STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 96-3998

)

ANITA RUTH GREEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on December 10, 1996, by video teleconference.

APPEARANCES

For Petitioner: Christine M. Ryall, Esquire

Department of Business and Professional Regulation

Division of Real Estate

400 West Robinson Street, Suite N-308 Orlando, Florida 32802-1900

For Respondent: Anita Ruth Green, pro se

321 Sandtree Drive

Palm Beach Gardens, Florida 33410

STATEMENT OF THE ISSUES

At issue is whether respondent committed the offense alleged in the administrative complaint and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By administrative complaint dated May 23, 1996, petitioner charged respondent, a licensed real estate salesperson, violated the provisions of Section 475.25(l)(m), Florida Statutes, by having “obtained a license by means of fraud, misrepresentation, or concealment.” The gravamen of such charge is petitioner’s contention that when renewing her real estate license in October 1994, respondent falsely affirmed that she had successfully completed the necessary continuing education required for renewal.

Respondent filed an election of rights wherein she disputed the allegations of fact contained in the administrative complaint, and affirmatively averred “I took the test before renewing license, but cannot find the test score. It was a passing score.” Consequently, on August 21, 1996, petitioner referred the matter to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner called no witnesses; however, its exhibits A, B, C, and D were received into evidence. Respondent testified on her own behalf, but offered no additional evidence.

The transcript of hearing was not ordered. Consequently, the parties were accorded seven days from the date of hearing to file proposed recommended orders. Petitioner elected to file

such a proposal, and it has been duly considered in the preparation of this recommended order.

FINDINGS OF FACT

1. Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto.

2. Respondent, Anita Ruth Green, is now and has been since November 17, 1986, a licensed real estate salesperson in the State of Florida, having been issued license number 0484830.

3. On or about October 7, 1994, respondent signed and submitted to the Department an application (“renewal notice”) to renew her real estate license. Such application contained the following affirmation:

   AFFIRMATION OF ELIGIBILITY FOR LICENSE RENEWAL

   
   

   I hereby affirm that I have met all of the requirements for license renewal set forth by the Department of Business and Professional Regulation and/or the professional regulatory board indicated on the reverse side of this notice.

   I understand that, within the upcoming licensure period, if my license number is selected for audit by the Department and/or professional regulatory board, I may be required to submit proof that I have met all applicable license renewal requirements. I understand that proof may be required by the Department of Business and Professional Regulation and/or professional regulatory board at any time and that it is my responsibility to maintain all documentation supporting my affirmation of eligibility for license renewal.

   
   

   I further understand that failure to comply with such requirements is in violation of the rules and statutes governing my profession and subjects me to possible disciplinary action and, further, that any false statements herein is in violation of section 455.227, Florida Statutes, subjecting me to disciplinary action as well as those penalties provided below.

   
   

   I affirm that those statements are true and correct and recognize that providing false information may result in disciplinary action on my license and/or criminal prosecution as provided in section 455.2275, Florida Statutes.

   
   

4. Respondent’s application was approved and her license was renewed for the October 1, 1994, to September 30, 1996, licensure period.

5. At the time respondent submitted her application, she knew that successful completion of 14 hours of continuing education for real estate salespersons was a requirement for license renewal. Respondent was likewise aware of her responsibility to retain proof of her compliance with the

   continuing education requirements for at least 2 years following the end of the renewal period for which the education was claimed.

6. By letter of June 6, 1995, the Department advised respondent that her license number had been selected to audit for compliance with continuing education requirements at the time of her most recent license renewal, and requested that she furnish proof of compliance within 21 days.

7. Such proof was not forthcoming, and by letter of July 24, 1995, the Department reminded respondent of such failing and accorded her 10 days to submit evidence of the satisfactory completion of 14 hours of continuing education necessary to support the renewal of her license for the October 1, 1994, to September 30, 1996, licensure period. To date, no documentation has been submitted to substantiate respondent’s compliance with such requirement.

8. At hearing, respondent acknowledged the lack of any documentation to support her affirmation of having met the continuing education requirement for license renewal; however, she averred she did successfully complete 14 hours of continuing education through a correspondence course in or about September 1994, but apparently inadvertently disposed of her certificate of completion when disposing of unneeded paperwork in preparation for a move. She could not, however, recall the name

   of the real estate school, the course she completed, the date of completion (although she did observe it was “probably” within 30 days of the renewal date) or her score (although she did observe it was “not less than 79 percent”). Moreover, although ostensibly paying for such course by check, respondent failed to produce any such documentation at hearing. In explanation for such failing, respondent stated she did not retain checks or other banking documents “that far back,” and decided not to secure a copy from her bank because it was “too expensive.” The actual cost or expense for that service was not, however, articulated at hearing.

9. Having considered the proof, it must be concluded that respondent’s contention, absent any corroborative support, that she successfully completed the continuing education requirement before renewal is not compelling. In so concluding, it is observed that when the Department first requested documentation from respondent only nine months had elapsed since she ostensibly took the course. Certainly, respondent, who was articulate and displayed above-average intelligence at hearing, would have recalled at that time, had she taken a course, the name of the real estate school, the course she completed, or her score. Moreover, after such nominal lapse of time, it is most unlikely she would have disposed of not only her checks for the relevant time period, but also other banking documents,

   including her check registry. In sum, respondent’s failure to produce a certificate of completion or other credible proof of having satisfied the continuing education requirement compels the conclusion that she did not satisfy her continuing education requirement prior to renewal and that her affirmation of

   compliance was false.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.57(1) and 120.60(5), Florida Statutes.

11. Here, the Department seeks to take disciplinary action against respondent for violating the provisions of Section 475.25(l)(m), Florida Statutes, by having “obtained a license by means of fraud, misrepresentation or concealment.”

    Consequently, the Department bears the burden of proving its charges by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Co., 670 So.2d 932 (Fla. 1996).

12. Pertinent to this case, Section 475.182, Florida Statutes, provides:

    1. The department shall renew a license upon receipt of the renewal application and fee. The renewal application for an active license as broker, broker-salesperson, or salesperson shall include proof satisfactory to the commission that the licensee has, since the issuance or renewal of his current

       license, satisfactorily completed at least

       14 classroom hours of 50 minutes each of a continuing education course during each biennium, as prescribed by the commission. . . .

       
       

       Also pertinent to this case are the following provisions of Chapter 61J2-3, Florida Administrative Code:

       61J2-3.009 Continuing Education for Active and Inactive Broker and Salesperson Licenses.

       1. All persons holding active or inactive license as brokers or salespersons must satisfactorily complete a minimum of 14

          classroom hours of instruction of 50 minutes each as prescribed or approved by the Commission during each license renewal period excluding the first renewal period.

          61J2-3.015 Notices of Satisfactory Course Completion.

          * * *

       2. An application for renewal or reactivation of an existing status as a broker, broker-salesperson, salesperson or instructor shall contain and affirmation by the individual of having satisfactorily completed the applicable Commission prescribed, conducted or approved course(s). The BPR shall perform random audits of up to

       25 [percent] of the licensees and instructor permit holders to verify compliance with continuing education or post-license education requirements. Each licensee and instructor permit holder shall retain the grade report as proof of successful completion of continuing education or post- license education requirements for at least

       2 years following the end of the renewal period for which the education is claimed. Failing to provide evidence of compliance with continuing education or post-license education requirements or the furnishing of false or misleading information regarding

       compliance with said requirements shall be grounds for disciplinary action against the licensee or instructor.

       
       

13. Under the foregoing provisions of law, satisfactory completion of at least 14 hours of continuing education during each biennium is a material requirement for license renewal; a circumstance known to respondent. Consequently, where, as here, the proof supports the conclusion that the applicant’s affirmation of compliance was false, it necessarily follows that she has been proven guilty of having “obtained a license by means of fraud, misrepresentation or concealment” in violation of Section 475.25(l)(m), Florida Statutes. Munch v. Department of Professional Regulation, 592 So.2d 1136, 1143 (Fla. 1st DCA

    1992), (“[A]pplying to the words used [in Section 475.25(l)(m)] their usual and natural meaning, it is apparent that it is contemplated that an intentional act be proved before a

    violation may be found.”).

    
    

14. Having resolved that respondent committed the offense heretofore noted, it remains to resolve the appropriate penalty for her offense. In this regard, the Department suggests that the appropriate penalty under the circumstances is revocation. Since such penalty is consistent with the Department’s guidelines (Rule 61J2-24.001(3)(n), Florida Administrative Code) and it is accepted; however, consistent with Rule 61J2-24.005, Florida Administrative Code, respondent may apply for

relicensure five years after the date of filing of the final

order in this case.

RECOMMENDATION

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

RECOMMENDED that a final order be rendered finding respondent guilty of having violated Section 475.25(l)(m), Florida Statutes, and revoking respondent’s license, subject to the opportunity to reapply for licensure five years after the date of filing of the final order in this case.

DONE AND ENTERED this 6th day of January, 1997, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301-3060

(904) 488-9675 SUNCOM 278-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1997.

COPIES FURNISHED:

Christine M. Ryall, Esquire Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

Ms. Anita Ruth Green Pace

321 Sandtree Drive

Palm Beach Gardens, Florida 33410

Henry M. Solares, Director Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

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: 96-003998

Orders for Case No: 96-003998