STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF REAL ) ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 85-2430

)

KEVIN P. SHEEHY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on November 8, 1985, in Plantation Key, Florida.

APPEARANCES

-

For Petitioner: Arthur R. Shell, Jr., Esquire

Post Office Box 1900 Orlando, Florida 32802

For Respondent: Barry J. Siegel, Esquire

5975 Sunset Drive No. 301 South Miami, Florida 33143

BACKGROUND

By administrative complaint filed on April 2, 1985, petitioner, Department of Professional Regulation, Division of Real Estate, has charged that respondent, Kevin P. Sheehy, a licensed real estate salesman, had violated Subsections 475.25(1)(f), (n) and (p), Florida Statutes, by having been convicted of a crime which involves moral turpitude, having been confined in a federal prison, and with having failed to advise petitioner within thirty days of being convicted of a felony.1

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The matter was referred to the Division of Administrative Hearings by petitioner on July 17, 1985, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated August 21, 1985, the final hearing was scheduled for October 9, 1985 in Plantation Key, Florida. At the request of respondent, the matter was rescheduled to November 8, 1985 at the same location.

At final hearing petitioner offered petitioner's exhibits 1 and 2. Both were received in evidence. Respondent presented the testimony of Robert P. Vaughn and Susan F. Walker and offered respondent's exhibits 1 and 2. Both were received in evidence.

The transcript of hearing was filed on December 2, 1985. Proposed findings of fact and conclusions of law were due on December 17, 1985. However, none were filed.2

ISSUE

At issue is whether respondent's license as a real estate salesman should be disciplined for the alleged violations set forth in the administrative complaint.

Based on the evidence, the following facts are determined:

FINDINGS OF FACT

1. At all times relevant thereto, respondent, Kevin P. Sheehy, held real estate salesman license number 0203610 issued by petitioner, Department of Professional Regulation, Division of Real Estate. The license is currently in an involuntary inactive status.

   
   

2. On October 14, 1983, respondent was convicted in the United States District Court for the Middle District of Florida on the charges of (a) conspiracy to import marijuana and (b) importation of marijuana. For this he received a four year sentence on each count to run concurrently and a special parole term of five years. According to his counsel, he began serving his sentence on September 5, 1985 at Eglin Air Force Base. He is eligible for parole around April, 1987.

3. Prior to his conviction, respondent was employed as a real estate salesman in a real estate firm in Tavanier, Florida. When Sheehy is released, his former broker intends to offer him a job as a salesman, assuming Sheehy holds a license, for the broker found Sheehy to be honest, trustworthy, productive, and a hard worker. This was corroborated by another person in the community. Both witnesses urged that Sheehy, who is 27 and afflicted with juvenile diabetes, be given the opportunity to pursue a livelihood when he is paroled.

   
   

4. There is no evidence that Sheehy failed to notify the Division of Real Estate of his felony conviction within thirty days after the date of his conviction.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

6. Respondent is charged with three statutory violations in connection with his federal court conviction. First, he is charged with violating Subsection 475.25(1)(f), Florida statutes, which makes it unlawful to have been found guilty of a crime which involves moral turpitude or fraudulent or dishonest dealing (Count VII). He is also charged with violating Subsection 475.25(1)(n), Florida Statutes, by having been confined in a federal prison (Count VIII). Finally, he is charged with violating Subsection 475.25(1)(p), Florida Statutes, by having failed to inform the Commission in writing within thirty days after being convicted or found guilty of a felony (Count IX). As to the latter count, there was no evidence to indicate that Sheehy had failed to notify the Division of his conviction, and accordingly that charge should be dismissed. Through counsel, respondent has stipulated that Sheehy was convicted of conspiracy to import marijuana and importation of marijuana. Counsel has also acknowledged that Sheehy is presently incarcerated at a federal institution.

   Since the two crimes are ones clearly involving moral turpitude, and it is acknowledged that respondent is now in a federal penal institution, Counts VII and VIII have been proven.3

   
   

7. At final hearing petitioner recommended that respondent's license be revoked. Through counsel, respondent urges that his license be suspended for a definite period so that he can resume his livelihood once he gains parole. Sheehy has a real estate job waiting for him, and enjoys a reputation of honesty and trustworthiness in that endeavor. He is young

(27) and medically disabled, and desirous of keeping his license. The crimes for which he was convicted are serious, but do not involve fraudulent or dishonest dealing from a business standpoint. Under these circumstances it is recommended that respondent's license be suspended for eighteen months, which should coincide with his reentry into society.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that respondent be found guilty as charged in Counts VII and VIII of the administrative complaint, and that ,, his real estate salesman license be suspended for eighteen months. The remaining charge in Count XIX should be DISMISSED.

DONE and ORDERED this 9th day of January, 1986, in Tallahassee, Florida.

DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1986.

ENDNOTES

1/ The complaint in this cause originally involved two other respondents. However, at the request of petitioner, the final hearing only involved Kevin P. Sheehy (Counts VII through IX).

2/ Respondent filed a letter on December 11, 1985, containing his final argument.

3/ Respondent's counsel has offered into evidence excerpts of Sheehy's trial to show the untrustworthiness of the government's chief witness who implicated Sheehy in the illicit conduct.

However, even if the undersigned agreed that the evidence was insufficient to convict Sheehy, that matter has been laid to rest by his conviction and its affirmance by a federal appellate court. Had a plea of nolo contendere been made, a different result might lie. See, for example, Ayala v. Department of Professional Regulation, So. 2d (Fla. 1st DCA 1985) 10 FLW 2525.

COPIES FURNISHED:

Arthur R. Shell, Jr., Esquire

P. O. Box 1900

Orlando, Florida 32802

Barry J. Siegel, Esquire 5975 Sunset Drive, #301 South Miami, Florida 33143

Salvatore Carpino, Esquire

130 N. Monroe St. Tallahassee, Florida 32301

Docket for Case No: 85-002430

Orders for Case No: 85-002430