96-003998 Division Of Real Estate vs. Anita Ruth Green Status: Closed Recommended Order on Monday, January 6, 1997.

Summary: Application for renewal of real estate license falsely affirmed that continuing education requirements had been met. Therefore, agent is guilty as charged.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, DIVISION )

OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 96-3998

)

ANITA RUTH GREEN, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly designated Administrative Law Judge,

William J. Kendrick, held a formal hearing in the above-styled

case on December 10, 1996, by video teleconference.

APPEARANCES

For Petitioner: Christine M. Ryall, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

400 West Robinson Street, Suite N-308

Orlando, Florida 32802-1900

For Respondent: Anita Ruth Green, pro se

321 Sandtree Drive

Palm Beach Gardens, Florida 33410

STATEMENT OF THE ISSUES

At issue is whether respondent committed the offense

alleged in the administrative complaint and, if so, what

disciplinary action should be taken.

PRELIMINARY STATEMENT

By administrative complaint dated May 23, 1996, petitioner

charged respondent, a licensed real estate salesperson, violated

the provisions of Section 475.25(l)(m), Florida Statutes, by

having “obtained a license by means of fraud, misrepresentation,

or concealment.” The gravamen of such charge is petitioner’s

contention that when renewing her real estate license in October

1994, respondent falsely affirmed that she had successfully

completed the necessary continuing education required for

renewal.

Respondent filed an election of rights wherein she disputed

the allegations of fact contained in the administrative

complaint, and affirmatively averred “I took the test before

renewing license, but cannot find the test score. It was a

passing score.” Consequently, on August 21, 1996, petitioner

referred the matter to the Division of Administrative Hearings

to conduct a formal hearing pursuant to Section 120.57(1),

Florida Statutes.

At hearing, petitioner called no witnesses; however, its

exhibits A, B, C, and D were received into evidence. Respondent

testified on her own behalf, but offered no additional evidence.

The transcript of hearing was not ordered. Consequently,

the parties were accorded seven days from the date of hearing to

file proposed recommended orders. Petitioner elected to file

such a proposal, and it has been duly considered in the

preparation of this recommended order.

FINDINGS OF FACT

1. 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.

2. 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.

3. 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.

4. Respondent’s application was approved and her license

was renewed for the October 1, 1994, to September 30, 1996,

licensure period.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

these proceedings. Sections 120.57(1) and 120.60(5), Florida

Statutes .

11. Here, the Department seeks to take disciplinary action

against respondent for violating the provisions of Section

475.25(l)(m), Florida Statutes, by having “obtained a license by

means of fraud, misrepresentation or concealment.”

Consequently, the Department bears the burden of proving its

charges by clear and convincing evidence. Department of Banking

and Finance v. Osborne Stern and Co. , 670 So.2d 932 (Fla. 1996).

12. Pertinent to this case, Section 475.182, Florida

Statutes, provides:

(1) The department shall renew a license

upon receipt of the renewal application and

fee. The renewal application for an active

license as broker, broker-salesperson, or

salesperson shall include proof satisfactory

to the commission that the licensee has,

since the issuance or renewal of his current

license, satisfactorily completed at least

14 classroom hours of 50 minutes each of a

continuing education course during each

biennium, as prescribed by the

commission. . . .

Also pertinent to this case are the following provisions of

Chapter 61J2-3, Florida Administrative Code:

61J2-3.009 Continuing Education for Active

and Inactive Broker and Salesperson

Licenses.

(1) All persons holding active or

inactive license as brokers or salespersons

must satisfactorily complete a minimum of 14

classroom hours of instruction of 50 minutes

each as prescribed or approved by the

Commission during each license renewal

period excluding the first renewal period.

61J2-3.015 Notices of Satisfactory Course

Completion.

* * *

(2) An application for renewal or

reactivation of an existing status as a

broker, broker-salesperson, salesperson or

instructor shall contain and affirmation by

the individual of having satisfactorily

completed the applicable Commission

prescribed, conducted or approved course(s).

The BPR shall perform random audits of up to

25 [percent] of the licensees and instructor

permit holders to verify compliance with

continuing education or post-license

education requirements. Each licensee and

instructor permit holder shall retain the

grade report as proof of successful

completion of continuing education or post-

license education requirements for at least

2 years following the end of the renewal

period for which the education is claimed.

Failing to provide evidence of compliance

with continuing education or post-license

education requirements or the furnishing of

false or misleading information regarding

compliance with said requirements shall be

grounds for disciplinary action against the

licensee or instructor.

13. Under the foregoing provisions of law, satisfactory

completion of at least 14 hours of continuing education during

each biennium is a material requirement for license renewal; a

circumstance known to respondent. Consequently, where, as here,

the proof supports the conclusion that the applicant’s

affirmation of compliance was false, it necessarily follows that

she has been proven guilty of having “obtained a license by

means of fraud, misrepresentation or concealment” in violation

of Section 475.25(l)(m), Florida Statutes. Munch v. Department

of Professional Regulation , 592 So.2d 1136, 1143 (Fla. 1st DCA

1992), (“[A]pplying to the words used [in Section 475.25(l)(m)]

their usual and natural meaning, it is apparent that it is

contemplated that an intentional act be proved before a

violation may be found.”).

14. Having resolved that respondent committed the offense

heretofore noted, it remains to resolve the appropriate penalty

for her offense. In this regard, the Department suggests that

the appropriate penalty under the circumstances is revocation.

Since such penalty is consistent with the Department’s

guidelines (Rule 61J2-24.001(3)(n), Florida Administrative Code)

and it is accepted; however, consistent with Rule 61J2-24.005,

Florida Administrative Code, respondent may apply for

relicensure five years after the date of filing of the final

order in this case.

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

[phone] 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

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.