98-003961 Division Of Real Estate vs. Rudolph Gordon Mirjah Status: Closed Recommended Order on Wednesday, January 20, 1999.

Summary: While Respondent`s affirmation on renewal application that he was in compliance with all requirements was inaccurate because had not completed continuing education, he did not intend to decieve anyone, and did not obtain his license by misrepresentation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 98-3961

)

RUDOLPH GORDON MIRJAH, )

)

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 3, 1998, by video teleconference.

APPEARANCES

For Petitioner: Laura McCarthy, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

Post Office Box 1900

Orlando, Florida 32802-1900

For Respondent: Donnette Reid, Esquire

Law Offices of Glantz & Glantz

Wellesley Corporate Plaza

7951 Southwest Sixth Street, Suite 200

Plantation, Florida 33324

STATEMENT OF THE ISSUES

At issue is whether Respondent committed the offenses

alleged in the Administrative Complaint and, if so, what

disciplinary action should be taken.

PRELIMINARY STATEMENT

By a two-count Administrative Complaint dated August 19,

1998, Petitioner charged that Respondent, a licensed real estate

salesperson, violated certain provisions of Section 475.25,

Florida Statutes. Count I alleged that Respondent violated the

provisions of Subsection 475.25(1)(m), Florida Statutes, by

having "obtained a license by means of misrepresentation or

concealment." The gravamen of such charge was Petitioner's

contention that when renewing his real estate license in March

1998, Respondent falsely affirmed that he had successfully

completed the necessary continuing education required for

renewal. Count II alleged that Respondent's failure to comply

with the continuing education requirements of Rule 61J2-3.009,

Florida Administrative Code, also constituted a violation of the

provisions of Subsection 475.25(1)(e), Florida Statutes.

Respondent filed an election of rights wherein he disputed

the allegations of fact contained in the Administrative

Complaint. Consequently, on September 4, 1998, Petitioner

referred the matter to the Division of Administrative Hearings

for the assignment of an administrative law judge to conduct a

formal hearing pursuant to Sections 120.569, 120.57(1), and

120.60(5), Florida Statutes.

At hearing, Petitioner called Margaret Hoskins as a witness,

and Petitioner's Exhibits 1 through 8 were received into

evidence. Respondent testified on his own behalf, and

Respondent's Exhibit 1 was received into evidence.

The transcript of hearing was filed December 21, 1998, and

the parties were initially accorded until December 31, 1998, to

file proposed recommended orders; however, at Respondent's

request, and with Petitioner's acquiescence, the time for filing

was extended to January 18, 1999. Consequently, the parties

waived the requirement that a recommended order be rendered

within 30 days after the transcript has been filed. Rule 28-

106.216(2), Florida Administrative Code. The parties elected to

file such proposals, and they have 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, Rudolph Gordon Mirjah, is now and has been

at all times material hereto a licensed real estate salesperson

in the State of Florida, having been issued license number

0589544.

3. Since November 2, 1994, if not before, Respondent has

been employed by Post, Buckley, Schuh, and Jernigan, Inc., a

broker corporation located at 2001 Northwest 107th Avenue, Miami,

Florida, as a right-of-way agent. Incident to his employment,

Respondent works primarily as a consultant for the Florida

Department of Transportation to acquire real estate for road

improvements. Elements of such activities require his licensure

as a real estate salesperson.

4. In or about early 1998, the Department provided

Respondent with a renewal notice, which reminded him that his

salesperson license was due to expire March 31, 1998. The

renewal notice carried the following legend:

IMPORTANT: BY SUBMITTING THE APPROPRIATE

RENEWAL FEES TO THE DEPARTMENT OR THE AGENCY,

A LICENSEE ACKNOWLEDGES COMPLIANCE WITH ALL

REQUIREMENTS FOR RENEWAL.

Respondent submitted the appropriate renewal fee, and the

Department renewed his license.

5. By letter of May 22, 1998, 1 the Department advised

Respondent that his license had been selected for audit to

determine whether he was in compliance with the continuing

education requirements for licensure. Pertinent to this case,

the letter provided:

Your license number has been selected at

random for an audit of the education required

to comply with Rule 61J2-3.015(2). By

submitting the renewal fee to the Department,

you acknowledged compliance of the

"Commission-prescribed education"

requirements for the license period beginning

April 1, 1996, ending March 31, 1998.

Please submit this letter along with the

proof of the Commission approved course or

equivalency education required at the time of

you renewal, no later than 10 days from the

date of this letter . (Emphasis in original.)

6. In response to the Department's request, Respondent

provided a certificate (reflecting 14 hours of continuing

education), dated January 21, 1996. The Department responded (by

letter of June 15, 1998) that the tendered certificate reflected

proof of 14 hours of continuing education for the period

beginning April 1, 1994, and ending March 31, 1996, and,

therefore, evidenced satisfactory completion of the continuing

education requirement for renewal of Respondent's license

March 31, 1996, and not the renewal of March 31, 1998. The

Department again requested evidence that Respondent had

satisfactorily completed 14 hours of continuing education for the

period beginning April 1, 1996, and ending March 31, 1998, that

would support the renewal of his license for March 31, 1998.

7. By letter of June 19, 1998, Respondent replied to the

Department's request, as follows:

This letter is in reference to the attached

letter from the Department of Business &

Professional Regulation dated June 15, 1998,

and our recent telephone conversation. I

honestly was not aware that I have to take

the 14 hour Continuing Education course every

renewal period, although you stated it on the

renewal notice. I thought this was a

reminder to take the course which I had

already taken.

When I had completed this 14 hour course

with Gold Coast School of Real Estate, I

asked the instructor if I had to take any

additional courses, and he told me that was

the last course. It was a misunderstanding

on my part. I apologize to the Department

for not fulfilling this requirement, but ask

for an extension to complete the course.

8. On June 20, 1998, Respondent enrolled with Gold Coast

School of Real Estate for 14 hours of continuing education (to

fulfill his prior obligation), and on June 26, 1998, successfully

passed the examination and was awarded a certificate of

completion. Notwithstanding, on August 19, 1998, the Department

filed the Administrative Complaint which is the subject matter of

this case and charged that Respondent violated Subsection

475.25(1)(m), Florida Statutes, by having "obtained a license by

means of misrepresentation or concealment," and Subsection

475.25(1)(e), Florida Statutes, by having failed to satisfy the

continuing education requirements prescribed by Rule 61J2-3.009,

Florida Administrative Code. According to the complaint, the

disciplinary action sought for each count or separate offense

. . . may range from a reprimand; an

administrative fine not to exceed $5,000.00

per violation; probation; suspension of

license, registration or permit for a period

not to exceed ten (10) years; revocation of

the license, registration or permit; and any

one or all of the above penalties as provided

for by § 455.227 and § 475.25(1), Fla. Stat. 2

and Fla. Admin. Code R. 61J2-24.001. . . .

9. At hearing, Respondent acknowledged his failure to take

a continuing education course during the renewal period at issue,

and reiterated that the cause for such failure was his

misunderstanding of the statement (heretofore noted) made by the

instructor at the course he completed in January 1996. Here,

Respondent's testimony was candid, and the explanation offered

for his failure to complete a continuing education course during

the subject renewal period is credited. Consequently, it is

resolved that, at the time he submitted his renewal application,

Respondent did not intend to mislead or deceive the Department,

nor did he act with reckless disregard for the truth.

10. In so concluding, it is observed that following

licensure, Respondent duly completed the 45 hours post-licensing

educational course requirement prior to the first renewal

following licensure, as required by Rule 61J2-3020(1), Florida

Administrative Code (Petitioner's Exhibit 6), and 14 hours of

continuing education (classroom hours) prior to the second

renewal of his license, as required by Rule 61J2-3009(1), Florida

Administrative Code (Petitioner's Exhibit 5). It was during the

later course that Respondent received the information (that this

was the last course he was required to take) which he now

understands he misunderstood to apply to any future educational

requirements, as opposed to merely that renewal period. Also

pertinent to the foregoing conclusion, it is observed that during

the period of Respondent's licensure, as well as before, he

actively pursued self-improvement in his profession through

attendance at numerous educational courses presented by the

International Right of Way Association. Such continuing

education included a 16-classroom-hour course in Land Titles

(completed November 5, 1993); an 80-classroom-hour course in

Principles of Real Estate Acquisition (completed December 8,

1995); an 8-classroom-hour course in Ethics and the Right of Way

Profession (completed September 27, 1996); a 24-classroom-hour

course in Communications in Real Estate Acquisition (completed

February 14, 1997); a 16-classroom-hour course in Eminent Domain

Law Basics for Right of Way Professionals (completed November 14,

1997); and a 24-classroom-hour course in Interpersonal Relations

in Real Estate (completed July 10, 1998). Moreover, between

November 1996 and November 20, 1997, Respondent took and passed

examinations offered by the International Right of Way

Association in Law, Negotiations, Appraisals, and Engineering,

and on October 15, 1998, Respondent was approved for registration

as a Senior Member of the International Right of Way Association.

Given the commitment reflected by Respondent's educational

efforts to improve his skills as a right-of-way agent, it is most

unlikely that, absent a misunderstanding, Respondent would not

have complied with the Department's continuing education

requirement. Consequently, given Respondent's candor and

history, it must be concluded that the proof fails to support the

conclusion that Respondent "obtained [his] license by means of

misrepresentation or concealment," as alleged in the

Administrative Complaint.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has jurisdiction

over the parties to, and the subject matter of these proceedings.

Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes

(1997).

12. Where, as here, the Department proposes the take

punitive action against a licensee, it must establish grounds for

disciplinary action by clear and convincing evidence. Section

120.57(1)(h), Florida Statutes (1997), and Department of Banking

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

"The evidence must be of such weight that it produces in the mind

of the trier of fact a firm belief or conviction, without

hesitancy, as to the truth of the allegations sought to be

established." Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983). Moreover, the disciplinary action taken may

be based only upon the offenses specifically alleged in the

administrative complaint. See Kinney v. Department of State ,

501 So. 2d 129 (Fla. 5th DCA 1987); Sternberg v. Department of

Professional Regulation, Board of Medical Examiners , 465 So. 2d

1324 (Fla. 1st DCA 1985); and Hunter v. Department of

Professional Regulation , 458 So. 2d 844 (Fla. 2d DCA 1984).

Finally, in determining whether Respondent violated the

provisions of Section 475.25(1), as alleged in the Administrative

Complaint, one "must bear in mind that it is, in effect, a penal

statute. . . . This being true, the statute must be strictly

construed and no conduct is to be regarded as included within it

that is not reasonably proscribed by it." Lester v. Department

of Professional and Occupational Regulations , 348 So. 2d 923, 925

(Fla. 1st DCA 1977).

13. Pertinent to this case, Section 475.25(1), Florida

Statutes, provides that the Florida Real Estate Commission may

discipline a licensee, if it finds that the licensee:

(e) Has violated any of the provisions of

. . . any rule made or issued under the

provisions of this chapter or chapter 455.

* * *

(m) Has obtained a license by means of

fraud, misrepresentation, or concealment.

14. Also pertinent to this case, Rule 61J2-3.009, Florida

Administrative Code, provides:

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 of their

current license.

15. Here, there is no dispute that Respondent violated the

provisions of Subsection 475.25(1)(e), Florida Statutes, by

having failed to satisfy the continuing education requirement

prescribed by Rule 61J2-3.009, Florida Administrative Code, as

alleged in Count II of the Administrative Complaint. What is at

issue is whether, by submitting his application for renewal

(which "acknowledged compliance with all requirements for

renewal"), when he had not completed the continuing education

requirement, constituted a violation of Subsection 475.25(1)(m),

Florida Statutes.

16. To establish that a licensee committed a violation of

Subsection 475.25(1)(m), the Department must show not only that

the licensee provided false or misleading information on his

application, but that he did so knowingly and intentionally.

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(1)(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."). Accord Walker v.

Department of Business and Professional Regulation , 23 Fla. L.

Weekly D292 (Fla. 5th DCA 1998). See also Gentry v. Department

of Professional and Occupational Regulations , 293 So. 2d 95, 97

(Fla. 1st DCA 1974) (statutory provision prohibiting licensed

physicians from "[m]aking misleading, deceptive and untrue

representations in the practice of medicine" held not to apply to

"representations which are honestly made but happen to be

untrue"; "[t]o constitute a violation, . . . the legislature

intended that the misleading, deceptive and untrue

representations must be made willfully (intentionally))"; and

Naekel v. Department of Transportation , 782 F.2d 975, 978 (Fed.

Cir. 1986) ("[A] charge of falsification of a government document

[in this case, an employment application] requires proof not only

that an answer is wrong, but also that the wrong answer was given

with intent to deceive or mislead the agency. The fact of an

incorrect response cannot control the question of intent. Were a

bare inaccuracy controlling on the question of intent, the

'intent' element of the charge would be subsumed within the

distinct inquiry of whether the employee's answer adheres to the

true state of facts. A system of real people, pragmatic in their

expectations, would not easily tolerate a rule under which the

slightest deviation from truth would sever one's tenuous link to

employment. Indeed, . . . [the employment application] does not

require absolute accuracy. Instead an employee must certify that

the answers are 'true, complete and correct to the best of my

knowledge and belief, and are made in good faith.' No more than

that can reasonably be required. The oath does not ask for

certainty and does not preclude a change in one's belief.")

17. Here, it is undisputed that Respondent's representation

on the renewal application (that he was in "compliance with all

requirements for renewal") was inaccurate; however, the evidence

adduced at hearing (specifically the unrebutted testimony of

Respondent on the subject, which the undersigned has credited)

establishes that, in affirming in the manner he did, Respondent

did not intend to deceive or defraud anyone about his eligibility

for renewal, but rather responded in a manner he believed, in

good faith, was appropriate. Consequently, the charge, as

alleged in Count I, that Respondent "obtained [his] license by

means of misrepresentation or concealment in violation of Section

475.25(1)(m)," Florida Statutes, must be dismissed.

18. Having resolved that Respondent committed the offense

set forth in Count II of the Administrative Complaint, it remains

to resolve the appropriate penalty that should be imposed.

Pertinent to this issue, Subsection 427.25(1), Florida Statutes,

authorizes the Florida Real Estate Commission to impose one or

more of the following penalties when it finds a licensee guilty

of an offense proscribed by that subsection:

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. . . .

19. Also pertinent to the penalty phase of this proceeding,

Section 455.2273, Florida Statutes, provides:

(1) Each board, or the department when

there is no board, shall adopt, by rule, and

periodically review the disciplinary

guidelines applicable to each ground for

disciplinary action which may be imposed by

the board, or the department when there is no

board, pursuant to this part, the respective

practice acts, and any rule of the board or

department.

(2) The disciplinary guidelines shall

specify a meaningful range of designated

penalties based upon the severity and

repetition of specific offenses, it being the

legislative intent that minor violations be

distinguished from those which endanger the

public health, safety, or welfare; that such

guidelines provide reasonable and meaningful

notice to the public of likely penalties

which may be imposed for proscribed conduct;

and that such penalties be consistently

applied by the board.

(3) A specific finding of mitigating or

aggravating circumstances shall allow the

board to impose a penalty other than that

provided for in such guidelines. If

applicable, the board, or the department when

there is no board, shall adopt by rule

disciplinary guidelines to designate possible

mitigating and aggravating circumstances and

the variation and range of penalties

permitted for such circumstances.

(4) The department must review such

disciplinary guidelines for compliance with

the legislative intent as set forth herein to

determine whether the guidelines establish a

meaningful range of penalties and may also

challenge such rules pursuant to s. 120.56.

(5) The administrative law judge in

recommending penalties in any recommended

order, must follow the penalty guidelines

established by the board or department and

must state in writing the mitigating or

aggravating circumstances upon which the

recommended penalty is based.

20. In response to the legislative requirements imposed by

Section 455.2273, Florida Statutes, the Florida Real Estate

Commission (Commission) adopted Rule 61J2-24.001, Florida

Administrative Code, titled "Disciplinary Guidelines." That rule

provides, in pertinent part, as follows:

(1) Pursuant to s. 455.2273, Florida

Statutes, the Commission sets forth below a

range of disciplinary guidelines from which

disciplinary penalties will be imposed upon

licensees guilty of violating Chapters 455 or

475, Florida Statutes. The purpose of the

disciplinary guidelines is to give notice to

licensees of the range of penalties which

normally will be imposed for each count

during a formal or an informal hearing. For

purposes of this rule, the order of

penalties, ranging from lowest to highest,

is: reprimand, fine, probation, suspension,

and revocation or denial. Pursuant to

s. 475.25(1), Florida Statutes, combinations

of these penalties are permissible by law.

Nothing in this rule shall preclude any

discipline imposed upon a licensee pursuant

to a stipulation or settlement agreement, nor

shall the range of penalties set forth in

this rule preclude the Probable Cause Panel

from issuing a letter of guidance.

21. Under the established guidelines there is not a

discrete penalty for a failure to comply with the continuing

education requirement imposed by Rule 61J2-3.009(1), Florida

Administrative Code; however, the guidelines do establish a

generic guideline for a violation of Subsection 475.25(1)(e),

Florida Statutes (the violation of "any rule or order or

provision under Chapters 475 and 455, F.S."), as follows:

(f) The usual action of the Commission

shall be to impose a penalty from an 8 year

suspension to revocation and an

administrative fine of $1,000.

Rule 61J2-24.001(1)(f), Florida Administrative Code.

22. Finally, Rule 61J2-24.001(4), Florida Administrative

Code, sets forth the aggravating and mitigating circumstances

which may be considered in determining the appropriate penalty,

as follows:

(b) Aggravating or mitigating

circumstances may include, but are not

limited to, the following:

1. The severity of the offense.

2. The degree of harm to the consumer or

public.

3. The number of counts in the

Administrative Complaint.

4. The number of times the offenses

previously have been committed by the

licensee.

5. The disciplinary history of the

licensee.

6. The status of the licensee at the time

the offense was committed.

7. The degree of financial hardship

incurred by a licensee as a result of the

imposition of a fine or suspension of the

license.

8. Violation of the provision of Chapter

475, Florida Statutes, where in a letter of

guidance as provided in s. 455.225(3),

Florida Statutes, previously has been issued

to the licensee.

23. Here, given the circumstances, it must be concluded

that the "usual" penalty prescribed by the Commission's rule

bears no reasonable relationship to the violation shown. 3 In so

concluding, it is observed that Respondent's failing was shown to

result from a misunderstanding, as opposed to an intentional act;

no aggravating factors were offered by the Department; and, to

the extent pertinent, the mitigating circumstances of record

compel a departure from the established norm. 4 At the most, the

record supports, as a penalty for the violation alleged in Count

II of the Administrative Complaint, the imposition of a

reprimand. 5

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that:

1. Count I of the Administrative Complaint be dismissed.

2. Respondent be found guilty of violating the provisions

of Subsection 475.25(1)(e), Florida Statutes, as alleged in

Count II of the Administrative Complaint, and that for such

violation Respondent receive, as a penalty, a reprimand.

DONE AND ENTERED this 20th day of January, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

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.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of January, 1999.

ENDNOTES

1/ The letter was attached to the Administrative Complaint as

Exhibit 2, and was not a matter disputed by Respondent's election

of rights.

2/ The complaint also sought an award of costs as provided for by

Section 455.227(3), Florida Statutes; however, the Department

offered no proof, at hearing, regarding what costs, if any, it

incurred. Consequently, there is no record basis on which to

address such an award.

3/ The Department apparently concurs that Respondent's conduct

does not warrant the imposition of the usual penalty; however, it

offers no explanation of how it derived the penalty it proposed.

See Petitioner's Proposed Recommended Order, pages 9 through 11.

4/ Consideration of the mitigating factors reveals that the

offense is not severe; that immediately upon notice of his

oversight, Respondent successfully completed the required course;

there was no harm to a consumer or the public; Respondent was only

shown to have been guilty of one count in the Administrative

Complaint; there was no showing that Respondent had committed any

other offense or had any disciplinary history, including a letter

of guidance; Respondent was actively employed at the time of the

offense; and suspension or other restriction on his license would

adversely impact Respondent's employment.

5/ In assessing the penalty in this case, deference has been

accorded the Commission's rules. Section 455.2273(5), Florida

Statutes, and Gadsden State Bank v. Lewis , 348 So. 2d 343, 345

(Fla. 1st DCA 1977) ("[A] gencies must honor their own substantive

rules until, pursuant to . . . [Section 120.56, Florida Statutes

(1997)], they are amended or abrogated.") Contrast Arias v.

Department of Business and Professional Regulation, Division of

Real Estate , 23 Fla. L. Weekly D1026b (Fla. 3d DCA 1998), appeal

to the Florida Supreme Court (Case No. 93,500), dismissed July 28,

1998, as untimely.

COPIES FURNISHED:

Laura McCarthy, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

Post Office Box 1900

Orlando, Florida 32802-1900

Donnette Reid, Esquire

Law Offices of Glantz & Glantz

Wellesley Corporate Plaza

7951 Southwest Sixth Street

Suite 200

Plantation, Florida 33324

James Kimbler, Acting Director

Division of Real Estate

Department of Business and

Professional Regulation

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.