97-004174 Department Of Business And Professional Regulation, Division Of Real Estate vs. Connie B. White Status: Closed Recommended Order on Thursday, April 20, 2000.

Summary: Petitioner failed to show that Respondent intended to fraudulently misrepresent her qualifications.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 97-4174

)

CONNIE B. WHITE, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in DeLand, Florida,

on January 16, 1998, and February 9, 2000, by Stephen F. Dean,

assigned Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Laura McCarthy, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

Suite North 308

400 West Robinson Street

Orlando, Florida 32801-1772

For Respondent: Robert R. Foster, Esquire

Post Office Box 41

DeLand, Florida 32721-0041

STATEMENT OF THE ISSUE

The issue in this case is wheth er the Respondent, Connie B.

White, committed violations alleged in the Administrative

Complaint.

PRELIMINARY STATEMENT

The Petitioner filed an administrative complaint against the

Respondent alleging that the Respondent had obtained renewal of

her license fraudulently by renewing her application without

complying with the requirements for continuing education.

The Respondent, through counsel, requested a formal hearing,

and the Department referred the case to the Division of

Administrative Hearings to conduct a formal hearing on the case.

The file was received by the Division of Administrative

Hearings on September 8, 1997, and an initial order was issued to

the parties on September 12, 1997. A joint response was filed

with the Division electronically on September 22, 1997,

requesting that the case be heard in Orlando, Florida.

Thereafter, a motion was made for change of venue to DeLand,

Florida, and the matter was reassigned to the undersigned

Administrative Law Judge. The case was sent for hearing on

January 16, 1998, by notice of hearing dated October 23, 1997,

and heard as noticed.

At the formal hearing the counsel for Petitioner introduced

documentary evidence of the Respondent's licensure and filed a

prehearing stipulation that had been agreed to by the parties.

Pursuant to the stipulation the Petitioner sought to introduce

Petitioner's Exhibits 1 through 6; however, the Respondent

interposed objections to Petitioner's Exhibits 3 and 4.

Petitioner's Exhibit 4 was determined to be admissible and was

received into the record over the objection of the Respondent.

Petitioner's Exhibit 3 was subject not only to objection as

relevant but also as to authenticity. It appeared that the

counsel for the Petitioner had misunderstood the stipulation with

the Respondent, and the Petitioner was granted leave to reopen

its case-in-chief. At this juncture, Respondent’s counsel

renewed his motion to dismiss, essentially arguing that even if

the documents were authenticated and admitted, they would fail to

prove a prima facie case.

Having been fully advised in the premises and having heard

the argument of counsel the Respondent’s motion was granted;

however, upon reviewing the transcript, the exhibits, and the

admissions, the undersigned determined that he had erred in

granting the motion. In order to permit the Respondent to

present a defense, the Respondent was given 10 days to indicate

whether she desired to reopen the record. The Respondent

requested to re-open the record, and the matter was rescheduled

for hearing on August 13, 1998. After several continuances, the

hearing was concluded on February 9, 2000.

A Transcript of the proceedings was filed on February 24,

2000, and both parties submitted proposed findings which were

read and considered.

FINDINGS OF FACT

1. Connie B. White, the Respondent, was a licensee of the

Division of Real Estate at all times relevant to the allegations

against her. The Respondent received a renewal notice for her

real estate license and completed the information contained

thereon and submitted the renewal request together with the

applicable fees to the Department.

2. The Petitioner is the state licensing and regulatory

agency charged with the responsibility and duty to prosecute

licensees pursuant to the laws of the State of Florida.

3. The renewal application provides that "By submitting the

appropriate renewal fees to the Department or the agency, a

licensee acknowledges compliance with all requirements for

renewal." The Respondent submitted to the Petitioner the

licensee renewal application together with a check in the amount

of $190, annotated that $95 was for her renewal fee and $95 was

for her corporation’s renewal fee.

4. In response to an inquiry from the Department, the

Respondent wrote a letter, Petitioner’s Exhibit 3, which was

authenticated by Judy Smith, the Department’s Investigator. See

the transcript of the second hearing, pages 47 and 48. In her

letter, the Respondent stated as follows regarding her

application:

There was never any attempt to defraud in

this case. At worst this was merely a

misunderstanding caused by change in the

requirements. I did not think I had to have

the certificate of successful completion of

the continuing education in my hands by

m[sic]arch 31, 1996 because of the change in

the requirement omitting the need to mail in

the certificate with the fee.

I am sure that I did not obtain a license by

means of fraud, misrepresentation or

concealment.

Enclosed is a copy of certificate of proof of

successful completion of the continuing

education course start date April 26, 1996,

finish date May 28, 1996.

5. While it is uncontroverted that the Respondent was

issued a license as a broker in response to her 1996 application,

no evidence was presented that the Department "relied" upon the

Respondent’s "representations" regarding her qualifications as a

condition to issuing her license.

6. The Respondent thought that she did not have to complete

the continuing education coursework prior to submitting the fee

for the renewal of her license.

7. Respondent took and failed the course in March of 1996,

and re-enrolled in the next available course, which she passed.

8. The Respondent thought it was up to her to complete the

necessary coursework.

9. The Respondent renewed after sending her answers to be

graded, but before receiving the results. The Respondent

subsequently learned that she had not passed the course, and re-

enrolled in the course as stated above.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter in this

case. This Recommended Order is entered pursuant to the

provisions of Section 120.57(1), Florida Statutes.

11. The Petitioner alleges in its one-count administrative

complaint that the Respondent obtained her license by means of

fraud, misrepresentation, or concealment contrary to Section

475.25(1)(m), Florida Statutes, by submitting a renewal

application with a check for the requisite fees thereby

acknowledging compliance with all licensing requirements for

renewal when Respondent had not successfully completed the 14

hours of continuing education required by Section 475.182,

Florida Statutes. The Petitioner has the burden of proof.

12. At the first hearing, the Petitioner did not call any

witnesses and sought to introduce Exhibits 1 through 6. The

parties had introduced a pre-hearing stipulation in which they

agreed to the facts set forth in paragraphs 1, 2, 4, and 5 of the

Administrative Complaint. The pre-hearing stipulation identified

Petitioner’s Exhibits 1 through 6, as follows:

P-1 Respondent’s Response to Election of

Rights Form, dated June 13, 1997.

P-2 A copy (of) Petitioner’s renewal notice,

submitted by Respondent and received by

Petitioner April 9, 1996.

P-3 The letter submitted by Respondent to

Petitioner in response to the complaint

against her, dated August 21, 1996.

P-4 A copy of the course certificate,

submitted by Respondent, indicating 14 hour

course taken with Institute of Florida Real

Estate Careers.

P-5 Respondent’s original response to

request for admissions and interrogatories

propounded by Petitioner.

P-6 A certified copy of Respondent’s

licensure documents.

13. The pre-hearing stipulation indicates that the

Respondent objected to Petitioner’s Exhibits 3 and 4 on the basis

of relevance.

14. At hearing, the Respondent raised an additional

objection to Petitioner’s Exhibit 2 on the basis of authenticity

as well as the relevancy objections to Petitioner’s Exhibits 3

and 4. Having determined that Respondent had made these

objections, the undersigned announced that the hearing would

proceed, and counsel for Petitioner could call her witnesses and

present her evidence. Thereafter, Respondent could present its

evidence. See Transcript, page 6. Whereupon, counsel for the

Petitioner announced that she had submitted her documents and

pleadings, and would be presenting her argument in her proposed

order. When questioned about authenticating Petitioner’s Exhibit

2, Petitioner’s counsel stated she would not authenticate it.

When asked if she was withdrawing it, Petitioner’s Counsel

indicated that she was not withdrawing it, and considered it

self-authenticating. See Transcript, page 6, line 25.

15. The undersigned indicated that he would determine at a

later time the admissibility of Petitioner’s Exhibit 2. See

Transcript, page 7, line 19. I find that it is admissible.

16. Thereafter, the Petitioner rested, and the Respondent

moved to dismiss the administrative complaint for failure to

prove a prima facie case. The Petitioner was afforded the

opportunity to respond, and indicated that the documents

presented proved the factual allegations. This lead to a

discussion of Petitioner’s Exhibit’s 3 and 4, to which Respondent

raised the added objection of authenticity.

17. Because the Respondent’s objections to relevance had

not been ruled upon, the undersigned heard the argument of both

counsel on both relevance and authenticity, and held that

Respondent had not reserved in the pre-hearing stipulation the

objection to authenticity; therefore, it was waived. The

Respondent argued that authenticity was part of the general

predicate that he had expected the Petitioner to prove at

hearing. The undersigned held that if the Respondent’s

stipulation did not include agreeing to the authenticity of the

documents, then the Petitioner would be permitted to re-open her

case for that purpose, and the Respondent’s counsel agreed. See

Transcript, page 11. The objections to relevance were over-

ruled, and the Petitioner was permitted to re-open to present

evidence on authenticity.

18. At this juncture, the Respondent’s counsel renewed his

motion to dismiss, essentially arguing that even if the documents

were authenticated and admitted, they would fail to prove a prima

facie case. See Transcript, page 13, line 8 et seq. , and page

15, line 1 et seq.

19. The Respondent raised two arguments, one based upon the

facts and the other upon the law. The factual argument is based

upon the failure of the Petitioner to present any evidence that

the fee was remitted by Respondent. The legal argument was that

the Petitioner failed to prove a prima facie case based upon the

fact that the Petitioner must prove the Respondent presented the

correct fees and by doing so knowingly and intentionally

misrepresented her qualifications.

20. The Respondent’s motion was granted; however, upon

reviewing the transcript, the exhibits, and the admissions, the

undersigned determined that he had erred in granting the motion.

In order to permit the Respondent to present a defense, the

Respondent was given 10 days to indicate whether she desired to

reopen the record. The Respondent requested to reopen the

record, and after several continuances, the hearing was concluded

on February 9, 2000.

21. The issue presented is whether the Respondent obtained

her license by fraudulently representing that she met all the

criteria for re-licensure.

22. The application stated that by submitting the

appropriate fee the applicant acknowledged compliance with all

the licensing requirements.

23. However, fraud is an offense of specific intent. See

Munch v. Department of Professional Regulation, Division of Real

Estate , 592 So. 2d 1136, (1DCA-1992). The Petitioner must show

the accused intentionally made a statement that the accused knew

was false for the purpose of inducing the person to whom the

statement was made to give up something of worth. Conceding that

performance of an act, under some circumstances, may be taken as

"statement," the party with the burden of proof must show through

the circumstances that the actor’s principle intent was to

knowingly and falsely obtain a benefit from another by the

performance of the act.

24. In the Munch case, cited above, the court held that

under circumstances in which a real estate salesperson believed

he received commissions for his activities as a condominium

association manager, he did not intentionally conceal receipt of

these commissions from his broker and did not intentionally

commit a fraud. The lack of intent related to the person’s

misapprehension of his status, and, therefore, his obligations,

not to the failure to reveal receipt of the commissions.

25. In the instant case, Petitioner presented evidence that

the Respondent submitted a check for $190, of which $95 was for

her brother’s license, and $95 was for her corporate license.

Assuming arguendo that the "appropriate" fee was tendered, under

the principles set out in Munch , the Petitioner would have been

obligated to show that the Respondent submitted the fees

intentionally and knowingly for the purpose of misrepresenting

compliance with the licensure requirements.

26. The Respondent stated in her letter of August 21, 1996,

that she did not think she had to have the certificate of

successful completion of her course work in hand on the date of

renewal. This letter was consistent with her testimony that she

renewed, found out she had failed after renewing, and re-enrolled

in the next course which she completed successfully.

Consequently, the Respondent did not "intentionally" misrepresent

her status. Further, the fee is required for licensing and is

separate and apart from acknowledging completing continuing

education requirements. Therefore, there is another reason for

submitting the fees. In the presence of this alternative reason

for submitting the fees, evidence must be presented to

specifically show the Respondent submitted the fees intentionally

and knowingly to falsely represent her compliance with the

continuing education requirements. 1/

27. The Petitioner, having failed to show the Respondent’s

intent to fraudulently misrepresent her qualifications, failed to

prove a prima facie case.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law set forth herein, it is,

RECOMMENDED:

That the Administrative Complaint against the Respondent be

DISMISSED.

DONE AND ENTERED this 20th day of April, 2000, in

Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.do ah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of April, 2000.

ENDNOTE

1/ Following the requirements outlined in Rule 61J2-3.015(2),

Florida Administrative Code, requiring an affirmation that

applicant has satisfied the course requirements avoids the

difficulty of proofing intent.

COPIES FURNISHED:

Laura McCarthy, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

Suite North 308

400 West Robinson Street

Orlando, Florida 32801-1772

Robert R. Foster, Esquire

Post Office Box 41

DeLand, Florida 32721-0041

Henry M. Solares, Division Director

Department of Business and

Professional Regulation

Division of Real Estate

Suite North 308

400 West Robinson Street

Orlando, Florida 32801-1772

Barbara D. Auger, 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.