18-005952 John A. Short vs. Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering Status: Closed Recommended Order on Tuesday, August 6, 2019.

Summary: Petitioner proved, by a preponderance of the evidence, that he was rehabilitated from his felony conviction over 20 years ago and that he is of good moral character. Therefore, he is entitled to a waiver and issuance of occupational license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN A. SHORT,

Petitioner,

vs. Case No. 18 Ï 5952

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF PARI Ï MUTUEL

WAGERING ,

Respondent.

_______________________________/

RECOMMENDED ORDER

A hearing was conducted in this case pursuant to

sections 120.569 and 120.57(1), Florida Statutes (201 8 ), 1/ before

Cathy M. Sellers, an Administrative Law Judge ( " ALJ " ) of the

Division of Administrative Hearings ( " DOAH " ), on January 23 and

May 20, 2019, by video teleconference at sites in West Palm

Beach and Tallahassee, Florida.

APPEARANCES

For Petitioner: John A. Short, pro se

3701 Quantum Lakes Drive , Suite 109

West Palm Beach, Florida 334 2 6

For Respondent: James A. Lewis, Esquire

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 Ï 2202

STATEMENT OF THE ISSUE

The issue in this case is w hether Petitioner is entitled to

issuance of a n occupational license , pursuant to section

550.105 , Florida Statutes .

PRELIMINARY STATEMENT

In a Letter of License Denial ("Denial Letter") dated

November 6, 201 8 , Respondent, the Department of Business and

Professional Regulation , Division of Pari - Mutuel Wagering ,

informed Petitioner , John A. Short , that it intended to deny his

application for a pari - mutuel wagering occupational license on

the basis of his felony conviction for third d egree a ssault on a

p olice o fficer , which disqualified him from employment pursuant

to section 550.105(5)(b ) ; and his failure to disclose all of his

convictions on his initial license application , pursuant to

section 559.791, Florida Statutes . In the Denial Letter,

Respondent also notified Petitioner that it was denying his

request for a waiver of his disqualification from licensure

under section 550.105(5)(b) on the ba sis of his felony

conviction.

Petitioner timely requested a formal administrative hearing

pursuant to sections 120.569 and 120.57(1), disputing

Respondent ' s determination that he had failed to disclose all of

his criminal convictions on his application for licensure and

challenging Respondent's denial of his request for a waiver . 2/

On November 13, 2018, Respondent referred the matter to

DOAH for assignment of an ALJ to conduct a hearing pursuant to

section 120.57(1) . Pursuant to notice, the final hearing was

set for January 23, 2019.

Petitioner failed to appear at the hearing on January 23,

2019, but had filed an emergency motion for continuance on the

evening before the hearing . Respondent requested that

Petitioner ' s emergency motion for continu ance be denied. The

ALJ denied Petitioner ' s motion for continuance , and t he hearing

was adjourned .

On February 2 5 , 2019, Petitioner filed a request to

reschedule the final hearing on the basis that he had been

unable to appear on January 23, 2019, a Thursday, because he was

only available to appear at the hearing on Mondays. On

February 26, 2016, the undersigned entered a N otice of Ex Parte

Communication. Following a telephone conference with the

par ties on March 11, 2019 , the undersigned agreed to reschedule

the final hearing and requested the parties to provide mutually

agreeable dates on which to hold the final hearing . Pursuant to

Petitioner ' s Notice of Mutually Agreeable Hearing Date, t he

final hearing was rescheduled for, and held on , Monday,

May 20, 2019.

At the final hearing, Petitioner testifi ed on his own

behalf and presented the testimony of Marshal l Hudson.

Petitioner 's E xhibits 1 and 2 were admitted into evidence over

objection . 3 / Respondent presented Petitioner ' s testimony and did

not call any other witnesses . Respondent's Exhibits 1 through 3

were admitted into evidence without objection . The undersigned

took o fficial recognition of sections 550.0251, 550.105, and

559.791, Florida Statutes, and Florida Administrative Code Rule

61D - 5.006.

The one Ï volume Transcript of the final hearing was filed at

DOAH on June 21, 2019. Petitioner filed a letter stating his

position regarding the case on May 23, 2019; this letter has

been treated as Petitioner's P roposed R ecommended O rder.

Respondent ' s P roposed R ecommended O rder was timely filed on

July 1, 2019. Both proposed recommended orders were duly

considered in preparing this Recommended Order.

FINDINGS OF FACT

I. The Parties

1. Petitioner, John A. Short, is an applica nt for a

general individual occupational license , pursuant to section

550.105(2)(a), which would authorize him to work as a blacksmith

and farrier at licensed pari - mutuel facilities in Florida . 4/

2. Respondent is the state agency charged with issuing

occupational licenses to employees of pari - mutuel wagering

facilities in the state of Florida pursuant to chapter 550 .

II. Petitioner's Application for Occupational License and

Waiver

3. On December 1 1 , 2017, 5 / Petitioner filed with Respondent

DBPR PMW - 3120 , Individual Occupational License Application ,

seeking to obtain a pari - mutuel wagering general individual

occupational license .

4. Also on December 1 1 , 2017, Petitioner filed DBPR

PMW - 1380, Request for Waiver, seeking a waiver , pursuant to

section 550.105(5)(c) and rule 61D Ï 5.006, of disqualification

from occupational licensure under section 550.105(5)(b) on the

basis of a felony conviction.

5 . I n his license a pplication filed on December 11, 2017 ,

Petitioner disclosed that he had a prior felony conviction that

was adjudicated on September 22, 1998 , in Jefferson County,

Kentucky . 6 /

6. Subsequently, on March 5, 2018, Petitioner filed an

amended applicat ion page on which he disclosed two other

criminal offenses : r eceiving s tolen p roperty, and p ossession of

m arijuana. Both of these offenses, which were misdemeanors,

were adjudicated on November 24, 1991, in Kentucky.

7. On June 13, 2018, Petitioner participated in a waiver

interview conducted by Respondent , as required under r ule

61D - 5.006 . At the interview, Petitioner disclosed that he had

several other criminal convictions, some of which had not been

listed on his license application.

8 . I n the Denial Letter, Respondent notified Petitioner

that it was deny ing his application on the basis of his felony

conviction for third d egree a ssault on a p olice o fficer and his

failure to disclose all of his convictions on his license

application. Respondent also notified Petitioner that it was

denying his request for a waiver.

I II . Evidence Adduced at the Final Hearing

9. As noted above, Petitioner is a blacksmith and farrier,

and he currently works in that trade in Florida , where he now

resides full time . Specifically, Petitioner works with Marshall

Hudson, also a blacksmith and farrier , who is a subcontractor to

the Wellington Equestrian Federation at Equestrian Sport

Productions in Wellington, Florida. Petitioner has worked with

Hudso n for four or five seasons , shoeing horses of many

different breeds, including thoroughbreds, quarter horses,

stand ard breds, walking horse s , saddlebreds, and carriage horses,

at the barns, showgrounds, and other venues at which the horses

are located.

1 0 . The competent , credible evidence establishes that

Petitioner is , or has been , licensed by the Kentucky Horse

Racing Commission as a blacksmith and farrier over a period of

several years , 7 / with the exception of a short period in 2016

duri n g which his license had lapsed . Pursuant to his Kentucky

occupational license, Petitioner is, or has been, authorized to

conduct his trade at licensed racing facilities in Kentucky ,

including Churchill Downs and other track s . Petitioner credibly

testified Ï Ï and no countervailing evidence was presented ÏÏ that he

has n ever been subject to licens ure disciplin e during the entire

time he has been license d in Kentucky.

A. Petitioner's Criminal Offenses

11 . At the final hearing, Petitioner was forthright

regarding his criminal record.

12 . He testified that he had been convicted of third

d egree a ssault on a p olice o fficer, a felony, in Jeff erson

County, Kentucky in 1998, 8 / and credibly explained the

circumstances surrounding that conviction. H is account of that

incident provided at the final hearing is consistent with that

provided in his June 13, 2018, waiver interview. 9 /

13 . Petitioner also readily acknowledged that he had been

convicted of numerous misdemeanor offenses, some of which have

been expunged from his criminal record. These include theft by

deception, receiving stolen property, shoplifting, carrying a

concealed weapon, possession of marijuana, driving under the

influence, and several traffic Ï related offenses.

14. With the exception of the possession of marijuana and

some traffic Ï related offenses, Petitioner's criminal offenses

were committed during the 1990s. His most recent arrest was in

2011, for misdemeanor possession of marijuana, which was

resolved by paying a $150.00 fine. Since then, Petitioner has

not been convicted of any crim es . 10 /

15. There was no evidence presented showing that

Petitioner has ever engaged in criminal activity regarding pari Ï

mutuel wagering, gambling, bookmaking, cruelty to animals , o r

that is a capital offense . 11 /

B. Evidence Regarding Petitioner's Character

16 . Hudson testified regarding Petitioner's character. He

attested that Petitioner is a good person who has a talent for

working with horses . He has never known Petitioner to have a

conflict with any owner, rider , or veterinarian in connection

with any of the horses that Petitioner has worked with over the

years .

17 . At the final hearing, Petitioner acknowledged that in

2016, he engaged in pari - mutuel work for a short period of time

in Kentucky without being licens ed . Petitioner 's Kentucky Horse

Racing Commission occupational license had lapsed while he was

not working in Ï state. He renewed it later that year, but during

the time his license had lapsed, he occasionally worked at

Churchill Downs in order to make enough money to apply for a new

occupational license . On those occasions, h e rode into the

facility in the truck of another racetrack employe e who was

licensed , and no one questioned his presence because they knew

him from having previously worked there , while he was licensed .

He acknowledged that he knew he was legally required to hold a

license to gain access to the backside of pari - mutuel racetracks

in Kentucky , but testified that it was commonplace for

unlicensed persons to work in the backside at Churchill Downs ,

except on large racing event days .

1 8 . No evidence was presented that Petitioner has ever

a ccess ed the backside of , or engaged in activities requiring

occupational licensure at, pari - mutuel facilities in Florida

while not being licensed to do so. 1 2 /

IV. Findings of Ultimate Fact

A. Petitioner's Felony Conviction

19. As discussed above, Petitioner readily acknowledged

that he was convicted of third degree assault on a police

officer , a felony , in Kentucky in 1998.

20. Respondent is authorized, pursuant to section

550.105(5)(b), to deny Petitioner's application for an

occupational license on the basis of his felony conviction.

B. Waiver of Disqualification from Licensure

21 . Section 550.105(5)(c) authorizes Respondent to waive

licensure disqualification under section 550.105(5)(b) 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 was convicted of is not related to pari Ï mutuel wagering and

is not a capital offense."

22 . As discussed above, there is no evidence showing that

Petiti oner has been convicted of any crime involving pari Ï mutuel

wagering or that is a capital offense.

23 . Therefore, the question becomes whether the

preponderance of the evidence shows that Petitioner is

rehabilitated and of good moral character such that , pursuant to

section 550.105(5)(c) and rule 61D Ï 5.006 , he is entitled to a

waiver from licensure disqualification .

24 . T he question whether a person is rehabilitated from

his or her criminal conviction primarily focuses on the person's

behavior subsequ ent to committing the offense, rather than

focusing solely ÏÏ or even primarily ÏÏ on whether the person

committed the offenses. 13 /

25 . As discussed above , Petitioner was forthright in

acknowledging that he had committed numerous criminal offenses

in the past ÏÏ one of them a serious felony that, pursuant to

statute, has effectively excluded him from obtaining an

occupational license. This is his only felony offense, and was

committed over 20 years ago.

26 . Although Petitioner committed several offenses

subsequent to his 1998 felony conviction, they were

misdemeanor s , the majority of which were committed in the 1990s

and m any of which subsequently have been expunged from his

record . His most recent offense, misdemeanor possessi on of

marijuana , for which he paid a small fine to resolve , occurred

in 2011 , some eight years ago. There is no evidence that he has

engaged in criminal behavior since then.

27 . Based on the foregoing, the undersigned finds , as a

matter of ultimate fact, that Petitioner is rehabilitated from

his 1998 felony in Kentucky, which is the basis on which

Respondent has proposed to deny his occupational license

application. See J.D. v. Fla. Dep't of Child. & Fams. , 114 So.

3d 1127, 1131 (whether an applican t is rehabilitated is an issue

of ultimate fact to be determined by the trier of fact).

28 . Marshall Hudson, a colleague with whom Petitioner has

worked for a few years now, vouched for Petitioner's character.

29 . Petitioner testified, credibly, that he has never had

any "problems" associated with his work as a blacksmith and

farrier. Respondent presented no evidence to the contrary.

30 . Petitioner admit ted to working without a license in

the backside of Churchill Downs in Kentucky for a short time ,

approximately three years ago. The evidence establishes that he

did so because he needed the work in order to make enough money

to apply for an occupational license, since his had lapsed while

he had not been working in Ï state . Under these circumstances , it

is understandabl e that Petitioner would accept the opportunity

to make money that would enable him apply for an occupational

license that would allow him to legally practice his trade.

Once Petitioner had earned enough money to obtain an

occupational license, he did so. It is further noted that there

was no evidence presented that Petitioner has since engaged in

the unlicensed practice of his trade in Kentucky or in any other

state.

31 . The evidence also does not show that Petitioner has

ever engaged in the unlicensed practice of his trade at licensed

pari Ï mutuel facilities in Florida .

32 . Importantly, too, no evidence was presented showing

that Petitioner has ever engaged in conduct involving gambling,

bookm aking, or cruelty to animals, and none of his criminal

offenses involved pari Ï mutuel wagering ÏÏ conduct that would

rightfully raise significant concern s as to whether he should be

licensed.

33 . Based on these considerations , the undersign ed

determines, as a matter of ultimate fact, that Petitioner is of

good moral character for purposes of obtaining a waiver ,

pursuant to section 550.105(5)(c) and rule 61D Ï 5.006 . See

Albert v. Fla. Dep't of Law Enf . , 573 So. 2d 187 (Fla. 3d DCA

1991)(except where a specific provision of statute has

categorically ÏÏ i.e., absolutely and without qualification ÏÏ

disqualified an applicant from consideration for licensure, the

question of what constitutes "good moral character" is a

question of fact to be determined by the trier of fact). 1 4 /

C. Failure to Disclose Criminal History

34 . Respondent proposes to deny Petitioner's application

on the basis that he did not disclose his entire criminal

history, as required by the "Background Information" section of

the occupational license application form.

35 . The evidence establishes that Petitioner did not

disclose his entire criminal history on the application form

filed on December 11, 2017, as supplemented on March 5, 2018.

3 6 . However, this i s a de novo pr oceeding designed to

formulate agency action, not review action taken earlier and

preliminarily. As such, Petitioner was entitled to present, at

the final hearing in this proceeding, information regarding his

criminal history additional to that provided i n his application.

At the final hearing, in response to Respondent's questioning in

its case in chief, Petitioner testified regarding each criminal

offense he had committed . Petitioner's testimony regarding his

complete criminal history at the de novo final hearing in this

proceeding satisfies the requirement in the occupational license

application Background Information section, that his complete

criminal history be disclo sed . Accordingly, failure to disclose

his criminal history is not a basis for denying his application

pursuant t o section 559.791.

CONCLUSIONS OF LAW

3 7 . Because this proceeding involves disputed issue s of

material fact, DOAH has jurisdiction over the subject matter of ,

and the parties to , this proceeding, pursuant to sections

120.569 and 120.57(1) .

3 8 . This is a de novo proceeding under section 120.57 that

is "intended to formulate agency action, not to review action

taken earlier and preliminarily. " Fla. Dep't of Transp. v.

J.W.C. Co. , 396 So. 2d 778, 785 (Fla. 1st DCA 1981) ; McDonald v.

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

1977).

3 9 . In this proceeding, Petitioner is the applicant for an

occupational license, which Respondent has proposed to deny. As

the applicant for a license, Petitioner bears the ultimate

burden of proving, by a preponderance of the evidence, that he

is entitled to issuance of the license under the applicable

statutes and rules . J.W.C. , 396 So. 2d at 788 ; Balino v. Dep't

of Health and Rehab. Servs. , 348 So. 2d 349, 350 (Fla. 1st DCA

1977); § 120.57(1)(j), Fla. Stat. The "preponderance of the

evidence" standard requires the proponent to present evidence

that " more likely than not " tends to prove a certain

proposition. Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla.

2000 ) .

40 . Pursuant to section 550.105(1) , (2), and (4),

Petitioner is required to obtain an occup ational license to be

able to work as a blacksmith and farrier at licensed pari Ï mutuel

facilit ies in Florida.

4 1 . Section 550.105(5)(b) authorizes Respondent to deny an

occupational license application on the basis that the applicant

has been convicted of a felony. That section states:

(b) The division may deny, suspend, revoke,

or declare ineligible any occupational

license if the applicant for or holder

thereof has violated the provisions of this

chapter or the rules of the division

govern ing the conduct of persons connected

with racetracks and frontons. In addition,

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

smugg le 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 .

4 2 . As found above, Petitioner was convicted of the felony

of third degree assault on a police officer in 1998 in Kentucky.

Pursuant to section 550.105(5)(b), this felony conviction

constitutes a basis for denying Petitioner's occupational

license application.

4 3 . However, section 550.105(5)(c) authorizes an applicant

for an occupational license to demonstrate entitlement to a

waiver of the disqualification from licensure under section

550.105(5)(b) if the applicant can demonstrate that he or she is

of good moral character, that he or she has been rehabilitated,

and that the crime of which he or she was convicted is not

related to pari Ï mutuel wagering and is not a capital offense.

That section states:

(c) The division may deny, declare

ineligi ble, or revoke any occupational

license if the applicant for such license

has been convicted of a felony or

misdemeanor in this state, in any other

state, or under the laws of the United

States, if such felony or misdemeanor is

related to gambling or bookm aking, as

contemplated in s. 849.25, or involves

cruelty to animals. 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

was 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.

§ 550.105(5)(c), Fla. Stat.

4 4 . Respondent has adopted rule 61D Ï 5.006 to implement

section 550.105(5)(c). This rule 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 wai ver

from the division director. The applicant

shall submit Form DBPR PMW - 3120, Individual

Occupational License Application, adopted by

reference in Rule 61D - 5.001, F.A.C., the

annual license fee and fingerprint fee, a

complete set of fingerprints on a card

supplied by the division, and Form DBPR PMW -

3180, Request for Waiver, ad opted by

reference in Rule 61D - 5.001, F.A.C. The

applicant shall also schedule a waiver

interview with the Office of Investigations.

Failure to participate in a waiver interview

or to disclose any pertinent information

regarding criminal convictions, or

d iscipline by any racing jurisdiction shall

result in a denial of the request for

waiver.

(2) The applicant shall establish proof of

rehabilitation and demonstrate good moral

character. The waiver applies to criminal

convictions or discipline by any raci ng

jurisdiction disclosed to the division,

unless revoked by the division for violation

of Chapter 550, F.S., or these rules.

4 5 . Because, as found above, Petitioner has demonstrated

that he is rehabilitated from his 1998 felony and is of good

moral character, 1 5 / it is concluded that , pursuant to section

550.105(5)(c) and rule 61D Ï 5.006, Petitioner is entitled to

issuance of a waiver of being disqualified from li censure under

section 550.105(5)(b).

4 6 . Section 559.791 authorizes Respondent to deny an

application for lice nsure if the applicant swears to a false

statement on the application .

4 7 . As found above, at the final hearing in this de novo

proceeding, Petitioner fully disclosed his criminal history.

Accordingly, section 559.791 doe s not constitute a basis for

den y ing his occupational license application .

4 8 . Based on the foregoing, it is concluded that

Petitioner is entitled, pursuant to section 550.105, to issuance

of an occupational license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Respondent enter a final order

granting Petitioner ' s application for a pari - mutuel wagering

occupational license.

DONE AND ENTERED this 6th day of August , 201 9 , in

Talla hassee, Leon County, Florida.

S

CATHY M. SELLERS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee 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 6th day of August , 201 9 .

ENDNOTES

1/ All references to Florida Statutes are to the 2018 version.

2/ In the Denial Letter, Respondent articulated two bases for

denial of Petitioner's a pplication: Petitioner's felony

conviction for third degree assault on a police officer in 1998

in Kentucky, and Petitioner's failure to disclose other criminal

convictions on his application. Petitioner's contention, stated

on his Election of Rights filed on October 29, 2017, that he had

"sent all background history, some expunged and dismissed over

twenty year[s]" creates a genuine dispute of material fact

entitling him t o an evidentiary hearing conducted pursuant to

section 120.57(1). Additionally, Petitioner has asserted that

he is of good moral character and is rehabilitated from his 1998

felony conviction. These assertions also raise disputed issues

of material fact that must be addressed in an evidentiary

hearing conducted under section 120.57(1).

3/ Petitioner's Exhibit 2, which consists of his criminal

record, was accepted as a late Ï filed exhibit.

4/ Blacksmiths and farriers are responsible for crafting and

fi tting metal horseshoes to horses. They must obtain an

occupational license to allow them to access the backside of

pari - mutuel facilities when servicing racing horses at pari -

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

5/ Petitioner's appli cation was date Ï stamped as received by the

Division of Pari Ï Mutuel Wagering at 3:04 p.m. on December 11,

2017. This date stamp evidences filing of the application with

Respondent. See Fla. Admin. Code R. 28 Ï 106.104.

6/ Due to Petitioner's illegible handwriting on the application,

Respondent was unable to discern the specific nature of that

felony. However, this does not mean that Petitioner failed to

disclose this felony ; rather, this means the information

regarding the fe lony that he submitted in the application was

incomplete. Pursuant to section 120.60(1), Respondent is

authorized to request the submittal of additional information to

address any apparent errors or omissions and request additional

information, in order t o determine whether a license application

should be granted or denied. There is no indication that

Respondent requested additional information to clarify the

illegible notation on Petitioner's application.

7/ As an exhibit at the final hearing, he pro vided images of his

occupational licenses issued by the Kentucky Horse Racing

Commission issued in 2009, 2010, 2011, 2013, 2015, 2016, and

2017. Respondent's Exhibit 2 is comprised of a Final Order

issued in DBPR Case No. 2015 Ï 040241 ÏÏ a completely separat e case

in which Respondent denied a separate occupational license

application filed by Petitioner in 2015. In that case,

Petitioner challenged Respondent's proposed denial of his

application, and an "informal" hearing under section 120.57(2)

was conducted by an agency Ï appointed hearing officer, who issued

a recommended order. That recommended order found, among other

things, that "Petitioner was not licensed in Kentucky for the

last ten years."

Petitioner credibly testified in this proceeding that he

had been licensed by the Kentucky Horse Racing Commission for

approximately ten years, with the exception of a short period in

which his license had lapsed. The competent, credible evidence

presented by Petitioner in this de novo proceeding establishes

th at Petitioner has been the holder of an occupational license

issued by the state of Kentucky authorizing him to work as a

blacksmith at licensed racing facilities for at least ten years.

Because this proceeding concerns a completely separate

applicatio n for occupational license filed by Petitioner in

2017 ÏÏ a different year than the application at issue in DBPR

Case No. 2015 Ï 040241 ÏÏ the Final Order in DBPR Case No. 2015 Ï

040241 is irrelevant to this proceeding. Further, because this

is a de novo proceedi ng , see section 120.57(1)(k) and Florida

Department of Transportation v. J.W.C. Company , 396 So. 2d 778,

785 (Fla. 1st DCA 1981), the undersigned is not bound by any

facts found by the informal hearing officer in DBPR Case

No. 2015 Ï 040241. Additionally, the Final Order in DBPR Case

No. 2015 Ï 040241 is hearsay evidence, pursuant to section 90.801,

Florida Statutes, that does not fall within any exceptions to

the hearsay rule codified in sections 90.803 or 90.804,

Florida Statutes. Therefore, it is not su fficient in itself to

support findings of fact in this proceeding, and it does not

supplement or explain any competent evidence in the record of

this proceeding. For these reasons, the undersigned has not

assigned any weight to the Final Order issued in D BPR Case

No. 2015 Ï 040241 in this proceeding.

8/ On direct examination, Respondent referred to Petitioner's

application and questioned him about a felony that Respondent

characterized as having been committed by Petitioner in Texas in

1998; however, the application form itself lists only one

felony, which Petitioner committed in Kentucky in 1998, and

which he disclosed in his waiver inte rview and in testimony at

the final hearing , and there is no competent evidence in the

record showing that Petitioner committed a felony in Texas .

Thus, t he evidence establishes that Petitioner committed one

felony, in Kentucky, rather than two felonies i n Texas and one

in Kentucky.

Additionally, Respondent argues in its Proposed Recommended

Order, without cit ing any support ing legal authority , that by

having been convicted of two felony counts arising from his

altercation with police when they burst i nto his home in 1998,

Petitioner was convicted of two separate felonies. This

position is contrary to Kentucky case law ( the applicable body

of law, because Petitioner was convicted under Kentucky state

law ) holding that conviction of multiple counts aris ing out of a

single course of criminal conduct (as opposed to temporally

separate and distinct transactions) constitutes a single

criminal conviction for trial and sentencing purposes. See Gray

v. Commonwealth , 979 S.W.2d 454 (Ky. 1998), overruled in part on

other grounds , Morrow v. Commonwealth , 77 S.W.3d 558 (Ky. 2002).

Furthermore, in any event, Respondent presented no evidence

showing that, apart from the charge of the third degree assault

on a police officer, the other counts arising out of the 1998

i ncident constituted felonies. Because Respondent is asserting

that Petitioner committed two felonies, rather than the one

felony he reported on his application and to which he testified

at the final hearing, Respondent bears the burden of proving its

asse rtion that the other counts constitute felonies. See Balino

v. Dep't of Health and Rehab. Servs. , 348 So. 2d 349, 350 (Fla.

1st DCA 1977)( unless established otherwise by statute, the

burden of proof is on the party asserting the affirmative of an

issue b efore an administrative tribunal with respect to that

issue ).

9/ Respondent's Exhibit 3, the completed Waiver Interview Form

dated June 13, 2018, was admitted into evidence. This form

records/memorializes Petitioner's responses to the questions

state d on the form, as interposed by Respondent's investigator,

who conducted the interview, and also contains the

investigator's comments regarding the interview. This document

is hearsay evidence that does not fall within any exceptions to

the hearsay rule c odified in sections 90.803 or 90.804, so it is

not sufficient in itself to support findings of fact in this

proceeding. However, it may be used to supplement or explain

the competent evidence in the record of this proceeding, and

also may be used in assessing Petitioner's credibility.

10/ Additionally, no evidence was presented showing that

Petitioner has engaged in any criminal activity since the arrest

in 2001 for misdemeanor possession of marijuana.

11/ A "capital offense" is one punishable b y death. See Adaway

v. State , 902 So. 2d 746, 748 (Fla. 2005).

12/ For a few months, Petitioner held a temporary occupational

license issued by Respondent authorizing him to work at licensed

pari Ï mutuel facilities in Florida. Petitioner testified that

Respondent "took back" the temporary license when it denied his

application for an occupational license in 2015. During the

period in which Petitioner held the temporary occupational

license, he legally worked in the backside of licensed pari Ï

mutuel facil ities in Florida.

13/ The term "rehabilitated" in section 550.105(5)(c ) is not

defined in chapter 550 . When considering the plain meaning of

an undefined statutory term, Florida courts often consult

dictionaries to determine the term's ordinary meaning. Debaun

v. State , 213 So. 3d 747, 751 (Fla. 2017); Hurd v. State , 229

So. 3d 876, 879 (Fla. 5th DCA 2017). The term "rehabilitated"

is defined in Merriam Webster's Collegiate Dictionary , 11th

e dition, as "to restore to good repute: reestablish the good

n ame of." In the administrative law context, in determining

rehabilitation, agencies (and courts reviewing agency decisions)

consider the period of time since the criminal offense, the

applicant's history since the disqualifying offense, and

circumstances indicating whether the applicant will present a

danger to those with whom he or she will have contact. See,

e.g. , J.D. v. Dep't of Child. & Fams. , 114 So. 3d 1127, 1130

(Fla. 1st DCA 2013).

14/ Webster's New Collegiate Dictionary , 11th e dition, defines

"categorical" as "absolute" or "unqualified. " Here, because

section 550.105(5)(c) and rule 61D Ï 5.006 allow convicted felons

(unless they were convicted of capital crimes or crimes

involving pari Ï mutuel wagering) to obtain a waiver from

licensure disquali fication upon demonstrating rehabilitation and

good moral character, the licensure disqualification under

section 550.150(5)(b) is not categorical.

15/ As discussed in paragraphs 2 7 . and 3 3 ., above, whether an

applicant has demonstrated rehabilitation and good moral

character are questions of ultimate fact within the province of

the administrative law judge to determine.

COPIES FURNISHED:

James A. Lewis, Esquire

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

R ay Treadwell, General Counsel

Of fice of the General Counsel

D epartment of Business and

Professional Regulation

2601 Blair S tone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Halsey Beshears, Secretary

D epartment of Business and

Professional Regulation

2601 Blair S tone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Louis Trombetta, Director

Division of Pari - Mutuel Wagering

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

John A. Short

3701 Quantum Lakes Drive , Suite 109

Boynton Beach, Florida 33426

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.