STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 93-1943

)

LINDA B. MCKENZIE, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, the Division of Administrative Hearings by its duly assigned Hearing Officer, William R. Cave, held a formal hearing in the above- captioned case on June 23, 1993 in Sarasota, Florida.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Department of Professional Regulation, Division of Real Estate

Legal Section, Suite N 308

400 West Robinson Street Orlando, Florida 32801-1772

For Respondent: Linda B. McKenzie, Pro Se

343 South Washington Drive Sarasota, Florida 34236

STATEMENT OF THE ISSUES

Whether Respondent's license as a real estate salesperson in the state of Florida should be revoked, suspended or otherwise disciplined based on the allegations of misconduct alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

By an Administrative Complaint dated February 25, 1993, and filed with the Division of Administrative Hearings on April 7, 1993, the Petitioner seeks to revoke, suspend or otherwise discipline Respondent's license as a real estate salesperson in the state of Florida. As grounds therefor, it is alleged (a) that Respondent obtained a license by means of fraud, misrepresentation, or concealment in violation of Section 475.25(1)(m), Florida Statutes, and Section 455.227, Florida Statutes, and is therefore in violation of Section 475.25(1)(e), Florida Statutes, and; (b) that Respondent failed to timely comply with post-licensure education requirements of Section 475.17(3)(a), Florida Statutes, and is therefore in violation of Section 475.25(1)(e), Florida Statutes.

The Respondent disputed the allegations of fact contained in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes, before a Hearing Officer appointed by the Division of Administrative Hearings. Petitioner referred this matter to the Division of Administrative Hearings for the assignment of a Hearing Officer and the conduct of a hearing. A hearing was scheduled in this matter for June 23, 1993.

At the hearing, Petitioner presented the testimony of the Respondent.

Petitioner's exhibits 1, 2 and 3 were received as evidence in this case. Respondent testified in her own behalf. Respondent's exhibits 1 through 9 were received as evidence in this case. Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and Chapters 21V-24 and 60Q-2, Florida Administrative Code, were officially recognized.

There was no transcript of this proceeding filed with the Division of Administrative Hearings. The Petitioner timely filed its Proposed Recommended Orders with the Division of Administrative Hearings. Respondent has not filed any proposed findings of fact and conclusions of law with the Division of Administrative Hearings. A ruling on each proposed finding of fact submitted by the Petitioner has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the testimony of the witness and the documentary evidence received as evidence in this case, the following relevant findings of fact are made:

1. At all times material to this proceeding, the Respondent was licensed as a real estate salesperson in the state of Florida, having been issued license number 0569982. Respondent was initially licensed in December 1990.

   
   

2. The last license issued to Respondent was as a salesperson, c/o Tangerine Realty Corporation, 390 Gulf of Mexico Drive, Longboat Key, Florida 34228.

   
   

3. Respondent is also a licensed real estate broker in the state of South Carolina, with thirteen (13) years experience, where she operates Linda McKenzie Realty Company.

   
   

4. On or about August 24, 1992, the Respondent submitted to the Petitioner a Renewal Notice form with her signature affixed to the form requesting renewal of the Respondent's license as a real estate salesperson for the period beginning October 1, 1992. Along with license renewal request, Respondent enclosed her bank check in the sum of $53.00.

   
   

5. Respondent's signature on the Renewal Notice (Petitioner's Exhibit 2) affirms that she had read and agreed with the statements made on the reverse side of the notice. However, it is clear that due to circumstances set out below requiring her immediate attention, the Respondent did not read the reverse side of the Renewal Notice and did not understand the significance of affixing her signature to the affirmation. In that regard, the Respondent was negligent.

6. The reverse side of the Renewal Notice is entitled "Affirmation of Eligibility For License Renewal" and among those matters which the Petitioner affirmed is that she "met all of the requirements for license renewal, including any applicable continuing education requirements set forth by the Department and or the Professional Board indicated on the reverse side of this notice". The Department of Professional Regulation, Division of Real Estate is indicated on the front of the Renewal Notice. There is no specific reference to any statute or rule on the Renewal Notice. Apparently, this is a form utilized by all Professional Boards for which the Department is the regulatory agency.

   
   

7. Respondent was aware at the time she signed and mailed the Renewal Notice containing the affirmation that she had not completed the required postlicensure salesperson continuing education.

   
   

8. Respondent's license as a real estate salesperson was reissued by the Respondent prior to the September 30, 1992 expiration date with an effective date of October 1, 1992.

   
   

9. Respondent was scheduled to take the 45 hour course necessary to complete postlicensure salesperson education during the weeks of August 14, 1992 and August 21, 1992. However Respondent had to cancel this course due to her medical condition as discussed below.

   
   

10. Respondent was seen in Charleston, South Carolina on August 3 & 4, 1992 and diagnosed as having a tumor requiring surgery. Respondent was scheduled to be admitted to surgery for a suspected malignancy on August 17, 1992 in Charleston, South Carolina but instead obtained a second opinion in Sarasota, Florida. Emergency exploratory surgery for an ovarian tumor was performed on August 21, 1992 in Sarasota, Florida.

    
    

11. Respondent underwent surgery on August 25, 1992 to remove a serous cystadenofibroma of the right ovary. This surgery was not of an elective nature.

    
    

12. Prior to surgery, Respondent attempted to take care of personal matters that she felt needed immediate attention. One of those matters was the Renewal Notice.

    
    

13. It was Respondent's understanding that she would have until September 30, 1992 (expiration date of current license) to complete any postlicensure education. Therefore, after returning from surgery Respondent enrolled in a September 11, 1992 course. Respondent was notified on September 9, 1992 that the course was cancelled. Thereafter, Respondent enrolled for the November 18, 1992 course which was cancelled on November 17, 1992.

    
    

14. Respondent advised the Petitioner by letter dated September 16, 1992 that she had been unable to complete her postlicensure education. In this letter Respondent requested an extension of time until at least December 1992. Respondent did not receive any response from Petitioner to this request for extension.

    
    

15. Respondent enrolled in a course to complete her postlicensure education on November 30, 1992, completed that course on December 4, 1992 and advised the Respondent of her completion by letter dated December 6, 1992.

16. There is competent substantial evidence in the record to establish facts to show that at the time Respondent signed and mailed the Renewal Notice to Petitioner it was not Respondent's intent to give false or misleading information or to conceal the fact that she had not completed the required postlicensure educational requirements, notwithstanding the fact that her signature affirmed that she had completed the required postlicensure educational requirements.

    
    

17. Respondent's license as a real estate salesperson in the state of Florida has never been disciplined in any fashion by the Petitioner.

    
    

18. The public was not harmed as a result of Respondent's action.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

20. Section 475.17 (3)(a), Florida Statutes, grants the Florida Real Estate Commission (Commission) discretionary authority to prescribe postlicensure education requirements that must be completed by the licensee prior to the first renewal following initial licensure in order to maintain a valid salesperson's license. This section does not require the licensee to complete any postlicensure education courses unless prescribed by the Commission. This section is different from Section 475.182 (1), Florida Statutes, which requires the renewal application for an active license to include proof satisfactory to the Commission that the licensee has, since issuance or renewal of his current license, satisfactorily completed a certain number of hours of postlicensure education. Rule 21V-3.009(1), Florida Administrative Code, excludes the licensee from this requirement for the first renewal period of the licensee's current license.

    
    

21. Pursuant to its discretionary authority under Section 475.17(3)(a), Florida Statutes, the Commission promulgated Rule 21V-3.020 (1), Florida Administrative Code, which requires, among other things, that a licensee must satisfactorily complete one or more Commission prescribed or approved post- licensing educational courses totaling at least 45 classroom hours of 50 minutes each covering certain designated subjects prior to the first renewal following initial licensure.

    
    

22. Rule 21V-3.015(2), Florida Administrative Code, provides that the application for renewal by a licensee shall contain an affirmation by the licensee of having satisfactorily completed the required Commission prescribed postlicensure education courses and further provides that failure to provide evidence of such compliance or furnishing false or misleading information regarding compliance shall be grounds for disciplinary action against the licensee.

    
    

23. In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

24. The first count of the Administrative Complaint charges Respondent with having obtained a license by means of fraud, misrepresentation, or concealment in violation of Section 475.25(1)(m), Florida Statutes, and Section 455.227, Florida Statutes, and therefore has violated Section 475.25(1)(e), Florida Statutes.

    
    

25. Section 475.25(1)(e) and (m), Florida Statutes, provides in pertinent part as follows:

    
    

    1. The commission may ... place a licensee

       ... on probation; may suspend a license ... for a period not exceeding 10 years; may revoke a license ... may impose an administrative fine not to exceed $1,000 for each count or separate offense; and may issue a reprimand ... if it finds that the licensee

       ... :

       . . . .

       (e) Has violated any of the provisions of this chapter or any lawful order or rule made

       or issued under the provisions of this chapter or chapter 455.

       . . . .

       (m) Has obtained a license by means of fraud, misrepresentation, or concealment.

       
       

26. Clearly the issuance of Respondent's renewal license was due in part to the affirmation on the Renewal Notice. However, it is equally clear that in making the affirmation the Respondent did not do so with the intent to provide false or misleading information regarding her compliance with the postlicensure educational requirements or to conceal the fact that she had not completed the postlicensure educational requirements set out in Rule 21V-3.020(1)(a), Florida Administrative Code. If anything, the Respondent is guilty of negligence in failing to take the time to read the affirmation on the reverse side of the Renewal Notice. At most, a technical violation of the statutes.

26. The second count of the Administrative Complaint charges the Respondent with the failure to timely comply with the postlicensure educational requirements of Section 475.17(3)(a), Florida Statutes, and thereby violating Section 475.25(1)(e), Florida Statutes. As stated above, this section is the legislative grant of the discretionary authority for the Commission to require additional postlicensure education requirements of licensees prior to their first renewal period than is required for renewal by Section 475.182, Florida Statutes. Rule 21V-3.020, Florida Administrative Code, prescribes the postlicensure educational required by the Commission that licensed salespersons must satisfactorily complete prior to the first renewal licensure. Clearly, Respondent has violated the above cited rule and has thereby violated Section 475.25(1)(e), Florida Statutes. However, is equally clear that Respondent could not have foreseen the chain of events that precluded her from completing the postlicensure educational requirements. It appears that Respondent moved as quickly as possible to complete these educational requirements.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a Final Order reprimanding the Respondent. In making this recommendation, consideration has been given to the mitigating factors in relation to the disciplinary guidelines set out in Chapter 21V-24, Florida Administrative Code. Also, taken into consideration was the purpose of regulating any profession, the protection of the public by requiring compliance with those laws governing the profession. In this case, a reprimand will serve that purpose, the public has not been hurt, compliance has been accomplished and the penalty is sufficient to remind the Respondent to be more diligent in the future. Adding any further penalty, including an administrative fine, would be punitive.

DONE AND ENTERED this 30th day of September, 1993, in Tallahassee, Florida.

WILLIAM R. CAVE

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 30th day of September, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1943

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.

Petitioner's Proposed Findings of Fact:

1. Unnecessary.

2.-5. Adopted in substance as modified in Findings of Fact 2-15. Respondent's Proposed Findings of Fact:

Respondent did not submit any proposed findings of fact.

COPIES FURNISHED:

Jack McRay, Acting General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Darlene F. Keller, Division Director Division of Real Estate

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

James H. Gillis, Esquire Department of Professional

Regulation, Division of Real Estate Legal Section, Suite N 308

400 West Robinson Street Orlando, Florida 32801-1772

Linda B. McKenzie

343 South Washington Drive Sarasota, Florida 34236

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 10 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: 93-001943

Orders for Case No: 93-001943