98-005063 Division Of Real Estate vs. David L. Lewis Status: Closed Recommended Order on Tuesday, February 23, 1999.

Summary: Accidental two-day tardiness in completion of required education warrants only minor penalty. Written reprimand was recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 98-5063

)

DAVID L. LEWIS, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on January 19, 1999, by video teleconference at sites in

Key West and Tallahassee, Florida, before Michael M. Parrish, an

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

Post Office Box 1900

Orlando, Florida 32802-1900

For Respondent: David L. Lewis, pro se

c/o All Keys, Inc.

1720 North Roosevelt Boulevard

Key West, Florida 33040

STATEMENT OF THE ISSUES

This is a license discipline case in which Respondent is

charged with violation of Section 475.25(1)(e), Florida Statutes,

by reason of failing to complete required continuing education

courses prior to renewal of his license.

PRELIMINARY STATEMENT

By Administrative Complaint filed October 21, 1998, and

amended January 15, 1999, Petitioner, Department of Professional

Regulation, Division of Real Estate (Petitioner), alleged that

Respondent violated the aforementioned statute in that Respondent

failed to complete the required continuing education prior to

renewing his real estate salesperson's license for the period

beginning October 1, 1996, yet submitted the required fee

August 1, 1996, thereby implying that he had completed the

required education.

Respondent disputed the allegations of fact and requested an

evidentiary hearing. In accordance with Section 120.68(8),

Florida Statutes, and Rule 28-106.201, Florida Administrative

Code, a final hearing was held on January 19, 1999, by video

teleconference. At the hearing, Petitioner called one witness:

Barbara Kiphart, Investigative Specialist, Division of Real

Estate. Petitioner's Exhibits 1 through 4 were received into

evidence.

Respondent participated in this hearing and testified on his

own behalf. Respondent did not call any additional witnesses,

nor did he offer any additional exhibits.

At the conclusion of this hearing, the parties requested,

and were granted, twenty days from the date of the hearing within

which to file their Proposed Recommended Orders. Neither party

filed a transcript of the hearing.

On February 3, 1999, Petitioner filed a timely Proposed

Recommended Order containing proposed findings of fact and

conclusions of law. 1 As of the date of this Recommended Order,

Respondent has not filed any post-hearing documents.

FINDINGS OF FACT

1. Respondent David L. Lewis is, and was at all times

material hereto, a licensed real estate salesperson in the State

of Florida having been issued license number 053344 in accordance

with Chapter 475, Florida Statutes. The last license issued was

as a salesperson c/o All Keys, Inc., 1720 North Roosevelt

Boulevard, Key West, Florida 33040.

2. By renewal notice, Petitioner notified Respondent his

real estate salesperson's license would expire September 30,

1996. The renewal notice advised Respondent that "by submitting

the appropriate renewal fees to the Department or the agency, a

licensee acknowledges compliance with all requirements for

renewal."

3. On or about August 1, 1996, Respondent submitted the

required fee to renew his real estate salesperson's license for

the period commencing October 1, 1996. As of that date, he had

not completed the continuing education requirement.

4. Relying upon Respondent's representation that he had

completed all requirements, Petitioner renewed Respondent's

salesperson's license.

5. Petitioner discovered the Respondent's status in an

audit. In response to Petitioner's request for proof of

education for the renewal period commencing October 1, 1996,

Respondent submitted a certificate of completion of a continuing

education classroom course finished October 2, 1996.

6. By letter dated August 14, 1998, addressed to

Petitioner's Investigator Barbara A. Kiphart, Respondent informed

Petitioner that the Bert Rodgers School of Real Estate received

the correspondence course October 1, 1996.

7. According to the course report, Respondent finished the

14-hour continuing education requirement for the 1996 period on

October 2, 1996, two days late.

8. Respondent mailed the correspondence course materials to

the Bert Rodgers School of Real Estate sometime during the last

few days of September of 1996. At the time he mailed those

materials, Respondent believed they would arrive in time to be

processed prior to the September 30, 1996, deadline. As a result

of some unknown vagary of the mail, the materials arrived on

October 1, 1996, and were processed the next day.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction

over the subject matter of and the parties to this proceeding.

Section 120.57, Florida Statutes.

10. Petitioner is a state licensing and regulatory agency

charged with the responsibility and duty 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.

11. In a case of this nature, Petitioner bears the burden

of proving, by clear and convincing evidence, all disputed issues

of material fact. In this case, it has met that burden. 2 It is

also clear that the facts in this case establish that Respondent

failed to comply with the requirements of Rule 61J2-3.009,

Florida Administrative Code, and that by such failure, Respondent

violated Section 475.25(1)(e), Florida Statutes, as charged in

the Administrative Complaint. What remains to be addressed is

the matter of what constitutes an appropriate penalty for the

violation proved in this case.

12. At page 7 of its Proposed Recommended Order, Petitioner

proposes a penalty consisting of a requirement that Respondent

complete an additional 45 hours of education courses and also pay

an administrative fine in the amount of five hundred dollars

($500.00). On that same page, Petitioner also notes: "In

mitigation, it appears the Respondent did make an effort to

comply, and fell short by two days." For the reasons mentioned

below, it appears that the proposed penalty is more than is

warranted by the facts in this case.

13. Reduced to its most basic terms, this is what might

best be described as an "accidental late paper work" case.

Respondent completed the required education courses before the

deadline and Respondent completed the required examination before

the deadline. His only shortcoming was his failure to turn in

the paperwork on time. This one failure resulted from his

failure to take into account the fact that mail delivery

schedules are somewhat unpredictable. While it was certainly an

exercise of poor judgment for Respondent to procrastinate so long

in the fulfillment of his required education courses, his two day

tardiness in turning in the paperwork is no more than a minor

transgression. Such a small transgression warrants no greater

penalty than a reprimand.

RECOMMENDATION

On the basis of all of the foregoing it is

RECOMMENDED that a final order be issued in this case

concluding that Respondent committed the violation charged in the

Administrative Complaint and imposing as the only penalty a

written reprimand.

DONE AND ENTERED this 23rd day of February, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

MICHAEL M. 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]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of February, 1999.

ENDNOTES

1/ Petitioner's Proposed Recommended Order presents a very

balanced and accurate discussion of the facts and law at issue in

this case. In preparing this Recommended Order, I have drawn

extensively from all of Petitioner's proposals, with the exception

of Petitioner's proposed penalty.

2/ This case presents very little in the way of disputed issues

of material fact. This primary dispute concerns whether the facts

in this case warrant the imposition of a penalty, and, if so, the

determination of an appropriate penalty.

COPIES FURNISHED:

Steven W. Johnson, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

Post Office Box 1900

Orlando, Florida 32802-1900

David L. Lewis

c/o All Keys, Inc.

1720 North Roosevelt Boulevard

Key West, Florida 33040

James Kimbler

Acting Division 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

Northwood Centre

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.