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DIVISION OF REAL ESTATE vs. KEVIN P. SHEEHY, 85-002430 (1985)
Division of Administrative Hearings, Florida Number: 85-002430 Latest Update: Jan. 09, 1986

The 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 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. 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. 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. 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.

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.

Florida Laws (2) 120.57475.25
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DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE vs RICHARD L. SOVICH, 17-000476 (2017)
Division of Administrative Hearings, Florida Filed:Orlando, Florida Jan. 20, 2017 Number: 17-000476 Latest Update: Jun. 20, 2017

The Issue Whether Respondent acted as a real estate agent without being licensed in violation of section 475.42(1)(a), Florida Statutes, and, if so, what penalty should be imposed.

Findings Of Fact Based on the oral and documentary evidence presented at the administrative hearing, the following findings of facts are made: COMPLAINT This complaint was instituted when Mr. Manning became aware of a $250.00 payment to a Keller Williams real estate agent (KW agent). Upon inquiring, Mr. Manning was told the fee was to pay the KW agent for securing the third tenant of his rental property located at 12522 Belcroft Drive, Riverview, Florida (property). Mr. Manning was not informed that this process would be engaged, and he was caught off guard when the payment came to light. Mr. Manning was also concerned that he was not receiving consistent payments for the rental of his property. PARTIES Petitioner is the state agency charged with the responsibility of regulating the real estate industry pursuant to chapters 455 and 475. Petitioner is authorized to prosecute cases against persons who operate as real estate agents or sales associates without a real estate license. At all times material, Respondent was not a licensed real estate broker, sales associate or agent. Respondent is a co-owner of J & D Associates, a property management company that he owns with his wife, Ms. Woltmann. Additionally, J & D Associates was not licensed as a real estate broker, sales associate or agent. PARTICULARS In 2012, Mr. Manning was serving in the U.S. Air Force, and was stationed in the Tampa Bay area of Florida. At some point, Mr. Manning received military orders to report to Texas for additional cross-training. Mr. Manning wanted to sell his property, and he was referred to Ms. Woltmann, a Florida licensed real estate agent. Mr. Manning and Ms. Woltmann met and discussed the possibility of selling Mr. Manning’s property. Ms. Woltmann performed a market analysis and determined that Mr. Manning would have to “bring money” to a closing in order to sell his property. Mr. Manning made the decision that he would rent his property. Thereafter, Ms. Woltmann introduced Mr. Manning to Respondent. Mr. Manning assumed that Respondent was a licensed real estate agent. If he had known that Respondent was not a licensed real estate agent, Mr. Manning would not have hired Respondent. On or about April 26, 2012, Respondent executed a “Management Agreement”5/ (Agreement) with Mr. Manning, regarding his property. The Agreement provided in pertinent part the following: EMPLOYMENT & AUTHORITY OF AGENT The OWNER [Mr. Manning] hereby appoints J & D Associates as its sole and exclusive AGENT to rent, manage and operate the PREMISES [12522 Belcroft Drive, Riverview, Florida]. The AGENT is empowered to institute legal action or other proceedings on the OWNER’S behalf to collect the rents and other sums due, and to dispossess tenants and other persons from the PREMISES for cause. * * * RESPONSIBILITIES OF THE AGENT: In addition to the forgoing authorizations, the AGENT will perform the following functions on the OWNER’S behalf. Collect all rents due form [sic] the tenants. Deduct from said rent all funds needed for proper disbursements of expenses against the PROPERTY and payable by the OWNER, including the AGENT’S compensation. Collect a security deposit received from a tenant of the PROPERTY and place it into an escrow account as required by the laws of the State of Florida. COMPENSATION OF THE AGENT: In consideration of the services rendered by the AGENT, the OWNER agrees to pay the AGENT a fee equal to FIFTY PERCENT (50%) OF THE FIRST MONTH’S RENT AND ten percent (10%) per month of the monthly rent thereafter during the term of the tenancy as management fees for the PROPERTY. In the case of holding over the lease beyond the terms of the lease by the same tenant, the Fifty (50%) up front [sic] fee shall also be waived and only the TEN PERCENT (10%) per month fee shall apply. The Fifty (50%) fee shall apply to new tenants only. In the case of a tenant moving out within the first three months of the tenancy, then the fee for obtaining a new tenant and new lease shall be only FIFTEEN PERCENT (15%) of the first month’s rent from the new tenant and TEN PERCENT (10%) of the monthly rent thereafter. (Emphasis added via underline.) At various times, Respondent provided Mr. Manning a list of eligible tenants. Also, Respondent would provide his opinion as to who would be the best candidate to rent the property. Mr. Manning would, “nine times out of ten,” go with Respondent’s recommendation for the rental tenant. In June 2012, “Richard L. Sovich J & D Associates, Agent For Elijah Manning,” executed a “Residential Lease for Single Family Home and Duplex” with a tenant. On the signatory page, the following printed form language is found on the upper half of the page: This Lease has been executed by the parties on the date indicated below: Respondent’s signature is over the “Landlord’s Signature line, “As” “Agent.” On the lower half of the signatory page, the following printed form language is found; the handwritten information is found in italics: This form was completed with the assistance of Name Richard Sovich Address 1925 Inverness Greens Drive Sun City Center, Fl 33573-7219 Telephone No. 813/784-8159 Ms. Woltmann testified that she had a listing agreement for each time she listed Mr. Manning’s property for rent. With each listing agreement, Ms. Woltmann was able to list the property in the multiple-listing system (MLS)6/ while she was associated with the Century 21, Shaw Realty Group. The three listings, as found in Respondent’s composite Exhibit E, included (along with other information) the list date, a picture of the property taken by Ms. Woltmann, and the dates the property would be available: May 5, 2012, for the rental beginning on June 1, 2012, at $1,550.00 per month; November 1, 2012, for the rental beginning on December 1, 2012, at $1,550.00 per month; and March 14, 2014, for rental beginning on May 1, 2014, at $1,600.00 per month. Each time the property was rented, Ms. Woltmann changed the MLS listing to reflect the actual lease dates: June 16, 2012; December 13, 2012; and May 19, 2014, and each was rented at the monthly rental price listed. Ms. Woltmann claimed that the rental price had to be lowered for the second rental. However, the documentation that she confirmed she inputted into the MLS at the time the property was rented, reflects the rental price was not lowered during the second rental period.7/ The rental price was actually raised for the third rental period. Ms. Woltmann also claimed she procured the first two tenants for Mr. Manning’s property and waived (with the consent of her broker agent) her lease fee each time. Three years ago (2014) during the Manning lease periods, Ms. Woltmann “left abruptly” the real estate company she was working for and that company “is now closed.” Yet, she testified that those listing agreements “should be there” if she went back to her broker and asked for them. Based on inconsistencies in her testimony, Ms. Woltmann’s testimony is not credible. Mr. Manning received payments from Respondent for approximately three years totaling “about $45,000.” Mr. Manning paid Respondent “maybe four or five thousand dollars. Maybe a little bit less” for his service. Respondent admitted he received compensation from the rental of Mr. Manning’s property for approximately three years, but denied that he procured any tenants for the property. It is determined that the testimony of Respondent and his wife Ms. Woltmann, is not credible and persuasive. Neither can be considered “disinterested.” The testimony of Mr. Manning is more credible. As the investigator supervisor, Mr. McAvoy is knowledgeable about the purpose of conducting unlicensed activity investigations. Its purpose is “to investigate matters surrounding unlicensed activity within the real estate profession . . . so to protect the public from possible harm surrounding those transactions.” Each investigator is required to record the amount of time spent in an investigation. An investigation was undertaken regarding Mr. Manning’s complaint. Petitioner incurred $49.50 in investigative costs during this case.

Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Real Estate Commission finding Richard Sovich in violation of section 475.42(1)(a), Florida Statutes, as charged in the Administrative Complaint; and imposing an administrative fine of $500, and $49.50 as reasonable costs. DONE AND ENTERED this 5th day of May, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 5th day of May, 2017.

Florida Laws (13) 120.569120.57120.6820.165455.227455.2273455.228475.01475.011475.42489.13721.2095.11
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KEITH LUTHER FERNANDEZ vs DEPARTMENT OF FINANCIAL SERVICES, 03-004495 (2003)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Dec. 02, 2003 Number: 03-004495 Latest Update: Jun. 29, 2005

The Issue The issue for determination is whether Respondent should deny Petitioner's application to be licensed as a resident insurance adjuster pursuant to Florida Administrative Code Rule 69B-211.042, because Petitioner is on probation and is participating in a pre-trial intervention program; and, if so, whether Petitioner is entitled to a default license because Respondent did not grant or deny the license within 90 days pursuant to Subsection 120.60(1), Florida Statutes (2002).

Findings Of Fact Respondent is the state agency responsible for licensing insurance agents in the State of Florida, pursuant to Chapter 626, Florida Statutes (2002). On April 3, 2003, Petitioner applied for a license as a resident company employee property and casualty adjuster (resident adjuster license). Petitioner truthfully answered all questions on the application, including those questions pertaining to Petitioner's criminal history and plea of guilty to a felony charge in Georgia. On September 25, 2003, Respondent issued a Notice of Denial of Petitioner's license application. Respondent based the denial on the grounds that Petitioner pled guilty to a crime of moral turpitude, within the meaning of Subsection 626.611(14), Florida Statutes (2002), for which denial of his application is mandatory; that Petitioner pled guilty to a crime not involving moral turpitude, within the meaning of Subsection 626.621(8), Florida Statutes (2002), for which denial of his application is discretionary; that Florida Administrative Code Rule 69B-211.042(6) and (14) prohibits Respondent from granting the application while Petitioner is on probation or in a pre- trial intervention program; and that Florida Administrative Code Rule 69B-211.042(8) requires Petitioner to wait five years after the plea dated May 14, 2002, before applying for a license. On a date not disclosed in the record, Respondent issued a Second Amended Notice of Denial (the Amended Notice of Denial). The record does not disclose a first amended notice of denial. The Amended Notice of Denial deletes the ground that Petitioner pled guilty to a crime of moral turpitude, but retains the other grounds for denial stated in the Notice of Denial issued on September 25, 2003. On May 14, 2002, Petitioner pled guilty to a single felony charge of possession of cocaine. A Georgia court sentenced Petitioner under Georgia's First Offender Act. If Petitioner successfully completes probation, Georgia will dismiss the felony charge. If Petitioner does not successfully complete probation, the Georgia court may revoke Petitioner's probation, adjudicate Petitioner guilty as charged, and sentence Petitioner to the maximum sentence authorized under Georgia law. When Georgia authorities arrested Petitioner for possession of cocaine on November 4, 2001, Petitioner held a Florida nonresident company all-lines adjuster license pursuant to license number A082918 (a nonresident adjuster license). Petitioner voluntarily cancelled the nonresident adjuster license on October 21, 2002. On January 22, 2003, Respondent sent a letter to Petitioner inquiring into the Georgia arrest in accordance with Subsections 626.611(14), 626.621(8), and 626.631, Florida Statutes (2002). In response to the letter from Respondent, Petitioner filed the application for a resident adjuster license that is at issue in this proceeding. Petitioner attached a letter explaining the circumstances of the criminal proceeding in Georgia and three letters of recommendation. The second page of the application that Petitioner submitted notifies Petitioner that Respondent will not consider the application while Petitioner is under probation or in a pre- trial intervention program. In relevant part, the second page of the application provides: NOTE: IF YOU ARE CURRENTLY ON PROBATION OR PARTICIPATING IN A PRE-TRIAL INTERVENTION PROGRAM, YOU MAY WANT TO WAIT TO FILE YOUR APPLICATION WITH THE DEPARTMENT UNTIL YOUR PROBATION OR PRE-TRIAL PROGRAM HAS TERMINATED. (For other than minor traffic violations, the rules of the Department prohibit the approval of licensure for an individual who is currently serving a probationary term or participating in a pre- trial intervention program. . . .) ( emphasis not supplied) After receiving the application for a resident adjuster license, Respondent issued a letter dated April 7, 2003, stating Respondent's intent to deny the application. The letter did not state that Respondent intended to deny the application on the ground that Petitioner violated Subsection 626.621(8), Florida Statutes (2002), by pleading guilty to a crime that does not involve moral turpitude. In relevant part, the letter stated: [W]e are in receipt of the certified documents, however, a review of the documents indicate[s] that you are still on probation. The rules of the Department prohibit the approval of licensure for an individual who is currently serving a probationary term. Please write and let us know if we need to close or withdraw your application. The position stated by Respondent in the letter dated April 7, 2003, is substantially similar to that taken by Respondent during the hearing and in its PRO. Respondent does not assert that Respondent should deny the application on the ground that Petitioner pled guilty to a crime for which Subsection 626.621(8), Florida Statutes (2002), gives Respondent discretionary authority to deny the application. Respondent's position is consistent with the preponderance of evidence. The preponderance of evidence shows that Petitioner is rehabilitated and has no propensity to commit the crime for which he is under probation in Georgia. Rather, Respondent relies upon a rule that Respondent interprets as imposing specific waiting periods following the plea agreement in Georgia before Petitioner may apply for a resident adjuster license in Florida. Respondent proposes to deny Petitioner's application for a resident adjuster license on the basis of Respondent's interpretation of Florida Administrative Code Rule 69B-211.042. Respondent interprets Florida Administrative Code Rule 69B-211.042(6) as prohibiting Respondent from considering the application of any applicant who is on probation until the applicant has satisfactorily completed the probation. Respondent interprets Florida Administrative Code Rule 69B-211.042(8) as requiring Petitioner to wait five years after the plea in Georgia before Petitioner is eligible for licensure in Florida. Respondent interprets Florida Administrative Code Rule 69B-211.042(14)(b) as prohibiting Respondent from granting a license application to Petitioner while Petitioner is in a pre-trial intervention program. The enabling legislation for Florida Administrative Code Rule 69B-211.042 is Subsection 626.207(1), Florida Statutes (2002). Subsection 626.207(1), Florida Statutes (2002), authorizes Respondent to adopt rules establishing specific waiting periods after Respondent denies, suspends, or revokes Petitioner's license pursuant to specifically enumerated Florida statutes. In relevant part, Subsection 626.207(1), Florida Statutes (2002), provides that Respondent: . . . shall adopt rules establishing specific waiting periods for applicants to become eligible for licensure following denial, suspension, or revocation. . . . (emphasis supplied) Subsection 626.207(1), Florida Statutes (2002), prescribes a statutory prerequisite to the imposition of any waiting period pursuant to Florida Administrative Code Rule 69B-211.042. The statutory prerequisite is that Respondent must first deny, suspend, or revoke an existing license based on statutory provisions enumerated in the enabling legislation; enumerated provisions that are independent of any waiting periods. Thereafter, Respondent may impose relevant waiting periods to any application that follows the denial, suspension, or revocation of the existing license. Respondent proposes to impose a waiting period against Petitioner without first satisfying the statutory prerequisite of a denial, suspension, or revocation of an existing license within the meaning of Subsection 626.207(1), Florida Statutes (2002). The waiting period proposed by Respondent does not follow a denial, suspension, or revocation of an existing license. Rather, the proposed waiting period follows a plea entered by Petitioner in Georgia on May 14, 2002. The application for a resident adjuster license that is at issue in this proceeding indicates that no administrative action was ever taken against Petitioner's nonresident adjuster license, and Respondent stipulated that Petitioner answered all questions on the application truthfully. The Florida licensure file that Respondent maintains shows no administrative action against Petitioner's nonresident adjuster license. Respondent proposes to apply a waiting period in a manner that does not follow denial, suspension, or revocation of either the previous nonresident adjuster license or the resident adjuster license that Petitioner seeks in this proceeding. In effect, Respondent's proposed agency action would effectively amend Subsection 626.207(1), Florida Statutes (2002), by denying Petitioner's application for a resident adjuster license on the basis of a waiting period, rather than on the basis of one of the statutory provisions enumerated in the enabling legislation. Such action would have the effect of enlarging or modifying the specific provisions of Subsection 626.207(1), Florida Statutes (2002), that require the imposition of a waiting period to follow Respondent's denial, suspension, or revocation of an existing license. Respondent orally advised Petitioner that Respondent was authorized by rule to approve Petitioner's application if Petitioner were successful in terminating the Georgia probation early. However, Subsection 120.60(1), Florida Statutes (2002), required Respondent to approve or deny the application no later than July 2, 2003. Petitioner sought additional time to petition the Georgia court to terminate his probation early. On June 27, 2003, Petitioner signed a "Waiver of Deemer Date" (Waiver) that suspended for 60 days the requirement in Subsection 120.60(1), Florida Statutes (2002), for Respondent to approve or deny the license application within 90 days after receipt of the application. In relevant part, the Waiver stated: I hereby voluntarily and knowingly waive the time requirement regarding final action on my license application as specified in Section 120.60(1), Florida Statutes. Specifically, I waive the provision that requires the Department of Financial Services to either approve or deny my pending application for licensure as a company employee property & casualty adjuster within 90 days after receipt of the completed application. This waiver is effective for 60 days. (emphasis supplied) The 60 days in which the Waiver was effective, expired on August 31, 2003. However, approximately six days remained in the 90-day statutory period when Petitioner signed the Waiver on June 27, 2003. The 90-day statutory period expired six days after August 31, 2003, on or about September 6, 2003. Petitioner attended a court hearing in Georgia sometime in August 2003, in an attempt to persuade the Georgia court to terminate Petitioner's probation. Petitioner was unsuccessful and remained on probation at the time of the administrative hearing in this proceeding. Petitioner did not advise Respondent of the outcome of the Georgia hearing until September 4, 2003, when Respondent inquired of the status of Petitioner's application. On September 4, 2003, Respondent had actual notice from Petitioner that Petitioner had been unsuccessful in his attempt at early termination of his probation. Respondent did not issue its Notice of Intent to Deny the license until September 25, 2003. Respondent's letter dated April 7, 2003, provided Petitioner with written notice of Respondent's intent to deny the license application unless Petitioner was successful in obtaining early termination of his probation. Oral communications from Respondent's authorized representative also indicated that Respondent intended to deny the license application if Respondent were unable to license Petitioner temporarily. The author of a cover letter issued with the Waiver on June 26, 2003, stated, in relevant part, that the author did not have an answer to the issue "we discussed" regarding a temporary license. The author indicated that she would contact Petitioner as soon as she had an answer. The record discloses no answer prior to the Notice of Intent to Deny dated September 25, 2003.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order granting Petitioner's application for a resident adjuster license. DONE AND ENTERED this 13th day of August, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2004. COPIES FURNISHED: Keith Luther Fernandez 605 Casa Park Court M Winter Springs, Florida 32708 Keith Luther Fernandez 3667 Oakhill Drive Titusville, Florida 32780 Dana M. Wiehle, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

Florida Laws (9) 120.52120.56120.569120.57120.60626.207626.611626.621626.631
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DIVISION OF REAL ESTATE vs MAYRA GUZMAN, 98-004141 (1998)
Division of Administrative Hearings, Florida Filed:Miami, Florida Sep. 21, 1998 Number: 98-004141 Latest Update: May 18, 1999

The Issue At issue is whether Respondent committed the offense alleged in the Administrative Complaint and, if so, what disciplinary action should be taken.

Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Mayra Guzman, is now and has been at all times material hereto, a licensed real estate salesperson in the State of Florida, having been issued license number 0582273, in association with Terranova Corporation, a broker corporation, located at 1200 Brickell Avenue, Suite 1500, Miami, Florida. In 1997, the Department provided Respondent with a renewal notice, which reminded her that her salesperson license was due to expire September 30, 1997. The renewal notice carried the following legend: IMPORTANT: BY SUBMITTING THE APPROPRIATE RENEWAL FEES TO THE DEPARTMENT OR THE AGENCY, A LICENSEE ACKNOWLEDGES COMPLIANCE WITH ALL REQUIREMENTS FOR RENEWAL. Respondent submitted the renewal notice, as well as the appropriate renewal fee, and the Department renewed her license. At the time Respondent submitted her application, she knew that successful completion of 14 hours of continuing education was a requirement for renewal of her real estate salesperson license. In or about May 1998, the Department conducted a routine office inspection of Terranova Corporation. At that time, the Department requested proof that Respondent had satisfactorily completed 14 hours of continuing education for the period beginning October 1, 1995, and ending September 30, 1997, that would support the renewal of her license in September 1997. Respondent was unable to produce written proof (a report of completion) that she had successfully completed the continuing education requirement prior to renewal; however, she did produce a report from Gold Coast School of Real Estate which noted she started the 14-hour continuing education (correspondence) course on January 1, 1998, and successfully completed the course on January 28, 1998. At the time, Respondent explained her failure to have proof of course completion prior to renewing her license, as follows: . . . In August of 1997, in order to renew my Florida Real Estate License, I requested the 14-hour course and test from Gold Coast School of Real Estate. I filled out all of the paperwork and returned it to Gold Coast as required. In September 1997 I sent in the renewal fee to the State. After a while I realized I hadn't received any confirmation from Gold Coast, so I called them. They stated they couldn't locate my paperwork and I therefore needed to pay for another book and test. I did so and in January 1998 I received confirmation that I had passed. . . . Notwithstanding, on August 18, 1998, the Department filed the Administrative Complaint which is the subject matter of this case and charged that Respondent violated Subsection 475.25(1)(m), Florida Statutes, by having "obtained a license by means of fraud, misrepresentation or concealment," and Subsection 475.25(1)(e), Florida Statutes, by having failed to satisfy the continuing education requirements prescribed by Rule 61J2-3.009, Florida Administrative Code. According to the complaint, the disciplinary action sought for each count or separate offense . . . may range from a reprimand; an administrative fine not to exceed $5,000.00 per violation; probation; suspension of license, registration or permit for a period not to exceed ten (10) years; revocation of the license, registration or permit; and any one or all of the above penalties as provided for by § 455.227 and § 475.25(1), Fla. Stat. and Fla. Admin. Code R. 61J2-24.001. 1 At hearing, Respondent reiterated her prior explanation that she had offered for not having written proof of having successfully completed the continuing education course prior to renewal and that, consequently, she had retaken the course in January 1998. Additionally, Respondent offered proof of payment for the course on August 6, 1997 (Respondent's Exhibit 1), and the following explanation of course completion, prior to license renewal, which led her to believe her completion of the course was successful and would lead, in due course, to written acknowledgment of successful completion by the school: Q. Prior to submitting your signed renewal notice, in order to comply with the continuing education requirement, did you obtain the correspondence course for the 14 hours from Gold Coast? A. Yes. Q. Did the correspondence cost include a course book and a test booklet? A. Yes, it did. Q. At the end of each chapter in the course book, was there a progressive quiz? A. There was a quiz, yes. Q. Were the answers for the quiz provided at the end of the course book? A. Yes. Q. Did you take the progressive quiz after concluding each chapter? A. Yes, I did. Q. For the total book, about how many incorrect answers did you have? A. I don't remember, but there wasn't many. It was fairly easy. Q. Was the test for continuing education course an open book test? A. Yes, it was. Q. After completing the test, did you forward the test booklet to Gold Coast for grading? A. Yes, I did. Q. Based upon your performance on the progressive quiz after each chapter, do you have any reason to believe that you had not passed the test? A. Absolutely not. I had no doubt that I passed the course. Q. Did you think that you had successfully completed the course? A. Yes. Q. Did you then submit the license renewal notice to the Division of Real Estate? A. Yes, I did. Q. After you received your license, did you realize that you had not received a course report certificate from Gold Coast? A. Immediately I didn't think about it. After awhile, I though, "Shouldn't I have gotten something back from the school telling me this?" But at the time, I thought that the school also sent it directly to the State, notifying them that I had passed the school. But I always like to keep proof of things, so I called the school and I asked them to see if they could send me the completion and they -- that's when I learned that I -- they didn't have anything. So I did it again. Here, Respondent's explanation was plausible, and her demeanor not wanting of candor or sincerity. Consequently, Respondent's testimony is credited, and it is resolved that, at the time she submitted her renewal application, Respondent did not intend to mislead or deceive the Department, nor did she act with reckless disregard for the truth.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Count I of the Administrative Complaint be dismissed. Respondent be found guilty of violating the provisions of Subsection 475.25(1)(e), Florida Statutes, as alleged in Count II of the Administrative complaint, and that for such violation Respondent receive, as a penalty, a reprimand. DONE AND ENTERED this 12th day of February, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1999.

Florida Laws (9) 120.56120.569120.57120.6020.165455.225455.227455.2273475.25 Florida Administrative Code (2) 61J2-24.00161J2-3.009
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LAMAR ADVERTISING COMPANY vs. DEPARTMENT OF TRANSPORTATION, 86-001043 (1986)
Division of Administrative Hearings, Florida Number: 86-001043 Latest Update: May 05, 1987

Findings Of Fact Lamar submitted a permit application for a location 120 feet west of Hickory Avenue, in Bay County, Florida, on the south side of U.S. 98, on November 25, 1985, and resubmitted that application on December 16, 1985. On January 8, 1986, DOT denied the application solely because of spacing conflicts with permit Nos. AD089-10 and AD090-10 held by Headrick. That denial was made in a Memorandum of Returned Application. The Memorandum of Returned Application contained the following statement: PLEASE BE ADVISED THAT IF YOU BELIEVE YOUR APPLICATION HAS BEEN INAPPROPRIATELY DENIED, YOU HAVE THE RIGHT TO REQUEST AN ADMINISTRATIVE HEARING UNDER SECTION 120.57, FLORIDA STATUTES, WITHIN THIRTY (30) DAYS OF THE DATE OF THIS NOTICE. THE SUBMITTED HEARING REQUEST SHALL GIVE A BRIEF STATEMENT SETTING FORTH THE REASON(S) FOR REVIEW. SUCH HEARING REQUEST MUST BE FURNISHED TO: THE CLERK OF AGENCY PROCEEDINGS FLORIDA DEPARTMENT OF TRANSPORTATION, 605 SUWANNEE STREET, TALLAHASSEE, FLORIDA 32301 Lamar requested an administrative hearing by letter dated March 13, 1986. On March 12, 1986, Headrick applied for a permit for a sign to be located on the south side of U.S. 98, 285 east of Hickory Avenue, in Bay County, Florida. By letter dated March 31, 1986, the Headrick application was returned unapproved because of a pending administrative hearing requested by Lamar concerning the location of permits AD089-10 and AD090-10. This letter did not advise Headrick of its rights to an administrative hearing. Headrick did not request a hearing for these applications. Lamar applied for a permit for a sign location on the south side of U.S. 98, 120 feet west of Hickory Avenue, in Bay County, Florida, again on March 13, 1986. A Memorandum of Returned Application, dated April 3, 1986, was sent to Lamar, denying the application because of a spacing conflict with Permits AD089-10 and AD090-10 located 100 feet westerly of Hickory Avenue on the eastbound (south) side of U.S. 98. This Memorandum contained the same language as that set forth above and, by letter dated April 18, 1986, Lamar requested an administrative hearing. This request resulted in Case No. 86-1707T herein. Another case, with DOT as Petitioner, Headrick as Respondent, and Lamar as Intervenor, Case No. 85-4165T, resulted in a Final Order dated September 2, 1986, revoking Permits AD089-10 and AD090-10. The Final Order was based upon findings that Headrick was advised on August 9, 1985, by the property owner, that the property was being sold and that Headrick had thirty (30) days to remove its sign. Further, by letter dated October 17, 1985, the property owner advised DOT that Headrick no longer had a valid lease for the signs and the signs had been removed.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the December 16, 1985, application filed by Lamar Advertising company for a location on the south side of U.S 98, 120 feet west of Hickory Avenue, in Bay County, Florida, be GRANTED. DONE AND ENTERED this 5th day of May, 1987, in Tallahassee Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1043T The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Lamar Advertising Company Each of the following proposed findings are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(1); 3(2); 4(2); 5(2); 6(1); 7(3); 8(3); 9(1 and 3); and 10(4). Proposed finding of fact 11 is rejected as unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Transportation 1. Each of the following proposed findings are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3(3); and 4(4). Specific Rulings on Proposed Findings of Fact Submitted by Intervenor, Headricks Outdoor Advertising 1. Each of the following proposed findings are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(2); 2(2); 3(2); 4(1); 5(1); and 6(4). COPIES FURNISHED: Barbara W. Palmer, Esquire Beggs & Lane 700 Blount Building Post Office Box 12950 Pensacola, Florida 32576 Vernon L. Whittier, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32301 William G. Warner, Esquire 565 Harrison Avenue Post Office Drawer 335 Panama City, Florida 32402 Kaye N. Henderson, Secretary Haydon Burns Building 605 Suwanne Street Tallahassee, Florida 32301 =================================================================

Florida Laws (4) 120.57120.6835.22479.07 Florida Administrative Code (1) 14-10.004
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GILBERTO CABRERA-DIAZ, M.D. vs BOARD OF MEDICINE, 99-000767 (1999)
Division of Administrative Hearings, Florida Filed:Miami, Florida Feb. 19, 1999 Number: 99-000767 Latest Update: Jul. 06, 2004

The Issue The issue in this case concerns whether Petitioner has met the residency requirement for issuance of a restricted license to practice medicine under Section 458.3124, Florida Statutes.

Findings Of Fact In June of 1998, Petitioner, Gilberto Cabrera-Diaz, M.D., submitted an application for a restricted license to practice medicine in the State of Florida. His application sought licensure pursuant to the provisions of Section 458.3124, Florida Statutes. One of the requirements for licensure under that statutory provision is a showing that the applicant "has been a resident of this state since July 1, 1996." Petitioner first came to the United States in December of 1990, at which time he and a number of his relatives were seeking refuge from the civil war in his homeland, El Salvador. Petitioner's first stop in the United States was in Florida, but he stayed in Florida for only a few weeks. By March of 1991, Petitioner had obtained employment at a clinic in Houston, Texas, and had moved to Houston with his wife and two children. From March of 1991 through May of 1995, Petitioner and his wife and children lived in Houston, Texas. During this period of time Petitioner continued to be employed by a family practice clinic in Houston. Sometime in May or June of 1995, Petitioner and his wife and children moved to El Paso, Texas. On July 1, 1995, Petitioner began a training program at a hospital in El Paso, Texas, that lasted through February of 1996. When Petitioner finished the training program in February of 1996, his prospects for the future appeared to be rather bleak. He had no immediate prospects for employment anywhere and he had very little in the way of savings. One of his hopes was to find employment in Florida. Another of his hopes was to be accepted into a residency program just about anywhere in the United States of America.3 In March of 1996, Petitioner's wife and children returned to El Salvador, where they lived with her parents. That same month Petitioner sold his automobile and went to Miami, Florida, where he moved in temporarily with one of his cousins. Petitioner had another cousin who lived in Boca Raton, Florida. For the next several months, until about September or October of 1996, Petitioner spent most of his time trying to find employment in Florida and preparing and sending approximately 150 applications to residency programs. During these several months Petitioner lived part of the time with his Miami cousin and part of the time with his Boca Raton cousin. Due to his limited financial resources at the time, Petitioner was living with his cousins to minimize expenses until he either found a job in Florida, or was accepted into a residency program. During 1996, Petitioner never had his own dwelling place in Florida. There is no evidence that during 1996 Petitioner ever intended to permanently reside with either of his Florida cousins. During 1996, Petitioner was unsuccessful in his efforts to be accepted to a residency program. However, he was successful in obtaining employment as a Urologist Assistant in Houston, Texas. Petitioner began his new employment in Houston in September or October of 1996. As of the date of the final hearing in this case, Petitioner was still employed in the same position in Houston, Texas. For the first year and a half or so after starting his current employment in Houston, Petitioner rented a series of apartments in Houston, where he lived alone or with a roommate. By the middle of 1998, his financial circumstances had improved sufficiently for him to bring his wife and children back from El Salvador. In August of 1998, Petitioner moved into a larger apartment in Houston, Texas, and his wife and two children returned from El Salvador and moved into the apartment in Houston with Petitioner. Both of the children attend school in Houston. As of the date of the final hearing, Petitioner and his wife and children continue to live together in an apartment in Houston, Texas; Petitioner continues to work in Houston; and Petitioner's children continue to go to school in Houston. Petitioner has several relatives who live in Florida. During the years Petitioner has been living in the United States, he has made numerous trips from Texas to Florida to visit his Florida relatives.4 Petitioner has a desire to live in Florida so that he can be closer to his relatives, as well as to facilitate the possibility of his son becoming a student at the University of Miami. Since 1991, Petitioner has had a Texas driver's license. He still has a current Texas driver's license. Petitioner obtained his first Florida driver's license in May of 1998. The Florida driver's license lists Petitioner's address as 9439 Fontaineblue Boulevard, No. 211, Miami, Florida, which is the address of Petitioner's Miami cousin. On at least several occasions since 1991, Petitioner has obtained automobile insurance policies in Texas showing Texas addresses for the automobiles. Petitioner has never obtained an automobile insurance policy in Florida for an automobile registered in Florida. Since leaving Florida in early 1991, Petitioner has lived with his wife and children in several locations in Texas. He is presently living with his wife and children in Houston, Texas. Since leaving Florida in early 1991, Petitioner has never lived with his wife and children anywhere in the State of Florida. Since leaving Florida in early 1991, Petitioner ha worked for many years in Texas, and is presently employed in Texas. Petitioner has never worked in Florida.

Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case denying Petitioner's application for a restricted license pursuant to Section 458.3124, Florida Statutes. DONE AND ENTERED this 2nd day of September, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1999.

Florida Laws (1) 458.3124
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DIVISION OF REAL ESTATE vs. WILLIAM O`BRIEN, 80-000945 (1980)
Division of Administrative Hearings, Florida Number: 80-000945 Latest Update: Oct. 12, 1981

Findings Of Fact Based upon my observations of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. By its one-count Administrative Complaint filed herein on April 3, 1980, the Petitioner, Department of Professional Regulation, Board of Real Estate, alleged that the Respondent, William O'Brien, violated Section 475.25(1)(d), Florida Statutes (1979), due to his failure to deliver a security deposit to a property owner and that Respondent thereafter tendered a protion of the deposit in the form of a check which, when presented for payment, was not honored due to insufficient funds. During times material, Respondent was licensed by Petitioner and is the holder of Florida Real Estate License No. 168869. Gary ;Heide is the owner of the duplex apartment situated at 2407 Northeast 33rd avenue, Fort Lauderdale, Florida. The pertinent facts surrounding the allegations herein are, for the most part, simple and undisputed. The subject premises had been leased by owner Heide to Maurice L. LaReau. LaReau had leased the premises for approximately eleven (11) months when he found a residence that he intended to purchase and was therefore desirous of subletting the subject property with the owner's permission in an acceptable manner such that he would not incur any losses due to his vacating the premises prior to the expiration of the lease term. He, therefore, approached owner Heide and advised him of his intentions. According to LaReau, Heide gave him "carte blanche" authority to find a tenant to sublease the apartment but that he would appreciate it if he would "screen" the sub-lessee. Heide suggested that LaReau place an ad in the newspaper to secure a tenant and he also made known to LaReau his overall objective of not sustaining any loss of rents due to a vacancy in the apartment. During that conversation Heide also advised LaReau that he would be leaving for a vacation in Germany shortly. When LaReau leased the subject premises from Heide he entered a twelve (12) month lease and paid a $900.00 fee which included the first and last month's rent plus a security deposit. During times material, Respondent was the registered corporate broker for Exclusively Rentals and Management Company (Exclusively). Through the efforts of Respondent and Exclusively, Gregory A. Costa, III, was secured as a tenant to sublet the subject property from Maurice LaReau on or about October 8, 1977. Respondent had been approached by owner Heide to manage the subject property while Respondent was visiting an apartment complex adjacent to the Heide property on which Exclusively had the managing contract. According to the agreed terms for the subletting of the Heide property from LaReau to Costa, Costa agreed upon an occupancy date of October 15, 1977, for a total rental of $150.00 plus payment for the twelfth month rent for a fee of $300.00; a security deposit of $300.00 and a $150.00 commission to Exclusively for a total of $900.00. This amount was paid to tenant Maurice LaRaeau. Exclusively retained the agreed upon commission which represented on- half the monthly rental, or a fee of $150.00 See Respondent's Exhibit 1. Additionally, Messer. LaReau signed an agreement representing that the subletting was done with owner Heide's knowledge and was in accordance with his instructions. (Respondent's Exhibit 2). Upon returning from Germany, owner Heide became upset that LaReau had sublet the premises to Costa and contended that the subletting was only to have been done through the aid and assistance of another rental management firm know as Home Finders Real Estate Brokers. Heide contended that Audrey Lester was the only agent connected with that firm who had the authority to accept tenants or sub-lessees in his absence. Heide, therefore, contended that he was entitled to recoup from Respondent, through its corporate entity, Exclusively Rentals and Management Company, the entire $900.00 in addition to a continued retention of the $900.00 deposit which had been paid by the tenant, LaReau. Although Heide contended that he never used Exclusively to rent or otherwise secure tenants for any of his apartments, he acknowledged that he signed a new lease and accepted Costa as a tenant for the subject property. Heide's other complaint with Respondent is that a check dated November 10, 1977, in the amount of $150.00 and signed by Michael J. Cochran was not honored when presented for payment due to insufficient funds. An examination of that check does not reveal that it was returned by the bank upon which it was drawn or that it was even presented for payment as testified to by Messer. Heide (see Petitioner's Exhibit D). Respondent was approached by owner Heide to act as an agent to secure tenants for his property as vacancies occurred while Respondent was visiting an adjoining rental property through which Respondent's agency represented, the Ocean Gardens Apartment building. Heide also visited Respondent's office building prior to the subject incident (TR. 37 of the June 3, 1981, hearing). Respondent did not sustain any loss of rents due to the subletting of the subject property from LaReau to Costa through the efforts of Respondent and/or Exclusively Rentals and Management. Respondent credibly testified that there were ample monies in the account of Exclusively to pay the $150.00 check drawn by that firm to owner Heide in November of 1977, had it, in fact, been presented for payment. Respondent severed his relations with Exclusively and advised all of the associates of that severance during December of 1977. 2/

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: 1. That the Administrative Complaint filed herein be DISMISSED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 23rd day of July, 1981. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1981.

Florida Laws (3) 120.57455.227475.25
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