99-003698 Department Of Business And Professional Regulation, Division Of Real Estate vs. Donald Matthew Green Status: Closed Recommended Order on Friday, March 24, 2000.

Summary: Respondent failed to document that he successfully completed the required continuing education requirement. Respondent did not obtain his license by fraud, misrepresentation, or concealment. Recommended fine of $1,000 and six months probation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 99-3698

)

DONALD MATTHEW GREEN, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

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

on October 26, 1999, at Miami, Florida, before Errol H. Powell,

a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Laura McCarthy, Esquire

Florida Department of Business and

Professional Regulation

Division of Real Estate

Post Office Box 1900

Orlando, Florida 32802

For Respondent: Donald Matthew Green

700 95th Street

Surfside, Florida 33154

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed

the offenses set forth in the Administrative Complaint and, if

so, what penalty should be imposed.

PRELIMINARY STATEMENT

On May 21, 1999, the Department of Business and

Professional Regulation, Division of Real Estate (Petitioner)

filed a two-count Administrative Complaint against Donald

Matthew Green (Respondent). Petitioner charged Respondent with

the following: Count I--violating Subsection 475.25(1)(m),

Florida Statutes, by obtaining a license by means of fraud,

misrepresentation, or concealment; and Count II--violating

Subsection 475.25(1)(e), Florida Statutes, by failing to comply

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

Florida Administrative Code. Respondent disputed the

allegations of fact of the Administrative Complaint and

requested a hearing. On August 30, 1999, this matter was

referred to the Division of Administrative Hearings.

At hearing, Petitioner presented the testimony of one

witness and entered seven exhibits (Petitioner's Exhibits

numbered 1-7) into evidence. Respondent testified on his own

behalf and entered four exhibits (Respondent's Exhibits numbered

1-4) into evidence.

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post-hearing submissions was

set for more than ten days following the filing of the

transcript.

The transcript, consisting of one volume, was filed on

December 16, 1999. Respondent filed his post-hearing submission

on November 3, 1999. Petitioner timely filed its post-hearing

submission on January 14, 2000. The parties' timely filed post-

hearing submissions have been considered in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Donald Matthew Green

(Respondent) was licensed by the State of Florida as a real

estate salesperson, having been issued license number 0371748.

Respondent's licensure record indicates that his last

association was with Island Properties of Miami Beach, Inc.

(Island Properties), a broker corporation, located at 1999 East

150th Street, Suite 103, North Miami Beach, Florida.

2. Respondent renewed his real estate salesperson license,

which was to expire on March 31, 1997. The renewal notice

stated, among other things, the following:

IMPORTANT: BY SUBMITTING THE APPORPRIATE

RENEWAL FEES TO THE DEPARTMENT OR THE

AGENCY, A LICENSEE ACKNOWLEDGES COMPLIANCE

WITH ALL REQUIREMENTS FOR RENEWAL.

Respondent submitted the renewal fee, and by submitting the

renewal fee, Respondent was stating that he had complied with

all renewal requirements.

3. Petitioner renewed Respondent's real estate salesperson

license.

4. Respondent knew that one of the requirements for

renewal of his license was successful completion of continuing

education coursework. In past renewal periods of his license,

Respondent completed his continuing education coursework at Gold

Coast School of Real Estate.

5. Both parties believe that continuing education for

licensees began in or around 1992.

6. On May 29, 1999, an inspector for Petitioner visited

Island Properties. One of the purposes for the inspector's

visit was to review the continuing education requirements for

salespersons employed by Island Properties. The inspector

requested Respondent to produce proof that he successfully

completed the 14-hour continuing education requirement for the

period from April 1, 1995, through March 31, 1997. Respondent

was unable to produce any information showing that he had

completed the continuing education.

7. The investigator provided Respondent with additional

time to produce proof of completing the continuing education

requirement. Respondent was again unable to produce the

requested information. Respondent contacted each school in the

southern region of Florida, which offered continuing education

in real estate. However, none of the schools retained records

on individuals taking continuing education coursework beyond a

three-year period; therefore, no school had records covering the

renewal period in question.

8. Respondent filed a complaint against himself for being

unable to produce proof of successful completion of continuing

education coursework for the renewal period from 1995 through

1997.

9. Respondent did produce proof of successfully completing

the 14-hour continuing education requirement for the 1993

through 1995 renewal period, having begun the continuing

education in December 1992 and completed it in February 1993.

Respondent also produced proof of successfully completing the

14-hour continuing education requirement for the current renewal

period, which is the 1996 through 1998 renewal period, having

begun and completed the continuing education in March 1998.

10. Having failed to locate proof evidencing that he

successfully completed the continuing education requirement for

the renewal period from 1995 through 1997, Respondent was

desirous of complying with the requirement. Respondent began

and successfully completed a 14-hour continuing education course

in September 1999.

11. Respondent has persuaded the undersigned that, even

though he was unable to produce written proof, he did

successfully complete the 14-hour continuing education

requirement for the renewal period from 1995 through 1997, prior

to submitting his renewal form for licensure renewal.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Section 120.569 and Subsection

120.57(1), Florida Statutes.

13. License revocation proceedings are penal in nature.

The burden of proof is on Petitioner to establish by clear and

convincing evidence the truthfulness of the allegations in the

Administrative Complaint. Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

and Company , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987).

14. There is no dispute that Respondent, as a real estate

salesperson, is required to successfully complete continuing

education coursework of a minimum of 14 hours, during the

license renewal period, for the renewal of his license. Rule

61J2-3.009, Florida Administrative Code.

15. Section 475.25, Florida Statutes, provides in

pertinent part:

(1) The commission may deny an application

for licensure, . . . or renewal thereof; may

place a licensee . . . on probation; may

suspend a license . . . for a period not

exceeding 10 years; may revoke a license

. . .; 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 . . .:

* * *

(e) Has violated any of the provisions of

this chapter or any lawful order or 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.

16. No dispute exists that Respondent failed to produce

written proof that he successfully completed the 14-hour

continuing education requirement for the renewal period from

1995 through 1997. However, the undersigned is persuaded that,

prior to submitting his renewal form for licensure renewal,

Respondent did successfully complete the continuing education

requirement. Regardless, Petitioner, being charged with the

duty of ensuring licensees maintain their education, must rely

upon written proof of compliance, and it is not unreasonable for

Petitioner to require such proof. Respondent was unable to

produce such written proof. Consequently, Petitioner

demonstrated that Respondent violated Subsection 475.25(1)(e),

Florida Statutes.

17. A licensee is charged with knowing the practice act

that governs his/her license. Wallen v. Florida Department of

Professional Regulation, Division of Real Estate , 568 So. 2d 975

(Fla. 3d DCA 1990). Respondent does not dispute that he knew

that, prior to submitting his renewal form for licensure

renewal, he was required to successfully complete a minimum of

14 hours of continuing education during the license renewal

period.

18. Subsection 475.25(1)(m), Florida Statutes,

contemplates "that an intentional act be proved before a

violation may be found." Walker v. Department of Business and

Professional Regulation, Division of Real Estate , 705 So. 2d

652, 654 (Fla. 5th DCA 1998), citing Munch v. Department of

Professional Regulation, Division of Real Estate , 592 So. 2d

1136, 1144 (Fla. 1st DCA 1992). Therefore, a violation of

Subsection 475.25(1)(m), Florida Statutes, is demonstrated by

showing intent on the part of Respondent.

19. Intent may be proven by circumstantial evidence, as

well as direct evidence. Walker , supra , citing Ellis v. State ,

425 So. 2d 201 (Fla. 5th DCA 1983). Wrongful intent can be

established by showing that Respondent was reckless or careless

as to the truth of the matter asserted. Ocean Bank of Miami v.

Inv.- Uni Inv. Corp. , 599 So. 2d 694, 697 (Fla. 3d DCA 1992).

20. Petitioner failed to demonstrate that Respondent

intended to obtain the renewal of his license through fraud,

misrepresentation, or concealment. No direct evidence of intent

was presented. Moreover, the undersigned is not persuaded that

Respondent's conduct was contrary to the truth or that

Respondent was reckless or careless as to the truth of his

assertion that he had successfully completed the renewal

requirement.

21. Consequently, Petitioner failed to demonstrate that

Respondent violated Subsection 475.25(1)(m), Florida Statutes.

22. Regarding penalty, Subsection 475.25(1), Florida

Statutes, provides for any or all of the following: an

administrative fine not to exceed $1,000; suspension not to

exceed 10 years; revocation of license; a reprimand; and

probation. Furthermore, Rule 61J2-24.001(3)(f), Florida

Administrative Code, provides the following range of penalty for

a violation of Subsection 475.25(1)(e), Florida Statutes: from

a licensure suspension of 8 years to revocation and an

administrative fine of up to $1,000. Additionally, Rule 61J2-

24.001(2), Florida Administrative Code, provides that the

licensee may be placed on probation for a period of time and

under such conditions as determined by the Florida Real Estate

Commission.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Business and

Professional Regulation, Division of Real Estate enter a final

order against Donald Matthew Green and therein:

1. Dismissing Count I.

2. Finding Donald Matthew Green guilty of Count II.

3. Imposing an administrative fine of $1,000, payable

within six months of the date of the final order.

4. Placing Donald Matthew Green on probation for one year

under the terms and conditions deemed appropriate.

DONE AND ENTERED this 24th day of March, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

ERROL H. POWELL

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 24th day of March, 2000.

COPIES FURNISHED:

Laura McCarthy, Esquire

Florida Department of Business and

Professional Regulation

Division of Real Estate

Post Office Box 1900

Orlando, Florida 32802

Donald Matthew Green

700 95th Street

Surfside, Florida 33154

Herbert S. Fecker, Division Director

Division of Real Estate

Department of Business and

Professional Regulation

Post Office Box 1900

Orlando, Florida 32802-1900

William Woodyard, 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.