STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 96-3153

)

EDWARD JOHN BRENNAN, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Bradenton, Florida on September 26, 1996, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Department of Business and Professional Regulation

Division of Real Estate

400 West Robinson Street, N-308 Post Office Box 1900

Orlando, Florida 32802-1900

For Respondent: Edward J. Brennan, pro se

4114 Pro Am Avenue Bradenton, Florida 34203

STATEMENT OF THE ISSUE

The issue for consideration in this case is whether Respondent's license as a real estate salesperson should be disciplined because of the matters alleged in the Administrative Complaint filed herein.

PRELIMINARY STATEMENT

By Administrative Complaint dated April 21, 1996, Henry M. Solares, Director of the Division of Real Estate, for Richard T. Farrell, Secretary of the Department of Business and Professional Regulation, charged Respondent with obtaining a license by means of misrepresentation, in violation of Section 475.25(1)(m), Florida Statutes. Respondent requested formal hearing on the allegations and this hearing ensued.

At the hearing, Petitioner presented the testimony of Steven Pence, an investigator with the Department, and introduced Petitioner's Exhibits 1 through

1. Respondent testified in his own behalf and presented the testimony of his wife, Gisele Brennan.

   
   

   No transcript of the proceedings was furnished. Subsequent to the hearing, neither party submitted any matter and both concurred in the issuance of an expedited Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. At all times pertinent to the issues herein, the Department of Professional Regulation's Division of Real Estate and the Florida Real Estate Commission were the state agencies in Florida responsible for the licensing of real estate professionals and the regulation of the real estate profession in this state. Respondent was licensed as a real estate salesperson under license number SL 0566467.

      
      

   2. Mr. Brennan was licensed in Florida as a salesperson in 1990, and his initial license expired on March 31, 1992. It was renewed on time and due to expire a second time on March 31, 1994.

      
      

   3. Consistent with Florida Real Estate Commission requirements, a real estate salesperson is required to complete no less than 14 hours of continuing professional education in the two years prior to license renewal. Of these, 11 hours of course work can be in a specialized area, but at least 3 of the 14 hours must consist of core law, legal information designed to update the salesperson on the changes to Commission rules and policies and changes in the law as it relates to the practice of real estate in the interim since the prior renewal. Licensees periodically are put on notice of the requirement for continuing education and what it must entail, and with or before application for renewal, must certify as to the taking, testing and passing of the required courses. If a licensee certified compliance with the continuing education requirement but, in fact, was not in compliance, that individual would be in violation of the Commission rules even if the required fees were paid.

      
      

   4. On January 27, 1994, Respondent applied for renewal of his salesperson's license which was due to expire on March 31, 1994. Along with his application for renewal, Respondent submitted his check for $68.50 made payable to the Department, and affirmed he had completed the required 14 hours of continuing education for the license period beginning April 1, 1994. The license was renewed.

      
      

   5. By letter dated June 15, 1995, Respondent was notified by Barbara Rohloff, a records supervisor for the Department, that his 1994 renewal application had been selected for audit. As a result of that audit it was determined that Respondent had completed the required 11 hours of specialty education and an additional 3 hours in "Agency: Choices, Challenges and Opportunities," also a specialty course but not approved for credit toward the required "core law" portion of the continuing education requirements. Therefore, though Respondent had completed 14 hours of continuing education as required, that 14 hours did not include the required 3 hours of core law.

      
      

   6. The 11 hours of specialty education Respondent took was course number

      100 of the Realtors Institute Course and was approved by the Florida Association of Realtors. The 3 hour course was taken through the Coldwell Banker School of Real Estate in Sarasota in November 1993, and was also an approved course, but it did not meet the requirements for the 3 hour core law course. As a result of

      this discovery, a determination was made to charge Respondent with misconduct as alleged in the Administrative Complaint.

      
      

   7. Respondent contends he took the above-described courses in the misinformed opinion that by doing so he was meeting the Commission requirements. When he was first licensed, he was advised he must take and pass 14 hours of continuing education every two years. The 11 hour course was taken in 1991, in advance of the renewal period, upon the representation of the Century 21 instructor with whom the course was taken that was acceptable. When Respondent went to take that 11 hour course, along with his wife, also licensed as a real estate salesperson, a representative of the Sarasota Board of Realtors advised them that the 11 hour course was acceptable toward the continuing education requirements and that they would need an additional 3 hours.

      
      

   8. When the real estate brokerage with which the Brennans had placed their licenses was sold to another brokerage, Coldwell Banker, they moved their licences to the new brokerage and went to work with that firm. Coldwell Banker offered the 3 hour course which Respondent took and which has been determined not to be acceptable, and Respondent claims the representative of Coldwell Banker advised him, wrongly, it would appear, that the 3 hour course in issue would meet the Commission's requirements. Though this allegation is self- serving to the Respondent, it was not contradicted and is accepted.

      
      

   9. Respondent denies any intent to mislead or misrepresent. He gained no advantage by taking the instant 3 hour course over the required course. He saved no time or money, it would appear, and there appears to be no reason for him to have intentionally taken the wrong course or to mislead the Commission. Through all his post-audit communication with the Commission, he relates, he was never advised, in a way he understood, just what he should have done in place of what he did, until the day of the hearing when it was explained to him by Petitioner's counsel.

      
      

   10. Respondent now admits that he did not have the required hours in the correct course, but adamantly asserts he did not, at the time, know or understand what was the problem. That would appear to be the case, and it is so found. The Petitioner presented no evidence to demonstrate an intent to mislead or to misrepresent by Respondent.

       
       

       CONCLUSIONS OF LAW

       
       

   11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

       
       

   12. In its Administrative Complaint, the Petitioner alleges that Respondent obtained renewal of his real estate salesperson's license through misrepresentation by certifying he had taken the required courses when, in fact, though he had taken the required number of hours, one course, for 3 hours, was not in the required subject matter, in violation of Section 475.25(1)(m), Florida Statues. In the Administrative Complaint, Petitioner does not indicate what penalty it seeks to impose but lists, as possible disciplinary action, everything from reprimand to revocation. In that case, the burden is on the Petitioner to establish Respondent's guilt of the offense alleged by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

       
       

   13. Section 475.25(1)(m), Florida Statutes, authorizes the Florida Real Estate Commission to discipline a licensee if it finds that the licensee "has

       obtained a license by means of fraud, misrepresentation, or concealment." In this case the Petitioner has not alleged either fraud or concealment and relies completely on its allegation that in seeking to renew his license, Respondent misrepresented the accurate number of creditable hours of continuing education he had completed in the pertinent renewal cycle.

       
       

   14. The evidence of record reflects that the Commission requirements for license renewal include 14 hours of continuing education within the two years prior to renewal. Respondent had 14 hours of continuing education is the pertinent period. Unfortunately for him, the 3 hour course he took in addition to the acceptable 11 hour course, was not approved by the Division of Real Estate for credit toward completing the "Core Law" portion of the continuing education requirements, and technically, when Respondent certified his completion of the required continuing education at the time he submitted his renewal application, his representation was inaccurate. Respondent now admits this.

       
       

   15. However, by no stretch of the imagination can this discrepancy be considered deliberate misrepresentation of a material fact so as to justify discipline. An honest, simple mistake, even as to a material fact, does not justify imposition of discipline unless the mistake can be classified as negligence in a situation where negligence is an offense.

       
       

   16. In the instant case, Mr. Brennan took the required number of hours. His mistake in taking another three hour course which did not meet the core law portion of the requirements was, at least in part, cause by representations made to him by his brokerage's trainer. He did not receive any unearned benefit or intentionally seek to mislead or represent himself to the Division. No evidence was introduced by the Petitioner to indicate, much less demonstrate, that Respondent possessed the animus to commit intentional misrepresentation, and Petitioner's allegations have not been proven by a preponderance of the evidence, much less by clear and convincing evidence of misconduct.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a Final Order dismissing the Administrative Complaint against the Respondent, Edward John Brennan.

DONE and ENTERED this 3rd day of October, 1996, in Tallahassee, Florida.

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 1996.

COPIES FURNISHED:

Steven W. Johnson, Esquire Department of Business and

Professional Regulation Division of Real Estate

400 West Robinson Street, N-308 Post Office Box 1900

Orlando, Florida 32803-1900

Edward John Brennan 4114 Pro Am Avenue

Bradenton, Florida 34203

Lynda L. Goodgame General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Henry M. Solares Division Director Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900

NOTICE OF RIGHT TO 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.

Docket for Case No: 96-003153

Orders for Case No: 96-003153