vs. ) Case No. 96-5881
DEBORAH S. WETMORE, )
Respondent. )
Pursuant to notice, a Section 120.57(1) hearing was conducted in this case on February 4, 1997, by telephone conference call before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Christine M. Ryall, Senior Attorney
For Respondent: Deborah S. Wetmore, pro se
On August 23, 1996, the Department of Business and Professional Regulation (Department) issued a one-count
Administrative Complaint against Respondent. The Administrative Complaint alleged that Respondent, a licensed real estate broker, "submitted to [the Department] a license renewal notice on which she signed an affirmation that she had met all of the requirements for license renewal," notwithstanding that, "[a]t the time she submitted the renewal notice to [the Department], Respondent had not completed the 14 hours of continuing education required under [Section] 475.182(1), Fla. Stat., and Fla. Admin. Code R.
61J2-3.009." According to the Administrative Complaint, inasmuch as "Respondent's license was renewed based on her representation that she had met all of the requirements for license renewal" (which representation, the Administrative Complaint alleged, was false), Respondent is guilty of having "obtained a license by means of fraud, misrepresentation or concealment in violation of [Section] 475.25(1)(m), Fla. Stat." On December 16, 1996, the case was referred to the Division of Administrative Hearings (Division) for the assignment of a Division Administrative Law Judge to conduct a Section 120.57 hearing on the matter.
As noted above, the Section 120.57 hearing was held on February 4, 1997. At the hearing, a total of two witnesses (Judy Smith, a Department employee, and Respondent) testified. In addition to the testimony of these two witnesses, a total of eight exhibits (Petitioner's Exhibits A through D and Respondent's Exhibits 1 through 4) were offered and received into evidence.
At the conclusion of the evidentiary portion of the hearing, the undersigned, on the record, advised the parties of their right to file proposed recommended orders and established a deadline (March 14, 1997) for the filing of proposed recommended orders.
On March 11, 1997, the Department and Respondent filed their post-hearing submittals. These post-hearing submittals have been carefully considered by the undersigned. 1/
Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:
Respondent is a Florida-licensed real estate broker (holding License Number 0350383). She is also licensed in the State of New York.
Respondent was first licensed in the State of Florida in July of 1983.
Toward the latter part of the two-year licensure period ending March 31, 1995, the Department sent Respondent a Renewal Notice reminding her that her broker's license (which was then in
"voluntary inactive" status) would expire on March 31, 1995, if she did not renew the license for another two-year period by signing the Renewal Notice and returning it to the Department along with a
$75.00 renewal fee.
Sometime prior to March 31, 1995, Respondent signed the Renewal Notice and returned it to the Department along with the
$75.00 renewal fee.
The signed Renewal Notice that Respondent submitted to the Department contained the following 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 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 affirm that these 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.
At the time she signed and submitted the Renewal Notice, Respondent had not satisfactorily completed the minimum number of hours of continuing education required for license renewal, a requirement of which she was (at the time) aware.
The Department renewed Respondent's license (for the two-year period ending March 31, 1997) based upon Respondent's misrepresentation (made in the signed Renewal Notice she returned to the Department) that she had "met all of the requirements for license renewal."
On July 15, 1995, Respondent's residence in New York State (where she spends the summer months 2/ ) was damaged during a violent summer storm.
Thereafter, Respondent received the following letter, dated August 8, 1995, from the Department:
Your real estate license number has been selected for audit of the education required in compliance with Rule 61J2-3.015. In requesting renewal, you affirmed that you had completed the required education for the license
period beginning 4/1/95. The course must have been completed prior to 3/31/95.
Please submit to the address printed below, this letter along with the Commission approved course proof or equivalency education required at the time of your renewal, no later than 21 days from the date of this letter.
All requests for equivalency for credit courses taken at universities, colleges and community colleges outside of Florida must be accompanied by an official transcript.
An official transcript must contain the seal of the institution and the signature of the registrar.
Failure to comply with this request within 21 days will result in an appropriate disciplinary action being initiated against your license.
Your prompt attention and action will be appreciated.
In response to the Department's request, Respondent sent the Department documentation concerning a correspondence course she had taken (from the Bert Rogers Schools of Real Estate) prior to March of 1993.
The Department advised Respondent that such documentation was "unacceptable."
On or about October 3, 1995, Respondent sent the following letter to the Department:
After extensive searching through the records I have here in my possession in Florida, I am unable to provide you with documentation verifying my continuing ed requirements.
I spend the summer in New York and many of my records are currently there as I am there two months of the year and I believe the documentation I need may be there.
I am a broker in both New York and Florida and have always kept up-to-date with education requirements in the past, the last being in 1993 through Bert Rogers School which I have documentation for.
I remember taking the cont. ed course through the mail, but I am unable to tell you exactly which one at the present time.
Whatever disciplinary action you choose to apply, would it be possible to reverse same if upon my return to N.Y. in June, I'm able to provide the proof you require?
Thank you in advance for your patience with regard to the matter while I have searched, and I'll await your decision.
On January 29, 1996, Judy Smith, an Investigation Specialist with the Department, sent the following letter to Respondent:
This letter is to serve as official notice to you in accordance with Section 455.225(1), FLORIDA STATUTES. that a complaint has been filed against you (copy attached) and that an investigation will be initiated regarding the subject matter of the complaint.
I will be in contact with you at the earliest possible date to schedule a mutually convenient appointment to discuss the complaint in detail.
You may submit a written response to the information contained in the complaint within 20 days after receipt of this letter.
Any such response and/or contact with the agency regarding this matter prior to personal contact with me, should be directed to my attention at the address reflected below.
Thank you for your cooperation and assistance in this matter.
Smith later spoke with Respondent. Respondent told Smith that she believed that she had taken the required continuing education coursework (during the previous licensure period, April 1, 1993, through March 31, 1995), but was unable to recall the school that had provided the coursework, when the coursework had been taken and the grade she had received, nor was she able to produce documentation demonstrating that she had taken the required coursework.
On February 2, 1996, Respondent sent the following letter to Smith:
Pursuant to our conversation earlier today, this letter will serve to try and clear up what has transpired with regard to my continuing education requirement documentation proof.
I believe I took the required continuing education requirements in order to renew my license and I normally attach a copy of the proof of passing grade directly to the license renewal form when I send same in for processing.
As previously mentioned, all but my 1995 records are currently housed in New York and when I return I will look through financial and real estate records in order to determine which continuing ed course I may have utilized for the period in question.
There is, however, a possibility that I have unintentionally and inadvertently failed to complete the continuing education requirement due to the fact that I may have missed a reminder notice from the school due to changing addresses since the last notice.
I apologize for not being able to provide the burden of proof that you require at this time.
On February 5, 1996, Respondent sent a second letter to Smith, which read as follows:
Pursuant to our conversation last Friday February the 2nd
. . , I just want to thank you again for your assistance in this matter.
As discussed, I am now awaiting your response from the Board regarding this matter. As previously mentioned, I believe my records are in New York, however, I am more than willing to take another course or whatever is required 3at this time to remedy this situation. 3/
On August 23, 1996, the Department issued an Administrative Complaint alleging that Respondent had obtained the renewal of her license "by means of fraud, misrepresentation, or concealment in violation of [Section] 475.25(1)(m), Fla. Stat."
Thereafter, on or about November 15, 1996, Respondent sent a letter to the Department's counsel of record in the instant case, Christine Ryall, Esquire, which read, in part, as follows:
I am also enclosing copies of what I believe may be the continuing education you require for the 93-95 period. The Accelerated School of Real Estate, Inc. has since been purchased by Goldcoast School of Real Estate and even though I have the yellow final test completed, they have no record of my being a student there as I have tried contacting them regarding same. They do not have records on computer for Accelerated Students. Instead they are in boxes which the girls have to look through and it's certainly conceivable that some of their records are missing due to the takeover and moving of records.
I hope that you can [ac]cept the enclosed documentation as proof of taking the continuing education you require for the 9395 period. . . .
CONCLUSIONS OF LAW
The Florida Real Estate Commission (Commission) is statutorily empowered to take disciplinary action against
Florida-licensed real estate brokers based upon any of the grounds enumerated in Section 475.25(1), Florida Statutes.
Such disciplinary action may include one or more of the following penalties: license revocation; license suspension (for a period not exceeding ten years); imposition of an administrative fine not to exceed $1,000 for each count or separate offense; issuance of a reprimand; and placement of the licensee on probation. Section 475.25(1), Fla. Stat.
Proof greater than a mere preponderance of the evidence must be submitted. Clear and convincing evidence of the licensee's guilt is required. See Department of Banking and Finance. Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So.2d 932, 935 (Flat 1996); Ferris v. Turlington, 510 So.2d 292 (Flat 1987); McKinney v. Castor, 667 So.2d 387, 388 (Flat 1st DCA 1995); Tenbroeck v. Castor. 640 So.2d 164, 167 (Flat 1st DCA 1994); Nair v. Department of Business and Professional Regulation. 654 So.2d 205, 207 (Flat 1st DCA 1995); Pic N' Save v. Department of Business Regulation. 601 So.2d 245 (Flat 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So.2d 1136 (Flat 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So.2d
500 (Flat 3d DCA 1991); Pascale v. Department of Insurance, 525 So.2d 922 (Flat 3d DCA 1988); Section 120.57(1)(h), Fla. Stat. (Supp. 1996)("[f]indings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute").
"'[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.'" In re Davey, 645 So.2d 398, 404 (Flat 1994), quoting, with approval, from Slomowitz v. Walker, 429 So.2d 797, 800 (Flat 4th DCA 1983).
The disciplinary action taken against the licensee may be based only upon those offenses specifically alleged in the administrative complaint. See Cottrill v. Department of Insurance,
21 Fla. L. Weekly D2630 (Flat 1st DCA December 12, 1996); Kinney v. Department of State, 501 So.2d 129, 133 (Flat 5th DCA 1987); Hunter v. Department of Professional Regulation 458 So.2d 842, 844 (Flat 2d DCA 1984).
In determining whether Section 475.25(1), Florida Statutes, has been violated in the manner charged in the administrative complaint, one "must bear in mind that it is, in effect, a penal statute. . . This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations 348 So.2d 923, 925 (Flat 1st DCA 1977).
The Administrative Complaint issued in the instant case alleges that Respondent violated subsection (l)(m) of Section 475.25, Florida Statutes, by obtaining the renewal of her real estate license as the result of ttsubmitt[ing] to [the Department] a license renewal notice on which she signed an affirmation that she had met all of the requirements for license renewal," notwithstanding that, "[a]t the time she submitted the renewal notice to [the Department], Respondent had not completed the 14 hours of continuing education required under [Section] 475.182(1), Fla. Stat., and Fla. Admin. Code R. 61J2-3.009."
Subsection (l)(m) of Section 475.25, Florida Statutes, authorizes the Commission to discipline a Florida-licensed broker who "[h]as obtained a license by means of fraud, misrepresentation or concealment." "[A]n intentional act [must] be proved before a violation [of Section 475.25(1)(m), Florida Statutes] may be found." Munch v. Department of Professional Regulation 592 So.2d 1136, 1143-44 (Flat 1st DCA 1992); Department of Business and Professional Regulation Division of Real Estate v. Green No.
95-83926 (Flat Real Estate Commission February 19, 1997)(Final Order).
Section 475.182(1), Florida Statues, provides as follows:
The [D]epartment 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 [C]ommission 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 [C]ommission. The [C]ommission may accept as a substitute for such continuing education course, on a classroom-hour-for-classroom-hour basis, any
satisfactorily completed education course that the [C]ommission finds is adequate to educate licensees within the intent of this section. However, the [C]ommission may not require, for the purpose of satisfactorily completing an approved correspondence course, a written examination that is to be taken at a centralized location and is to be monitored.
Rule 61J2-3.009, Florida Administrative Code, provides, in part, as follows:
All persons holding active or inactive licenses 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 of their current license. . . .
Also pertinent to the instant case is subsection (2) of Rule 61J2-3.015, Florida Administrative Code, which provides as follows:
An application for renewal or reactivation of an existing status as a broker, brokersalesperson, salesperson or instructor shall contain an 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 postlicense 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.
In light of the provisions of subsection (2) of Rule 61J2-3.015, Florida Administrative Code, the burden was on Respondent to produce evidence proving that she had satisfactorily completed the continuing education coursework required (by Rule 61J2-3.009(1), Florida Administrative Code) to renew her license for the two-year period beginning April 1, 1995, as she had claimed she had in the Affirmation of Eligibility for License Renewal
contained in the signed Renewal Notice she submitted to the Department as part of the license renewal process. 4/
Neither during the course of the Department's audit (as the evidence adduced at the final hearing clearly and convincingly establishes), nor at the final hearing itself, did Respondent produce a grade report or any other persuasive evidence demonstrating her successful completion of the required continuing education coursework. Although Respondent testified at the final hearing that she did satisfactorily complete such coursework, her testimony was uncorroborated and so plagued by uncertainty and lacking in critical details as to be unworthy of belief. She attempted, at hearing, to explain her inability to produce documentation substantiating her claim by suggesting that such documentation may have been destroyed during a July 15, 1995, storm that damaged her New York residence; however, at no time prior to hearing (in her post-July 15, 1995, correspondence with the Department concerning such documentation) did Respondent mention that there was a possibility that the documentation had been destroyed as a result of the storm. Her failure to have done so, in the view of the undersigned, weighs heavily against a finding that the documentation once existed, but was subsequently destroyed, as Respondent suggested at hearing.
It is undisputed that Respondent, in seeking the renewal of her license, represented to the Department that she had "met all of the requirements for license renewal" 5/ and that, based upon this representation, her license was renewed. Inasmuch as the record further establishes (in the absence of any persuasive evidence to the contrary) that Respondent's representation (at least to the extent that it addressed continuing education requirements) was false (as Respondent knew or should have known at the time the representation was made), Respondent is guilty of obtaining the renewal of her license by "misrepresentation," in violation of subsection (l)(m) of Section 475.25, Florida Statutes, as alleged in the Administrative Complaint.
In determining the particular disciplinary action the Commission should take against Respondent for having committed this violation, it is necessary to consult Chapter 61J2-24, Florida Administrative Code, which contains the Commission's "disciplinary guidelines." Cf. Williams v. Department of Transportation. 531 So.2d 994, 996 (Flat 1st DCA 1988)(agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).
Subsection (3)(n) of Rule 61J2-24.001, Florida Administrative Code, provides that the "minimum" penalty for a violation of Section 475.25(1)(m), Florida Statutes, is "a $1,000 fine and revocation."
Subsection (4)(a) of Rule 61J2-24.001, Florida Administrative Code, however, provides that the Commission may impose a less severe penalty if there is clear and convincing evidence that circumstances warrant such action.
Subsection (4)(b) of Rule 61J2-24.001, Florida Administrative Code, lists (albeit not exhaustively) those circumstances that are to be considered in determining whether a penalty less severe than "a $1,000 fine and revocation" should be imposed upon a licensee guilty of violating Section 475.25(1)(m), Florida Statutes. It provides as follows:
Aggravating or mitigating circumstances may include, but are not limited to, the following:
The severity of the offense. -
The degree of harm to the consumer or public.
The number of counts in the Administrative Complaint.
The number of times the offenses previously have been committed by the licensee.
The disciplinary history of the licensee.
The status of the licensee at the time the offense was committed.
The degree of financial hardship incurred by a licensee as a result of the imposition of a fine or suspension of the licensee.
Violation of the provision of Chapter 475, Florida Statutes, wherein a letter of guidance as provided in s. 455.225(3), Florida Statutes, previously has been issued to the licensee.
In its proposed recommended order, the Department requests that the undersigned recommend that Respondent's "real estate license be revoked. 6/ Having considered the facts of the instant case in light of the provisions of Rule 61J2-24.001 set forth above, the undersigned finds that the Department's proposed penalty, the revocation of Respondent's license, is the appropriate penalty for the Commission to impose upon Respondent for her violation of Section 475.25(1)(m), Florida Statutes. 7/
RECOMMENDED that the Commission issue a final order finding Respondent guilty of the violation of Section 475.25(1)(m), Florida Statutes, alleged in the Administrative Complaint and
revoking her real estate license for having committed said violation.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of March, 1997.
STUART M. LERNER
Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1997.
1/ Appended to Respondent's post-hearing submittal are documents that were neither offered, nor received, into evidence at the final hearing. No finding of fact may be based upon any of these documents inasmuch as they are outside the evidentiary record in this case. See General Development Utilities, Inc., v. Hawkins.
357 So.2d 408, 409 (Flat 1978); Section 120.57(1)(h), Fla. Stat. (Supp. 1996)("[f]indings of fact . . . shall be based exclusively on the evidence of record and on matters officially recognized"). In any event, however, the outcome of this case would be same regardless of whether these documents were considered as a part of the evidentiary record (upon which findings of fact may be based).
2/ Respondent was residing in New York at the time of the storm.
3/ In none of her correspondence with the Department did Respondent suggest, as she did at the final hearing, that there was a possibility that the proof of her satisfactory completion of the required continuing education coursework had been destroyed during the July 15, 1995, storm that damaged her New York residence.
4/ Where the burden of proof of a negative fact normally rests on one party, but the opposing party has peculiar knowledge or control of evidence as to such matter, it is not impermissible to place on the opposing party the burden to produce such evidence Florida Statutes, alleged in the Administrative Complaint and revoking her real estate license for having committed said violation.
5/ It appears that Respondent had actual knowledge of what these requirements were. In any event, licensees, such as Respondent, are charged with the knowledge of the requirements (as well as the prohibitions) of the licensing laws to which they are subject. See Florida Board of Pharmacy v. Levin, 190 So. 2d 768, 770 (Fla.
6/ Respondent is not seeking the imposition of a fine in addition to license revocation.
7/ Rule 61J2-24.005, Florida Administrative Code, addresses the subject of license “revocation.” It provides as follows:
Pursuant to s. 455.227(5), F.S., revocation of a license is permanent except for the following violation:
(a) 61J2-3.015 - filing an application for renewal of a license when the individual had not complied with the provisions of 61J2-3.009 or 61J2-3.020, whichever is applicable.
(2) An individual whose license has been revoked for the above listed violation may not apply for a salesperson’s license for a period of five (5) years after the date of the filing of the final order revoking the license. The applicant must meet all the requirements for initial licensure as a salesperson, including examination, as required in ss. 475.17 and 475.175, F.S. The Commission may refuse to certify the applicant pursuant to ss. 475.17(1)(a), 475.181 or 475.25(1), F.S.
Christine M. Ryall Senior Attorney
Deborah S. Wetmore
R.R. 3 Box 103F
Henry M. Solares Division Director
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.
