STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL RICHTER, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3226

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) DIVISION OF FLORIDA LAND SALES ) CONDOMINIUMS, AND MOBILE HOMES )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this case on September 5, 1995, in Fort Lauderdale, Florida, before Patricia Hart Malono, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael Richter, pro se

17168 Newport Club Drive Boca Raton, Florida 33469

For Respondent: Patricia A. Draper, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

STATEMENT OF THE ISSUE

Whether the petitioner's application for renewal of his community association manager's license should be granted or denied.

PRELIMINARY STATEMENT

In a Notice of Intent to Deny Application for Renewal of Community Association Manager's License No. 1,439, dated May 26, 1995, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, Bureau of Condominiums (referred to collectively as the "Department"), notified Michael Richter that it intended to deny his license renewal application because he "failed to submit a renewal application postmarked by October 31, 1994, as required by rule 61B-55.006(3), Florida Administrative Code. Your application was postmarked March 10, 1995." Mr.

Richter timely filed a Request for Formal Hearing, and the case was forwarded to the Division of Administrative Hearings for formal proceedings. By Notice of

Hearing, this case was set for final hearing on August 11, 1995. The Department's Motion to Continue was granted, and the hearing was rescheduled for September 5, 1995.

Mr. Richter testified on his own behalf at the hearing. He did not offer any documents into evidence. The Department called one witness, Geri Ricord, a management review specialist with the Department's Bureau of Condominiums. The Department's Exhibits 1 through 6 were offered and received into evidence.

The transcript was filed, and the parties timely submitted proposed recommended orders. Rulings on the parties' proposed findings of fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made:

1. Mr. Richter is a licensed community association manager, having been issued license number 1,439 by the Department in 1988. Mr. Richter's community association manager's license was renewed by the Department in 1990 and 1992. Mr. Richter is also licensed by the Department of Business and Professional Regulation as a real estate broker and as a Certified Public Accountant.

   
   

2. The Department of Business and Professional Regulation, through its Division of Florida Land Sales, Condominiums, and Mobile Homes, is the state agency charged with the administration of chapter 468, part VIII, Florida Statutes, and is specifically responsible for reviewing and approving applications for renewal of community association manager's licenses. The Bureau of Condominiums carries out this function.

   
   

3. Community association manager's license renewal applications for the 1994 renewal year were required to be postmarked no later than September 30, 1994.

   
   

4. On or about September 15, 1994, Mr. Richter mailed his completed 1994 license renewal application to the Department, together with a check made payable to the Department in the amount of $50.00, the required license renewal fee.

   
   

5. In late November 1994, Mr. Richter telephoned the Department and inquired about the status of his renewal application. He spoke with Donald Sapp, an employee of the Bureau of Condominiums, who told him that the Department was behind in processing renewal applications for community association manager's licenses.

   
   

6. The Department completed processing applications for the 1994 renewal period in mid-January 1995.

   
   

7. On February 17, 1995, Mr. Richter telephoned the Bureau of Condominiums and advised Mr. Sapp that he had not received his 1994 license and that the check he wrote for the fee had not cleared his bank. Mr. Sapp stated that he would look into the matter and call Mr. Richter back.

8. On February 21, 1995, Mr. Sapp telephoned Mr. Richter and advised him that the Department had no record of having received his 1994 license renewal application and check. Mr. Sapp asked Mr. Richter to send the Department a copy of his check register for the period including September 15, 1994, a copy of his bank statements for September, October, and November 1994, and a copy of a stop payment order on the check he wrote for the license renewal fee.

   
   

9. On February 22, 1995, Mr. Richter sent Mr. Sapp, via Airborne Express, a copy of his check register and of the requested bank statements. He refused to place a stop payment order on his check, however.

   
   

10. On March 10, 1995, Mr. Richter sent the Department a replacement check in the amount of $50.00 for the 1994 license renewal application fee. This check was received and, in accordance with standard procedure, deposited by the Department.

    
    

11. Mr. Richter completed all of the continuing education hours required for license renewal prior to September 30, 1994.

    
    

12. Mr. Richter has proven by a preponderance of the evidence that he timely mailed his 1994 license renewal application and that he should be granted a community association manager's license for 1994-1996.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties hereto pursuant to section 120.57(1), Florida Statutes.

    
    

14. Section 468.433(1), part VIII, Florida Statutes, gives the Department responsibility for licensing and regulating community association managers. Pursuant to the grant of rulemaking authority in section 468.433(3), the Department has promulgated rules "to implement, enforce, and interpret" its duties under chapter 468, part VIII, Florida Statutes.

    
    

15. Rule 61B-55.006(3), Florida Administrative Code, provides that all community association manager's licenses must be renewed every two years, and the completed applications for renewal must be postmarked by September 30 of every even-numbered year. Pursuant to this rule, the renewal application must be accompanied by a check or money order for the correct renewal fee. Renewal applicants are given a grace period, and renewal applications are accepted and processed if postmarked by October 31 of the renewal year; a $25.00 late fee must accompany these late applications. If the renewal application is postmarked after October 31, the license is deemed expired, and the applicant "shall be required to make an initial application to the division and proceed as provided in rule 61B-55.004 and rule 61B-55.005, Florida Administrative Code." Rule 61B-55.006(3) and (6), F.A.C.

    
    

16. The applicant has the burden of proving entitlement to a license or certificate by a preponderance of the evidence. Osborne Stern & Co. v. Department of Banking & Finance, Division of Securities & Investor Protection, 647 So. 2d 245, 248 (Fla. 1st DCA 1994); Florida Department of Transportation v.

    J.W.C. Co., 396 So. 2d 778, 787 (Fla. 1st DCA 1981). The applicant need address only those issues raised in the agency's notice of intent to deny. See section 120.60(2), Fla. Stat.("Each agency, upon issuing or denying a license, shall state with particularity the grounds or basis for the issuance or denial . . .

    ."); cf. Kinney v. Department of State, 501 So. 2d 129, 133 (Fla. 5th DCA

    1987)(disciplinary action may be taken against a licensee based only upon the offenses specifically alleged in the administrative complaint); Wray v.

    Department of Professional Regulation, Board of Medical Examiners, 435 So. 2d

    312 (Fla. 1st DCA 1983).

    
    

17. The Department denied Mr. Richter's 1994 license renewal application as untimely, and the proof clearly establishes that the Department did not receive a renewal application from Mr. Richter postmarked on or before October 31, 1994.

    
    

18. However, Mr. Richter testified that he dropped his 1994 license renewal application at the post office on or about September 15, 1994, and this testimony is credible and persuasive.1/ The Department did not present persuasive evidence to rebut Mr. Richter's proof.2/ Mr. Richter has, therefore, carried his burden of ultimate persuasion and has proven by a preponderance of the evidence that he satisfied the mailing, that is, "postmark," requirements of rule 61B-55.006(3). Mr. Richter is entitled to a community association manager's license for 1994-1996.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is:

RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order finding that Michael Richter's 1994 community association manager's license renewal application was postmarked prior to the September 30, 1994, deadline and granting Mr. Richter's application for a renewal license for 1994-1996.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of April 1996.

PATRICIA HART MALONO

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April 1996.

ENDNOTES

1/ Mr. Richter's testimony that he mailed the application by dropping it at the post office at or about the time he wrote the check on September 15, 1994, is credible and sufficient to prove, prima facie, that his renewal application was mailed at that time. The credibility of Mr. Richter's testimony on this point is buttressed by his testimony that it is his practice to mail renewal applications for his various licenses fifteen to thirty days prior to the deadline and by the fact that he timely submitted his applications for renewal of his community association manager's license in both 1990 and 1992.

2/ The Department presented Mr. Richter's check register and bank statements for the period encompassing September 15, 1994, to rebut Mr. Richter's evidence that he timely mailed his renewal application. The Department considers it abnormal that the check for the renewal fee was out-of-sequence on his check register. It considers suspect Mr. Richter's refusal to stop payment on the check he claimed to have written for the renewal application fee and considers it significant that he does not have proof that he timely mailed the application.

Even assuming that the check register, bank statements, and stop payment order are relevant to prove that Mr. Richter's renewal application was not timely mailed, his testimony explaining the out-of-sequence check and his refusal to place a stop payment order on the check is credible and credited. In addition, there is no statutory or rule requirement that the renewal application be mailed via certified or registered mail or by any other method producing a receipt, and Mr. Richter's failure to have physical proof of mailing is not relevant to prove that he did not mail the application timely.

APPENDIX

The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact

Paragraphs 1, 3, and 4 and the first and second sentences of paragraph 6: Adopted and incorporated in substance but not verbatim in paragraphs 3, 4, 5, and 7 through 10.

Paragraphs 2, 7, and 8 and the third sentence of paragraph 6: Accepted but not incorporated in the findings of facts because subordinate to the facts as found or unnecessary to resolution of the issues presented.

Paragraph 5: Adopted and incorporated in substance but not verbatim in paragraphs 8 and 9 except to the extent that the proposed findings of fact are subordinate to the facts as found or unnecessary.

Last sentence of paragraph 6: Included in the Preliminary Statement.

Respondent's Proposed Findings of Fact

Paragraph 1: Adopted and incorporated in substance but not verbatim in paragraphs 1 and 2.

Paragraphs 2, 4, 8 through 10, 15 through 17, and 19: Accepted but not incorporated in the findings of fact because subordinate to the facts as found or unnecessary to resolution of the issues presented.

Paragraph 3: The proposed finding of fact in the second sentence is adopted and incorporated in substance but not verbatim in paragraph 3. The proposed finding of fact in the last sentence is accepted but not incorporated in the findings of fact because subordinate to the facts as found or unnecessary. The remaining proposed findings of fact are rejected as findings of fact but included in paragraph 15 of the Conclusions of Law.

Paragraph 5: Adopted and incorporated in substance but not verbatim in paragraph 8 that Mr. Richter's original 1994 renewal application had not been received by the Department as of the date of hearing and in paragraph 10 that Mr. Richter sent a check made payable to the Department in the amount of $50.00 in March 1995. The remaining proposed findings of fact are accepted but not incorporated in the findings of fact because subordinate to the facts as found or unnecessary.

Paragraph 6: The proposed findings of fact in the second and third sentences are accepted but not incorporated in the findings of fact because subordinate to the facts as found or unnecessary. The remaining proposed findings of fact are rejected as argument.

Paragraph 7: The proposed findings of fact in the second and third sentences are accepted but not incorporated in the findings of fact because subordinate to the facts as found or unnecessary. The remaining proposed findings of fact are rejected because subordinate or contrary to the facts as found.

Paragraph 11: The proposed finding of fact in the fourth sentence is accepted but not incorporated in the findings of fact because subordinate to the facts as found or unnecessary. The remaining proposed findings of fact are rejected as argument.

Paragraph 12: Adopted and incorporated in substance but not verbatim in paragraphs 7 and 8 except that the proposed finding of fact in the last sentence is rejected as not supported by the evidence.

Paragraph 13: Accepted but not incorporated in the findings of fact because subordinate to the facts as found or unnecessary, except that the proposed finding of fact in the last sentence is rejected as not supported by admissible evidence.

Paragraph 14: Adopted and incorporated in substance but not verbatim in paragraph 9, except to the extent the proposed findings of fact are subordinate to the facts as found or unnecessary.

Paragraph 18: The proposed finding of fact in the first sentence is rejected as a finding of fact but included in paragraph 15 of the Conclusions of Law. The remaining proposed findings of fact are accepted but not incorporated in the findings of fact because subordinate to the facts as found or unnecessary.

Paragraph 19: The proposed findings of fact are accepted but not incorporated in the findings of fact because irrelevant to resolving the issues presented.

COPIES FURNISHED:

Michael Richter, pro se 17168 Newport Club Drive Boca Raton, Florida 33469

Patricia A. Draper, Esquire Department of Business and Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street Northwood Centre

Tallahassee, Florida 32399-0792

W. James Norred, Acting Director Department of Business and

Professional Regulation Division of Florida Land Sales,

Condominiums, and Mobile Homes 1940 North Monroe Street Northwood Centre

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 95-003226

Orders for Case No: 95-003226