96-005609 Division Of Real Estate vs. German H. Rodriguez Status: Closed Recommended Order on Monday, March 24, 1997.

Summary: Respondent submitted false renewal form because he had not completed education course.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

AND PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 96-5609

)

GERMAN H. RODRIGUEZ, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on February 7, 1997, before J.D. Parrish, a designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Christine M. Ryall, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

400 West Robinson Street

Orlando, Florida 32802

For Respondent: German H. Rodriguez, Pro Se th

703 Southwest 89 Avenue

Plantation, Florida 33324

Frederick H. Wilsen, Esquire

GILLIS & WILSEN

1415 East Robinson Street, Suite B

Orlando, Florida 32801

STATEMENT OF THE ISSUES

The issue in this case is whether the Respondent, German H.

Rodriguez, committed the violation alleged in the administrative

complaint; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on September 19, 1996, when the Petitioner,

the Department of Business and Professional Regulation, Division

of Real Estate (Department), issued an administrative complaint

that alleged the Respondent, German H. Rodriguez, had violated

Section 475.25(1)(m), Florida Statutes , by obtaining a license by

means of fraud, misrepresentation, or concealment. More

specifically, the complaint alleged that the Respondent had

submitted a license renewal form affirming that he had completed

all of the requirements for license renewal when, in fact, he had

not completed the continuing education required by law.

Petitioner maintains Respondent thereby received his renewal of

license based upon a misrepresentation of his completion of the

continuing education course work. Thereafter, the Respondent

disputed the factual allegations of the complaint and the matter

was forwarded to the Division of Administrative Hearings for

formal proceedings on December 2, 1996.

At the hearing, Respondent elected to represent himself but

subsequently requested to late-file a proposed recommended order

through his attorney. Such motion, filed on February 21, 1997,

was granted by order entered March 5, 1997. Petitioner filed a

proposed recommended order on February 13, 1997, but was granted

leave to either file an amended proposed order or to respond to

the Respondent’s proposed order. This response was due not later

than March 21, 1997. The transcript of the proceeding was filed

on February 28, 1997.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the

responsibility of regulating and disciplining real estate

licensees in the State of Florida.

2. At all times material to the allegations of this case,

Respondent has been licensed as a real estate broker, license

number 0434907.

3. On March 20, 1995, Respondent submitted a license

renewal form to the Petitioner which resulted in the automatic

issuance of a renewed license for two years, ending March 31,

1997.

4. The license renewal form provided, in pertinent part:

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 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.

5. When Respondent executed the renewal form he did not

have documentation supporting his eligibility for license

renewal. Specifically, Respondent did not have a course report

documenting completion of the required 14 hour continuing

education course. The course report that Respondent later

received from an approved real estate school noted that

Respondent had started the course June 1, 1995, and had finished

it June 26, 1995.

6. Respondent knew that the 14 hour continuing education

course was required by the Department for license renewal.

Further, Respondent knew that the course was to be completed

before the renewal came due.

7. Respondent maintains that he intended to complete the

course before the renewal because he had, in fact, requested a

correspondence course from an approved real estate school, had

completed the course work, and had filled out the answer sheet.

Unfortunately, according to Respondent, the envelope was

misplaced and he failed to timely mail the answer form to the

company for scoring. Therefore, Respondent did not get credit

for the work until June, 1995, when he completed the work again.

8. As chance would have it, Respondent was selected for

audit in August, 1995. By this time he had completed the

continuing education course work as required by the Department

for license renewal but, as indicated above, did so after the

renewal form had been submitted.

9. In response to the audit, Respondent represented that he

had completed the work prior to renewal but, through

inadvertence, had not gotten the course credit until after the

renewal period.

10. Respondent did not successfully complete 14 hours of

continuing education prior to submitting the renewal form.

11. Respondent has been a licensed real estate broker for

ten years during which time he has never been disciplined.

12. At the time of the renewal, Respondent was not using

his real estate license and was in an inactive status.

CONCLUSIONS OF LAW

13. The Division of A dministrative Hearings has

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

these proceedings.

14. The Petitioner bears the burden of proof to establish,

by clear and convincing evidence, the allegations of the

administrative complaint. Ferris v. Turlington , 510 So.2d 292

(Fla. 1987).

15. Section 475.25(1), Florida Statutes , provides, in part:

(1) The commission may deny an application

for licensure, registration, or permit, or

renewal thereof; may place a licensee,

registrant, or permittee on probation; may

suspend a license, registration, or permit

for a period not exceeding 10 years; may

revoke a license, registration, or permit;

may impose an administrative fine not to

exceed $1,000 for each count or separate

offense; and may issue a reprimand, and any

or all of the foregoing, if it finds that the

licensee, registrant, permittee, or

applicant:

* * *

(m) Has obtained a license by means of fraud,

misrepresentation, or concealment.

16. Fourteen hours of continuing educ ation completed prior

to the renewal is a prerequisite to renewal of a real estate

broker’s license. Section 475.182, Florida Statutes .

17. Rule 61J2-3.015, Florida Administrative Code , provides,

in pertinent part:

(2) 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.

18. In this case, the Department has established, by clear

and convincing evidence, that the Respondent submitted a false

renewal form. Respondent knew that continuing education course

work was required prior to license renewal but failed to secure

the course credit before submitting the renewal form. Assuming,

arguendo , that Respondent misplaced the first answer sheet (which

required scoring by the real estate school), it is clear

Respondent knew he did not have the results from same prior to

the time he filed the renewal form. Absent the course report,

Respondent had no assurance that his first effort at the course

work had received a passing grade. Moreover, had Respondent not

misrepresented the status of his eligibility, the license would

not have been automatically renewed.

19. To his credit, Respondent went ahead and completed the

continuing education in June, 1995, well before the audit notice

was received from the Department. Thus, it is concluded

Respondent attempted to comply with the law before the violation

was discovered. Moreover, no member of the public was placed at

risk by virtue of Respondent’s untimely completion of the course

work.

20. Rule 61J2-24.001(3), Florida Administrative Code ,

provides guidelines for penalties involving Section

475.25(1)(m), Florida Statutes . The range of proposed penalties

is at the minimum a reprimand and/or a fine of $1000 up to the

maximum of a fine of $1000 and revocation. Given Respondent’s

past disciplinary record, the lack of any real threat to the

public given the circumstances of this case, and his license

status at the time of the incident, it is concluded that a

penalty at the minimum end of the guideline range is appropriate.

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 finding Respondent violated Section 475.25(1)(m),

Florida Statutes , and imposing a reprimand with an administrative

fine in the amount of $1,000.00.

DONE AND ENTERED this 9th day of April, 1997, in

Tallahassee, Florida.

___________________________________

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of April, 1997.

COPIES FURNISHED:

Henry M. Solares

Division Director

Division of Real Estate

400 West Robinson Street

Orlando, Florida 32802-1900

Lynda L. Goodgame

General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Christine M. Ryall, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

400 West Robinson Street

Tallahassee, Florida 32802

Frederick H. Wilsen, Esquire

Gillis & Wilsen

1415 East Robinson Street, Suite B

Orlando, Florida 32801

German H. Rodriguez

703 Southwest 89th Avenue

Plantation, Florida 33324

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.