09-001771 Jon D. Tremper vs. Florida Real Estate Commission Status: Closed Recommended Order on Friday, June 19, 2009.

Summary: Respondent acted within its grant of statutory authority in denying continuing education credit to two courses proposed by Petitioner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JON D. TREMPER, )

)

Petitioner, )

)

vs. ) Case No. 09-1771

)

FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

On May 21, 2009, an administrative hearing in this case was

held in Melbourne, Florida, before Lawrence P. Stevenson,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jon Demper, pro se

The Home Inspection Academy

6396 Highway US 1

Rockledge, Florida 32955

For Respondent: Thomas Barnhart, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner's two

applications for continuing education course approval should be

denied for the reasons set forth in the Florida Real Estate

Commission's Notices of Intent to Deny, which were issued on

February 19, 2009.

PRELIMINARY STATEMENT

By issuance of Notices of Intent to Deny dated February 19,

2009, the Florida Real Estate Commission (FREC) advised

Petitioner that it intended to deny his applications for

continuing education course approval for courses titled

"Homeowner's Guide to Hurricane Protection & Insurance

Discounts" and "Protecting Homes from Termites, Water Damage and

Mold." Petitioner timely requested a formal administrative

hearing. The case was forwarded to the Division of

Administrative Hearings (DOAH) on April 6, 2009, and the matter

was scheduled for a hearing on May 21, 2009.

At the hearing, Petitioner testified on his own behalf.

Petitioner's Exhibits 1 through 3 were admitted into evidence.

The FREC presented the testimony of its chairman, Ralph McCoig.

The FREC's Exhibits 1 and 2 were admitted into evidence.

No transcript of the hearing was filed. The FREC timely

submitted a Proposed Recommended Order on June 1, 2009.

Petitioner did not file a proposed recommended order.

FINDINGS OF FACT

1. Petitioner Jon Demper is a licensed real estate

sales associate. In 1988, Petitioner established a home

inspection company and has since performed several thousand

inspections of properties in Florida.

2. In 1999, Petitioner established The Home Inspection

Academy, which he describes as a "private school providing

training to the home inspection industry." Petitioner has

developed and taught home inspection and construction-related

courses to individuals and to groups including the Florida

Association of Building Inspectors.

3. Petitioner applied to the Department of Business and

Professional Regulation, Division of Real Estate (Division) for

continuing education credit for two courses that he developed

and wished to present for credit to licensed real estate

professionals: "Homeowner's Guide to Hurricane Protection &

Insurance Discounts," and "Protecting Homes from Termites, Water

Damage and Mold."

3. The courses were placed on the FREC agenda for

consideration at its January 20, 2009, meeting. The FREC denied

both courses by way of Notices of Intent to Deny issued on

February 19, 2009. The FREC's intent to deny was based on

Subsection 475.182(1)(a), Florida Statutes (2008), 1 the relevant

portion of which provides:

Approval or denial of a specialty course

must be based on the extent to which the

course content focuses on real estate issues

relevant to the modern practice of real

estate by a real estate licensee, including

technology used in the real estate industry.

4. Each Notice contained the following finding of fact:

The Director of the Division of Real Estate

suggested that the course could be denied

due to the subject matter of the course not

being related to the profession of real

estate and not related to the nuts and bolts

of real estate.

5. "Homeowner's Guide to Hurricane Protection & Insurance

Discounts" is a three-hour course. The learning objectives of

the first hour are to understand the impact of recent hurricanes

in Florida, which structures survived the storms and why they

survived, and the wind resistance upgrades that are available to

homeowners. The learning objectives of the second hour are to

understand what insurance companies are looking for and how a

homeowner can lower his premium, where to get help in

determining cost-effective wind resistance upgrades, and the

necessity of taking the initiative in dealing with insurance

companies. The learning objectives of the third hour are to

understand the "My Safe Florida Home" program offered by the

State of Florida, the importance of and procedures for

documentation of home improvements, and the best resources

available for protecting a home from hurricanes.

6. "Protecting Homes from Termites, Water Damage and Mold"

is a three-hour course. The learning objectives of the first

hour are to know the threats of termites, water damage and mold

to Florida homes, where to get help when a problem is found, and

the seven ways to ensure that a home stays termite free. The

learning objectives of the second hour are to know and

understand the unique elements of Florida climate, the

importance of keeping water out of Florida homes, and the seven

ways to prevent water damage. The learning objectives of the

third hour are to know and understand the conditions for mold

growth in Florida homes, why mold remediation is necessary, and

the seven ways to keep mold out of Florida homes.

7. Ralph McCoig, the chairman of the FREC, has been a real

estate agent and broker for nearly 30 years. Since 1994,

Mr. McCoig has been the owner and broker of Edita Realty in

Rockledge. Mr. McCoig testified that Petitioner’s courses were

of great interest to homeowners, but were not really relevant to

a real estate licensee's practice.

8. Mr. McCoig stated that a licensee's duties to a seller

are to establish a price for the house based on the current

market, to market the house, and to negotiate the contract of

sale. A licensee's duties to a buyer are to find houses, show

the properties, and assist the buyer in obtaining financing.

Licensees do not give opinions on hurricane insurance

requirements or on termite, water or mold damage.

9. Mr. McCoig stated that home inspection companies,

insurance agents, and licensed pest control companies are the

professionals qualified to deal with the matters discussed in

Petitioner's courses. A real estate licensee would be better

served to retain these professionals on his client's behalf,

because they are the best sources of relevant information and

because the real estate professional does not want to incur

liability for practicing beyond his area of expertise.

10. Mr. McCoig testified that the FREC determined that

Petitioner’s courses were not applicable to a real estate

professional's job and not appropriate for continuing education

credit.

11. Petitioner testified that his courses were not

designed to make a realtor an expert in hurricane protection or

termite, water and mold damage, but to give the realtor the

ability to offer common sense advice to his clients. Petitioner

pointed out that the standard contract for sale and purchase of

real property in Florida contains provisions regarding

disclosure of wood-destroying organisms and mold, and that

Section 627.711, Florida Statutes, requires insurers to take

certain actions regarding discounts for hurricane

reinforcements. Petitioner opined that realtors should be

familiar with these matters in order to properly serve their

clients.

12. Petitioner also testified that the Department of

Business and Professional Regulation, Bureau of Education and

Testing's web site discloses "thousands" of approved courses,

including some whose titles appear equivalent to Petitioner’s

proposed courses and some of which appear frivolous, such as

"Feng Shui for Realtors."

13. In rebuttal, Mr. McCoig testified that the FREC has

recently denied applications for courses related to Feng Shui

concepts. Mr. McCoig stated more generally that the current

FREC board has taken a more hands-on and restrictive approach to

the approval of continuing education courses than had been the

practice in previous years, when the Division had apparently

been delegated authority to approve courses at the staff level.

The FREC board intends to whittle the list of approved courses

down to a manageable number directly related to the "nuts and

bolts" of real estate practice in Florida.

CONCLUSIONS OF LAW

14. The DOAH has jurisdiction over the parties to and

subject matter of this proceeding. § 120.57(1), Fla. Stat.

15. Subsection 475.02(1), Florida Statutes, establishes

the FREC within the Department of Business and Professional

Regulation. Section 475.04, Florida Statutes, provides, in

relevant part:

(1) The commission shall foster the

education of brokers, broker associates,

sales associates, and instructors concerning

the ethical, legal, and business principles

which should govern their conduct.

(2) For the purpose of performing its duty

under subsection (1) to educate persons

holding a license or permit, the commission

may conduct, offer, sponsor, prescribe, or

approve real estate educational courses for

all persons licensed or permitted by the

department as brokers, broker associates,

sales associates, or instructors; and the

cost and expense of such courses shall be

paid as provided in s. 475.125. . . .

16. Subsection 475.182(1)(a), Florida Statutes, provides:

The department shall renew a license upon

receipt of the renewal application and fee.

The renewal application for an active

license as broker, broker associate, or

sales associate shall include proof

satisfactory to the commission that the

licensee has, since the issuance or renewal

of her or his current license,

satisfactorily completed at least 14

classroom hours of 50 minutes each of a

continuing education course during each

biennium of a license period, as prescribed

by the commission. Approval or denial of a

specialty course must be based on the extent

to which the course content focuses on real

estate issues relevant to the modern

practice of real estate by a real estate

licensee, including technology used in the

real estate industry. The commission may

accept as a substitute for such continuing

education course, on a classroom-hour-for-

classroom-hour basis, any satisfactorily

completed education course that the

commission finds is adequate to educate

licensees within the intent of this section,

including an approved distance learning

course. However, the commission may not

require, for the purpose of satisfactorily

completing an approved correspondence or

distance learning course, a written

examination that is to be taken at a

centralized location and is to be monitored.

(Emphasis added.)

17. The FREC's rules do not expand upon the underscored

statutory language. Florida Administrative Code Rule 61J2-

3.009(1)(b) simply provides that approval or denial of a

"specialty" course "will be based on its compliance with the

criteria established in Section 475.182(1), F.S." 2

18. An agency's interpetation of the statute it is charged

with enforcing is entitled to great deference. A court will not

depart from the contemporaneous construction of a statute by a

state agency charged with its enforcement unless the

construction is "clearly erroneous." Verizon Florida, Inc. v.

Jacobs , 810 So. 2d 906, 908 (Fla. 2002).

19. A reviewing court will consider an agency's finding to

be "clearly erroneous" when review of the entire record leaves

the tribunal with "the definite and firm conviction that a

mistake has been committed," even though there is some evidence

to support the agency's finding. United States v. United States

Gypsum Co. , 333 U.S. 364, 395 (1948).

20. In the instant case, the FREC initial decision to deny

continuing education credit to Petitioner's courses was not

clearly erroneous. It is reasonable for the FREC to interpret

Subsection 475.182(1)(a), Florida Statutes, as requiring

continuing education courses to bear a direct relationship to

the practice of real estate by licensees. It was reasonable for

the FREC to find that Petitioner's courses did not bear the

required direct relationship to the practice of real estate.

21. Petitioner’s evidence regarding the Division's past

practices in approving continuing education courses does not

render the FREC's action in this case erroneous. Mr. McCoig

implicitly agreed with Petitioner that some of the approved

courses should not be on the list, and indicated that the FREC

is committed to eliminating approved courses such as "Feng

Shui." It is Petitioner’s misfortune that his courses were

brought before the FREC at a time when the agency is tightening

the approval standards to bring them more into line with the

language of Subsection 475.182(1)(a), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Real Estate Commission enter a

final order denying Petitioner's applications for continuing

education course credit for courses titled "Homeowner's Guide to

Hurricane Protection & Insurance Discounts" and "Protecting Homes

from Termites, Water Damage and Mold."

DONE AND ENTERED this 19th day of June, 2009, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of June, 2009.

ENDNOTES

1/ Unless otherwise noted, all references to the Florida

Statutes are to the 2008 edition.

2/ Neither the statutes nor the rules appear to define

"specialty course" except by inference as any course other than

a "Core Law" course, i.e., the FREC-prescribed course on Florida

real estate license law, FREC rules, and agency law that each

licensee must take at least once during each license renewal

period. See Fla. Admin. Code R. 61J2-3.009(2).

COPIES FURNISHED :

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Thomas W. O’Bryant, Jr., Director

Division of Real Estate

400 W. Robinson Street

Suite 802 North

Orlando, Florida 32801

Thomas Barnhart, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Jon Demper

The Home Inspection Academy

6396 Highway US 1

Rockledge, Florida 32955

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.