The Issue The issue for consideration in this case is whether Respondent's employment with the Pinellas County School Board as a non-instructional employee should be terminated because of the matters alleged in the Superintendent's letter dated May 2, 1995.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Pinellas County School Board, operated the system of public schools in Pinellas County, and employed both instructional and non-instructional personnel in support of its educational mission. Respondent was employed as a plant operator at P-Tec, Clearwater, a vocational-technical school operated by the Petitioner. On or about 1:30 AM on April 29, 1995, Pinellas County Sheriff's Deputy Kenneth E. Kanosky, while on duty on West Bay Drive in Largo, observed a truck weaving back and forth in its lane of traffic. At one point, the right rear wheel of the truck passed over the solid line near the curb, and shortly thereafter, the vehicle veered toward the left hand lane of the road. When the vehicle turned off that highway onto another street, Officer Kanosky stopped it and asked the driver for his license and registration. The driver was the Respondent, Robert D. Potter. When Deputy Kanosky spoke with the Respondent at that time, he noticed that Respondent was somewhat slow in his movements and his speech was slightly slurred. Kanosky also detected an odor of alcohol coming from Respondent, and because of that, he asked Respondent if he had consumed any alcohol. Respondent replied he had drunk two beers. Kanosky then asked the Respondent to dismount the vehicle and when Respondent did so, noticed that he was unsteady on his feet and weaving somewhat back and forth. At this point, Kanosky called for backup which arrived shortly thereafter. Upon the arrival of the backup, Kanosky did a field sobriety test of the Respondent. He administered the walk and turn test, which Respondent failed, and also gave him a one-legged stand test on which Respondent scored a 2, which is inconclusive. Based on the tests, Kanosky arrested the Respondent for DUI. Incident to this arrest, and as a routine part thereof, Kanosky searched Respondent, and in doing so found a metal container in Respondent's pocket. Kanosky smelled the outside of the container and detected an odor of what, based on his experience, was marijuana. When the container was opened, it was found to contain a partially burned cigarette. Kanosky also found a plastic bag of vegetable material in Respondent's pocket which, based on the deputy's 15 years of experience in law enforcement, he recognized as marijuana. Both substance samples were subsequently transmitted to the Pinellas County Forensic Laboratory where they were tested and determined to be marijuana. Immediately after the vegetable substance was found, still at the scene of the arrest, Respondent commented that he was "unable to hide it" from the officers. As a result of the search and the discovery of suspected marijuana, Respondent's vehicle was impounded, and he was transported to the Sheriff's station for a breath test. After Respondent was advised of his rights to decline the test, at approximately 3:09 AM, more than 1 1/2 hours after being stopped by Deputy Kanosky, Respondent was administered a breath test. The test, which was run on an Intoxilizer 5000, an automatic breath analyzer, consistent with established procedures and protocols, indicated, as to the first sample taken, a blood alcohol level of .107. As to the second sample, taken approximately three minutes later, the reading was .111. Respondent does not believe he was driving under the influence of alcohol or was driving while impaired on the evening of April 26, 1995. He admits he had had two beers earlier that evening between 11:30 PM and 12:10 AM, and those two beers were the only alcohol he consumed all day. At the time he was stopped he was on his way to pick up from a friend his fishing rod which he planned to use the following day. He claims the marijuana found on his person by the deputies was not his. Respondent stated that earlier that day he had loaned his truck to an acquaintance by the name of Beach, who was to use it to move property belonging to Beach and his roommate from one apartment to another. The truck was to have been returned earlier in the evening but was not, and when it was returned, Respondent did not look in it or examine it carefully. He merely got in the truck and set off to retrieve his fishing rod. The first indication Respondent had that any foreign substance was in the vehicle, he claims, was when he felt a plastic bag blowing around his feet on the truck floor. He picked it up and looked at it and assumed it was something which did not belong in his truck. However, he did not dispose of it then but stuck it in his pocket. Shortly thereafter, he asserts, as he was stopped at a red light, he discovered the metal can stuck down between the seat and the seat back. While the light was red, he retrieved it, opened it and saw its contents, and when the light turned green, immediately closed it and stuck it, as well, in his pocket. No sooner had he passed through the intersection, he indicates, than he was stopped by Deputy Kanosky for allegedly driving under the influence of alcohol. Respondent explains his failure to immediately dispose of the contraband when he discovered it in his truck by claiming he wanted to show it to Beach and discuss it with him. This is not justification. Respondent believes he did well both on the field sobriety test at the scene of the stop and on the breath analysis at the Sheriff's station. He does not believe he was driving while impaired and notwithstanding the allegation of the deputy to the contrary, claims he indicated he was not drunk and denies he ever said he was. The credible evidence of the deputies and the analysis results indicate otherwise. Respondent has no criminal record. He has never been arrested nor has he been in jail before. He denies making any incriminating statement to the deputies. About a week after the incident, he spoke with Beach, who had borrowed the truck, and at that time, Beach indicated the marijuana was "probably" his or that of the friend who was also moving. Beach, when advised of the situation in which Respondent found himself, indicated he would speak with Respondent's boss and get it straightened out. He did not do so, however, and the letter of suspension with intent to dismiss was issued. The Board has had in effect for many years some version of a policy which permits the discipline of support personnel for various reasons. The edition of the policy in effect at the time of Respondent's misconduct provides for a system of progressive discipline unless the misconduct of the employee is serious enough to impair the employee's effectiveness or possibly bring the Board's service into disrepute, or unless the employee is publicly under the influence of alcohol or drugs. Respondent is described by Mr. Bidding, the assistant director at P- Tec, as an individual whose work is both exemplary and outstanding. Respondent has frequent contact with students and supervises those students who work on campus in a work study program with the plant operation. Most of these are youths between 16 and 18 years old, but some are as young as 14. Mr. Bidding is familiar with the charges against the Respondent and, assuming they are true, recognizing the continued quality of Respondent's work, he would still not want the Respondent employed and in contact with students due to the concerns of parents and community about the quality and behavior of Board employees. Mr. Bidding believes that any charge dealing with substance abuse can have an effect on students, their parents, and other employees, and, indirectly, with businesses through the Business Advisory Committee. While admitting he has not been approached by parents or anyone else about the charges against the Respondent or any other person accused of driving under the influence, it is his position that anyone guilty of that offense should not be working in the school system. As to employees in general, it is a constant subject of concern voiced to him in the community. Both alcohol and the possession of marijuana or drugs, or any type of substance are, to Mr. Bidding, absolute disqualifiers for employment in the system. Respondent has no prior record or evidence of either alcohol or substance abuse, and there have been no complaints about him even after his involvement under discussion. Before Respondent was suspended, Mr. Bidding saw him on a regular basis and they had contact a minimum of 2 to 3 times a week. He has reviewed the Respondent in the past, rated him highly and recommended him for promotion and advancement. He has been very satisfied with the Respondent's work. However, if Respondent is guilty of DUI or the possession of marijuana, in Mr. Bidding's opinion, he cannot effectively serve as a Board employee. Dr. Martha L. O'Howell, administrator in the Board's Office of Professional Standards, investigated the Respondent's actions and determined the allegations against him were supported by the facts. She recommended dismissal because Respondent's actions were inconsistent with and inappropriate for employees of the Board. She was of the opinion it would negatively effect his performance. He has contact with students and employees are role models for the students. Also, parents and community members do not accept the type of conduct ascribed to Respondent in Board employees. Based on these considerations, she drafted the May 2, 1995 letter for Dr. Hinesley signature which suspended the Respondent and indicated an intent to recommend his dismissal. Dr. O'Howell admits that if the only allegation against the Respondent were the DUI, the likelihood is she would not consider dismissal appropriate. However, in her opinion, possession of drugs is grounds for dismissal without grounds for going through a progressive series of disciplinary actions, and this misconduct falls under Section F, Misconduct, of the Board policy on the discipline of non-instructional personnel. It is considered misconduct, and since it involved drugs, the former, unwritten policy called for dismissal with no consideration of mitigation or aggravation. This is consistent with the new policy letter which is now extant. Several of the Respondent's coworkers and supervisors testified in his behalf. Mr. Clark, who is the coordinator of the apprenticeship program at P- Tec, who has worked with the Respondent many times over the past four or five years, and who is also a fishing and camping friend of his, found him to be an exemplary employee who always went beyond the call of duty. Mr. Clark indicates Respondent has a reputation within the school community as a hard worker with an above-average character. Respondent has worked with work education students and has been a strong role model for them. Mr. Clark is aware of the charges against the Respondent but has never known Respondent to use marijuana or any controlled substance. In fact, he has heard the Respondent speak out against drugs and alcohol abuse over the last several years. Assuming the allegations against the Respondent are true, Mr. Clark believes he should be given a second chance and an opportunity to overcome this. The Board should help its employees and not "slam dunk" them. On the other hand, employees should demonstrate exemplary conduct and Respondent's misconduct, if true, is not consistent with that of a good role model. Mr. McGaughey, a plant operator at P-Tec, and an indoor janitor, has worked together with the Respondent for almost 10 years. He is aware of Respondent's reputation in the school community for not ever using drugs, and who supervises those young students who get in trouble in school. Mr. McGaughey is aware of the allegations against the Respondent but he has never known Respondent to use marijuana, either at work or outside of work, over the 10 years they have been associated. Admittedly Respondent drinks a beer or two from time to time, off work. If the allegations involving marijuana are true, nonetheless, Mr. McGaughey does not believe this would interfere with Respondent's ability to do his job. Mr. Chancellor, a campus monitor for approximately 8 years, has known the Respondent from work at P-Tec and has associated with him every working day and on field trips. He is familiar with the Respondent's reputation for not using drugs, and as being a deterrent force to the use of drugs within the school community. Respondent has helped him in his job as a campus monitor, and he has never known Respondent to use drugs. Mr. Chancellor is not familiar with the allegations against the Respondent. When advised by counsel of their substance, Chancellor indicated that if they were true, he would still not feel that Respondent's effectiveness as a Board employee would be impaired. Respondent is a hard worker and always did his job and helped others. Mr. Chancellor would not lose respect for the Respondent if it were shown the allegations against him were true and he and would not object to his own child attending school where Respondent worked even in that case. Respondent's immediate supervisor, Mr. Stucker, who has been employed at P-Tec for 12 years, became aware of the allegations against Respondent when the Respondent informed him of his arrest the day following it. He has seen and observed Respondent on a daily basis over the years they have worked together and has evaluated his performance yearly. In general, he has rated the Respondent as one of the best employees at the school. Not only did Respondent accomplish his own work, but he also did that of other employees as well, and Stucker has recommended Respondent for advancement. At no time, over the period he has known the Respondent, has Respondent ever appeared to be impaired by alcohol or drugs. Even if the allegations against Respondent are true, that one incident would not impair his effectiveness in the future. Respondent is a hard worker, and people miss him and ask for him to come back. Respondent's older sister, Ms. Indish, sees him on a regular basis, and before she moved to Ocala approximately 14 months ago, was his neighbor. She would likely know it if Respondent used marijuana, and she has never known him to use it or any other drug during the time he worked for the Board. In fact, he has taken the position that he did not want people around him who used drugs in their life. He is a social drinker who rarely overindulges in alcoholic drink.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Robert Potter be suspended without pay from May 2, 1995 until such time as the School Board of Pinellas County shall vote to return him to duty at its next meeting for the consideration of this Recommendation but that he not be dismissed from employment with the Board. RECOMMENDED this 30th day of November, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 November, 1995. APPENDIX TO RECOMMENDED ORDER 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 to this case. FOR THE PETITIONER: 1. - 10. Accepted and incorporated herein. 11. - 14. Accepted and incorporated herein. 15. Accepted. 16. - 18. Accepted and incorporated herein. 19. - 26. Accepted and incorporated herein. 27. Accepted and incorporated herein. 28. & 29. Accepted. FOR THE RESPONDENT: 1. - 4. Accepted and incorporated herein. 5. Accepted and incorporated herein except for last sentence. Though it is accepted that Respondent had no knowledge the marijuana was in his vehicle until he found it there while driving to pick up his fishing rod, he failed to dispose of it when discovered and was aware it was in his possession from that time until it was discovered by the Deputy on the search incident to the arrest. 6. Accepted and incorporated herein. 7. First two sentences accepted and incorporated herein. Balance rejected as contra to the weight of the evidence. 8. Accepted and incorporated herein. 9. - 12. Accepted and incorporated herein. 13. & 14. Accepted and incorporated herein. 15. Accepted and to use of marijuana. Rejected as to possession of marijuana. 16. - 18. Rejected as contra to the weight of the evidence. COPIES FURNISHED: Keith B. Martin, Esquire Pinellas County School Board Post Office Box 2942 Largo, Florida 34649-2942 Mark E. Schleben, Esquire 1423 South Ft. Harrison Avenue Clearwater, Florida 34619 Dr. J. Howard Hinesley Superintendent Pinellas County Schools Post Office Box 2942 Largo, Florida 24649-2942
The Issue Whether Petitioner, Ruth Prevor, Ph.D. ("Dr. Prevor"), should be granted a variance or waiver from Florida Administrative Code Rule 64B19-11.0035.
Findings Of Fact Dr. Prevor graduated with a Ph.D. in psychology in 1988 from Carlos Albizu University (formerly known as Caribbean Center for Advanced Studies) in Puerto Rico.1/ At the time Dr. Prevor was enrolled and graduated from Carlos Albizu University, the psychology doctoral program was not accredited by the American Psychological Association ("APA"). The psychology doctoral program was not accredited by the APA until 1994, approximately six years after Dr. Prevor's graduation. Dr. Prevor received a license to practice psychology in Puerto Rico in 1985. For over 25 years after becoming licensed in Puerto Rico, Dr. Prevor practiced psychology in Puerto Rico. Approximately two years ago, Dr. Prevor moved to the United States, intending to obtain licensure as a psychologist in Florida, and practice psychology in Florida. The Board is the state agency charged with the duty of licensing psychologists in the state of Florida, pursuant to chapter 490, Florida Statutes. A person may apply to the Board to be licensed as a psychologist through various methods, including: a) licensure by examination; b) licensure by endorsement; and c) licensure by diplomate status. The Board considers each application for licensure on an individual basis. On March 20, 2012, Dr. Prevor submitted an application to the Board for licensure as a psychologist by endorsement, only. At no time has Dr. Prevor applied to be licensed by examination or diplomate status. Dr. Prevor applied for licensure by endorsement through two endorsement methods: endorsement by licensure in another state, and endorsement of 20 years' experience. In her application for licensure by endorsement, Dr. Prevor was specifically asked: "Did you graduate from a doctoral program which was accredited by the American Psychological Association (APA) at the time you were enrolled and subsequently graduated?" Following the question were two boxes marked "YES," and "NO." Dr. Prevor checked the box marked "NO," acknowledging that she had not graduated from a doctoral program which was accredited by the APA at the time she was enrolled and graduated. Dr. Prevor's application for licensure by endorsement was initially reviewed by the Board's staff. Subsequently, Dr. Prevor was notified that her application would be considered at the Board's Credentials Committee meeting on July 20, 2012. Prior to the July 20, 2012, meeting, Dr. Prevor was aware that the Board was concerned about her application. Importantly, the Board was concerned that Dr. Prevor's doctoral program did not meet the minimum educational requirements set forth by statute because her doctoral program was not accredited by the APA at the time she was enrolled and graduated. In an effort to address this concern, Dr. Prevor solicited a "comparability study" from Jose Pons, Ph.D., Professor and Director of an APA accredited Psy.D. program at Ponce School of Medicine and Health Science in Puerto Rico. On June 21, 2012, Dr. Pons submitted a letter to the Board on behalf of Dr. Prevor, purporting to demonstrate that the doctoral program Dr. Prevor was enrolled in and graduated from in 1988 was "comparable" or "substantially equivalent" to an APA accredited program. The Board refused to accept the "comparability study," and instead, offered to allow Dr. Prevor to withdraw her application for licensure by endorsement. Dr. Prevor refused the Board's offer. Instead, Dr. Prevor requested that her application for licensure by endorsement be held by the Board in abeyance pending the outcome of this proceeding. The Board agreed to this request and, as of the date of the final hearing, no formal decision had been made by the Board on Dr. Prevor's application for licensure by endorsement. Dr. Prevor's primary contention is that the Board should have accepted the "comparability study" submitted by Dr. Pons. According to Dr. Prevor, the Board accepted "comparability studies" from other applicants prior to an October 2011 amendment to rule 64B19-11.0035, which took language allowing for "comparability studies" "out of the rule." According to Dr. Prevor, the underlying purpose of section 490.006, Florida Statutes, which governs licensure by endorsement, would be met by requiring the Board to accept her "comparability study," and the Board's application of the current rule to her circumstances would violate principles of fairness or impose a substantial hardship. Therefore, Dr. Prevor asserts she is entitled to a variance from the current rule 64B19-11.0035. In denying the petition, the Board relied on sections 490.006 and 490.003, Florida Statutes, which contain the minimum educational requirements for licensure by endorsement. These statutes are clear in requiring that a doctoral degree be awarded from an accredited institution and from an accredited program at the time of enrollment and graduation. Section 490.006 provides as follows: 490.006 Licensure by endorsement.- The department shall license a person as a psychologist or school psychologist who, upon applying to the department and remitting the appropriate fee, demonstrates to the department or, in the case of psychologists, to the board that the applicant: * * * Holds a valid license or certificate in another state to practice psychology or school psychology, as applicable, provided that, when the applicant secured such license or certificate, the requirements were substantially equivalent to or more stringent than those set forth in this chapter at that time; and, if no Florida law existed at that time, then the requirements in the other state must have been substantially equivalent to or more stringent than those set forth in this chapter at the present time; Is a diplomate in good standing with the American Board of Professional Psychology, Inc.; or Possesses a doctoral degree in psychology as described in s. 490.003 and has 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 application. Section 490.003(3)(b), provides, in pertinent part, as follows: (b) Effective July 1, 1999, "doctoral-level psychological education" and "doctoral degree in psychology" mean a Psy.D., an Ed.D. in psychology, or a Ph.D. in psychology from: An educational institution which, at the time the applicant was enrolled and graduated, had institutional accreditation from an agency recognized and approved by the United States Department of Education or was recognized as a member in good standing with the Association of Universities and Colleges of Canada; and A psychology program within that educational institution which, at the time the applicant was enrolled and graduated, had programmatic accreditation from an agency recognized and approved by the United States Department of Education. In Dr. Prevor's Proposed Recommended Order, she concedes that the definition of "doctoral degree in psychology" in section 490.003(3)(b), applies equally to all provisions of section 490.006. The evidence presented at the final hearing established that Dr. Prevor does not possess the minimum statutory qualifications to be licensed in Florida by endorsement pursuant to section 490.006, because at the time she was enrolled and graduated with her Ph.D. in 1988, the doctoral program was not accredited by the APA. Dr. Prevor failed to prove that she is entitled to a variance or waiver from rule 64B19-11.0035, because she did not establish that the purpose of the underlying statute, section 490.006, would be met were she to be granted a variance or waiver from the rule, and that the Board's application of the current rule to her circumstances would violate the principles of fairness or impose a substantial hardship. The purpose of the underlying statute governing licensure by endorsement, section 490.006, would not be met if Dr. Prevor were to be granted a variance or waiver from the rule, because Dr. Prevor does not meet the minimum educational requirements of the statute to be licensed as a psychologist by endorsement. The undersigned rejects Dr. Prevor's contention that the underlying purpose of the statute would be achieved by the Board's acceptance of the "comparability study." The statute is clear in requiring that a doctoral degree be awarded from an accredited institution and from an accredited program at the time of enrollment and graduation. Nothing in sections 490.006 or 490.003 allow for the Board to accept a "comparability study" in lieu of an applicant's satisfaction of the statutory minimum educational requirements. Allowing the Board to accept the "comparability study" would run afoul of the statutory requirement that the applicant must have been enrolled and graduated from a doctoral program which, at the time, was accredited by the APA. No statutory provision exists allowing for a doctoral degree to meet the educational requirements through a "comparibility study" or accreditation of the program at a later time. The undersigned also rejects Dr. Prevor's contention that the application of the current rule to her circumstances would violate principles of fairness or impose a substantial hardship. Dr. Prevor cannot obtain a variance or waiver from the rule because she cannot meet the minimum educational requirements established by statute. In other words, Dr. Prevor cannot overcome her failure to satisfy the minimum statutory educational requirements by seeking a variance or waiver from a rule. Be that as it may, the rule, in its current and prior versions, applies to licensure by examination, not licensure by endorsement. No sufficient factual basis was provided by Dr. Prevor for a variance or waiver from a rule governing licensure by examination, which on its face, does not apply to an application for licensure by endorsement.2/ The undersigned rejects Dr. Prevor's contention that because the Board may have accepted "comparability studies" under the old rule prior to October 2011 for other persons, (and particularly one person who received his doctoral degree in psychology in 1988 from Carlos Albizu University), that Dr. Prevor is therefore entitled to a variance from the current rule. This argument fails for two fundamental reasons. First, the rule, in its prior or current versions, does not create an exception to the statutory requirement that the doctoral program must have been APA accredited at the time of enrollment and graduation. Thus, if the Board accepted "comparability studies" under the old rule, it did so in violation of the statute. Secondly, Dr. Prevor did not provide persuasive evidence that the other persons are similarly situated to her. Many of the other persons had licenses from other states (not a territory such as Puerto Rico), and submitted their applications under different methods of licensure. Furthermore, if any "comparability studies" were accepted by the Board, they were accepted prior to the effective date of the October 2011 amendment to the rule. Dr. Prevor's argument is premised on an old rule, which is no longer in effect.3/ Finally, Dr. Prevor failed to prove that the application of the current rule to her circumstances would violate principles of fairness or impose a substantial hardship, because she may have the option of pursuing alternative pathways to licensure as a psychologist in Florida.4/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order dismissing the Petition for Variance From or Waiver of Rule 64B19-11.0035, Florida Administrative Code. DONE AND ENTERED this 28th day of January, 2014, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 28th day of January, 2014.
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
