Findings Of Fact The Respondent holds Florida teaching certificate 190841, covering the areas of elementary education and reading, which is valid through June 30, 1993. The Respondent has applied for renewal of her teaching certificate, and her renewal application is being held pending a resolution of this matter. At all times pertinent hereto, the Respondent was employed as a teacher at Seminole Middle School in the Pinellas County School District. On or about August 19, 1979, the Respondent was arrested in Sylva, North Carolina, and charged with driving while intoxicated. On or about December 20, 1979, the Respondent was convicted and her driver license was revoked for 12 months. The Respondent submitted an Application for Teacher's Certificate to the Department of Education, signed and notarized on September 7, 1982. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979. The Respondent submitted an Application for Name Change and/or Duplicate Certificate to the Department of Education, signed and notarized on March 2, 1983. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979. The Respondent submitted an Application for Extension of Certificate to the Department of Education, signed and notarized on March 1, 1984. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had convicted of driving while intoxicated in 1979. On or about February 26, 1985, a Madeira Beach Police officer observed the Respondent driving her vehicle in an erratic manner. The Respondent failed several roadside sobriety tests and refused to submit to a breathalyzer test. The Respondent was arrested and charged with driving while intoxicated. On or about April 29, 1985, the Respondent entered a plea of nolo contendere in the Pinellas County Court to the charge of driving under the influence. The court adjudicated the Respondent guilty and sentenced her to serve 12 months probation. The court further ordered the Respondent to pay a $500.00 fine, enroll in a DUI school, and revoked the Respondent's driver license for six months. On or about October 30, 1986, a Madeira Beach Police officer observed the Respondent driving her vehicle in an erratic manner. The Respondent failed several roadside sobriety tests. The Respondent's blood alcohol level was found to be in excess of the legal limit. The Respondent was arrested and charged with driving under the influence. On or about March 6, 1987, the Respondent entered a plea of guilty in the Pinellas County Court to the charge of driving under the influence. The court adjudicated the Respondent guilty and sentenced her to serve 10 days in the jail, to be served in the "Weekend/Daywatch Program", to be followed by one year of probation. The court further ordered the Respondent to enroll in DUI school, attend Alcoholics Anonymous meetings, and revoked the Respondent's driver license for 10 years. The Respondent submitted an Application for Extension of Certificate and Application for Addition and/or Upgrade to the Department of Education, signed and notarized on June 23, 1987. The applications each included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations? In her sworn response to each question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979, and driving under the influence in 1985 and 1987. The Respondent submitted an Application for Educator's Certificate to the Department of Education, signed and notarized on June 13, 1988. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979, and driving under the influence in 1985 and 1987. The Respondent submitted an Application for Name Change and/or Duplicate Certificate to the Department of Education, signed and notarized on February 24, 1989. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979, and driving under the influence in 1985 and 1987. On or about January 5, 1993, the Respondent was observed driving a vehicle in Pinellas County, Florida while her driver license was revoked. The Respondent was arrested and charged with driving with a revoked license. On or about February 24, 1993, the Respondent entered a plead of guilty to the charge of driving with a revoked license in Pinellas County Court. The court adjudicated her guilty and ordered her to pay $500.00 in fines and court costs. The Respondent has been an effective classroom teacher for 36 years, mostly teaching sixth grade. The Respondent's evidence was that she resorted to alcohol in response to three successive traumatic events in her life: (1) the death of her husband in 1976, which required her to become independent and the sole parent of her son and four daughters and to return to graduate school to enable her to become the sole support for her family; (2) the murder of her son in 1982; and (3) the cancer death of her mother in 1986. Despite her alcohol problem, the Respondent was able to be an effective school teacher through the years and did not allow her personal problems to seriously adversely affect her work. Her last alcohol-related incident was in October, 1986. The Respondent's principal from approximately 1987 through 1992, a man named Bill Mock, had a well-deserved reputation for administering the Respondent's school through intimidation and threat of punishment. Since applications for teacher certificates routinely were processed through the school administration offices, the Respondent was afraid that the principal would learn of her DUI arrests and convictions from reading the Respondent's teacher certificate applications and that he would fire her or impose conditions on her continued employment at the school that would be intolerable for her. In order to protect her job and livelihood, and ultimately her family, the Respondent rationalized to herself that it was not necessary to disclose those arrests and convictions on her teacher certificate applications. When Mock retired at the end of the 1992/1993 school year, the Respondent reported her violations to her new school principal, and on or about March 31, 1993, received a written reprimand, but no suspension or dismissal, for her failure to acknowledge her arrests to the Department of Education. The Respondent has continued to be an effective middle school teacher. The Respondent's arrest and conviction for driving with a revoked driver license may have been "set up." Her ride to school cancelled at the last minute, leaving the Respondent without enough time to walk. She drove herself straight to school, and there was a policeman waiting for her in the school parking lot at the end of the school day. Otherwise, she did not drive with a revoked driver license. The Respondent's driver license is revoked until March, 1997, but she is eligible for a work permit upon completion of a driver education class.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Education Practices Commission enter a final order finding the Respondent guilty as charged and suspending her teacher certificate for one year, to be served beginning at the end of the current school year. RECOMMENDED this 17th day of August, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 17th day of August, 1994. COPIES FURNISHED: Robert J. Boyd, Esquire 2121 Killarney Way Suite G Tallahassee, Florida 32308 Lawrence D. Black, Esquire 650 Seminole Boulevard Largo, Florida 34640-3625 (Copies furnished, continued) Karen B. Wilde Executive Director The Florida Education Center, Room 301 Tallahassee, Florida 32399 Jerry Moore, Administrator Professional Practices Services 352 Fla. Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Barbara J. Staros General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue At issue in this proceeding is whether, as alleged in the Amended Administrative Complaint, Respondent's application for a temporary teacher's certificate was denied and, consequently, her dismissal from employment as an elementary school teacher with the Palm Beach County School Board was proper.
Findings Of Fact On or about August 14, 1998, Respondent, Ramona Wright, received a Statement of Academic Eligibility (Statement of Eligibility) for elementary education (grades 1-6) from the Florida Department of Education. The Statement of Eligibility was valid until July 29, 2000, and (consistent with Rule 6A- 4.004, Florida Administrative Code,) provided, as follows: The State of Florida issues two types of certificates for full-time teaching, a nonrenewable Temporary Certificate valid for two years and a Professional Certificate valid for five years . . . The Temporary Certificate is issued to allow time to complete requirements for the Professional Certificate. Your application for teacher certification has been received and evaluated. Based upon current requirements, you will be eligible for a two-year nonrenewable Temporary Certificate valid for two consecutive school fiscal years covering Elementary Education when: You obtain employment with a Florida public, state supported, or nonpublic school which has an approved system for documenting the demonstration of required professional education competence. Your employer must request issuance of your certificate. Your employer submits a fingerprint card which as been processed by the Florida Department of Law Enforcement and the Federal Bureau of Investigation. If your fingerprint report reflects an arrest record, your file will be referred to Professional Practices Services for further review. Issuance of your certificate will be contingent upon the results of this review . . . . Given her eligibility, Respondent was employed by the Palm Beach County School Board (School Board) as an elementary school teacher on August 20, 1998, and, consistent with the provisions of her Statement of Eligibility, an application was submitted to the Florida Department of Education (Department of Education) for a temporary certificate. Pertinent to this case, the annual contract of employment under which Respondent was employed, provided as follows: This contract is conditioned and based on the assertions by the Employee: * * * (2) That the Employee has completed the requirements and will be legally qualified to teach in the State of Florida upon issuance of a Florida teacher's certificate, for which application has been duly made as evidenced by the official receipt and acknowledgment recorded in the office of the Superintendent, bearing Department of Education file number cited above. In the event that such application is denied, the Employee agrees that the School Board shall be relieved of all obligation under this provision. By letter of April 1, 1999, Tom Gallagher, Commissioner of Education, Department of Education, advised Respondent that her application for a temporary teacher's certificate was denied. 1/ Specifically, the letter stated: Dear Ms. Wright: Your application for a Florida Teacher's Certificate has been carefully considered by the Department of Education and, for the reasons stated in the Notice of Reasons, your application is hereby DENIED pursuant to Section 231.17(5), Florida Statutes, which states in pertinent part: "The Department of Education is authorized to deny an applicant a certificate if it possesses evidence satisfactory to it that the applicant has committed an act or acts or that a situation exists for which the Education Practices Commission would be authorized to revoke a teaching certificate." You may appeal the certificate denial by following the Florida Administrative Procedures Act and Rule 6B-11.005 of the Florida Administrative Code. If you want to appeal the Department's decision, you have TWENTY (20) DAYS from the date this Notice of Denial is RECEIVED to fill in and FILE an Election of Rights Notice of Appeal with the Office of Professional Practices Services . . . . The reasons stated in the Notice of Reasons were as follows: The Department of Education files and serves upon the Applicant, RAMONA BIANCA WRIGHT, its Notice of Reasons for its denial in accordance with the provisions of Section 120.60, Florida Statutes, and as grounds therefore, alleges: On or about July 23, 1995, Applicant was involved in an altercation with a tenant of rental property owned by Applicant and her family. Applicant yelled at the tenant, struck a police officer and smashed some the tenant's dishes. Applicant then refused the request of the police to leave the area. Applicant was arrested and charged with Disorderly Conduct, Battery and Criminal Mischief. On or about October 10, 1996, Respondent pled Not Guilty to the charges. The court withheld adjudication to the charge of Disorderly Conduct, found Applicant Not Guilty of the Battery charge and Nolle Prosequi the remaining charge. The Department of Education charges: STATEMENT OF VIOLATIONS COUNT 1: The applicant is in violation of Section 231.17(3)(c)6., Florida Statutes, which requires that the holder of a Florida Educator's Certificate be of good moral character. COUNT 2: The applicant is in violation of Section 231.17(5)(a), Florida Statutes, which provides that the Department of Education is authorized to deny an Applicant an educator's certificate if it possesses evidence satisfactory to it that the Applicant has committed an act or acts or that a situation exists for which the Education Practices Commission would be authorized to revoke a teaching certificate. COUNT 3: The Applicant is in violation of Section 231.28(1)(c), Florida Statutes, in that she has been guilty of gross immorality or an act involving moral turpitude. WHEREFORE, the undersigned concludes that RAMONA BIANCA WRIGHT has committed an act or acts or that a situation exists for which the Education Practices Commission would be authorized to revoke an educator's certificate. It is therefore, respectfully recommended that the Education Practices Commission affirm the Department of Education's denial of the issuance of a teaching certificate to the Applicant based upon the reasons set forth herein, in accordance with the Explanation of Rights form which is attached to and made a part of this Notice of Reasons. Respondent timely filed an election of rights and requested a formal hearing of the Education Practices Commission to contest the Commissioner's decision to deny her application. Section 231.17(10), Florida Statutes. On April 27, 1999, notwithstanding the pendency of Respondent's challenge to the Commissioner's decision and without inquiry of her regarding the status of that matter, the School Board advised Respondent that her employment was terminated. Specifically, the letter of termination stated: Dear Ms. Wright: Please be advised that the School District of Palm Beach County has received notification from the Florida Department of Education (DOE) that your application for a teaching certificate was denied pursuant to Section 231.17(5), Florida Statutes. As a result, your last day of employment with the district is Wednesday, April 28, 1999. Until such time as there is a change in your certification status, you are ineligible for teaching as well as coaching assignments. As you are aware, you have the right to appeal the DOE's decision to deny your application for certification, as outlined in the April 1st letter from the Commissioner of Education. Should you have questions or need clarification regarding the above matter, please contact me at (561) 434-8043. We regret such action is necessary and hope you are successful in your pursuit of other employment opportunities. Consistent with the terms of the letter, Respondent's last day of employment was April 28, 1999, a number of weeks prior to the end of the school year and her contractual term of employment. Respondent's administrative challenge to the Commissioner's decision to deny her application for a temporary certificate was resolved, as between Respondent and the Commissioner of Education, subject to the approval of the Education Practices Commission, by a Settlement Agreement dated September 10, 1999, wherein it was agreed, inter alia, that the Commissioner would issue Respondent the certificate she had applied for. (Petitioner's Exhibit 3) The agreement was subsequently approved by the Education Practices Commission in late October 1999, and Respondent was issued her teacher's certificate in November 1999.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered consistent with the foregoing Findings of Fact and Conclusions of Law, and which accords Respondent all benefits due under her annual contract of employment that was wrongfully terminated. DONE AND ENTERED this 2nd day of June, 2000, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 2nd day of June, 2000.
The Issue At issue is whether respondent committed the offense alleged in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact 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. 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. 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. Respondent’s application was approved and her license was renewed for the October 1, 1994, to September 30, 1996, licensure period. 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. 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. 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. 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. 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.
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
The Issue The first issue to be determined is whether Petitioner, Rebecca Coleman Curtis (“Petitioner” or “Dr. Curtis”), is entitled to licensure as a psychologist in the State of Florida by virtue of the “deemer” provision in section 120.60(1). The second issue to be determined is whether the Florida Board of Psychology (the “Board”) used an unadopted rule in violation of section 120.54(1)(a), with respect to its decision to deny Dr. Curtis’s application for a license.
Findings Of Fact Section 490.006(1), Florida Statutes, presents three avenues for a psychologist to obtain licensure by endorsement. Petitioner applied to the Board of Psychology for licensure as a psychologist on September 30, 2014. She applied under the category of licensure authorized by section 490.006(1)(c), which allows for licensure to persons who possess a doctoral degree in psychology as described in section 490.003 and have at least 20 years of experience as a licensed psychologist in any jurisdiction or territory of the United States within 25 years preceding the date of the application. Petitioner’s application was deemed complete by the Board office on October 17, 2014. Ninety days from Petitioner’s completed application was January 15, 2015. The Department of Health sent Petitioner a letter regarding her application dated October 17, 2014, which states in pertinent part: Dear Dr. Curtis: Psychology board staff has reviewed your application. You have been authorized for the Florida laws and rules exam. You have been approved for licensure upon passage of your exam. Please note that that you have 24 months, from the date of this letter, to verify completion of these requirements or your application will be administratively closed as required in Section 490.005(3)(a), Florida Statutes. (emphasis added). Petitioner was included in a list of applicants (the APA List) to be ratified by Respondent at a telephone conference call on November 21, 2014. The Board approved all of the candidates on the list. Both the letter authorizing Petitioner to take the laws and rules examination and the Board’s action ratifying approval of Petitioner’s application for licensure occurred within 90 days of her completed application. The top of the first page of the APA List contains a statement which reads: “regardless of the application method, if board staff becomes aware of any issues of concern, approved applicants will be brought back before the Board for reconsideration prior to issuance of a license.” Respondent has not cited any authority for this statement. This statement was applicable to all candidates on the APA List, including Petitioner, and was applicable to similar candidates on previous lists on which the Board has acted. Applicants for licensure are not made aware that the Board will reconsider an application previously approved by the Board. Petitioner took and passed the required laws and rules examination in August 2016, and her score was reported to the Board office. Respondent sent Petitioner a letter dated August 9, 2016, which stated that her application would be considered by the Board of Psychology’s Credentials Committee at its meeting September 9, 2016, despite that she was advised previously that she was approved for licensure. That same day, Michelle Branch from the Board office sent Dr. Curtis an email which stated, in part: We have received your Laws and Rules exam score and it appeared you were ready for licensure, however, after further review of your file, there is a question on whether you received your doctorate degree from a program that was accredited by the American Psychological Association. To obtain a psychology license under the Endorsement of 20 Years of Licensed Psychology Experience method, you must have received your doctorate degree from an APA accredited program. I have provided Section 490.005, F.S., for your reference: . . . . Your transcripts indicated that you received your PhD from the Social Psychology program at the Teachers College, Columbia University, New York City, which is not listed as an accredited program on APA’s website. I have contacted APA to verify and am waiting on a reply. Please request a letter from the university indicting [sic] your major. This letter can be emailed to me. Your application and transcripts will then go before the September 9, 2016 Credentials Committee for review. Please find the attached meeting notice. (emphasis added). Ms. Branch’s request for additional information was more than 30 days from the Board’s receipt of Petitioner’s application, and well after the application had been deemed complete, and well after the application was approved by the Board. On August 24, 2016, Petitioner submitted to Respondent’s agency clerk a Notice of Intent to Rely upon Default License Provision. A memo provided to the Board regarding Dr. Curtis’s application contained the following information for the Board’s consideration. Dr. Curtis applied for licensure under the Endorsement of 20 Years of Licensed Psychology Experience method, however, her doctoral psychology program completed at the Teachers College, Columbia University, New York City in 1973, did not hold programmatic accreditation by the American Psychological Association (APA). Although Dr. Curtis went on to complete studies in Clinical Psychology at the APA-accredited Adelphi University in 1988, the transcript indicates it was a non- degree program. In the initial review of Dr. Curtis’ application by former staff, these issues were not addressed and the staff erroneously approved Dr. Curtis to sit for the laws and rules examination. Upon the receipt of Dr. Curtis’ exam score, current staff performed a final review for license issuance and these issues were discovered. Dr. Curtis was subsequently notified that her application would require review by the Board’s Credentials Committee before further action could be taken. The author of this memo is not identified, and did not testify at hearing. While it is admissible for the purpose of demonstrating what the Board considered in its second review of Dr. Curtis’s application, it is hearsay. Dr. Curtis’s unrefuted testimony is that she holds two separate doctoral degrees in psychology, the first from Teachers College at Columbia University, and one from Adelphi University. Both schools are located in New York. According to Dr. Curtis, because New York would not issue a second doctoral degree in the same field, her degree from Adelphi is listed as non-degree seeking, despite her completing the requirements for a degree and being issued a diploma. Dr. Curtis has been licensed in the State of New York since 1983, and her application file does not include any indication that her license has ever been disciplined. The only evidence other than the memo cited above that would indicate that Dr. Curtis’s education did not qualify her for licensure in Florida are copies of emails, which appear to be the source of the Board staff’s information. Neither the person who received the email nor the person who sent them testified at hearing, and, although included in Petitioner’s licensure file, the contents of the emails are also hearsay. During the September 9, 2016, meeting, the Committee voted to deny Petitioner’s application for licensure. Petitioner received a Notice of Intent to Deny from Respondent on or about October 11, 2016, notwithstanding the Board’s prior approval of her application nearly two years before. The Board has not promulgated any rule that provides for “re-screening” or a “second review” or “final review” of an application that has been previously approved by the Board. Nor has the Board promulgated any rule that provides for “reconsideration” of an application that has been previously approved by the Board. The Board delegates to office staff the review of applications to see if applications meet the requirements specified in chapter 490 and the Board’s rules. Petitioner provided notice to the Board on September 12, 2016, pursuant to section 120.595(4)(b), regarding possible unadopted rules. The Board has not commenced any rulemaking proceedings regarding the subjects addressed in the September 12, 2016, notice to the Board of Psychology.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Psychology enter a final order that: 1) acknowledges Petitioner’s application for licensure is approved, pursuant to the procedure in section 120.60(1); and 2) directs the issuance of Petitioner’s license as a psychologist. With respect to Petitioner’s claims pursuant to section 120.57(1)(e), it is further RECOMMENDED that: 1) the statements related to reconsideration or a second review of approved applications for licensure after the receipt of examination scores and before the issuance of the license meet the definition of a rule and constitute an unpromulgated rule; 2) the Board must immediately discontinue all reliance on these statements or any substantially similar statement as a basis for agency action; and 3) Petitioner is entitled to an award of reasonable attorney’s fees and costs, in an amount to be determined after the entry of the final order. DONE AND ENTERED this 13th day of March, 2017, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2017.
The Issue Whether Petitioner is entitled to have his general contractor’s license re-instated.
Findings Of Fact The Petitioner received a license as a general contractor in 1984. At all times material to this case, the Petitioner was required to renew his license every two years. For the Petitioner, the renewal was due on or before August 31 of even numbered years. For example, the Petitioner’s license due for renewal in 2000 was due August 31, 2000. There are two types of licenses pertinent to this case: active and inactive. The renewal fees associated with these licenses are different. An inactive licensee pays a smaller renewal fee. The Respondent is responsible for maintaining records, collecting the appropriate fees, and processing license renewals for licensees. If a contractor fails to pay the requisite renewal fees when they are due the license automatically goes into a “delinquent status.” This status continues until the licensee makes good on the past due renewal fees and submits a complete renewal application. If the licensee does not remit the appropriate fees and completed application before the next licensing renewal period expires (the next two year cycle), the license becomes “null.” In this case, the Petitioner held an inactive license during the 1998-2000 two year-period. On or before August 31, 2000, the Petitioner should have submitted a complete application and paid the renewal fees to keep his license in good status. The Petitioner did not submit a complete application and did not remit the appropriate fees for renewal on or before August 31, 2000. Consequently, on September 1, 2000, the Petitioner’s license went into the delinquent status noted above. To clear this status the Petitioner was required to renew his license by submitting a complete renewal application with the appropriate fees on or before August 31, 2002. The Petitioner did not do so. Therefore, on September 1, 2002, the Petitioner’s license became “null” as a matter of law. The “null” status cannot be changed by paying unpaid fees. Instead, a licensee may either apply for and seek a new license or seek to re-instate the license. To that end, the Petitioner filed a request for reinstatement on or about June 9, 2006. When the Respondent denied the Petitioner’s request for reinstatement, the instant case ensued. Prior to August 31, 2002, the Petitioner did not contact the Respondent to relate personal tragedies, did not cure the delinquent renewal status, and did not pay the fees necessary to renew his inactive license. The Petitioner’s request for a refund (dated May 18, 2005) of the untimely fees paid in September 2002 was not approved. The Respondent provided no explanation for why the untimely fees were not refunded to the Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent enter a Final Order denying Petitioner's request for reinstatement of his license. The Respondent should, however, refund the Petitioner’s untimely paid fees. S DONE AND ENTERED this 28th day of March, 2007, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 28th day of March, 2007. COPIES FURNISHED: Rodney Williams 513 Northwest 22nd Avenue Apartment 4 Fort Lauderdale, Florida 33311-7773 Deborah Bartholow Loucks, Esquire Office of the Attorney General The Capitol, Plaza Level-01 Tallahassee, Florida 32399-1050 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Michael Martinez, Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner is eligible for licensure by endorsement as a professional engineer and/or waiver of Part I of the engineering licensing examination.
Findings Of Fact From 1969 through 1974, Petitioner attended the Lipetsk Branch of the Moscow Institute of Steel and Alloys. In 1974, Petitioner graduated from the Lipetsk Polytechnical Institute (Institute) in Russia, with a degree in industrial and civil engineering. The degree in civil engineering earned by Petitioner is equivalent to a bachelor of science degree in civil engineering in the United States. Upon graduation from the Institute, Petitioner commenced her professional employment as an engineer on August 30, 1974, at the LIPTSKGRAZHDANPROEKT Design Institute. In January 1976, Petitioner was employed as a professional engineer at the State Design Institute DNEPRPROEKKTSTALKONSTRUKSIYA (DNEPR), where she was continuously employed until leaving the Soviet Union in December 1993. There are no specific licensing or registration requirements in Russia with respect to engineers. Therefore, after earning a degree in industrial and civil engineering, Petitioner could work as an engineer in Russia without taking any professional examination. However, in 1979, Petitioner took an examination in Russia that allowed her to sign her own drawings and calculations. During Petitioner's tenure at the DNEPR, she achieved the status of Senior Engineer in 1986; was promoted to the position of Category II Engineer for Steel Structures in 1988; was promoted to the post of Category I Engineer for Steel Structures in 1990; and was elevated to the position of Leading Engineer in 1991. To achieve the status of Category II Engineer for Steel Structures and Category I Engineer for Steel Structures at DNEPR, Petitioner had to take an examination in 1988 and in 1990, respectively. The promotion to each of these positions was predicated upon Petitioner's passing these examinations and demonstrating expertise in the areas of economics, chemistry, mathematics, physics, building materials, corrosion prevention, resistance of materials, and construction mechanics. As a result of passing the examinations in 1988 and 1990, Petitioner was not only promoted, but also received salary increases. Petitioner believes that the two examinations she took in Russia in 1988 and in 1990, while working at the DNEPR were substantially equivalent to the Fundamentals Examination. However, no evidence was presented to support this claim. The Fundamentals Examination is one component of the engineering licensing examination, and is designed to assess whether an individual is qualified to practice in this state as an engineer intern. This examination is usually taken either in the applicant's last year in engineering school or shortly after graduation. With regard to format, the Fundamentals Examination is an eight-hour examination and consists of 120 multiple-choice questions. The Principles and Practice Examination is the second part of the engineering licensing examination and is taken after successful completion of the Fundamentals Examination. Oscar E. Olsen, a structural engineer and owner of O.E. Olsen and Associates, a structural engineering firm, is currently Petitioner's employer. Mr. Olsen, who is generally familiar with the Fundamentals Examination, testified that the list of subjects covered on the two examinations taken by Petitioner in 1988 and 1990, coincide with the subject matter on the Fundamentals Examination. Mr. Olsen further testified that it appeared to him that the two examinations taken by Petitioner were comparable to the Fundamental Examinations required in Florida. Notwithstanding his testimony that the exams taken by Petitioner are substantially equivalent to the Fundamentals Examination, Mr. Olsen admitted that he has never seen or reviewed the examinations taken by Petitioner while she was in Russia. It is impossible to render a reasonable opinion as to whether the two examinations taken by Petitioner in Russia are substantially equivalent to the Fundamentals Examination, where the only information provided with regard to the former is a list of subject areas covered. Such a list gives no indication of the depth and specific content of the subject matter on the examinations; the difficulty of the examinations; the passing scores; the number and format of the questions; and the length of the examinations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent, the Board of Professional Engineers, enter a Final Order denying Petitioner's request for waiver of Part I, the Fundamentals Examination, and for licensure by endorsement. DONE AND ENTERED this 9th day of December, 1997, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 9th day of December, 1997. COPIES FURNISHED: Murray Silverstein, Esquire Powell, Carney, Hayes, and Silverstein One Plaza, Suite 1210 St. Petersburg, Florida 33731-1689 Edwin A. Bayo Assistant Attorney General Office of the Attorney General The Capitol, Plaza 01 Tallahassee, Florida 32399-1050 Angel Gonzalez Executive Director Board of Professional Engineers Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0755 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Petitioner is qualified for certification of qualification for licensure as a professional engineer by endorsement, pursuant to section 471.015(3), Florida Statutes.
Findings Of Fact In 1982, Petitioner earned a bachelor's degree in construction engineering from Florida International University. Petitioner does not have a doctorate in engineering. On June 24, 2009, the state of North Carolina issued Petitioner a license as a professional engineer. This is his only professional engineer license. Because Petitioner had over 20 years' progressive experience on engineering projects acceptable to the North Carolina State Board of Examiners for Engineers and Surveyors, he was eligible for a professional engineer license by, among other things, passing Part II of the National Council for Examiners of Engineering and Surveying (NCEES), which is also known as the Principals and Practices Examination. Due to his experience, North Carolina did not require Petitioner to pass Part I of the NCEES, which is also known as the Fundamentals Examination. By application dated August 27, 2009, Petitioner applied for Florida licensure by endorsement as a professional engineer. Ultimately, Respondent declined to certify to the Florida Engineers Management Corporation the application for licensure by endorsement because Petitioner had not passed Part I of the NCEES. Except for not having passed Part I of the NCEES examination (or, if applicable, not having met one of the other two alternatives set forth in section 471.015(5)(a), as discussed in the Conclusions of Law), Petitioner otherwise meets the education and experience requirements set forth in section 471.013(1), Florida Statutes, for certification for licensure by endorsement.
Recommendation It is RECOMMENDED that the Board of Professional Engineers enter a final order denying Petitioner's application for certification of qualification for licensure by endorsement. DONE AND ENTERED this 11th day of July, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 11th day of July, 2011. COPIES FURNISHED: Michael Todd Flury, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Kristine M. Johnson, Esquire 10620 Griffin Road, Suite 106-B Cooper City, Florida 33328 Carrie A. Flynn, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 John Rimes, Esquire Chief prosecuting Attorney Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner's request that she be reissued a medical technologist license without taking an examination should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this proceeding, Petitioner, Norma Howell, seeks to have her medical technologist license reactivated after it was rendered "null" by operation of law on June 30, 1996. A Notice of Intent to Deny Application for Licensure was entered by respondent, Board of Clinical Laboratory Personnel (Board), on March 21, 1997. Because Petitioner requested that the Board grant a variance or waiver of the rule requiring her to take an examination in order to be relicensed, the Board reconsidered the matter at its April 3, 1997, meeting. On April 11, 1997, the Board entered its Notice of Intent to Deny Variance or Waiver on the ground Petitioner had not demonstrated that she would suffer a substantial hardship or that the application of the rule would affect her in a manner significantly different from other applicants for licensure. On May 9, 1997, Petitioner filed a request for a hearing in which she contended that the statute relied upon by the Board for denying her request "did not apply to her case" and that the Board "did not comply with the 90-day notification requirement of the statute which it relied upon to nullify her license." Petitioner has been practicing in the field of medical technology for some thirty years and she has practiced in Florida for at least nine years. Until this controversy arose, she held medical technologist supervisor license number JC-0026722. Prior to July 1, 1994, medical technogist licenses were subject to the regulatory authority of the former Department of Health and Rehabilitative Services (HRS). At that time, licenses were issued for two-year periods, and if not renewed, they "automatically" reverted to an inactive status. Section 483.819, Florida Statutes (1993), provided that if a license was inactive for less than one year, it could be reactivated by payment of a late renewal penalty. If the license was inactive for more than one year but less than five, it could be reactivated "upon application" to HRS and proof that the licensee had completed 15 hours of continuing education requirements for each year the license was inactive, but not more than a total of 65 hours. If a license was inactive for more than five years, it was automatically suspended, but one year prior to the date the suspension took effect, HRS was required to give written notice to the licensee. Once suspended, a license could not be reactivated unless a licensee met all "requirements for reinstatement." Among other things, HRS possessed the discretionary authority to require reexamination before reinstatement. Effective July 1, 1994, Section 483.819, Florida Statutes (1993), was repealed, and regulatory authority over medical technologist licensees was transferred from HRS to the Department of Business and Professional Regulation (DBPR). In addition, a new Section 455.271, Florida Statutes (Supp. 1994), was created to provide new requirements relative to the inactive and delinquent status of all professional licenses, including those for medical technologists. Section (5) provided that the "[f]ailure of a licensee to renew before the license expires shall cause the license to become delinquent in the license cycle following expiration." Section (6) provided that: a delinquent status licensee must affirmatively apply with a complete application, as defined by rule of the board, or the department when there is no board, for active or inactive status during the licensure cycle in which a licensee becomes delinquent. Failure by a delinquent status licensee to become active or inactive before the expiration of the current licensure cycle shall render the license null without any further action by the board or the department. (Emphasis added) The same subsection provided that once a license was rendered "null," any subsequent licensure "shall be as a result of applying for and meeting all requirements imposed on an applicant for new licensure." In other words, a licensee would have to retake the examination in order to be relicensed. As a safeguard to automatic cancellation of a delinquent license, however, new Section 455.273 (Supp. 1994), provided that "[a]t least 90 days before the end of a licensure cycle, the Department of Business and Professional Regulation shall . . . [f]orward a notice of pending cancellation of licensure to a delinquent status licensee at the licensee's last known address of record with the department." Against this statutory backdrop, Petitioner's license was due for renewal on June 30, 1994, when her latest biennial cycle ended. Because the license was not renewed, it became delinquent under the terms of Section 455.271(5). Therefore, it was incumbent on Petitioner to seek active or inactive status before the end of the next licensure cycle, or by June 30, 1996, or have her license rendered "null" by operation of law. It is noted that Petitioner was one of approximately 2,000 licensees whose license was not renewed at the end of the June 30, 1994, licensure cycle and thus became delinquent. In January 1992 Petitioner relocated from Florida to Mississippi in order to care for her elderly mother. She continued working as a medical technologist in Mississippi. When her license came up for renewal on June 30, 1994, Petitioner had no need for an active Florida license and therefore did not renew it. She assumed, however, that she could keep it in an inactive, delinquent status for up to five years under the terms of Section 483.819, Florida Statutes (1993). Petitioner acknowledges that she became aware of the new law in general terms, but not in specifics, in June 1995. This occurred when the Board her sent a Notice to Delinquent and Inactive Licensees advising that changes in the law had been made and that "the changes affected the manner in which licensees regulated under Chapter 483, F.S., clinical laboratory personnel, may reactivate a license or request to be placed on inactive status." The notice further provided that if Petitioner "would like to receive an application to reactivate (her) license or to be placed on inactive status," she should fill out a form at the bottom of the Notice and return it to the Board. There was no mention in the Notice that Petitioner's license would become "null" by operation of law if she did not take affirmative action by June 30, 1996. In response to the Notice, on June 16, 1995, Petitioner filed the Notice and form with the Board requesting that she be sent an application to place her license in an inactive status. The Board says that the Notice described in finding of fact 8 was a part of a packet of information attached to a form letter sent to all delinquent status licensees on May 27, 1995. According to a Board representative, the form letter contained an admonition to licensees that unless they reactivated their licenses by June 30, 1996, their licenses would be null and void. However, the actual contents of the letter are not of record. This is because the letter was not identified by Respondent's counsel as an exhibit in the prehearing stipulation; it was not a part of the Board's official file pertaining to Petitioner; opposing counsel had no notice that such a letter existed or would be used as evidence at hearing; and thus it was not received in evidence. Even though the form letter was sent some thirteen months before the licensure cycle ended, the Board takes the position that it constituted the statutory notice of pending cancellation required by Section 455.273(1)(b) to be sent to each delinquent status licensee "at least 90 days before the end of the licensure cycle." Board records do not establish that Petitioner received the form letter, and she denies having received any statutory notice of pending cancellation. Approximately two thousand (out of eighteen thousand) licenses under the Board's jurisdiction became delinquent because they were not renewed by June 30, 1994. While the number that were automatically cancelled on June 30, 1996, by operation of law is not of record, only four licensees, including Petitioner, have asked that their licenses be reinstated because of cancellation. Given this unusual circumstance, it is reasonable to accept Petitioner's testimony that she did not receive a notice of cancellation as required by law. This omission by the Board, while unintentional, constituted a material error in procedure which occasioned serious prejudice to Petitioner. In addition to filing the form on June 16, 1995, Petitioner also sent a letter to the Board on June 23, 1995. The letter stated, in pertinent part, as follows: Please place my Medical Technologist Supervisor's Lic # JC 0026722 on inactive status until further notice. I am presently residing in Mississippi. Enclosed is the required fee of $25.00 plus copies of Continuing Education certificates; 39 hrs. The letter provided her most current address in Mississippi, and it contained a postscript that "[i]f an additional form is necessary please advise." By letter dated June 28, 1995, the Board acknowledged receiving Petitioner's letter and check. In the letter, a Board representative advised petitioner that her "request for inactivation of licensure . . . cannot be processed" because she had sent an incorrect fee and a formal application had to be completed. The letter indicated that an application to reactivate her license was also enclosed. Apparently in response to the June 16, 1995, request for an application form, on July 14, 1995, the Board sent Petitioner another reactivation application. Because Petitioner did not want to reactivate her license, but she only wanted to place her license in an inactive status, she did not complete the application at that time. Again, however, she assumed that her license could remain inactive for up to five years after June 30, 1994, without placing it in jeopardy. Petitioner received no further advice, oral or written, from the Board until after she filed a Reactivation Application with the Board on December 19, 1996, together with a $470.00 fee and proof of 39 hours of continuing education. She did so at that time since she had been offered a job in Florida and intended to relocate to this state. On December 20, 1996, Petitioner and the Board's administrator spoke by telephone regarding Petitioner's application. Among other things, Petitioner was told that her license was null and void by operation of law since she failed to reactivate her license by June 30, 1996. On December 27, 1996, the administrator sent Petitioner a letter in which she reconfirmed this fact, but advised that the matter would be taken up by the Board. Petitioner asked that an exception be made since she lived out-of-state and had never received notice of cancellation. The Board later denied her request. Rule 59O-7.001(2), Florida Administrative Code, prescribes the examination requirements for licensure as a supervisor. The purpose of the underlying statute is to ensure minimum competency of all persons engaging in the profession. Petitioner has satisfied this purpose by having successfully practiced in the field for some thirty years and being certified in five specialties. In addition, during the period of time in which her license was delinquent, she successfully completed all necessary continuing education courses. If the request for a variance or waiver is denied, Petitioner will suffer economic hardship since she will be unable to practice her profession in Florida until she passes an examination. More specifically, she will be unable to accept a pending job offer as a medical technologist supervisor. Unusual circumstances are present here. Of the two thousand licensees in a delinquent status after June 30, 1994, only Petitioner has contended that she failed to receive the statutory notice of cancellation. To her detriment, the license was subsequently cancelled by operation of law. The literal application of the rule requiring an examination would unintentionally penalize Petitioner's good faith efforts to reactivate her license. Because it is presumed that all other licensees in a delinquent status received notice of pending cancellation, Petitioner will be treated in a manner significantly different from the way the rule affects other similarly situated persons seeking licensure. That is to say, any other persons requesting relief from the rule because of automatic cancellation on June 30, 1996, would have been on notice that unless they renewed their license by that date, they would be subject to the terms of the rule. Petitioner had no such notice. Therefore, fairness requires an exception. Petitioner has paid all filing fees and completed all continuing education courses necessary for reactivation. If her request is ultimately denied, she is entitled to a refund of her fees.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Clinical Laboratory Personnel enter a final order granting Petitioner's request for a waiver or variance from Rule 59O-7.001(2), Florida Administrative Code, and reinstating her license number JC-0026722. DONE AND ENTERED this 31st day of July, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675, SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1997. COPIES FURNISHED: Eric G. Walker, Executive Director Board of Clinical Laboratory Personnel 1940 North Monroe Street Tallahassee, Florida 32399-2200 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Michelle L. Proctor, Esquire 7637 State Road 52 Bayonet Point, Florida 34667 Edwin A. Bayo, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32399-1050
The Issue Whether Respondent committed the violation of Section 475.25(1)(m), Florida Statutes, alleged in the Administrative Complaint? If so, what disciplinary action should be taken against her?
Findings Of Fact 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. . . .
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby 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 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 17th day of March, 1997.
