

ENDNOTES

1/ All references are to the 2016 version of Florida Statutes

unless otherwise stated.

2/ Because being a yacht salesperson is a part - time occupation,

Petitioner also is working toward being licensed as a commercial

pilot.

3/ Petitioner previously had been severely injured in a

motorcycle accident .

4/ To that point, as noted above, Petitioner fully disclosed his

criminal history on his application for a yacht salesperson

license.

5/ The undersigned recognizes that the evidence of rehabilitation

provided at the final hearing that supports the d etermination that

Petitioner is of good moral character was not available to

Respondent at the time it reviewed Petitioner's application.

However, this is a de novo proceeding. § 120.57(1)(k), Fla. Stat.

Accordingly, it is necessary and appropriate for the undersigned

to consider all competent substantial evidence in the record of

this proceeding, including information not available to Respondent

at the time it formulated its proposed agency action. See J.W.C.

Co. , 396 So. 2d at 784 - 85.

6/ In its Propo sed Recommended Order, Respondent cites Espinoza

v. Department of Business and Professional Regulation, Florida

Board of Engineers , 739 So. 2d 1250 (Fla. 3d DCA 1999) , for the

proposition that, in addition to showing entitlement to a license

by a preponder ance of the evidence, Petitioner also must show that

the agency's decision to deny his license was arbitrary and

capricious. Even a cursory reading of Espinoza reveals that it is

completely distinguishable from, and therefore inapposite to, this

case. Es pinoza , and the case on which it is grounded, Harac v.

Department of Professional Regulation, Board of Architecture , 484

So. 2d 1333 (Fla. 3d DCA 1986), involved circumstances where an

applicant for a professional license had not satisfied the

licensure ex amination requirements ÏÏ a key and dispositive

distinction between those cases and the instant case. In Harac ,

the court noted that generally, one who fails a licensure

examination shoulders a heavy burden in proving that the

evaluation was arbitrary. Id . at 1338. Likewise, in State ex

rel. Topp v. Board of Elec trical Examiners for Jacksonville Beach ,

101 So. 2d 583, 586 (Fla. 1st DCA 1958), cited in Harac , the court

noted that where city examining boards conduct their examinations

fairly and uniformly in accordance with their own rules and

regulations, their judgment as to proper grading of such

examinations will not be disturbed by courts unless clearly shown

to be devoid of logic and reason. Espinoza , Harac , and their

antecessors and progeny are applic able to the specific

circumstances where an applicant disputes denial of a license

based on a determination that he or she failed to satisfy a

licensure examination requirement . No such circumstances are

present in this case, and Respondent failed to prov ide any legal

authority whatsoever to support extension of the principle applied

in Espinoza , Harac , and their antecessors and progeny to

circumstances, such as those present in this case, that do not

involve denial of a license on the basis of failing to satisfy a

licensure examination requirement.

7/ In support of its position that Petitioner has not

demonstrated good moral character, Respondent states that after

Petitioner filed his request for hearing challenging its proposed

denial, Respondent's Divi sion d irector and counsel conferred and

that the Division "ultimately determined, in its discretion, that

such evidence was not satisfactory proof that Petitioner is of

good moral character." That position is rejected for three

reasons. First, Respondent did not present any evidence at the

hearing regarding its subsequent consideration of Petitioner's

rehabilitation, so the record is devoid of evidence to support

Respondent's representation on that point. Second, even if

Respondent had presented such evi dence, it would not have been

dispositive because, as discussed at length above, this is a de

novo proceeding designed to formulate agency action, not review

action taken earlier and preliminarily. As such, the purpose of

this hearing is to determine anew , in an evidentiary proceeding,

whether Petitioner is rehabilitated from his criminal offense such

that he is of good moral character for purposes of entitlement to

a yacht salesperson license. As discussed herein, the competent

substantial evidence in th e record establishes that Petitioner is

rehabilitated and is of good moral character, so is entitled to

issuance of a license. Third, under any circumstanc es, Respondent

did not present evidence at the final hearing countering or

rebutting Petitioner's cr edible, persuasive evidence that he is

rehabilitated from his criminal offense for purposes of

demonstrating good moral character. While rule 61B - 60.003 invests

Respondent with the power to exercise its judgment in determining

whether an applicant is of g ood moral character, established case

law makes abundantly clear that Respondent's exercise of

discretion must be based on evidence in the record explaining and

supporting the exercise of that discretion. Fla. Power & Light

Co. v. Siting Bd. , 693 So. 2d 1 025, 1027 (Fla. 1st DCA 1997);

McDonald v. Dep't of Banking and Fin. , 346 So. 2d 569, 577 (Fla.

1st DCA 1977). As discussed above, Respondent failed to present

evidence at hearing supporting its rejection of Petitioner's

evidence of rehabilitation present ed at hearing.

COPIES FURNISHED:

Richard F. Della Fera, Esquire

Entin and Della Fera, P.A.

633 South Andrews Avenue, Suite 500

Fort Lauderdale, Florida 33301

(eServed)

Ryan N. Lumbreras, Esquire

Robin E. Smith, Esquire

Department of Business and

Pr ofessional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 - 2202

(eServed)

Kevin Stanfield, Director

Department of Business and

Professional Regulation

Division of Florida Condominiums,

Timeshares and Mobile Homes

Northwood C entre

1940 North Monroe Street

Tallahassee, Florida 32399

(eServed)

Jason Maine, General Counsel

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32309

(eServed)

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.