Findings Of Fact Petitioner has been licensed as a real estate broker in the State of Michigan since 1971. His license was suspended by the Michigan Department of Licensing and Regulation on August 6, 1980, because of a Circuit Court decision which rescinded a sale of real property by Petitioner and awarded the purchasers $18,000. Petitioner has paid $12,000 of this amount, but because of accrued interest still owes about $8,000 on the judgment. His license suspension was temporarily lifted by the State of Michigan to permit him to qualify for the licensing examination in Florida. However, payment in full of the judgment continues to be a condition of his reinstatement as a licensed real estate broker in Michigan. Petitioner intends to become a Florida resident and periodically works here at odd jobs. His principal residence continues to be in Michigan where his family and property are located.
Recommendation From the foregoing, it is RECOMMENDED that the application of Thomas Richard Laney for registration as a real estate salesman be DENIED. DONE AND ENTERED this 16th day of September 1981, in Tallahassee, Leon County, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September 1981. COPIES FURNISHED: Thomas Richard Laney 602 West Idlewild Tampa, Florida 33604 Jeffrey Miller, Esquire Department of Legal Affairs Capitol Building, Room 1601 Tallahassee, Florida 32301
Findings Of Fact By application filed July 24, 1991, Petitioner requested a permit to erect a sign on the north side of, and visible from, U.S. 192. In this area, U.S. 192, which is a federal-aid primary highway, is located in unincorporated Osceola County. The sign would be within 660 feet of the right-of-way of U.S. 192. The property on which the sign would be located is less than one acre in the center of an area of existing roadside tourist-commercial uses. The property is about 1 1/2 miles west of Walt Disney World. Immediately west of the property is a waterslide that is part of the Watermania tourist attraction that extends north behind the subject parcel. West of the waterslide is a Shoney's restaurant and hotel. Immediately east of the subject parcel is a small vacant parcel. Immediately east of the vacant parcel is a HoJo's motel and International House of Pancakes. A gift shop and another motel are east of the International House of Pancakes, and a Racetrac gas station is east of the gift shop and motel. A frontage road serves these facilities, including the subject parcel. These facilities, which are generally recognized by commercial uses by zoning authorities in the state, constitute three or more distinct commercial uses within 1600 feet of the subject parcel. Osceola County issued a building permit for the sign on July 30, 1991. However, Respondent rejected the application for a sign permit by memorandum dated July 24, 1991, because of, in addition to minor omissions since resolved, "underlying zoning of agricultural (unpermitted zoning)." In the comprehensive plan adopted prior to the application, Osceola County designated the subject parcel, as well as vast expanses of land all around the parcel, as commercial. Prior to adoption of the plan, zoning for the property was Tourist Service Center overlaid on an Agricultural Conservation zoning district. Under zoning regulations, the Tourist Service Center overlay allows numerous conditional uses, such as motels, hotels, restaurants, convention facilities, convenience stores, shopping centers, gas stations, and tourist attractions. This zoning has not been changed since the adoption of the plan. Osceola County adopted the Tourist Service Center overlay in 1972 when it had no tourist-oriented zoning classification. The Tourist Service Center overlay, which operates similar to a Planned Development overlay, is placed over land whose underlying zoning classification is Agricultural Conservation. This is not a case in which a special zoning classification, such as Planned Development, has been overlaid upon an underlying classification, such as Agriculture, without any development yet exploiting the zoning overlay. In this case, tourist-commercial development has occupied the immediately surrounding land, of which the subject parcel is a part.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Transportation enter a Final Order granting the subject sign permit. ENTERED this 28th day of January, 1992, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1992. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 ATTN: Eleanor F. Turner, M.S. 58 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Attorney John E. McIntee 241 Ruby Ave., Suite A Kissimmee, FL 34741 Vernon L. Whittier, Jr. Assistant General Counsel Department of Transportation 605 Suwanee Street Tallahassee, FL 32399-0458
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
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.
The Issue The issue in this case is whether the Petitioner is entitled to licensure by endorsement as a physician in the State of Florida. At the hearing, the parties stipulated that the Petitioner meets all requirements for licensure by endorsement with the exception of the residency requirements of Sections 458.311(1)(f) and 458.313(1), Florida Statutes, and Rule 21M-22.004, Florida Administrative Code. The Petitioner testified as the only witness on his own behalf and offered nine exhibits. Each exhibit was received in evidence over the timely objections of counsel for the Board. Mrs. Dorothy Faircloth testified as the only witness for the Board. Four exhibits offered by the Board were received in evidence without objection. Upon the request of the Board, official recognition is taken of Sections 458.311 and 458.313, Florida Statutes, and Rule 21M-22.004, Florida Administrative Code. At the conclusion of the formal hearing, the Petitioner waived the filing of a proposed recommended order. The Board was allowed 14 days within which to file a proposed recommended order. On July 8, 1988, the Board filed its proposed recommended order containing proposed findings of fact and conclusions of law. All proposed findings of fact are addressed in the appendix to this recommended order.
Findings Of Fact Based on the stipulations of the parties and on the testimony and exhibits received at the hearing, I make the following findings of fact. The Petitioner is an applicant for licensure by endorsement as a physician in the State of Florida. The parties have stipulated that the Petitioner meets all requirements for such licensure other than the residency requirements. The Petitioner served as a "Resident 2" in medicine at the Westminster Hospital in London, Ontario, from July 27, 1976, to June 30, 1977. During the time period from July 1976 to June 1977, the residency program at Westminster Hospital was not approved by the American Medical Association. During the time period from July 1976 to June 1977, the residency program at Westminster Hospital was not approved by the Royal College of Physicians and Surgeons of Canada. There is no evidence that the Petitioner completed any other approved one year residency program. The Petitioner is a diplomate certified in internal medicine by the American Board of Internal Medicine. The American Board of Internal Medicine permits certification based on experience without requiring completion of a one year residency approved by the American Medical Association. The Petitioner is licensed as a physician by the State of Michigan.
Recommendation For all of the foregoing reasons, it is recommended that the Board of Medicine issue a final order in this case denying the Petitioner's application for licensure by endorsement as a physician in the State of Florida. DONE AND ENTERED this 14th day of July, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 14th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1476 The following are my specific rulings on all of the proposed findings of fact submitted by the parties. Findings submitted by Petitioner (None submitted by Petitioner) Findings submitted by Respondent Paragraph 1: Accepted. Paragraph 2: Covered in introductory paragraphs. Paragraphs 3, 4, and 5: Accepted. Paragraph 6: Omitted as subordinate and unnecessary details. Paragraphs 7, 8, 9, and 10: Accepted. Paragraph 11: Omitted as repetitious. COPIES FURNISHED: Shio Narayanlal Agrawal, M.D. 4140 North West 64th Street Gainesville, Florida 33612 Allen R. Grossman, Esquire Assistant Attorney General Department of Legal Affairs Room 1603, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact At all times relevant thereto, respondent Santiago Baez, held commercial driving instructor certificate card number 6498 issued by petitioner, Department of Highway Safety and Motor Vehicles, Division of Driver Licenses (Division). Baez who is fifty-eight years old, has been an instructor for at least eight years and was last employed at the Fajardo Driving School in Hialeah, Florida. Acting upon a tip received on July 14, 1986 from an informant that a driving instructor at Fajardo Driving School could obtain fraudulent drivers' licenses, the Florida Department of Law Enforcement (FDLE) undertook an investigation of the Division's driver license examination facility in Hialeah, Florida to ascertain if such licenses were being fraudulently issued by Division personnel. To assist in the investigation, the FDLE employed the services of a paid informant named Orlando Zirio. He was instructed to call "Jorge" at a particular telephone number and attempt to obtain a Florida driver's license. In actuality Jorge was the respondent. After telephoning respondent, Zirio and respondent agreed to meet on August 8 in the parking lot of the La Fonda Restaurant on West 60th Street in Hialeah. The restaurant shared a parking lot with the Division's driver license examination facility. Pursuant to instructions from the FDLE, Zirio told Baez that he was a drug smuggler, that he had lost all identification documents, and that he needed a Florida driver's license with a name different from his own to evade law enforcement officials. Zirio apparently had no luck with respondent that day. A series of meetings between Zirio and Baez took place during the next few weeks with Zirio repeatedly asking Baez to help him procure a driver's license. During such meetings, the FDLE orchestrated all of Zirio's communications with Baez. At some point in their meetings, Zirio told Baez he only had one identification card issued by the City of Key West. When Baez informed Zirio that he must have at least two identification documents to obtain a driver's license, Zirio replied he could not obtain the necessary documents. Zirio was then told to meet one Felix Aravjo who could provide false identification documents. After obtaining a Puerto Rican birth certificate and an American social security card in the name of Orlando Perez from Aravjo, Zirio met again with Baez on August 12 in the restaurant parking lot and handed the two identification documents to Baez. The two then entered the examination facility. With the assistance of a Division license examiner named Peralta, Zirio was issued a driver's license under the name of Orlando Perez. For their services, respondent received $250 and Peralta and Aravjo were each paid $300. Zirio was compensated $500 plus expenses by the FDLE for his undercover activities. Baez was arrested by FDLE agents on August 12, the day the license was issued by Peralta. He was charged with violating Subsection 322.212(2), Florida Statutes, which prohibits certain unlawful acts in relation to a driver's license. After being given a statement of his rights, Baez voluntarily answered in Spanish a series of questions posed by FDLE agents Valdes and Ventura. The interview was tape recorded by Valdes. It was later transcribed into English and reduced to writing by an unknown person. However, Agent Valdes reviewed the transcript and stated it accurately represented the questions asked and answers given during the interview. Baez later pled nolo contendere to criminal charges in September. Adjudication of guilt was withheld by the court. Unlike Peralta and Aravjo, Baez was not incarcerated or placed on probation, but was merely required to cooperate with officials in any further proceedings. Baez desires to continue as a driving instructor since it is the only livelihood that he knows. He has a pending job offer as an instructor if his license is reactivated. He did not deny that he committed the illicit conduct, was arrested and pled nolo contendere but stated that he agreed to help Zirio only after Zirio had made repeated requests for his assistance.
Recommendation Based on the foregoing findings of fact and conclusions of law it is Recommended that respondent be found guilty of violating Rules 15A- 2.09(2)(a) and 15A-2.11(1)(j) Florida Administrative Code, and that his commercial driving instructor certificate card be suspended for one year from date of the emergency suspension. DONE AND ORDERED this 28th day of October, 1986 in Tallahassee Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1986.
The Issue The issue in this case is whether discipline should be imposed against Respondent for operating on an expired public lodging establishment license, an offense which is deemed by rule to constitute operation without a license.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Lakeside is an apartment building with 19 units located at 1048 Northeast 18 Avenue, Fort Lauderdale, Florida 33304- 2408. The Division issued Lakeside a license, numbered 16- 10553-H, to operate as a public lodging establishment. According to information in the Division's official database, as reproduced in Petitioner's Exhibit 1, 1/ the "current license expiration date [for Lakeside's license] is December 1, 2000." On July 20, 2000, Division employee Robert Shaw conducted a routine inspection of Lakeside and found the apartment complex to be open and operating. On a Lodging Inspection Report that he prepared on that date, 2/ Mr. Shaw noted two minor violations, neither of which is at issue here. On the same form, Mr. Shaw inscribed the date that Lakeside's license would expire, as shown below, in the blank spaces provided for that purpose in a line that read: REMINDER: Your license expires 12 /01 /00 Petitioner's Exhibit 2. Mr. Shaw testified, however, that at the time of this inspection, he did not know whether or not Lakeside was licensed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order dismissing the Administrative Complaint against Lakeside Apartments. DONE AND ENTERED this 24th day of January, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 24th day of January, 2001.
The Issue The issue for consideration in this case is whether the Respondents, individually and jointly, on March 24, 1999, established, maintained, or operated migrant housing on their properties located on Rosebud Lane in Arcadia, Florida, without first obtaining permits from the Department of Health.
Findings Of Fact At all times pertinent to the issues herein, the State of Florida's Department of Health, and the DeSoto County Public Health Unit were the agencies in DeSoto County, Florida, responsible for the management and permitting of migrant labor camps and residential migrant housing within that county. Jack L. Sikes has been an environmental specialist II with the DeSoto County Health Unit for 18 years. His duties comprise the management of the migrant housing program within the county, including permitting and inspection of migrant residential housing units and camps. Migrant housing is defined within the Health Department as any structure housing five or more workers engaged in seasonal work, and who have changed their residence during the preceding year. Inspection standards applied to migrant housing relate to health and safety issues, such as cleanliness, refrigeration, hot and cold water, lights, bedding, and structural problems of the facility which impact safety. For the 1998-1999 growing year, permits were issued for 108 migrant worker camps in the county. In the 1997-1998 year there were only 16-17 permits issued for camps. The increase is due to state emphasis on increased safety for migrant housing. By far the greatest percentage of migrant workers are of Hispanic origin. The migrant population increases significantly in DeSoto County during the citrus harvest period which extends from November through June. On March 23, 1999, Mr. Sikes and a co-worker, as a part of a continuing search for un-permitted migrant housing, conducted a drive-through inspection of several mobile homes situated on Southwest Rosebud Lane in Arcadia, Florida. Eight of the lots on Rosebud Lane have mobile homes on them while the other lots are vacant. On this visit, Mr. Sikes did not see any of the indications normally present when a structure is used for a family home such as toys in the yard, laundry drying, etc. As a result, he suspected the homes, some of which were obviously occupied, were being used as migrant housing. The next day, March 24, 1999, at approximately 5:00 p.m., Mr. Sikes and a Spanish-speaking inspector, Robert Schultz, returned to the area and went to the structure located at 1408 Southwest Rosebud Lane, where in response to the inspectors' knock, the door was opened by an Hispanic individual who identified himself as Mario Hernandez. Through the interpretation services of Mr. Schultz, Mr. Hernandez indicated that he lived at that house with his five cousins, all of whose names were recorded on the "Documentation of Hand Laborer" form on which the answers to the interview questions were written. As recounted by Mr. Sikes, Mr. Hernandez spoke for the group as his cousins were not present when the interview began. Mr. Hernandez indicated that he and his cousins arrived in DeSoto County from another location to pick oranges during the first week of November 1998 and took up residence at 1408 Southwest Rosebud Lane. The mobile home they were occupying was large enough to be permitted for six residents. Mr. Hernandez also indicated he and his cousins were renting the mobile home but did not know from whom. Though this statement is hearsay, it is corroborated by an examination of the electricity billing records and other independent evidence of record. A four-fold November increase in electric usage over the mid-October 1998 electric bill indicates the structure was most likely unoccupied before November 1998 but was occupied for several months thereafter. In fact, just after the inspectors left the home, a bus discharged several other men who appeared to be migrant workers and four of them went in the direction of 1408. When Mr. Sikes and Mr. Schultz went to 1375 Southwest Rosebud Lane they found several Hispanic men getting out of a utility van and going into the mobile home. The inspectors went to the house and were invited in. Mr. Schultz translated. During the course of the conversation, the men indicated they had just returned from the fields where they worked picking oranges. They said they all lived in the mobile home with a sixth man who was not present at the time. They also indicated they had come to DeSoto County from Mexico around the first of the year to pick oranges, and had rented the mobile home from someone whose name they did not know. When the picking season was completed in DeSoto County, they intended to move on to other farm work elsewhere. The inspectors spoke with the driver of the bus who identified himself as a crew leader for Turner Foods for whom the migrant laborers also worked. The driver attempted to interfere with the inspectors' questioning of the workers who got off the bus, and as a result, the inspectors requested that he leave the area. Within five minutes of the driver's departure, Respondent Gary L. Frierson drove up and asked Mr. Sikes what was going on. Mr. Sikes advised Mr. Frierson that he and Mr. Schultz were conducting a housing investigation and that based on what information they had gathered, Mr. Frierson needed to obtain a residential migrant housing permit for the properties. Mr. Frierson did not deny he owned the property, but, by the same token, did not admit to owning it either. Mr. Frierson said he was trying to sell the property, but, due to tax considerations, was restricted to selling a limited number of parcels per year. Taken together, the evidence of record is abundantly clear that the occupants of both 1375 and 1408 Southwest Rosebud Lane on March 24, 1999, were migrant farm workers, and the properties were being used as residential migrant housing without being permitted as such. The question remains, however, as to who owned the property and was utilizing it in the fashion described. The public records of DeSoto County reflect that Alice H. Frierson is the owner of record of the property located at 1408 Southwest Rosebud Lane, and Gary L. and Alice H. Frierson, jointly, are the owners of record of the property located at 1375 Southwest Rosebud Lane. Respondents presented several documents in an effort to establish they did not own the properties in question. As to Lot 14 and Lot 22, Bokara Acres, unrecorded Agreements for Deed dated December 31, 1998, between both Mr. and Mrs. Frierson and Wayne Radloff as to Lot 14, and Ricardo Sanchez as to Lot 22, provide for a future transfer of title to each buyer, providing the buyer pays all amounts due on the purchase price. Identical Agreements for Deed were also issued the same date to Mr. Radloff for four other properties in the subdivision. As to Lot 14, a second Agreement for Deed, dated January 1, 1999, purports to transfer a future interest in the same property to Fernando Gomez, and on that same date, Mr. Radloff executed an Assignment of Agreement for Deed to Fernando Gomez. On January 9, 1999, Mr. Radloff also executed a Quit-Claim Deed for Lots 13 and 14 to Gary L. and Alice H. Frierson. As to Lot 22, on March 28, 1999, Mr. Gomez executed a Rescission of Agreement for Deed and Mutual Release to the Friersons in which the December 31, 1998, transfer of the property to Gomez was rescinded, thereby restoring title to Mr. and Mrs. Frierson. This is four days after the visit on March 24, 1999 by the inspectors, Mr. Sikes and Mr. Schultz. By none of the documents, however, did legal title transfer from Mr. and Mrs. Frierson to Mr. Radloff, Mr. Gomez, or Mr. Sanchez. In fact, Mr. Frierson admitted that he collected the rent from the occupants of both parcels weekly from January through March 24, 1999, though he indicated he had no idea which individuals occupied which property. All Mr. Frierson could recall was that a Hispanic man would come out to the truck each time Mr. Frierson went there and beeped his horn, and would give him the money due. He could not identify the man or even say if it was the same man each time. While the Department contends that the unrecorded Agreements for Deed are a sham designed to isolate Respondents from their legal responsibility to obtain permits for the property which they operate as residential migrant housing, Respondent vehemently denied this and produced a series of witnesses who, over several years past, have purchased real estate from them through the same process. None of these individuals experienced any difficulty in obtaining title to the property when they completed payment in full. It should be noted, however, that while these individuals have had no difficulty with the transactions, they are permanent residents of the area, and the situation regarding the parcels in question differs considerably. On none of the transfer documents in issue are the name and address of the person who prepared the document legible, and other technical deficiencies make the agreements un-recordable. When those factors are considered in conjunction with the coincidental concurrence of the documents with the arrival of the migrant workers, and the fact that all interest in the property reverted to Mr. and Mrs. Frierson immediately after the date of the Department inspection, the inescapable conclusion is that the transfers to Mr. Radloff/Mr. Gomez and Mr. Sanchez were not bona fide transfers of an interest in property, but were an effort to obscure the actual ownership of the property to avoid the responsibilities which go with the ownership of residential migrant housing. Other evidence of record supports that conclusion. For example, Respondents presented no documentary evidence to indicate they had ever received any of the weekly payments called for under the Agreements for Deed as to either property but claim that they received a down payment, and that Mr. Frierson collected "rent" each week. For the five properties sold to Mr. Radloff/Mr. Gomez for a total consideration of $63,000, the total down payment was $300. For the property sold to Sanchez for $20,000, the down payment was $100. Respondent admits he has no records to show the down payment or the monthly rental payments he received on either property. Respondents paid the electricity for both properties during the entire time the properties were under the Agreements for Deed through their account with the utility company and were not reimbursed. They provided water to 1375 Southwest Rosebud Lane free of charge from a well on adjacent property they owned. They paid property, casualty, flood, and hurricane insurance for both properties throughout the entire period and were not reimbursed. They did not advise the county property tax office that they had transferred interest in the property to someone else. Though Respondent gave a key to each property to the respective "purchaser," he never saw either at the property. All but one of the properties in which an interest was transferred to Mr. Radloff, Mr. Gomez, or Mr. Sanchez, are vacant and the location of the "buyers" is unknown. Mr. Frierson indicated that he frequently sells property by unrecorded Agreement for Deed. This is standard procedure for him. He claims he paid the electric bills on the properties when they were previously used as rental properties, and he did not cancel the service -- a thing he has done in the past when the buyer is short of cash or cannot pay the power company deposit. In one case under consideration here, he claims, the tenant paid more than was called for, so he used the accrued overpayment to pay the electric bill. As for insurance, he continued his coverage because he wasn't sure the buyer could get coverage. Respondent asserts he does not want to operate migrant housing and has told this to Mr. Sams of the Health Department. He wants single families, and the family which occupied one of the properties in issue on June 7, 1999, went in after the rescission of the Agreement for Deed. Mr. Frierson claims the family's rental business is far less formal than a normal rental operation. Many renters who terminate usually do so by leaving without notice. Many of the renters are Hispanics, whom he describes as quite naïve about paper work. When Mr. Sanchez advised him he wanted out of their agreement, Respondent prepared a Rescission and Release and a Quit-Claim Deed, though he admits the use of both is probably overkill. As to the transactions with Mr. Radloff, Respondent claims he entered into it on the basis of advice from his tax accountant to avoid a higher tax obligation. When he found that he didn’t have the tax problem after all, he bought the lots back and transferred them to Mr. Gomez, which, he contends was his original intention. Mr. Frierson contends that the money paid to him by Mr. Radloff actually came from Mr. Gomez, which, to Respondent, explains the concurrent transfers. He also contends that shortly after the transfer, Mr. Gomez came to him and wanted out of the deal, as had Mr. Sanchez, and he, Mr. Frierson, agreed. Respondent claims, however, that he had no idea of how the properties were used when Mr. Gomez and Mr. Sanchez had control of them. He overlooks the fact that he collected the rents weekly during that period.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health enter a final order in this matter imposing administrative fines of $500.00 on Gary L. and Alice H. Frierson for the proven violation at 1375 Southwest Rosebud Lane, and an additional $500 fine on Alice H. Frierson for the proven violation at 1408 Southwest Rosebud Lane, both in Arcadia, Florida. DONE AND ENTERED this 30th day of September, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1999. COPIES FURNISHED: Susan Mastin Scott, Esquire Department of Health Post Office Box 9309 Ft. Myers, Florida 33902-0309 James M. Beesting, Esquire 207 East Magnolia Street Suite B Arcadia, Florida 34266 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701 Pete Peterson, General counsel Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact In November and December, 1974 John T. Halkowich was a registered real estate salesman with the brokerage office of Ayers F. Egan. Exhibit 2, Return Receipt for Registered Mail, was admitted into evidence to show that Halkowich acknowledged receipt of the Notice of Hearing. When Halkowich applied for registration as a real estate salesman, Egan was one of his sponsors. Upon his successful completion of the requirements for registration Egan agreed to hold Halkowich's license for him in Egan's office, but because business was slow he could not allow Halkowich any floor days. He agreed to allow him to sit on houses that neither Egan nor Egan's associate wanted to hold open. During the period of 1974, when little real estate was selling on the Florida Keys, the housing development project owned by Vogler and Snowman was running on hard tines and the developers were anxious to "get out from under" the property. John Vogler, Jr., the father of the Vogler partner in the project, went to Egan to seek help with the sales. Since Egan had no work for Halkowich he suggested that perhaps the developers could make a deal with Halkowich. The developers needed someone on the property at all times to act as watchman, show prospective buyers around, keep the grass trimmed, and supervise the completion of the project. Halkowich was provided an apartent on the site to live in, complete with utilities, in consideration for performing those services. For each unit of the project that was sold the developers agreed to pay Halkowich $2,000. One of the purchasers who appeared at the hearing had stopped by the development, was shown around by Halkowich, and thereafter made an offer directly to the developers to purchase a unit. A contract was subsequently executed between the developers and the buyer and referred to the developers' attorney who performed the closing. After the closing Halkowich was paid $2,000. When Egan learned that sales had been made and that Halkowich had received compensation from the developers he demanded his commission from Halkowich. When the latter advised Egan he couldn't pay him Egan told him he was in violation of the real estate license law and that he, Egan, would report him to the Florida Real Estate Commission if he didn't pay. Thereafter Egan piously reported Halkowich's transgressions to the Commission and this Administrative Complaint ultimately followed.
