STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

MARSHA V. LEE,

Respondent.

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) Case No. 03-4515PL

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RECOMMENDED ORDER

On February 5, 2004, an administrative hearing in this case was held by videoconference between Tallahassee and Orlando, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Alfonso Santana, Esquire

Department of Business

and Professional Regulation

400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757

For Respondent: Marsha V. Lee, pro se

865 Snow Queen Drive Chuluota, Florida 32766

STATEMENT OF THE ISSUE

The issue in the case is whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated October 15, 2003, the Department of Business and Professional Regulation, Division of Real Estate (Petitioner), alleges that Marsha V. Lee (Respondent) instructed Tamera L. Burns to complete and submit to the testing agency the answer sheet to a continuing education test for which the Respondent was responsible. The Respondent denied the allegations and requested a hearing. The Petitioner forwarded the request for hearing to the Division of Administrative Hearings, which scheduled and conducted the proceeding.

At the hearing, the Petitioner presented the testimony of two witnesses, and had Exhibits numbered 2 through 6 admitted into evidence. The Respondent testified on her own behalf. The one-volume Transcript of the hearing was filed on March 12, 2004. The Petitioner filed a Proposed Recommended Order on March 22, 2004.

FINDINGS OF FACT

1. At all times material to this case, the Respondent was a licensed Florida real estate sales associate.

2. In September 2001, the Respondent was required to complete a 14-hour credit continuing education course and test from the Bert Rogers Real Estate School in order to renew her license.

3. In December 2001, Tamera L. Burns (Burns) filed a complaint with the Petitioner asserting that she had completed a signed, but otherwise blank answer sheet on behalf of and at the direction of the Respondent, and that she faxed the answer sheet to the real estate school.

4. The Respondent's relationship with Burns began in 2000 when the Respondent placed an advertisement to rent a house the Respondent owned. Burns responded to the ad and rented the house from the Respondent. There were discussions about Burns purchasing the house from the Respondent.

5. During the period of time that Burns rented the home from the Respondent, the two women became friends. Their children played together and spent some nights together. Burns sometimes "babysat" for the Respondent without being paid for her services.

6. Burns began to consider a real estate career, and the two women discussed working together. At the time the Respondent allegedly instructed Burns to complete the answer sheet, Burns was seeking to obtain a real estate sales license

   of her own and was preparing to take a state real estate test in October 2001.

7. During the summer and fall of 2001, the friendship apparently became strained because of personal disagreements between the women.

8. There were also financial issues between the women.

   
   

   Rental checks written by Burns and given to the Respondent for rent due in May and again in November of 2001, "bounced" because Burns did not have sufficient funds to cover the checks. When the Respondent brought the checks to Burns' attention, Burns gave funds to the Respondent to cover the checks.

9. Burns also began to allow additional persons and pets to reside in the house beyond those authorized by the Respondent at the time the house was rented. The Respondent objected to the additional tenants.

10. Burns apparently vacated the house in November or December of 2001.

11. At the hearing, Burns testified that the Respondent provided the test materials to Burns, and that the Respondent instructed Burns to take the test and to fax the answer sheet to the Bert Rogers Real Estate School.

12. The Respondent testified at the hearing that she personally completed the test answer sheet and that she provided her test materials to Burns after the Respondent had completed

    and submitted the answer sheet, in order to provide additional material to Burns who was preparing for her own examination.

13. Burns testimony was not persuasive. The Respondent's testimony was persuasive and is credited.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. § 120.57(1), Fla. Stat. (2003).

15. The Petitioner has the burden of establishing the allegations of the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). Clear and convincing evidence is that which is credible, precise, explicit and lacking 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 the firm belief of conviction, without hesitancy, as to the truth of the allegations. Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

16. The allegations of the Administrative Complaint that assert wrongdoing on the part of the Respondent are based entirely upon information provided to the Petitioner by Burns. Having heard the testimony of the Respondent and Burns, the

Burns testimony lacked sufficient weight to be credible, and accordingly, the burden has not been met.

RECOMMENDATION

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

RECOMMENDED that the Petitioner enter a Final Order dismissing the Administrative Complaint filed against Respondent Marsha V. Lee.

DONE AND ENTERED this 13th day of April, 2004, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

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, 2004.

COPIES FURNISHED:

Marsha V. Lee

865 Snow Queen Drive Chuluota, Florida 32766

Alfonso Santana, Esquire Department of Business and

Professional Regulation

400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757

Nancy P. Campiglia, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

Jason Steele, Director Division of Real Estate Department of Business and

Professional Regulation

400 West Robinson Street, Suite 802N Orlando, Florida 32801

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: 03-004515PL

Orders for Case No: 03-004515PL