Petition for Writ of Certiorari — Walsh v. Florida Department of Business & Professional Regulation

ae. Supreme Court, U.S.

Ny, FILED

Q1 605 Aves 2001

No. QFRICE OF THE CLERK

In the

Supreme Court of the United States

WILLIAM S. WALSH

Petitioner,

¥.

DEPARTMENT OF BUSINESS AND PROFESSIONAL

REGULATION, DIVISION OF FLORIDA LAND

SALES, CONDOMINIUMS, AND MOBILE HOMES

Respondent.

On Petition For A Writ Of Certiorari

To The District Court of Appeal

Fifth District

PETITION FOR WRIT OF CERTIORARI

William S Walsh, Pro Se

3156 Turnberry Drive

Oviedo, Florida 32765

(407) 366-6820

i

QUESTIONS PRESENTED

1. Whether the Court of Appeal, Fifth District,

committed error by overlooking the issue to be

resolved on Appeal: that the ALJ abused his

discretion with findings of fact in the Recommended

Order that are contrary to the evidence and record of

the proceedings and in violation of F:S.A. sections

120.57 and 120.68, and misapprehending the

“Substantial Evidence Rule” as cited in Epps v.

Harris, 624 F.2d 1267 (1980), and 42 U.S.C.A. section

404(g).

2. Whether the Court of Appeal, Fifth Districi,

committed error by misapprehending the Court’s

opinion cited in Hamilton County Board of Comm'rs

v. State, Dept of Environmental Regulation, where

Petitioner filed its Proposed Recommended Order

untimely and without its own motion for continuance

that had been ruled on, in which the ALJ, seventeen

days after the PRO’s were due in his office, filed his

Recommended Order and in doing so, rule

Petitioner’s PRO was timely filed, in violation of

F’S.A. section 403.011 et seq.

3. Whether. the Court of Appeal, Fifth Disivict,

committed error by overlooking counsej for

Petitioner’s violation of the American with

Disabilities Act of 1990, by switching the ordered

conference room, to a small computer room,

QUESTIONS PRESENTED - Continued

only adding to Walsh’s disability, and the Court’s

overlooking Walsh’s open-heart surgery in which he

couldn’t, when needed, file a motion for relief due to

the Court’s Order.

TABLE OF CONTENTS

Pages

QUESTIONS PRESENTED.............c0cccccec000- i

TABLE OF CONTENTS. ........ccccccccccesceeseeeees iii

Ie EW i ciccececevesvevevevvrvoeeuvevece

STATEMENT OF JURISDICTION............... oe

STATUTES INVOLVED IN THIS CASE...... 2

STATEMENT OF THE CASE.............0c00000-+- 4

REASONS FOR GRANTING PETITION.... 12

I. THE COURT OF APPEAL COMMITTED

ERROR BY OVERLOOKING THE ISSUE TO BE

RESOLVED ON APPEAL, THAT THE ALJ

ABUSED HIS DISCRETION WITH FINDINGS OF

FACT IN THE RECOMMENDED ORDER THAT

ARE CONTRARY TO THE EVIDENCE AND

RECORD OF THE PROCEEDINGS, VIOLATING

F’S.A. SECTION 120.68(10) AND

MISAPPREHENDING THE “SUBSTANTIAL

EVIDENCE RULE” AS CITED IN EPPS V.

iv

TABLE OF CONTENTS - Continued

HARRIS, 624 F.2D 1267 (1980), AND 42 U.S.C.A.

Se: FI FR ickistinintncciinicsintntsioiimnienn 12

Il. THE COURT OF APPEAL COMMITTED

ERROR BY MISAPPREHENDING THE COURT'S

OPINION CITED IN HAMILTON COUNTY BOARD

OF COMMISSIONERS V. STATE DEP’T OF

ENVIRONMENTAL REGULATION, WHERE

PETITIONER FILED ITS PROPOSED

RECOMMENDED ORDER UNTIMELY AND

WITHOUT ITS OWN MOTION THAT WAS

NEVER RULED ON BY THE ALJ, THEN RULE

TIMELY BY THE ALJ, SEVENTEEN DAYS

AFTER THE PRO’S WERE DUE IN HIS OFFICE,

WHICH IS IN VIOLATION OF FS.A. SECTION

G8 8 GOOG ccinsittinipitininiiniiatiinianancaonaia 16

lil. THE COURT OF APPEAL COMMITTED

ERROR BY OVERLOOKING COUNSEL FOR THE

PETITIONER’S VIOLATION OF THE AMERICAN

WITH DISABILITIES ACT OF 1990, BY

SWITCHING THE ORDERED CONFERENCE

ROOM TO A SMALL COMPUTER ROOM, ONLY

ADDING TO WALSH’S DISABILITY.

ADDITIONALLY, THE COURT OF APPEAL

OVERLOOKED WALSH’S OPEN-HEART

SURGERY, IN WHICH, HE COULDN’T FILE A

MOTION FOR RELIEF, DUE TO THE COURT’S

V

TABLE OF CONTENTS - Continued

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vi

TABLE OF AUTHORITIES

Pages |

Cases

Banker’s Life and Casualty Co. v. Crenshaw,

(1988) 486 U.S. 71, 108 S.Ct. 1645.00... eee 2

Biscayne Federal Savings and Loan v. Federal

Home Loan Ban Board, 572 F.Supp. 998 (1983).3,16

Brogan v. Carter, 671 So. 2d 822,823 (Fla. Ist

Be Ree Riisecdvevinsiessoncntbtipinisieabiaaieieaauaiiganiane 3,9,10

E.E.O.C. v. Sara Lee, 237 F.3d 349.............ccessee0s 3,22

Be Ce TERE, TAG T CUBR vcvincsscivcevecctecenscseeesi 3,12

Florida Dep t of Corrections v. Bradley, 510

So.2d 1122 (Fla. Ist DCA 1987)...............cccccceeees 3,15

Hamilton County Bd. of County Commissioners

v. State Dep t of Environmental Regulation, 587

So.2d 1380 (Fla. ist DCA 1991)... 3,8,19

Munks v. New Jersey, 398 U.S. 71, 90 S.Ct.

IIIT ono scicesconsha ce coscnssishvcsiuueiaa icebadiaeieiana eahd aiaie anna 3

- Owens v. Norwood Lecy, 5 Cranch,

ee invecssvcxscescuusniialinitiieniaeaciiniiiesabdbeelaieia team 3 !

Safeway Stores Inc. v. Oklahoma Retail Grocers

Association, Inc, 36 U.S. 344 (1959)... eee 3

vii

TABLE OF AUTHORITIES - Continued

Street v. New York 395 U.S. 576, 99 S.Ct. 1354

L.ED REPRE ORE eT EET DR EELS RFI ied 3

D> Creamncht S350, F446 (1 GOD). .ccercccseccccccecccascesc cece iene

Statutes and Rules

American with Disabilities Act of 1990, 3 (2 A).3,22

F'S.A. Constitutional Declaration of Rights,

I Wi cdbatbnnniciissh elena iaecincdcesieniicbcetc tiene tasaiitig 3

PDA: SOCUON 120. STEL MBG). ....ccccocornccevsreececceseveees 3

F'S.A. SECTION 403.011 ef Seq.........:c:cccccceseceeee 3,17

License Laws & Professional Affiliation,

I Fak ee iesssiaaabiaesaiicnicpancidiehaeansinioinccausseancogau 3,4

Florida Statute section 120.68(10).................. 3,12.15

Florida Statute section 120.57(1)(b) 8. 10.............. 16

Section 475.01, Florida Statutes..............0..c00.cc000000- 3

Section 120.68(7)\(c) Florida Statutes,

SN tk a eidib nhc caceiceiecasdiccn cessive 3,19

li a IIs dicetesltcetticcnscatoisoianioiecemstansbicsinsin 3,16

viii

TABLE OF AUTHORITIES - Continued

p gis Cee ER | | | eee 1,3

Bee ee ikea viceisbisesnitcsidctbiccnsesunleinesialniaingsien 1,23

Re cs I etlesesesinencisisenecssinnnennsansitiiitcdaedinnss 3,12

42 U.S.C.A.section 12102(2A)..........c-ccccccccscceree 3,22

1

STATEMENT OF JURISDICTION

The judgement of the Court of Appeal of

Florida, Fifth District, was entered April 10, 2001,

[App. A]. The Court of Appeal denied Appellant’s

timely petition for Rehearing on May 10, 2001 [App.

B]. The jurisdiction of this Court is invoked pursuant

to 28 U.S.C. section 1254(1), and/or 28 U.S.C. 1257.

PETITION FOR WRIT OF CERTIORARI

Petitioner, William S$. Walsh, respectfully

petitioners the Court for writ of certiorari to review

the final judgement of the Court of Appeal, Fifth

District, entered on April 10, 2001, which

AFFIRMED, PER CURIAM, the final order of the

department of Business and Professional Regenetion,

etc., for the State of Florida.

OPINIONS BELOW

The opinion of the Court of Appeal, Fifth District, is

reprinted in the Appendix A (App. 1).

— ae ee ee

ai ii |

2

STATUTES INVOLVED IN THIS CASE

The Writ of Certiorari to this Court must be

granted as all of the issues Petitioner (Walsh)

addresses to this Court are supported by Florida

Statutes, Federal Statutes, and Federal Rules.

’

Vgererere enna, ge

28 U.S.C. section 1257 provides:

State courts; certiorari

(a) Final judgements or decrees rendered by the

highest court of a State in which a decision could be

had, may be reviewed by the Supreme Court by writ

of certiorari where the validity of a treaty or statute of

the United States is drawn in question or where the

validity of a statute of any other State is drawn in

question on the ground of it being repugnant to the

Constitutional treaties, or laws of the United States, or

where any title, right, privilege, or immunity is

specially set up or claimed under the Constitution or

treaties or statutes of or and commission held or

authority exercised under the United States.

It is apodictic that this Court address the

constitutional questions that are arbritrary and

irrational discrimination brought before and directly

addressed by the State courts. Bankers Life and

Casualty v. Crenshaw, (1988) 486 U.S. 71; 108

3

STATUTES OF THE CASE - Continued

S.Ct. 1645; Munks v. New Jersey, 398 U.S. 71; 90 S.

Ct. 1563; American with Disabilities Act of 1990,

section 3(2)(A); Federal Rule of Evidence, Rule 103,

F:S.A. section 120.68(7)(d); F.S.A. section 403.011 ef

seq.; FS.A. Constitutional Declaration of Rights,

section 11; F.S.A. section 120.57(1)(b)(9); License

Laws & Professional Affiliation Rules, pages 327-328;

Florida Statutes section 120.68(10); Florida Statutes

section 120.57(1)(b), 8,9,10.; Section 475,01 Florida

Statutes; Section 120.68(7)(c), Florida Statutes;

U.S.C.A. 28 Rule 402; 5 USCA. section

706(2)(A,B); 28 U.S.C.A. section 1254(1); 28

U.S.C.A. 1257; 42 U.S.C.A. section 12102 (2)(A);

Street v. New York, 3944 U.S. 576; 89 S.Ct. 1354;

Owens v. Norwood Lecy; 5 Cranch. 330, 344 (1809).

Safeway Stores Inc. v. Oklahoma Retail Grocers

Association Inc., 360 U.S. 344 (1959). The

constitutional claims of Petitioner (Walsh) are entirely

with merit and were preserved for appeal. Petitioner

notified the Court of Appeal, Fifth District, of the

violations of the Fourteenth Amendment: equal

protection of the law, due process of the law, a fair

and impartial appeal, fundamental fairness, and the

American with Disabilities Act of 1990, however, all

were overlooked.

4

STATEMENT OF THE CASE

The facts of this case is_ straightforward.

Petitioner (“Walsh”), a licensed real estate “sales-

person” [Florida Licensing Law, page 328], began his

employment with Vocational Corporation (Vocational)

in July 1995 as an independent contractor with more

than 20 years experience in the Florida timeshare

industry, and without (1) complaint against his

license.

Vocational is the developer of a timeshare

resort, known as Club Sevilla (“Sevilla”), located in

Kissimmee, Florida. Counsel for Petitioner

(“counsel”) the Administrative Law Judge (“ALJ”),

and the Agency (“Division”), have the misconception

that Sevilla is located in Orlando, Florida, however,

this false belief began with Petitioner’s Proposed

Order (“PRO”) and adopted into the Recommended

Order and Final Order.

Counsel also mislead the ALJ into believing

that Walsh, not being a real estate broker, [Licensing

Laws, pg. 327], could act as a broker for Vocational

by having the responsibility of the sales pitch, the

conduct of the other independent contractors

employed by Vocational, and their training, that is

totally against the Florida Real Estate Law. This was

the responsibility of Vocational and its Broker.

5

Soon after Walsh began his employment,

Vocational implemented a reduction in the sales staff

by terminating all but one of the unlicensed sales-

people, leaving four or five salespeople to sell the

timeshare interests at Sevilla. The ALJ added that

Walsh employed the four or five salespeople. There is

no competent substantial evidence to support this.

As a result of the restructuring, Walsh was

promoted to Sales Manager, and soon after, to Sales

Director. Walsh’s responsibilities never changed in

regards to the other salespeople, as Walsh was still a

licensed salesperson. What did change was (1) his

pay structure was increased (2) he only went on sales

presentations at the request of the owners. None of

the seven claimants in this cause were given a sales

presentation by Walsh. For some unknown reason,

counsel and the ALJ wanted the Division to know that

Walsh earned in excess of $450,000.00 in 1996.

There is no competent substantial evidence in the

record to support this statement.

Vocational had planned a great future around

Walsh, however, Walsh resigned on February 27,

1997, due to several things. One being, Vocational

would not take care of their complaints properly,

especially, when it came to refunding purchaser’s

money.

The best example of this, is the seven claimants in

6

this cause. On January 29, 1996, Raymond Sindel,

the first to complain to Vocational, wanting their

money refunded, that Michael Osborn, Vice President

of Vocational had agreed to, however, 29 months after

the complaint, Mr. Sindel finally received his refund

on June 24, 1998.

Walsh was issued a Notice to Show Cause

concerning these seven claimants as was Vocational.

Instead of signing a Consent Order, Walsh requested a

Formal Hearing which was granted and set for March

14, 2000. The Order stated the issue against Walsh

was whether he committed the alleged acts and, if so,

what disciplinary action, if any, was to be taken

against his license. The Order stated the Court

Reporter would be at the Orlando site.

Prior to the hearing, counsel deposed nine

witnesses over a two week period, at the Orlando site.

During the depositions, counsel witnessed Walsh, in

‘his electric wheelchair, and due to his disability, the

difficulty he had getting close enough to the table and

his material. Also, the frustration Walsh was having.

The hearing was to be held in Conference

Room 2, a room exactly like the room where the

depositions were taken, however, this all changed

without notice to Walsh. The hearing was conducted

in a very small computer room with a 3x6’ table in its

pciiiaiasieeeaiahs

7

center. The room and table were so small, the court

reporter had to be at the Tallahassee site and Walsh

could not get his electric wheelchair close enough to

his material. Counsel’s staff retrieved a very heavy

table leaf and once it was placed over Walsh’s lap, he

could not move. His material had to be placed on the

floor out of his reach. Why was this done, when both

conference rooms were empty the entire time of the

hearing, was for one reason: counsel took advantage

of Walsh and his disability and by doing so, violated

the American with Disabilities Act of 1990.

At the conclusion of the hearing, the ALJ

permitted both parties to submit the PRO’s in his

office by March 27, 2000. The Recommended and

Final Order’s have omitted the due date for the

PRO’s, however, a letter from the General Counsel’s

office expresses the due date.

Knowing he couldn’t finish his PRO on time,

Walsh filed for a continuance. In checking to see if

the motion had been ruled on, Walsh was told it that it

wasn’t. Immediately, Walsh sent his unfinished PRO.

Walsh called the ALJ’s office at 9:35 on Monday,

March 27, 2000, and was assured by the ALJ’s

assistant that his PRO had arrived safely and was in

their office. Later that afternoon he called the Clerk

to find that it was filed at 12:50 p.m. as timely.

8 ‘

On March 28, 2000, one day late, untimely, and

without a motion for continuance, Hamilton v. State,

587 §.2d, counsel filed Petitioner’s PRO. It was

enclosed in a letter explaining to the ALJ that his

assistant told counsel that he had granted Walsh’s

request for the five-day extention, even though no

specific, individual order was filed stating this,

although sixteen days later, on April 13, 2000, the

ALJ filed his Recommended Order and abused his

discretion by ruling Walsh’s motion had been granted

and Petitioner’s PRO was timely filed. The Division

violates Walsh’s Constitutional Rights intentionally.

This must be reviewed and stopped as the Court of

Appeal overlooked all of this.

When reviewing the evidence, the Court should

have recognized the error of overlooking Hamilton, at

1380. Counsel, in quoting Hamilton, referred only to

1378, 1389-90, and excluded 1380, which is the only

case law in Hamilton that has anything to do with this

error by the Court.

Petitioner’s PRO was taken from the hearing,

that the transcript is not in the record. The

Recommended Order was based partially on

Petitioner’s PRO, and the Division adopted both in ~

rejecting all of Walsh’s Exceptions to the

Recommended Order, that Walsh took from the

evidence in the record, that can’t be said for the

Recommended Order.

9

In the Recommended Order, the ALJ abused his

discretion with findings of fact that are contrary to the

evidence and record of the proceedings, as the other

part of the Recommended Order was taken from the

direct testimony only, of the seven claimants. The

Final Order has no competent substantial evidence to

support it.

The Court should have realized this in

reviewing the Division’s statement:

“Florida case law holds that an agency

reviewing a recommended order is not

authorized to reevaluate the quantity and

quality of the evidence presented at an

administrative hearing beyond determining

whether the evidence is competent and

substantial. See Brogan v. Carter. 671 So.

2d 822,823 (Fla. Ist DCA 1996).” [R IV

640].

Counsel makes the statement:

“Even if the agency had had a transcript,

it could not reweigh the evidence or

credibility of the witnesses who testified at

the hearing...” [Brief at 15].

After Walsh filed his exceptions to the

Recommended Order, that were rejected, “because

Waish did not file a transcript of the hearing,” that

10

had nothing to do with the Recommended Order or

evidence in the record, see Brogan v. Carter.

The Final Order was filed and instead of what

disciplinary action that was to be taken against

Walsh’s license as stated in the Order, Walsh was

fined $28,000.00.

Walsh filed a motion for rehearing, however,

this was rejected also, as the Division didn’t feel

obligated to rehear a final order.

Walsh filed his Notice of Appeal before the

Court of Appeal of Florida, Fifth District, on July 12,

2001. Walsh was in and out of the hospital six times

because of complications with infections in his chest

cavity and right leg. Walsh could not file for a

continuance as the Court ordered Walsh, Order dated

November 28, 2000, not to file any more motions in

this cause.

Walsh filed the Initial Brief, with the issue to be

resolved: the ALJ abused his discretion with findings

of fact that are contrary to the evidence and record of

the proceedings.

October 26, 2001, Appellee filed its Answer

Brief and seventy-nine times the brief was based on

inaccurate findings, contradictory statements, pre-

judice, and false beliefs [pgs. 1-22]. After both

parties briefs were filed, the Court sanctioned Walsh

for pointing this out, however, the Court made

mention of the words “in the record” when the Court

did not have the record to review for two and one half

months after the sanction.

On February 14, 2001, Walsh had to have open-

heart surgery, however, couldn’t file a motion for

relief [Order dated November 28, 2000], so two letters

were written (1) to the Clerk of Court ( 2) to the Court

itself. Both were overlooked.

Walsh’s appeal was AFFIRMED, PER

CURIAM on April 10, 2001 [App. 1] and the motion

for Rehearing was denied on May 10, 2001 [App.

2]. This Petition for Writ of Certiorari timely

followed.

12

REASON FOR GRANTING PETITION

I. THE COURT OF APPEAL COMMITTED

ERROR BY OVERLOOKING THE ISSUE TO

BE RESOLVED ON APPEAL: THE ALJ

ABUSED HIS DISCRETION WITH FINDINGS

OF FACT IN THE RECOMMENDED ORDER

THAT ARE CONTRARY TO THE EVIDENCE

AND RECORD OF THE PROCEEDINGS, IN

VIOLATION OF F.S.A. SECTION 120.68(10),

AND MISAPPREHENDING THE “SUBSTANT-

IAL, EVIDENCE RULE” AS CITED IN EPPS V.

HARRIS, 624 F.2D 1267 (1980), AND 42 U.S.C.A.

SECTION 405(G).

Appellant made the statement in his Initial and

Reply Briefs:

“The argument will prove the ALJ abused his

discretion in findings of fact that are contrary to

the evidence and record of the proceedings” [I

Brief at 4].

“This is the issue on appeal: whether the ALJ

abused his discretion with statements and

findings of fact that are contrary to the evidence

and record of the proceedings.” [R Brief at 5].

Nineteen times in the Initial Brief Walsh

mentions the issue on appeal is whether the ALJ

abused his discretion with findings of fact that are

contrary to the evidence and record of the proceed-

13

ings, however, counsel reverses the issue to mislead

the Court by saying:

“The question to be resolved in this appeal is

whether there is competent substantial evidence

to support the final order...because Walsh failed

to file a transcript of the hearing, he cannot now

present a different version of those facts found

by the ALJ, which are binding on the agency and

which were adopted in full by the agency in the

final order, or argue that the agency erred in

accepting the ALJ’s statement of facts.” [Brief at

8, 9].

Appellee alse stated:

“Walsh did not feel it necessary to have the

hearing transcribed because the depositions of

seven claimants were taken.” [Brief at 1, 2).

“Walsh stated that he did not request the

transcript because “he did not feel it necessary to

have the hearing transcribed because the

depositions of the seven claimants were taken”

and made part of the record.” [Brief at 14].

“Walsh states he “wasn’t relying on the

hearing transcript in his exceptions.” Brief at B.

He is also not relying on the testimony at the

hearing in this new attack on the exceptions in

this appeal. Brief at 10, 11.” [Brief at 1 1}.

14

The Division’s belief from the Final Order:

“Because Walsh did not file a copy of the

transcript of the hearing, the Division is unable

to review the entire record. Therefore, the

Division may not reject or modify the findings of

fact in the Recommended Order.” [R IV 639]

The Final Order, and Appellee’s Answer Brief

have the misconception that the Recommended Order

is based on the hearing, which it was not, and without

a transcript of the hearing, Walsh’s Exceptions to the

Recommended Order and the appeal must be denied.

If this were fact, then why did the ALJ base his

Recommended Order, in part, on the deposition

testimony of the seven claimants [R IV 682 - R VII

1358], whose depositions are in the record, and in

part, on Petitioner’s PRO, that is based on the hearing

where there is no transcript in the record. In order to

make this false belief work, the issue on appeal has to

be, “if there is competent substantial evidence to

support the final order.”

The depositions were ordered into evidence on

March 9, 2000, just two days before the hearing. They

have been in the ALJ’s office since November 17,

1999. Walsh did not get a copy of the order until after

the hearing was completed. The Order states:

15

“Petitioner’s Motion to Admit Witnesses

Deposition Testimony and Respondent’s Add-

missions into Evidence is Granted.” [R II 352].

The Division’s misconception that the

Recommended Order is based on the hearing is found

in the Final Order:

“Florida case law holds that an agency

reviewing a recommended order is not

authorized to reevaluate the quantity and quality

of the evidence presented at an administrative

hearing beyond whether the evidence is

competent and substantial.” [R IV 640].

Counsel’s misconception is stated in Appellee’s

Answer Brief:

“Even if the agency had had a transcript, it

could not reweigh the evidence or the credibility

of the witness who testified at the hearing...” [pg.

15 at 2].

The Court of Appeal overlooked Walsh’s entire appeal

and misapprehended F-.S.A. section 120.68(10), as cited

in Florida Dep’t of Corrections v. Bradley, 510 §.2d

1122 (Fla. Ist DCA 1987)! and in doing so, violated

Walsh’s Constitutional Rights to a fair and impartial

appeal, fundamental fairness, due process of law, and

equal protection of the law.

Role of appellate court is to determine whether lower tribunal made

any ruling or conducted proceedings in anner contrary to established

principles of law to prejudice of appellant re .er than to relitigate issues.

iii...

16

The Court allowed irrelevant evidence to

support its ruling on the appeal, violating Federal

Evidence Rule 402”, FS.A. section 120.57(1)(b) 8. 10.

The ALJ abused his discretion and the Court

knew this, however, did nothing in reviewing the

record to eliminate it. The agency’s ruling should

have been wiped clean by the Court of Appeal as cited |

in Biscayne Federal Savings and Loan v. Federal

Home Loan Bank Board, 572 F.Supp. 998 (1980) and

U.S.C.A. section 706(2)(a, b).° |

Il. THE COURT OF APPEAL COMMITTED ERROR |

BY MISAPPREHENDING THE COURT’S

OPINION IN HAMILTON COUNTY BOARD OF

COMMISSIONERS V. STATE, BOARD OF |

ENVIRONMENTAL REGULATION, THAT THE

PROPOSED RECOMMENDED ORDER, FILED

UNTIMELY AND THEN RULED TIMELY,

SEVENTEEN DAYS AFTER THE PRO’S WERE

DUE, IN VIOLATION OF F.S.A. 403.011 et seq. :

’ All relevant evidence is admissible, except as otherwise provided by

the Constitution of the United States, by that of Congress, by these rules, or

by the other rules prescribed by the Supreme Court pursuant to statutory

authority. Evidence which is not relevant is not admissible.

> Abuse of discretion standard is standard utilized for review on record

of agency action, but in de nova review the agency determination is “wiped

clean” and the Court makes its own independent judgement. 5 U.S.C.A.

section 706(2)(A, B).

Se

17

In Appellee’s “Statement of the Case and

Facts” in the Answer Brief, counsel makes the

statement:

“The Division does wish to correct Walsh’s

misstatements: (1) the Recommended Order was

entered on April 13, 2000, not April 25, 2000;

(2) the ALJ did rule on Walsh’s motion for

continuance in the recommended order by stating

that the parties’ proposed recommended orders

were timely filed even though no specific,

individual order was entered stating this.” [Brief

at 3], [R Brief at 3].

Walsh, knowing he couldn’t finish his PRO on

time, motioned for a continuance of at least five days.

After calling and hearing his motion hadn’t been ruled

on, Walsh immediately sent his unfinished PRO to the

office of the ALJ. Monday morning, March 27, 2000,

Walsh was assured by the ALJ’s assistant, that his

PRO was in their office.

In early afternoon, Walsh contacted the Clerk’s

office to find the PRO was filed at 12:50 p.m.

On March 28, 2000, Petitioner’s PRO was filed,

one day late and untimely. The PRO was

18

enclosed with a letter dated March 28, 2000,

addressed to the ALJ, from the office of the General

Counsel, that is in the record. The letter states as

follows:

Dear Judge Manry:

Please find enclosed the department’s Proposed

Recommended Order. When my assistant checked with

your office yesterday, the day it was due to be filed, your

assistant indicated that you had granted Mr. Walsh’s

request for an extention of time in which to file the

proposed recommended orders in this case. We were

told that an additional five days were added to the filing

date.

When I checked the case docket this morning, |

noted that Mr. Walsh had filed his proposed

recommended order yesterday. The docket does not

indicate your order this morning. Therefore, | am filing

the department’s proposed recommended order today

since Mr. Walsh evidently does not need an extention of

time in which to file. This was signed by Janis Sue

Richardson. [R III 449].

The Court of Appeal did not review the

evidence, such as this letter, or the abuse of discretion

by the ALJ tn ruling Petitioner’s PRO was timely

filed.

The ALJ’s Recommended Order was filed on

April 13, 2000, seventeen days after the PRO’s were

due in his office. In the Recommended Order the ALJ

allegedly granted Walsh’s continuance and ruled

Ee

19

Petitioner’s PRO was timely filed, even though no

specific, individual order was filed for this. The Court

overlooked section 120.68(7)(c), Florida Statutes

(Supp. 1996).4 ~

The Court of Appeal overlooked case law in

Hamilton County Board of County Commissioners v.

State, Dept of Environmental Regulation, 587 S.2d

1380 (Fla. Ist DCA 1991), and F'S.A. section 403.011

et seq.”

Counsel states in the Answer Brief:

“Walsh complains that the ALJ incorrectly

ruled that the Division’s proposed recom-mended

order was timely filed. Brief at 5-6. There is no error

in this ruling and no prejudice to Walsh by filing in

light of Walsh’s motion for a five-day continuance.

Hamilton at 1378, 1389-90. Counsel and the Division

have misinterpreted this case law and overlooked

Hamilton at 1380.

4

From a procedural standpoint, the inquiry is whether “the fairness of

the proceedings or the correctness of the [agency] action may have been

impaired by material error in procedure.

5

Like courts in civil proceedings faced with untimely filed answers or

responses Division of Administrative Hearing has discretion to extend time

of filing of responsive pleading, notwithstanding that rule governing

particular pleading uses mandatory language as to time requirements for

pleading.

20

lil. THE COURT OF APPEAL COMMITTED

ERROR BY OVERLOOKING COUNSEL FOR

PETITIONER’S VIOLATION OF THE AMER-

ICAN WITH DISABILITIES ACT OF 1990, BY

SWITCHING THE ORDERED HEARING

ROOM TO A VERY SMALL COMPUTER

ROOM, WITH A 3X6’ TABLE, ONLY ADDING

TO WALSH’S DISABILITY. ADDITIONALLY,

THE COURT OVERLOOKING WALSH’S

OPEN-HEART SURGERY IN WHICH HE

COULD NOT FILE A MOTION FOR RELIEF,

DUE TO THE COURT’S RULING.

Prior to the hearing, counsel deposed nine

witnesses in a conference room at the Orlando site.

Counsel witnessed Walsh and his disability, and being

confined to an electric wheelchair, and the difficulty

he was having getting close enough to the table and

_ his material. Counsel witnessed the frustration of

Walsh.

Walsh had called the telephone number in the

hearing order for the American with Disabilities,

however, the number listed was for the hearing

impaired only. | Walsh contacted the Division

concerning the handicap and wheelchair.

In Appellee’s Answer Brief, counsel makes the

statement:

21

“Walsh complains about the conference

room, but does not allege any prejudice.”

[pg.21].

Where was counsel during the depositions?

The hearing was order to be held in Conference Room

2 at the Orlando site. [R II 315, 340]. Walsh arrived

early and went directly to Conference Room 2 which

was empty. After several minutes a staff member of

the Division came and led Walsh from the room, past

the room where the depositions were taken, into a

very small computer room with a 3x6’ table in its

center, to accomodate counsel and her material, the

court reporter, the witness, Walsh and his material, of

which, Walsh could not get his wheelchair anywhere

near the table. After complaining, counsel’s staff

retrieved a very heavy table leaf, that once it was

placed over Walsh’s lap, he could not move. His

material had to be placed on the floor, out of his

reach.

As expected, counsel witnessed Walsh’s

frustration and the fact he couldn’t function properly

in defending himself against these frivilous charges.

Knowing both conference rooms were

available, counsel succeeded in accomplishing what

was planned by the ALJ and counsel. As a matter of

fact, the court reporter had to be at the Tallahassee site

as the computer room was inadequate for her.

22

The entire hearing violated Walsh’s Civil

Rights that are to be protected and discrimination

prohibited as in American with Disabilities Act of

1990 3(2)(A); E.E.O.C. v. Sara Lee, 237 F.3d 349; 42

U.S.C.A. section 12102(2)(A).

CONCLUSION

For the foregoing reasons, Petitioner respect-

fully requests that this Court grant certiorari to the

Court of Appeal of Florida, Fifth District.

Respectfully submitted,

William S. Walsh, Pro se

2156 Turnberry Drive

Oviedo, Florida 32765

Phone: (407) 366-6820

Cell: (407) 718-1981 |

a

App. |

APPENDIX A

STATE OF FLORIDA DIVISION OF

ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

FLORIDA LAND SALES, CONDO-

MINIUMS AND MOBILE HOMES, (No filing date by

Petitioner, Clerk)

Vv. Case No. 99-3006

WILLIAM S. WALSH,

Respondent,

/

RECOMMENDED ORDER

An administrative hearing was conducted in

this proceeding on March 14, 2000, in Orlando,

Florida, before Danilel Manry, Administrative Law

Judge (“ALJ”), Division of Administrative Hearings

(“DOAH”). The parties and their witnesses attended

the hearing in Orlando. The undersigned and the

court reporter participated by videoconference from

Tallahassee, Florida.

APPEARANCES

For Petitioner: Janis Sue Richardson, Esq.

App. 2

APPEARANCES - Continued

Division of Florida Land Sale, etc.

Northwood Centre (sic)

1940 North Monroe Street

Tallahassee, Florida 32399-1007

For Respondent: William S. Walsh, pro se

2156 Turnberry Drive

Oviedo, Florida 32765

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent

violated section 721.11(4)(a)(h\j)(k), Florida Statutes

(1995), through misrepresentations in the sale of

timeshare estates as further stated in the Notice to

Show Cause and, if so, what, if any, penalty should be

imposed. (All statutory references are to Florida

Statutes (1995) unless otherwise stated).

PRELIMINARY STATEMENT

Petitionerved Respondent with a Notice to

Show Cause on June 26, 1999. On June 29, 1999,

Respondent filed a Response to Charges in which

Respondent requested an administrative hearing. On

July 12, 1999, Petitioner referred the matter to DOAH

for assignment to conduct the hearing.

_ At the hearing, Petitioner presented the

testimony of five witnesses for admission in evidence

ee -

acetate aciaaitiaiiiiiaiinnel

App. 3

and submitted 13 exhibits for admission in evidence.

Respondent testified in his own behalf, called one

witness, and admitted eight exhibits for admission in

evidence.

The identity of the witnesses and exhibits, and

the rulings regarding each are set forth in the record of

the administrative hearing. Neither party requested a

transcript of the hearing. Petitioner timely filed its

proposed recommended order (PRO) on March 28,

2000. Respondent timely filed his PRO on March 27,

2000.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for

regulating sellers of timeshare estates (“timeshares”)

within the meaning of section 721.05(27)(28). Res-

pondent is a seller of timeshares and a licensed real

estate salesperson (sic) in Florida with approximately

20 years experience in timeshares.

2. Petitioner charged in the Notice to Show Cause

that Respondent violated section 721.11(4)(a)(h)(j\k).

The Notice to Show Cause charges that Respondent

violated the respective statutes by misrepresenting: a

fact or creating a false or misleading impression

regarding a timeshare plan or promotion; the nature or

extent of an incidental benefit, within the meaning of

section 721,05(17); the conditions of exchange; and

the availability of a

App. 4

resale or rental program.

3. Vocational Corporation (“Vocational”) devel-

oped a timeshare resort in Orlando, Florida, known as

Club Sevilla (“Sevilla”). Vocational hired Respondent

in July 1995 as _ Vocational’s sales manager

responsible for the sale of all timeshares at Sevilla.

Vocational agreed to hire Respondent as an

independent contractor and to pay Respondent up to

40 percent commission on cash sales and four to six

percent commission on other sales. In 1996,

Respondent earned between $380,000 and $457,000

selloing timeshares for Club Sevilla.

4. Respondent employed four or five salespersons

to assist him in the sale of Sevilla timeshares. Some

of those salespersons testified at the hearing.

5. During the time Respondent sold Sevilla

timeshares, Respondent was the president and director

of MPW Marketing, Inc. (“MPW”). Respondent’s

wife was the secretary and treasurer of MP W.

6. MPW employed at least one salesperson (sic) to

sell timeshares at Sevilla. MPW was disolved in 1997

for failure to file its annual report.

7. As sales manager for Vocational and as

independent contractor, Respondent was solely

App. 5

responsible for the design and content of the sales

program used to sell timeshares at Sevilla and for the

conduct of the salespersons employed by Respondent

and MPW. When Vocational learned the particulars of

Respondent’s sales program through complaints from

purchasers, Vocational made reasonable efforts to

remedy the harm to purchasers and to eliminate the

offending practices.

8. Respondent’s sales program was directed at

occupants of Sevilla. Occupants included owners of

Sevilla timeshares, renters, and owners of other

timeshare units who were occupying a timeshare at

Sevilla through an exchange program.

9. When a new group of occupants arrived at

Sevilla, the sales program began with a reception in

the form of a pool party, a breakfast, or a dinner.

Respondent assigned a salesperson to certain guests

and sometimes assigned himself to a few guests. At

each reception, each salesperson and Respondent

would meet their assigned guests and make

appointments for a timeshare sales presentation and

tour.

10. At the salespresentation, each salesperson sat at

a table with prospective purchasers and performed the

sales presentation designed and required by

Respondent. Upon completion of the sales presen-

tation, Respondent would come to the table to close

App. 6

the sale. Respondent would go over the sales

presentation and emphasize certain points.

11. On October 24, 1995, Clarence and Maxine

Shelt attended a sales presentation with their friends

Raymond and Charlene Sindel from their respective

home city of Delta, Ohio. The Shelts and Sindels

owned other timeshares not located at Sevilla.

12. Maxine Shelt purchased a timeshare at Sevilla

because Respondent promised her and her husband

that they could use the exchange program for a

timeshare anywhere in the world for $79, 52 weeks a

year. The Shelts tried to use the exchange program

through Tri Realty, Inc. (“Tri Realty”) because that

was the agency Respondent told the Shelts to use. Tri

Realty denied any knowledge of such a program, and

Tri Realty never offered such a program.

13. Respondent represented that the Shelts could

sell their two timeshares relatively easily at a price

stated in a price list Respondent provided to the

Shelts. Based on Respondent’s representation, the

Shelts listed their two timeshares for resale with Tri

Realty. The two timeshares never sold.

14. The Shelts attempted to discuss the sale of their

units with the Respondent several times. Respondent

became unavailable to the Shelts after the second

conversation. Mrs. Shelt went to Orlando and

complained to a _ representative of vocational

App. 7

concerning her dissatisfaction with Respondent.

Vocational refunded the Shelt’s purchase money for

the Sevilla timeshare.

15. Respondent also represented to the Sindels that

the exchange program at Sevilla would allow them to

exchange their Sevilla timeshare for a timeshare

anywhere in the world for $79, 52 weeks a year. After

purchasing a timeshare at Sevilla, the Sindels

attempted to use the exchange program described by

Respondent, but found that no such program existed.

16. Respondent also represented to the Sindels that

their existing timeshares could be sold “before the end

of the year” and that the sales proceeds would pay for

the timeshare at Sevilla. Respondent provided the

Sindels with a computer printout purporting to be the

market value for the existing timeshares. Respondent

represented that the timeshares would sell very

quickly, especially those located on the resort coast.

The Sindels listed their timeshares with Tri Realty, but

the timeshares never sold.

17. The Sindels complained to Vocational about

Respondent. Vocational refunded the purchase price

of the Sevilla timeshare to the Sindels.

18. On June 26, 1996, Mildred and Eugene Plotkin

attended a salespresentation from their home

App. 8

in Greenville, North Carolina. Respondent represented

that the Plotkins would be able to obtain a credit card

that they could use to pay for the Sevilla timeshare at

a very low interest rate. | Respondent further

represented that he could sell the Ploykins existing

timeshare in Las Vegas in two months so that they

could use the sales proceeds to pay off the credit

card.

19. The Plotkins used their two wxisting credit

cards to pay for Sevilla timeshare. The credit card

promised by Respondent never came. The Las Vegas

timeshare did not sell in the time promised.

20. The Plotkins did not get their low-interest credit

card, found the Las Vegas timeshare had not sold, and

began receiving interest charges on their existing

cards for the purchase of the Sevilla timeshare.

Respondent paid the credit card charges incurred by

the Plotkins with checks issued on the MPW account.

21. On July 26, 1996, Susan Bailey attended a sales

presentation from her home in Wiggins, Mississippi.

Respondent represented that Ms. Bailey would receive

a credit card with a credit line of $20,000 and an

interest rate of 8.9%. Respondent gave Ms. Bailey

what he represented to her as a confirmation of her

right to the credit card.

22. Ms. Bailey purchased a Sevilla timeshare in

App. 9

reliance upon Respondent’s representations but never

received a credit card. She attempted to speak to

Respondent but discovered that Respondent had

resigned his position at Sevilla. She spoke to

someone else at Sevilla and applied for a different

credit card with a lower line of credit and a higher

interest rate.

23. On December 11, 1996, Larry and Carla

Eshleman attended a salespresentation from their

home in Dowington, Pennsylvania. | Respondent

represented that Mr. Eshleman would receive a credit

card with a credit line of $25,000 and an interest rate

of 8.9%. Respondent represented that the Eshlemans

could use the credit card to pay for the Sevilla

timeshare and that Respondent would sel! the two

timeshares already owned by the Eshlemans before

the first payment was due on the new credit card.

Respondent provided a computer printout purporting

to be the market value of their existing timeshares.

24. Respondent told the Eshlemans that he would

pay for the families to stay in the Eshlemans’ existing

timeshares and make sales presentations to these

families. Respondent represented that it was in his

best interest to sell the timeshares quickly because it

would cost Respondent $149 to send each family to

each timeshare for eight days and seven nights. Res-

pondent assured the Eshlemans that it would be no

isis

App. 10

problem to sell the existing timeshares because

Respondent had done it many times.

25. Respondent also told the Eshlemans_ that

Respondent could rent the Sevilla timeshare for $875

for the lockout unit, $1050 for the one bedroom unit,

or $1650 for both units in any year the Eslemans did

not use the Sevilla timeshare. Respondent represented

that the Eshlemans could make money off the

timeshare when they did not use it.

26. In reliance upon Respondent’s presentations,

Mr. Eshleman purchased a _ Sevilla timeshare.

Respondent never sold the Eshlemans_ timeshare.

When the Eshlemans complained to Vocational,

- Vocational refunded their purchase money.

27. On September 19, 1996, Thomas and Betty

Prussak attended a sales presentation from their home

in Medina, Ohio. Respondent asked Mr. Prussak if

Mr. Prussak wanted to buy a Sevilla timeshare. Mr.

Prussak stated that he already owned two weeks of

timeshares and wanted to sell those two. Respondent

offered to sell the existing timeshares if Mr. Prussak

purchased a timeshare from Respondent. Respondent

represented that the sales proceeds from one of the

existing timeshares would pay off the Sevilla

timeshare and Mr. Prussak would have cash in hand

from the sale of the second timeshare less 10%

commission to Respondent for

a esseesssssietuastsisstsianspsssisnusmmammsenmmmms se ______

App. |

both timeshares.

28. There is no #28.

29. Respondent represented to Mr. Prussak that

Respondent would sell the existing timeshares for

market value. Respondent made a telephone call or

fax communication to an unknown source and then

told Mr. Prussak that the two ezisting timeshares were

worth $12,000 each. Respondent represented to Mr.

Prussak that Respondent would probably have one of

the two existing timeshares sold by the end of the

week because it was a “Five Star” unit. Respondent

represented that his sales representatives would “get

right on it” and that all they had to do was to take

people there and they’ II go.”

30. In June 1996, Mrs. Cynthia Richards and her

now deceased husband attended a sales presentation at

Sevilla. Mrs. Richards now lives in Randolph, New

Jersey. Respondent represented that if the Richards

purchased a Sevilla timeshare, Respondent would sell

their existing timeshare for $2000 over the purchase

price of the Sevilla timeshare. Respondent

represented that he had buyers in mind from England.

The extra cash appealed to the Richards to pay off

existing bills.

31. The Richards purchased a Sevilla timeshare in

reliance upon Respondent’s representations. The

existing timeshares never sold. Mrs. Richards

App. 12

attempted to telephone Respondent several times, but

was never able to speak to Respondent.

32. Vocational received approximately 50 other

complaints from purchasers of Club Sevilla

timeshares describing representations by Respondent

similar to those described in previous findings.

Petitioner provided Respondent with notice that

Petitioner intended to use six of these 50 complaints

as similar fact evidence pursuant to section

120.57(1)(d). Findings based on similar fact evidence

are set forth in paragraphs 33-40.

33. In May 1996, Mr. and Mrs. Tim Malone

attended a sales presentation from their home in

Sturgeon, Minnesota. Respondent represented that he

would be able to sell the Malone’s existing timeshare

“by the end of the year” for its market value of $9800.

Respondent represented that he would pay for families

to stay in the Malone’s existing timeshare and attempt

to sell the unit for them. Respondent assured the

Malones that he would sell the existing unit before the

end of the year because it cost Respondent to send

potential buyers to the existing unit.

34. In reliance upon Respondent’s representations,

the Malones purchased a_ Sevilla timeshare.

Respondent never sold the Malone’s existing

timeshare. The market value was less than $5000.

EE

App. | 3

35. In July 1996, Mr. and Mrs. Lambert attended a

Sales presentation from their home in Sharon Hill,

Pennsylvania. Respondent represented that he would

be able to sell the Lambert’s existing timeshare and

that the Lamberts would receive a credit card they

could use to pay for the Sevilla timeshare.

36. The Lamberts purchased a Sevilla timeshare in

reliance upon Respondent’s representations. The

Lamberts never received a credit card. Respondent

never sold their existing timeshare. Vocational

refunded the purchase money for the Sevilla time-

share to the Lamberts.

37. In August 1996, Mr. Andrew Eger attended a

sales presentation from his home in Orlando, Florida.

Respondent represented that the exchange program at

Sevilla would allow Mr. Eger to exchange his

timeshare for another anywhere in the world for $149,

52 weeks a year. Mr. Eger discovered that the

exchange program started at $149 for units available

only in the following 59 days and that the least

expensive exchange actually available any other time

started at $350.

38. Mr. Eger cancelled the purchase of his

timeshare within the 10-day recission period provided

in written contract. Respondent threatened Mr. Egers

with lawsuits and with refusing to refund the $8,000

due.

App. 14

39. In February 1997, Mr. David and Margaret

Maybloom attended a sales presentation from their

home in Staten Island, New York. Respondent

represented that he would sell their existing timeshare

for $3000 and thereby subsidize the cost of the Sevilla

timeshare. Respondent’s salesperson also represented

that the Mayblooms would receive a credit card with a

credit limit of $20,000, that they could use to purchase

the Sevilla timeshare.

40. The Mayblooms purchased a Sevilla timeshare

in reliance upon Respondent’s representations. They

received a credit card with a credit limit of $6000, but

Respondent did not sell the existing timeshare.

41. Vocational did not offer a resale, exchange, or |

rental program with a purchase of a Sevilla timeshare.

Vocational did not have a contract for resale,

exchange, or rental with Tri Realty.

42. Vocational did not offer a credit card as an

incidental benefit of purchasing a Sevilla timeshare. -

Vocational did not file the availability of a credit card

as an incidental benefit pursuant to _ section

721.075(1 (g).

43. At the beginning of Respondent’s tenure as

sales manager, Vocational did offer a credit card as an

incidental benefit for a short period. Vocational

App. 15

terminated the credit card program shortly after

Respondent became sales manager. However,

Respondent continued to offer the credit card to

prospective purchasers as an inducement to purchase a

Sevilla timeshare.

CONCLUSION OF LAW

44. DOAH has jurisdiction over the subject matter

and parties. The parties were duly noticed for the

administrative hearing.

45. Petitioner has the burden of proof in this

proceedings. Petitioner must show by clear and

convincing evidence that Respondent committed the

acts alleged by Petitioner and the reasonableness of

any proposed penalty. Department of Banking and

Finance, Division of Securities and _ Investors

Protection v. Osborn Stern and Company, 670 S.2d

932, 935 (Fla. 1996).

46. Petitioner satisfied its burden of proof.

Petitioner showed by clear and convincing evidence

that Respondent violated section 721.11(4aXh\j)

(k).

47. Section 721.11(4) provides, in relevant part:

(4) No Advertising or oral statement made by

any seller shall:

(a) Misrepresent a fact or create a false or mis-

leading impression regarding the timeshare

App. 16

plan or or promotion thereof.

(h) Misrepresent the nature and extent of any

incidental benefit.

(j) Misrepresent the conditions under which a

purchaser may exchange the right to use

accomodationa or facilities in another

location.

(k) Misrepresent the availability of resale or

rental program offered by or on behalf of a

developer.

48. Respondent violated section 721.11(4){a)

through repeated oral misrepresentation that the

timeshare plan at Club Sevilla included an exchange

program, a resale program, a rental program, and a

credit card benefit. Respondent violated 721.11(4)(h)

by orally misrepresenting that a low-interest credit

cards were available to purchasers as an incidental

benefit of the timeshare program and promotion for

Sevilla timeshares. Respondent violated section

721.11(4)(j) by orally misrepresenting that purchasers

could exchange their Sevilla timeshares for $79

anywhere in the world, 52 days (sic) a week.

Respondent violated section 721.11(4\k) by orally

misrepresenting that he could sell their existing

timeshares and rent their Sevilla timeshares and by

orally misrepresenting the terms

App. 17

and conditions under which-he could do so.

49. In order for evidence to be clear and

convincing:

...evidence must be found to be credible, facts to

which witnesses testify must be distincly

remembered, testimony must be precise and

expicit, and witnesses must be lacking in

confusion...

The evidence must be of such weight that it

produces in the mind of the trier of fact a

firm...conviction, without hesitancy, as to the

truth of the allegations sought to be established.

Slowmowitz v. Walker, 429 So.2d 787, 799 (Fla. 4th

DCA 1983).

50. The evidence submitted by Petitioner was clear

and convincing for the essential elements in the

charges against Respondent. The evidence submitted

by Respondent was neither credible nor persuasive.

51. When Respondent testified during the hearing,

he spent most of his opportunity to testify as a fact

witness by commenting on the testimony of other fact

witnesses called by Petitioner and by engaging in

legal argument as to why the testimony of those

witnesses should not be believed. The ALJ repeatedly

instructed Respondent that he was not

App. 18

using opportunity to testify in a manner that served

Respondent’s best interest because the ALJ could

consider as evidence only Respondent’s factual

testimony and that Respondent would have the

oportunity in his PRO to make legal argument as to

why Petitioner’s witnesses should not be believed.

Nonetheless, Respondent had difficulty under-

standing the distinction between legal argument and

fact testimony and the impropriety of a fact witness

commenting on the testimony of other fact witnesses.

52 Respondent is not subject to a lesser standard of

conduct, as distinguished from legal competence, than

a licensed attorney. A contrary rule would insulate a

party from applicable standards on conduct by

choosing __ lay representation. Cf. Jancyn

Manufacturing Corporation v. Florida Department of

Health, 24 Fla. L. Weekly D2232, 2233 (Fla. Ist DCA

1991); Burke v. Harbor Estate Associates, Inc., 591

So.2d 1034, 1037-1038 (Fla. Ist DCA (1991) (party

cannot avoid fees and costs in frivilous action

choosing lay representation). Accord Dolphins Plus v.

Residents of Key Largo Ocean Shores, 598 So.2d 324

(Fla. 3 DCA (1992).

53. Section 721.26(5\e) authorizes Petitioner to

impose a fine up to $10,000 for each seperate offense

committed by Respondent and a cease and desist

order barring Respondent from further conduct in

violation of applicable statutes. Florida

App. 19

Adminisstrative Code Rule 61B-4] provides guidance

in imposing statutorily authorized penalties.

54. In addition, the reasonableness of any penalty

imposed in this case should serve the legislative intent

stated in sections 721.02 and 721.03. In section

721.02, the legislature made clear that full and fair

disclosure in the sale of timeshares is necessary in

order to protect the quality of Florida’s timeshare

plans and the consumers who purchased them and to

safeguard the tourism industry that is vital to the

State’s economy.

RECOMMENDATION

Based upon the foregoing Findings of Fact and

Conclusions of Law, it is

RECOMMENDED .that Petitioner enter a final

order finding Respondent guilty of violating section

721.11(4)(aXh)\j\(k), entering a cease and desist order

prohibiting Respondent from further violations of

Chapter 721 in the sale of timeshares, imposing a civil

penalty in the amount of $28,000, and requiring

Respondent to pay the civil penalty within 45 days of

the date of this Recommended Order by certified

check made payable to the Treasurer, State of Florida,

Department of Business and Professional Regulation

which Respondent shall mail by certified mail to Mr.

John Floyd, Investigator Supervisor, Department of

Business

App. 20

and Professional Regulation, 1940 North Monroe

Street, Tallahassee, Florida 32399-1030.

s/

DANIEL MANRY,

Administrative Law Judge -

Division of Administrative Hearings

The DeSota Building

1230 Apalachee Parkway |

Tallahassee, Florida 32399-1007 |

(850) 488-9675

SUNCOM 275-9674

Fax Filing (850) 921-6847

www.doah.state.fl.us

Filed with the Clerk of the Division

of Administrative Hearings this 13th

day of April, 2000.

COPIES FURNISHED:

Philip Norwick, Director :

Florida Lad Sales, Condos, Mobile R

Homes, Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Barbara Auger, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Janis Sue Richardson, Esquire

Division of Florida Land Sales,

App. 20

Condominiums and Mobile Homes

Department of Business and

Professional Regulation

Northwood Centre(sic)

1940 North Monroe Street

Tallahassee, Florida 32399-1007

William S. Walsh

2156 Turnberry Drive (sic)

Oviedo, Florida 32765 (sic)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

X—_—_—_—_—_—_ EEN SUBMIT EXCEPTIONS

All parties have the right to submit written

exceptions within 15 days from the date of this

Recommended Order. Any exceptions to _ this

Recommended Order should be filed with the agency

that will issue the final order in this case.

EEE LSS

App. 21

APPENDIX B

Final Order No. BPR-2000002308 Date 6-15-00

Filed

Department of Business and Professional Regulation

AGENCY CLERK

Sarah Wachman, Agency Clerk

By: s/

Brandon M. Nichols

STATE OF FLORIDA

DEPARTMENT OF BUSINESS AND PROFESSIONAL

REGULATION, DIVISION OF FLORIDA LAND SALES,

CONDOMINIUMS, AND MOBILE HOMES

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF LAND SALES, (No stamped filing date)

Petitioner.

Vv. DOAH Case No. 99-3006

Docket No. YSI999115

WILLIAM S. WALSH,

Respondent.

/

FINAL ORDER

The Director of the Division of Florida Land

Sales, enters this Final Order in the above referenced

matter.

App. 22

PRELIMINARY STATEMENT

1. On June 1, 1999, the Division issued a Notice to

Show Cause which alleged that the Respondent,

William S. Walsh violated sections 721. 1(4)(a)(h)(j)

(k), Florida Statutes (1995). The Notice advised the

Respondent of his right to request a formal or

informal proceedings pursuant to chapter 120, Florida

Statutes.

2. On June 24, 1999, the Respondent answered the

Notice to Show Cause by letter and requested a

Formal Proceeding, which was initially scheduled for

December 1, 1999, Respondent requested a

continuance which was granted by the Administrative

Law Judge (ALJ).

3. On March 14, 2000, the Division of .

Administrative Hearings (DOAH) conducted a

hearing in Orlando, Florida by teleconference, with

Judge Manry presiding. Division was represented by

Janis Sue Richardson, Esquire. Respondent

represented himself. The hearing was conducted in

accordance with sections 120.569 and 120.57(1),

Florida Statutes. Upon conclusion of the hearing, the

ALJ allowed each party to submit proposed orders.

Respondent filed a request for a continuance on

March 22, 2000, by facsimile. The ALJ indicated in

his Recommended Order thyat both parties timely

filed proposed recommended orders. Recommended

Order at 2.

App. 23

4. Petitioner presented testimony of eight wit-

nesses’ by deposition admitted by the ALJ before the

hearing; presented the testimony of 5 witnesses at the

hearing, and submitted 13 exhibits for admission at

the hearing. Respondent testified in his own behalf,

called one witness, and submitted 8 exhibits for

admission at the hearing. The rulings on the evidence

are in the record.

5. On April 13, 2000, the ALJ entered a

Recommended Order finding that Walsh had violated

section 721.11(4)(a)h)(j)(k), Florida Statutes (1995)

by making oral misrepresentations in his sales pitch to

timeshare purchasers. Recommended Order at 13-14.

6. Neither party requested a copy of the transcript.

Recommended Order at 2.

7. On April 25, 2000, Respondent filed his

Exceptions to the Recommended Order, but did not

file a copy of the hearing transcript.

8. Petitioner did not file exceptions, but did file a

reply to Respondent’s exceptions on May 3, 2000.

RULING ON EXCEPTIONS FILED BY

RESPONDENT

' Susan Bailey, Larry Eshleman, Cheryl LaFountaine, Mildred Plotkin,

Thomas Prussak, Cynthia Richards, Maxine Shelt, and Raymond Sindel.

E

App. 24

9. Respondent enumerates 43 exceptions to the

Recommended Order.2 Numbers 1-35° are except-

ions to the Findings of Fact, numbered 44-54 are

exceptions to the Conclusion of Law. Because Walsh

did not file a copy of the transcript of the hearing, the

Division is unable to review the entire record.

Therefore, the Division may not reject or modify any

of the findings of fact in the Recommended Order.

See Financial Marketing Group, Inc., v. State, Dept

of Banking and Finance,352 So.2d 524 (Fla. 3d DCA

1077).

10. Respondent raises one procedural exception,

number 1, to the finding of both parties timely filed

their Proposed Recommended Orders (PRO).

Respondent claims that Petitioner filed its PRO a day

late. As the filing in PRO’s is within the discretion of

the ALJ under Florida Administrative Code Rule 29-

106.215 and the ALJ determined that the filing was

timely, this exception is rejected. Further, Respondent

has not alleged, nor can he show, that he has been

prejudiced by the ALJ’s determination _ that

Petitioner’s filing, one day after his, had prejudiced

him in any way.

? Walsh’s exceptions are numbered | through 35 in the Findings of Fact,

however, there was no number 17 or 34. His exceptions to the Conclusions

of Law are numbered 44-45, however, number 44 is noted as “accepted.”

Each numbered exception has one or more subsets.

> See note 3.

App. 25

11. Florida case law holds that an agency reviewing

a recommended order is not authorized to reevaluate

the quantity and quality of the evidence presented at

an administrative hearing beyond determining

whether the evidence is competent and substantial.

Brogan v. Carter, 671 So.2d 822, 823 (Fla. Ist DCA

1996). On reviewing a recommended order, an

agency may not reweigh the evidence, resolve

conflicts, or judge the credibility of witnesses, as

those are evidentiary matters within the province of

the ALJ as the fact-finder. See Martuccio (sic) v. Dept

of Prof. Reg., 622 So.2d 607 (Fla. Ist DCA 1993);

Heifetz v. Dept of Bus. Reg., 475 So.2d 1277, 1281

(Fla. Ist DCA 1985). The Division is bound by the

ALJ’s factual findings where the record of the hearing

discloses any competent substantial evidence

supporting the findings of fact. Florida Dept of

Corrections v. Bradley, 510 §.2d 1122, 1123 (Fla. Ist

DCA 1987).

12. Even if the agency had had the record to review,

all of Respondent’s exceptions would be rejected

because they would require the agency to reweigh the

credibility of witnesses, reassess evidence, resolve

conflicts in testimony, insert new testimony in the

record or revise testimony. See section 120.57(1)(1),

Fla. Stat.; Martuccio (sic) v. Dept of Prof. Reg., 622

So.2d at 609. Further, many

App. 26

of Respondent’s exceptions are gratuitous attacks on

the integrity of the ALJ and Opposing counsel and

must be rejected as improper.

A. EXCEPTIONS TO FINDINGS OF FACT

13. Respondent’s exceptions la,1c,2,3,4,5,5a,6,

6a,6b,7,7a,8,8a,9,10,11,14,14a,15,1 9,19a,20,21,21a,

22, 23,27,28a,3 1,32a,33, and 35 are rejected as they

are requests to reweigh the evidence or resolve

alleged conflicts in the evidence. See 120.57(1)(1)

Fla. Stat., Martuccio (sic), 609 So.2d at6 609.

14. Respondent’s exceptions 1b,2,3,4,5,5a,6,6a,7,

7a,8a,8b,9a,14,16,18,19,19a,20,21,21 a,23,24,25,27,

28,28a,29,30,3 1 ,32,32a,33, and 35a are rejected as

these exceptions are an attempt to rewrite testimony

or to insert new facts alleged by Respondent into the

record. See 120.57(1)(1), Fla. Stat.; Martuccio (sic)

622 So.2d at 609.

15. Respondent’s exceptions to 3,1 1,19,22,25,26,

and 27 are rejected as these are a request to reassess

the credibility of witnesses. See 120.57(1)(1), Fla.

Stat., Martuccio (sic) 622 So.2d at 609.

16. Respondent’s exceptions 26 and 32a are legal

argument and are rejected. See 120.57(1)(1), Fla.

Stat.; Martuccio (sic), 622 So.2d 609.

17. Respondent’s exceptions 1b,3,5,8a,8b,9-15,18-

19a,22,24,25,26,27,28,32a,35,35a, and 45-54

App. 27

are improper commentary, or gratuitous attacks on

counsel for Petitioner or the ALJ. These exceptions

are rejected. See 120.57(1)(1), Fla. Stat.; See

Martuccio (sic), 622 So.2d at 609; see Generally

Bellsouth Human Resourses Admin., Inc.,_ v.

Colartarci, 641 So.2d 427 (Fla. 4th DCA 1994)

(proper argument is restricted to the issues in the

pleadings, the facts shown by evidence and inferences

drawn from these facts, not an attack on counsel).

18. Respondent’s exceptions 21,24, and 25 rely

upon a credit card application he introduced at

depositions of two witnesses, which depositions were

admitted into evidence. The ALJ ruled that the credit

card applications were not admissible over

Petitioner’s objections raised during the depositions.

Order (March 9, 2000). Therefore, Respondent's

exceptions 21,24 and 25 are rejected.

19. Respondent’s exceptions 27-31 are to Findings

of Fact 33-40, which are letters admitted as similar

fact evidence under section 120.57(1)(d), Florida

Statutes. There is competent substantial evidence and

legal basis for Findings of Fact 33-40; therefore,

Respondent’s exceptions 27-31 are rejected.

20. Respondent’s exceptions 32a to Findings of

Fact 41 also argues that the ALJ should not have

refused his request to allow a post-hearing

App. 28

deposition of a witness who did not appear for the

purpose of impeaching one of Petitioner’s witnesses.

The Recommended Order notes that Respondent

testified in his own behalf and presented the testimony

of one witness. Recommended Order at 2. All

rulings on evidence are in the transcript. /d. The

absent witness was being called to impeach one of

Petitioner’s witnesses on a fact that does not appear to

be material to this case. Even if Respondent’s no-

show witness had offered impeachment testimony on

a single immaterial fact, the Division may not modify

the ALJ’s judgement on the weight given the evidence

or credibility of the witness. The Division rejects this

exception as a request to second guess the ALJ on an

evidentiary ruling without benefit of a transcript.

Further, there is competent substantial evidence to

support Findings of fact 41.

21. All of the Administrative Law Judge’s findings

of fact are supported by competent, substantial

evidence, therefore all of Respondent’s exceptions are

rejected.

B. EXCEPTIONS TO CONCLUSION OF LAW

22. Respondent accepted Conclusion of Law 44,

but filed exceptions to Conclusions of Law 45-54.

The Division finds that the ALJ’s Conclusions of Law

are Correct and rejects all of Respondent’s exceptions.

App. 29

23. Exception 45 challenges Conclusion of Law 45

in which the ALJ found that Petitioner had the burden

of proof, that it had to prove allegations by clear and

convincing evidencem and that it had to show the

reasonableness of the penalty sought. Respondent

does not really argue with the standard of proof, but

states that the ALJ has not reviewed the entire record.

The Division rejects Respondent’s unfounded attack

on the ALJ as it is directed at the Conclusion of Law,

and the ALJ’s conclusion is correct. Therefore,

exception 45 is rejected.

24. Exception 46 simply disagrees with Conclusion

of Law 46 in which the ALJ found that Petitioner had

proven its case by clear and convincing evidence.

The ALJ’s conclusion of law is correct; therefore

exception 46 is rejected.

25. Exception 47 challenges Conclusion of Law 47

in which the ALJ quotes the applicable portions of the

statute at issue, section 721.11(4), Florida Statutes.

Respondent argues that he has not violated this

statute, but does not indicate that the citation is

incorrect. The ALJ’s conclusion of law is correct;

therefore, exception 47 is rejected.

26. Exception 48 challenges Conclusion of Law 48,

in which the ALJ found that Respondent violated

section 721.11(4\a)(h\j)(k), Florida Statutes, through

repeated oral misrepresentations made to

App. 30

induce people to purchase a timeshare, by attacking

the ALJ. The ALJ’s conclusion of law is correct;

therefore, exception 48 is rejected.

27. Exception 49 challenges Conclusion of Law 49,

which is a citation authority defining the clear and

convincing standard of proof. Respondent challenges

this conclusion by claiming that none of the witnesses

testimony is “credible” and that the ALJ ignored the

evidence he prooffered. This is a challenge to the

weight of the evidence, not to the legal conclusion,

and is valid. The ALJ’s conclusion of law is correct;

therefore, exception 40 is rejected.

28. Exception 50 challenges Conclusion of Law 50,

which finds the Petitioner’s evidence was clear and

convincing on each of the charges presented, and

finds that Respondent’s evidence was neither credible

nor persuasive. Respondent again attacks the ALJ

with accusations of bias and failure to review the

evidence. This is improper argument. The ALJ’s

conclusion of law is correct; therefore, exceptiuon 50

is rejected.

29. Exception 51 challenges Conclusion of Law 51,

which finds that Respondent used his opportunity to

testify to the facts as an opportunity to attack the

credibility of the witnesses and the weight of the

evidence despite repeated instructions as to the

purpose of giving testimony. Respondent

App. 31

states that the ALJ’s interpretations were deliberate

attempt to confuse him because the ALJ “didn’t want

to hear the truth.” Exceptions at 52. This is improper

legal argument. The ALJ’s conclusion of the law is

correct; therefore, exception 51 is rejected.

30. Exception 52 challenges Conclusion of Law 52,

in which the ALJ found that Respondent was not held

to a lesser standard of conduct at the hearing.

Respondent cites a federal case law on the filing of

pro se complaints, which is not on point and does not

apply to administrative proceedings under chapter

120, Florida Statutes. The ALJ’s conclusion of law is

correct; therefore, exception 51 is rejected.

31. Exception 53 challenges Conclusion of Law 53

in which the ALJ found that the Division may impose

a penalty for violation of chapter 721, Florida

Statutes. Respondent’s comments are improper. The

ALJ’s conclusion of law is correct; therefore,

exception 53 is rejected.

32. Exception 54 challenges Conclusion of Law 54

in which the ALJ found that the reasonableness of any

penalty should comport with the legislative purpose of

ensuring full and fair disclosure in timeshare sales.

Respondent again attacks the ALJ, rather than

presenting legal argument. The ALJ’s conclusion of

law is correct; therefore, exception 54 is rejected.

App. 32

FINDINGS OF FACT

33. The Division hereby adopts and incorporates by

reference the Findings of Fact numbered | through

43° as set forth in the Recommended Order.

CONCLUSION OF LAW

Based on the foregoing findings of fact and

conclusions of law, it is hereby ordered that:

1. Respondent cease and desist from any further

violations of chapter 721, Florida Statutes.

2. Respondent pay a penalty of $28,000 by

cashier’s check or money order made payable to

Treasurer, State of Florida, Department of Business

and Professional Regulation within 45 days of the

date of this Order, which Respondent shall mail by

certified mail to Mr. John Floyd, Investigator

Supervisor, Department of Business and Professional

Regulation, 1940 North Monroe Street, Tallahassee,

Florida 32399-1030.

DONE AND ORDERED in Tallahassee, Leon

County, Florida, this 15th day of June, 2000.

s/

Ross Fleetwood, Director

Division of Florida Land

: There is no number 28.

App. 33

Sales, Condominiums, and

Mobile Homes, Department

of Business and Professional

Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1030

NOTICE OF APPEAL

THIS _F O ONSTITUT IN

AGENCY ACTION AND MAY BE APPEALED BY ANY

PARTY SUNSTANTIALLY AFF THIS FINAL

ORDER PURSUANT TO _SE N 6 LORIDA

STAT S, AND E_ 9.1 ULE F

APPELLAT ED NOTICE OF

APPEA NFORMI I NTS 5

9.110(D), FLORIDA _¥§ RULES___OF_ ¥» APPEALLATE

PROCEDURE. BOTH _ WI T PPROPRIATE

DIS’ , OF APPEAL M D BY THE

APPR ATE FILIN ND _ W N

CL EPART T D

PR E T 940 NORTH

MON T 2399-

007_ WITHIN YS_OF T

ORDER.

App. 34

CERTIFICATE OF SERVICE

[ HEREBY CERTIFY that a true and correct copy of

the foregoing has been furnished by U.S. Certified Mail to

William S. Walsh, 2156 Turnberry Drive, Oviedo, Florida

32765 this _— day of , 2000.

No Signature

Copies furnished to:

Division of Administrative Hearings

Janis Sue Richardson,

Office of the General Counsel

Laura Glenn, Bureau Chief of Timeshare

App. 35

APPENDIX C

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

DIVISION OF LAND SALES, CONDOMINIUMS,

AND MOBILE HOMES, DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION, 1940 NORTH MONROE STREET

TALLAHASSEE, FLORIDA 32399-1030

DIVISION OF FLORIDA LAND FILED

SALES, CONDOMINIUMS, AND DBPR

MOBILE HOMES, DEPARTMENT AGENCY CLERK

OF BUSINESS AND PROFESSIONAL CLERK S$/

REGULATION, DATE 7-21-2000

Petitioner, DOAH CASE NO.

99-3006

Vv. BPR No. TS 991285

1TS19991125

WILLIAM S. WALSH, Received by General

Counsel's office on

Respondent, July 26, 2000

__/

ORDER DENYING RESPONDENT'S MOTION

FOR REHEARING

Petitioner, the Division of Florida Land Sales,

Condominiums, and Mobile Homes within the Department of

Business and Professional Regulation (Division), denies

Respondent William S. Walsh’s (Walsh) motion for rehearing.

FINDINGS OF FACT

1. A final order adopting a Recommended Order

in full was rendered in this case on June 15, 2000.

The Final Order addressed Walsh’s exceptions,

App. 36

which were filed without a copy of the hearing.

2. Walsh filed a motion for rehearing on July 6,

2000. Walsh asserts three reasons as to why the

Division should rehear this case: (1) the

Administrative Law Judge’s Recommended Order

lacked substantial competent evidence in the seven

witnesses deposition transcripts; (2) the Division did

not have a hearing transcript, but had seven deposition

transcripts admitted into evidence; (3) the Division

has exceeded its delegated legislative authority.

Walsh requests a rehearing to “prove there is no

competent evidence used by the ALJ and the Agency

in the preparation of the Final Order.”

3. Walsh claims are directed to the substantive

issues decided by the Administrative Law Judge.

Walsh raised these claims in his exceptions to the

Recommended Order without filing a transcript of the

hearing. Walsh claims were ruled upon in the Final

Order.

CONCLUSION OF LAW

4. There is competent substantial evidence to

support the Division’s findings of fact.

5. There is no statute or rule authorizing the

Division to rehear its Final Orders. See sections

120.569, 120.57, Fla. Stat.; ch. 28-106, Fla. Admin.

Code, et seq.; Systems Mgmt. Assocs., Inc. v. State,

Ce

App. 37

Dept of Health and Rehab. Servs., 391 So.2d 688

(Fla. Ist DCA 1980).

6. Walsh does not point to any clerical error

justifying the need to amend the fins! order. See

Taylor v. Department of Prof. Reg., Bd. of Medical

Examiners, 521 So.2d 557 (Fla. 1988). Walsh does

not assert that there has been a _ change in

circumstances or that there exists a public need to

modify the final order. See Russel v. Department of

j Prof. Reg., 645 So.2d 117 (Fla. Ist DCA 1994).

7. There is no factual or legal basis authorizing the

Division to rehear this case or reconsider its Final

Order. Walsh claims fall within those addressed on

appeal. See section 120.68, Fla. Stat. Further, the

time for appeal runs from the entry of the Final Order.

See Systems Mgmt., 391 So.2d at 690.

8. There is competent substantial evidence to

support the Division’s conclusion of law.

ORDER

It is, hereby, ORDERED that Respondent’s

Motion for Rehearing is DENIED.

DONE AND ORDERED in Tallahassee, Leon

County, Florida, this 20th day of July, 2000.

“Seal” of

Ross Fleetwood, Director

App. 38

Division of Land Sales,

Condominiums, and

Mobile Homes, Department

of Business and Professional

Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-

1030

CERTIFICATE OF SERVICE

[| HEREBU CERTIFY that a true and correct

copy of the foregoing has been sent by U.S. Mail to

William S. Walsh, 2156 Turnberry Drive, Oviedo,

Florida 32765, this 24th day of July, 2000.

s/

Kristie Harris, Docket Clerk

Copies furnished to:

Laura Glenn, Bureau Chief

Mary Devise O’Brien, Assistant

General Counsel.

App. 39

APPENDIX D

(Published)

IN THE DISTRICT COURT OF APPEAL OF THE STATE

OF FLORIDA, FIFTH DISTRICT

WILLIAM S. WALSH,

Appellant,

v. Case No. SDOO-1938

DEPARTMENT OF-BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF FLORIDA LAND SALES,

CONDOMINIUMS AND MOBILE HOMES.

Appellee.

Decision filed April 10, 2001

Administrative Appeal from the

Department of Business and

Professional Regulation.

William S. Walsh, Oviedo, pro se

Janis Sue Richardson of

Department of Business

and Professional Regulation, etc.

for Appellee.

PER CURIAM

AFFIRMED.

COBBS, PLUES, AND PALMER JJ.,

CONCUR.

App. 40

APPENDIX E

(PUBLISHED)

IN THE DISTRICT COURT OF APPEAL OF THE

STATE OF FLORIDA, FIFTH DISTRICT

WILLIAM S. WALSH,

Appellant,

v. Case No. SDOO-1938

DEPARTMENT OF BUSINESS

AND PROFESSIONAL, ETC..,

Appellee,

Date: May 10, 2001

BY ORDER OF THE COURT:

ORDERED that Appellant's MOTION

FOR REHEARING. filed April 20, 2001, is

denied.

| hereby certify that the foregoing is

(a true copy of) the original Court

Order.

/s/ FRANK J. HABERSHAW, CLERK