STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

) Case No. 97-0826

vs. )

)

ERIC R. HARTMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 30, 1997, at Stuart, Florida, before Errol H. Powell, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Christine M. Ryall, Esquire

Department of Business and Professional Regulation, Division of Real Estate

400 West Robinson Street, Suite N308 Orlando, Florida 32801

For Respondent: Keith A. Lowe, Esquire

215 South Federal Highway, Suite 200 Stuart, Florida 34994

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.

PRELIMINARY STATEMENT

By an Administrative Complaint filed September 19, 1996, the Department of Business and Professional Regulation, Division of Real Estate (Petitioner) charged Eric R. Hartman (Respondent) with violating Subsection 475.25(1)(m), Florida Statutes, by obtaining a license through means of fraud, misrepresentation, or concealment. By an Election of Rights, Respondent disputed the allegations of fact and requested a formal hearing. On

February 20, 1997, this matter was referred to the Division of Administrative Hearings.

At hearing, Petitioner did not present the testimony of any witnesses, but entered seven exhibits into evidence. Respondent testified in his own behalf and entered no exhibits into evidence.

A transcript of the hearing was not ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the hearing. The parties filed proposed recommended orders which have been considered in this recommended order.

FINDINGS OF FACT

1. At all times material hereto, Eric R. Hartman has been licensed by the State of Florida as a real estate salesperson, having been issued license number 0455304. Mr. Hartman was originally licensed on August 12, 1985.

2. The last status of Mr. Hartman's license was involuntarily inactive.

3. On or about June 26, 1995, Mr. Hartman forwarded his real estate salesperson license renewal notice to the Department of Business and Professional Regulation, Division of Real Estate (Division of Real Estate). His license had expired on March 31, 1995.

4. Mr. Hartman submitted the license renewal notice to the Division of Real Estate for the purpose of renewing his real estate salesperson license. On the license renewal notice,

   Mr. Hartman signed an affirmation that he had completed all of the requirements for renewal of his license.

5. As a prerequisite for the renewal of his license,

   
   

   Mr. Hartman was required to successfully complete a minimum of 14 hours of real estate continuing education. At all times material hereto, Mr. Hartman knew of this requirement.

6. Prior to submitting his signed license renewal notice, in order to comply with the required continuing education,

   Mr. Hartman had obtained a correspondence course for 14 hours of continuing education from the Bert Rodgers Schools of Real Estate, Incorporated (Bert Rodgers). The correspondence course included a course book and test booklet.

7. At the end of each chapter in the course book was a progressive quiz, and the answers for the quiz were provided at the end of the course book. Mr. Hartman took the progressive

   quiz after completing each chapter and, for the total book, had only two incorrect answers.

8. The test for the continuing education course was open book. After completing the test, Mr. Hartman forwarded the test booklet to Bert Rodgers for grading.

9. Based upon his performance on the progressive quiz after each chapter, there was no reason for Mr. Hartman to believe that he had not passed the test and, therefore, successfully completed the course. Confident that he had passed the continuing education course, Mr. Hartman submitted his license renewal notice to the Division of Real Estate.

10. At all times material hereto, Mr. Hartman knew that he was required to maintain and submit to the Division of Real Estate, upon request, a course report certificate for the continuing education. The certificate indicates that he had timely and successfully completed the continuing education course.

11. At the time that Mr. Hartman submitted his signed license renewal notice, he had not received a course report certificate from Bert Rodgers.

12. On July 10, 1995, relying upon Mr. Hartman's representation that he had successfully completed the requirements for renewal of his license, the Division of Real Estate renewed Mr. Hartman's license and issued him a real estate

    salesperson license. His license had an effective date of June 23, 1995, and an expiration date of March 31, 1997.

13. Subsequently, Mr. Hartman received notification from Bert Rodgers that the course material, including the test booklet, had expired and was no longer valid. Simultaneously, Bert Rodgers provided Mr. Hartman with a new and valid course book and test booklet. He completed the new test booklet and forwarded it to Bert Rodgers for grading.

14. At the time that Mr. Hartman signed his license renewal notice and forwarded it to the Division of Real Estate, he had no intent to deceive or mislead or to make a material misrepresentation for the purpose of inducing the Division of Real Estate to renew his license.

15. On his own initiative, by letter dated August 28, 1995, Mr. Hartman notified the Division of Real Estate of the situation regarding the Bert Rodgers continuing education course.

16. After having forwarded the new and valid test booklet to Bert Rodgers, Mr. Hartman, subsequently, received a course report certificate from Bert Rodgers. The certificate indicated, among other things, that Mr. Hartman had taken a 14-hour continuing education correspondence course, which was completed on August 25, 1995, and that he had received a grade of 93.

    CONCLUSIONS OF LAW

    
    

17. Pursuant to Section 120.569, Florida Statutes (Supp. 1996), and Subsection 120.57(1), Florida Statutes (Supp. 1996),

    the Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto.

18. License revocation proceedings are penal in nature. The burden of proof is on the Division of Real Estate to establish the truthfulness of the allegations in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

19. Section 475.25, Florida Statutes, provides in pertinent part:

    1. The commission may deny an application for licensure, . . . or renewal thereof; 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, and any or all of the foregoing, if it finds that the licensee . . .:

       
       

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

       
       

20. During each two year licensure period, real estate licensees are required to complete a minimum of 14 hours of continuing education. Section 475.182(1), Florida Statutes; Rule 61J2-3.009(1), (4), and (5), Florida Administrative Code.

21. As a prerequisite to the renewal of a real estate license for another licensure period, a licensee must

    successfully complete the required continuing education. Section 475.182(1).

22. Affirmation is required on the license renewal notice by the licensee that the continuing education requirements for renewal of their license have been successfully completed. Rule 61J2-3.015(2), Florida Administrative Code.

23. A licensee is presumed to know the requirements and prohibitions of the law which governs the licensee's license. Florida Board of Pharmacy v. Levin, 190 So. 2d 768 (Fla. 1968); Wallen v. Florida Department of Professional Regulation, Division of Real Estate, 568 So. 2d 975 (Fla. 3d DCA 1990).

24. Section 475.25(1)(m) as to fraud and concealment contemplates intentional misconduct, or wrongful intent or scienter. Munch v. Department of Professional Regulation, Division of Real Estate, 592 So. 2d 1136, 1144 (Fla. 1st DCA 1992); Morris v. Department of Professional Regulation, 474 So. 2d 841, 843 (Fla. 5th DCA 1985).

25. Wrongful intent or scienter can be demonstrated by a showing of actual knowledge by the person making the statement that the representation is false, or by a showing of careless or reckless disregard by the person making the statement for the truthfulness of the representation. Lance v. Wade, 457 So. 2d 1008, 1011 (Fla. 1984); Ocean Bank of Miami v. Inv-Uni Investment Corporation, 599 So. 2d 694, 697 (Fla. 3d DCA 1992).

26. The Division of Real Estate has failed to demonstrate by clear and convincing evidence that Mr. Hartman violated Subsection 475.25(1)(m) as to fraud and concealment. No intentional misconduct, or wrongful intent or scienter have been shown.

27. However, the Division of Real Estate has demonstrated by clear and convincing evidence that Mr. Hartman violated Subsection 475.25(1)(m) as to misrepresentation. Mr. Hartman knew that, as a requirement and a prerequisite for renewal of his real estate salesperson license, he had to successfully complete a minimum of 14 hours of continuing education and that, when he affirmed on the renewal notice his completion of the requirements for renewal of his license, the Division of Real Estate would rely upon his affirmation and renew his license. Even though it was not unreasonable for Mr. Hartman to believe that he had passed the continuing education course, he had not received the course report certificate, indicating that he had passed the continuing education course, at the time that he forwarded the signed renewal notice to the Division of Real Estate.

    Mr. Hartman's affirmation that he had completed all of the requirements for renewal of his license was a material representation, and he misrepresented that material fact.

28. As to penalty, the Division of Real Estate suggests a

$1,000.00 administrative fine.

RECOMMENDATION

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

RECOMMENDED that the Department of Business and Professional Regulation, Division of Real Estate enter a final order imposing a $1,000.00 administrative fine against Eric R. Hartman.

DONE AND ENTERED this 28th day of August, 1997, in Tallahassee, Leon County, Florida.

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1997.

ENDNOTE

1/ Exhibits 1, 2, and 3 were entered into evidence without objection. Exhibits 4, 5, 6, and 7 were entered into evidence over objection and address only the penalty phase of this case if it is determined by the Administrative Law Judge that Respondent committed the alleged violations.

COPIES FURNISHED:

Christine M. Ryall, Esquire Department of Business and

Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900

Keith A. Lowe, Esquire

215 South Federal Highway, Suite 200 Stuart, Florida 34994

Henry M. Solares, Division Director Department of Business and

Professional Regulation 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: 97-000826

Orders for Case No: 97-000826