10-003197PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Marsha Evans Friels Status: Closed Recommended Order on Friday, September 24, 2010.

Summary: Respondent committed a minor violation of the licensing laws, but multiple mitigating circumstances weigh in favor of leniency. Recommend reprimand.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE , )

)

Petitioner , )

)

vs. ) C ase No. 10 - 3197PL

)

MARSHA EVANS FRIELS , )

)

Respondent . )

)

RECOMMENDED ORDER

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

on August 9, 2010, by video teleconference at sites in

Tallahassee and St. Petersburg, Florida, before Elizabeth W.

McArthur, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph A. Solla, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, Suite 801 N

Orlando, Florida 32801 - 1757

For Respondent: Marsha Evans Friels, pro se

6395 21st Way , South

St. Petersburg, Florida 33712

STATEMENT OF THE ISSUES

The issues in this case are whether the Respondent violated

Subsections 475.42(1)(a) and 475.25(1)(e), Florida Stat utes

(2009 ), 1 and , if so, what discipline should be imposed.

PRELIMINARY STATEMENT

By a one - count Administrative Complaint filed on April 22,

2010, the Petitioner, the Department of Business and

Professional Regulation, Division of Real Estate (the Divis ion

of Real Estate or the Petitioner) , charged the Respondent,

Marsha Evans Friels (Ms. Friels or the Respondent) , with

operating as a real estate sales associate without a valid and

current license in violation of Subsection 475.42(1)(a), Florida

Statutes . This same statutory violation was also the predicate

for charging a violation of Subsection 475.25(1)(e), Florida

Statutes, which is a more general umbrella provision authorizing

discipline for violations of any statute in Chapter 475 , Florida

Statutes .

Ms. Friels timely requested an administrative hearing

involving disputed issues of material fact, and a hearing was

noticed and held , accordingly , pursuant to Section s 120.569 and

120.57, Florida Statutes. As noticed, the hearing was co nducted

by video teleconference with the Administrative Law Judge ( ALJ )

in Tallahassee and the parties, witnesses, and court reporter in

St. Petersburg.

The Petitioner presented the testimony of two fact

witnesses : the complainant, Robert Brissenden ; and the

investigato r, Lisa L. Dubord. The Petitioner's Exhibits 1, 2, 2

and 3 were received into evidence. The Respondent testified on

her own behalf and also presented the testimony of one fact

witness, the licensed broker with whom Ms. Friels was

associated, Merrill Willi ams. The Respondent's Exhibits 1

through 4 were received into evidence.

The one - volume Transcript of the final hearing was filed on

August 27, 2010. The parties agreed to file their p roposed

r ecommended o rders within ten days after the Transcript was

fi led. Both parties timely filed Proposed Recommended Orders,

which were considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. The Division of Real Estate is the state agency

responsible for the regulation of the real estate sales

pr ofession in Florida, including licensure of real estate sales

associates and enforcement of the statutory provisions within

its charge.

2. Ms. Friels is a real estate sales associate who first

obtained her license in 2005. Ms. Friels has never had any

p rior disciplinary action taken against her.

3. Ms. Friels received a renewal notice from the

Department of Business and Professional Regulation (the

Department), notifying her that her sales associate license was

due to expire on March 31, 2009. The noti ce touted in bold

print that the "Department Provides Instant Online Renewal,"

while also offering a Renewal Notice card to detach and mail in

to the Department. The Renewal card option required nothing to

be filled in by the licensee unless an address up date were

necessary (in which case a box could be checked and the address

updated on the back of the card), or unless the licensee wanted

to opt for inactive status, which could be done by checking a

different box. Otherwise, the card could simply be sent in with

payment of the $85.00 renewal fee. The card included the

following statement in small print: IMPORTANT: SUBMITTING YOUR

RENEWAL REQUEST TO THE DEPARTMENT AFFIRMS COMPLIANCE WITH ALL

REQUIREMENTS FOR RENEWAL.

4. Ms. Friels had been undergoing a period of great

personal challenges and stress in the two - year period leading up

to the licensure expiration date and nearly missed the renewal

deadline. On the day before her license was to expire, she

utilized the "Instant Online Renewal" option after contacting a

Department customer representative to make sure that her online

renewal payment would be credited immediately so that it would

be timely before the March 31, 2009, expiration date. As

a lleged in the Administrative Complaint, " [o] n . . . Marc h 30,

2009 Respondent paid the renewal fee of $85.00 to renew her real

estate license." The Department receipt showed the online

payment of the $85.00 fee on March 30, 2009, for the renewal of

real estate sales associate L icense No. SL3141119 held by Mars ha

Evans Friels.

5. At the time Ms. Friels processed her online license

renewal, she had not completed the 14 hours of continuing

education she was required to complete during the two - year

licensure period ending on March 30, 2009, but Ms. Friels did

not realize at that time that she had not complied with the

continuing education requirement s .

6. Ms. Friels explained that although she was generally

aware of the continuing education requirement for licensure

renewal, the reason she did not realize that she had not taken

the required coursework during this particular two - year period

was because she was coping with a series of tragic, personal

challenges. The circumstances were compelling, as she

explained: I n May 2007, Ms. Friels' older sister died of brea st

cancer; then, in October 2007, Ms. Friels' father died, and

Ms. Friels assumed the responsibilities for arranging for his

funeral and then probating his estate; and finally, Ms. Friels'

youngest sister , who was diagnosed with paranoid schizophreni a

and had lived with her father , was left without care, and the

responsibilities for caring for her sister and making decisions

about her placement fell on Ms. Friels' shoulders.

7. While these circumstances do not excuse a failure to

comply with the continuing education requirements during the

two - year period, the totality of the circumstances make the

oversight understandable and mitigate against Ms. Friels'

culpability.

8. Ms. Friels was under the impression that having

accessed the Department's "Instant Onl ine Renewal" and

successfully remitted payment of the renewal fee in time, she

had done all that was needed to renew her license. She received

no notice to the contrary.

9. Apparently, however, at some point after Ms. Friels

thought she had successfully renewed her license via the

Department's Instant Online Renewal service, the Department's

records re - characterized the status of Ms. Friels' license as

involuntarily inactive, effective on March 31, 2009, "due to

non [ - ] renewal of her real estate sales asso ciate license."

10. Neither Ms. Friels , nor the licensed broker with whom

Ms. Friels was associated , received notice that her real estate

sales associate license had been changed to inactive status ,

that Ms. Friels had not satisfied the continuing educatio n

requirement s at license renewal, or that her "Instant Online

Renewal" and payment were ineffective to renew her license.

11. Ms. Friels presented evidence of the Department's

practice to issue a Notice of Deficiency or a Continuing

Education Deficiency l etter, when a real estate sales associate

renews a license without having completed the required

continuing education hours. No evidence was offered to explain

why this practice would not have applied in this case or why no

such notice was given to Ms. Fr iels.

12. Operating under the impression that she had

successfully renewed her license and receiving no notice to the

contrary, on one occasion , on approximately June 1, 2009,

Ms. Friels participated as a real estate sales associate working

on a real estat e sales contract under the supervision of

Ms. Williams, the licensed broker with whom Ms. Friels was

associated, who remained actively involved in the transaction.

13. Mr. Brissenden is a real estate appraiser who was

asked to perform an appraisal on the p roperty that was the

subject of the same contract, which is how he came to learn that

Ms. Friels was operating as a sales associate. Mr. Brissenden

testified that he happened to be online on the Department's

licensing portal checking on some other things when he looked up

Ms. Friels' license out of curiosity. He saw that her license

was shown to be inactive , and , so , he filed a complaint.

14. Ms. Friels first learned that she had not completed

the required continuing education hours in the two - year pe riod

before renewal when she received a letter advising her that she

was being investigated for operating as a sales associate

without an active license.

15. Immediately upon learning that she had a continuing

education deficiency, Ms. Friels took the 14 - hour continuing

education course and successfully completed the required hours.

T his course included the "Real Estate Core Law" component

required by Florida Administrative Code Rule 61J2 - 3.009(2)(a).

The course material, which according to rule , must b e submitted

to the Florida Real Estate Commission for review and approval,

included the following:

In the event a license is renewed without

the required continuing education course

having been completed, the licensee will be

sent a deficiency letter. Th is letter will

inform the licensee that the required

continuing education was not completed prior

to renewal.

16. Ms. Friels' license was reinstated to "active" status

on October 16, 2009, following her completion of the 14 - hour

course credited to her pri or renewal cycle.

17. Ms. Friels cooperated with the investigation and

submitted a letter with supporting documentation explaining that

she did not realize she had not completed the continuing

education course during the prior two years and detailing her

p ersonal circumstances that led to her oversight.

18. At the completion of the investigation, the

investigator contacted Ms. Friels to deliver a Uniform

Disciplinary Citation, on December 11, 2009. By this document,

the investigator set s forth her determi nation that there was

probable cause to believe Ms. Friels had violated Subsection

475.42(1)(b), Florida Statutes, and that the Department had set

the penalty at a $500.00 fine (plus no additional amount for

costs). Ms. Friels had the choice of accepting the citation, in

which case it would become a final order , or disputing the

citation, in which case the charges would be prosecuted as a

disciplinary action pursuant to Section 455.225, Florida

Statutes.

19. Ms. Friels testified that while she accepted

r esponsibility for not completing the required continuing

education and was willing to resolve this matter by paying the

$500 fine in December 2009, she was unwilling to accept the

citation's charge of violating Subsection 475.42(1)(b), Florida

Statutes. T hat subsection establishes the following as a

violation:

A person licensed as a sales associate may

not operate as a broker or operate as a

sales associate for any person not

registered as her or his employer.

Ms. Friels perceived this charge as more seri ous, in effect ,

charging her with operating outside the scope of her sales

associate license by operating in a broker capacity.

Throughout this proceeding, Ms. Friels remained sensitive to the

suggestion that she had operated as more than a real estate

sales associate and went to great pains to establish that she

did not exceed the bounds of a licensed real estate sales

associate and that she was acting under the supervision of the

licensed broker with whom she was associated.

20. The subsequently - issued Administrative Complaint

charged Ms. Friels with a violation of Subsection 475.42(1)(a),

Florida Statu t es, not Subsection 475.42(1)(b) , Florida Statutes,

as charged in the Uniform Disciplinary Citation. By this time,

however, when Ms. Friels attempted to resolve the dispute, the

Division of Real Estate would not agree to the penalty

originally proposed in the Citation (with the incorrect

statutory charge), but instead proposed additional terms ,

including payment of $521.40 in investigation costs on top of

the $500 fine, plus attendance at two meetings of the Florida

Real Estate Commission. Ms. Friels objected to the increased

financial consequences since in her view, the reason why the

dispute was not resolved by the c itation was because the wrong

statuto ry violation was charged.

21. Before the evidentiary hearing, counsel for the

Division of Real Estate acknowledged that this case involves , at

most, a "minor violation of licensing law." After the

evidentiary portion of the hearing, counsel reiterated t he

Division's position that "this is a minor licensing violation

and we're looking for a very minor penalty . "

22. Inexplicably, the Proposed Recommended Order submitted

by the Petitioner proposed a significantly elevated recommended

penalty. The Petitione r proposed an increased fine of $1,000,

plus a 30 - day suspension, plus costs of investigation, plus

"fees pursuant to Section 455.227(3), Florida Statutes , " 3 despite

assurances at the close of the hearing that the Petitioner was

only looking for a "very mi nor penalty" consistent with what had

been previously offered.

23. T he appropriate penalty for a violation of licensing

law cannot be determined without first reviewing the record

evidence on mitigating and aggravating circumstances in

accordance with Flor ida Administrative Code Rule 61J 2 - 24.001(4).

Here, no aggravating circumstances were established or even

argued while there are multiple mitigating circumstances.

24. There was no evidence of any harm to the consumers or

public as a result of Ms. Friels' oversight in not completing

her continuing education by her license renewal date or as a

result of her participating as a real estate sales associate in

a transaction in June 2009.

25. The fact that there was only one count in the

Administrative Complaint is a mitigating circumstance to be

considered.

26. Likewise, the fact that Ms. Friels has no disciplinary

history is another mitigating circumstance weighing in favor of

leniency below the normal penalty ranges established in rule.

27. C onsideration of the financial hardship to the

Respondent as a result of imposition of a fine or suspension of

a license , adds to the weight of mitigating circumstances.

Ms. Friels testified to the hardship she has endured as a result

of personal circumstances beyond her con trol . Ms. Friels was

forthright and sincere in accepting responsibility for her

oversight and acted immediately to rectify the continuing

education deficiency as soon as she received notice of it.

U nder the circumstances, imposition of a fine or suspensi on of

her license would result in unnecessary financial hardship.

28. Finally, under the catch - all language in Florida

Administrative Code Rule 61J2 - 24.001(4)( b ) ("mitigating

circumstances may include, but are not limited to . . ."),

consideration must be given to the Respondent's compelling

personal circumstances that make her oversight understandable

and mitigate further against imposing a penalty in the normal

range. The circumstances here were far from normal, and

imposi ng a penalty as if they were nor mal would be unduly harsh.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

30. The Petitioner is the state licensing and regu latory

agency charged with the responsibility to prosecute

Administrative Complaints pursuant to Section 20.165, Florida

Statutes, and Chapters 120, 455, and 475, Florida Statutes.

31. The Petitioner has the burden to prove the allegations

in the Administ rative Complaint by clear and convincing

evidence. Department of Banking and Finance v. Osborne Stern

and Company , 670 So. 2d 932 (Fla. 1996).

32. The single count of the Administrative Complaint

alleges as follows:

Respondent is guilty of having operated as

a sales associate without being the holder

of a valid and current license as a sales

associate in violation of Section

475.42(1)(a), Florida Statutes and,

therefore, in violation of Section

475.25(1)(e), Florida Statutes.

33. Subsection 475.42(1)(a), Florida Statutes, provides in

pertinent part that the following is a violation:

A person may not operate as a broker or

sales associate without being the holder of

a valid and current active license therefor.

Subsection 475.25(1)(e), Florida Statutes, aut horizes discipline

against a licensee who has "violated any of the provisions of

this chapter," including Subsection 475.42(1)(a), Florida

Statutes.

3 4 . The Division of Real Estate met its burden of prov ing

that Ms. Friels did not satisfy the continuing ed ucation hours

required by Section 475.182, Florida Statutes, and Florida

Administrative Code Rule 61J2 - 3.009, when she used the

Department's online licensure renewal service to pay for renewal

of her license before the end of the renewal period.

35. Subsec tion 455.2177, Florida Statutes, requires the

Department to monitor licensee compliance with continuing

education requirements and to determine whether a licensee is in

full compliance with applicable continuing education

requirements at the time of licens e renewal. Subsection(2) of

that statute authorizes the Department to refuse renewal until

the licensee has satisfied continuing education requirements.

3 6 . Subsection 475.182(3), Florida Statutes, provides that

"[a]ny license that is not renewed at the e nd of the license

period prescribed by the department shall automatically revert

to involuntarily inactive status." The Department's monitoring

system apparently identified Ms. Friels' non - compliance with the

continuing education requirements, causing the Department to

refuse to renew her license, so that the license automatically

reverted to involuntarily inactive status.

3 7 . T he evidence established that the Department's

practice has been to issu e a Continuing Education Deficiency

Notice to a licensee wh o has not complied with continuing

education requirements at the time of license renewal. Had the

Department issued such a notice in this case when it refused to

renew Ms. Friels' license, Ms. Friel s would have corrected the

continuing education oversight well before the June 1, 2009 ,

transaction relied on to establish a violation , because

Ms. Friels did, in fact , immediately correct the continuing

education deficiency when she learned of it in October 2009.

3 8 . An agency is required to adhere to its prior practice,

absent explanation in the record for deviating from that

practice. § 120.68(7)(e)3., Fla. Stat. Here, no explanation

was offered for the failure to send the Respondent a N otice of

C ontinuing E ducation D eficiency .

39. Not only is it clear that this violation could have

been avoided completely had the Department adhered to its prior

practice, but it is also clear that the only reason this case

proceeded to prosecution was because the Uniform Disciplinary

Citation offered to the Respondent prior t o prosecution charged

her with a violation of the wrong statute. The Department bears

some responsibility for this matter having progressed to this

point because of its own missteps.

40 . T he clear, convincing evidence of multiple mitigating

circumstances, with no aggravating circumstances, plainly call s

for the exercise of great leniency here, departing from the low

end of the penalty guidelines that would apply in the normal

case without mitigating circumstances.

4 1 . Under these circumstances, including t he financial

hardship that would result from imposition of a fine or

suspension of license and the fact that the violation itself

(participation in the June 2009 transaction) would have been

avoided had the Department acted in accordance with its prior

pr actice to give notice of the continuing education deficiency,

the appropriate penalty for Ms. Friels' minor violation of the

licensing law is a reprimand.

4 2 . In addition, u nder these circumstances, where the

Department did not follow its practice of iss uing a N otice of

C ontinuing E ducation D eficiency, there should be no assessment

of costs. It is noted that there also was no assessment of

costs in the Uniform Disciplinary Citation issued in December

2009, which was not accepted by the Respondent only be cause it

charged a violation of the wrong statute.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that a f inal o rder be entered by the

Petitioner, Department of Business and Professional Regulation,

D ivision of Real Estate, finding that the Respondent, Marsha

Evans Friels , violated Subsection 475.42(1)(a), Florida Statutes

(and , thereby, Subsection 475.25(1)(e), Florida Statutes );

i ssuing a reprimand as the sole penalty ; and waiving the

permissive asse ssment of costs allowed by Subsection

455.227(3)(a), Fl orida Statutes .

D ONE AND ENT ERED this 24th day of September , 2010 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of September , 2010 .

ENDNOTE S

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2009 version.

2/ In accordance with the pre - hearing order, the parties

pre - filed their proposed exhibits so that at the video

conference hearing, the ALJ would be able to review the

described documents as they were offered into evidence. The

court reporter marked the exhibits tendered by the parties and

attached the original exhibits to the original Transcript. As

pointed out by the Petitioner in its Prop osed Recommended Order,

a mistake was made in what was marked as the Petitioner's

Exhibit 2. The Petitioner's Exhibit 2 should be the two - page

Certification of Ms. Friels' licensure history that was attached

as Exhibit 2 to the Administrative Complaint, a s described on

the record. What the court reporter erroneously marked as the

Petitioner's Exhibit 2 is actually the fourth and fifth pages of

Petitioner's Exhibit 3, part of the supporting material

submitted by the Respondent as attachments to her letter

responding to the investigator's inquiry as described on the

record by the investigator. These mistakes have been corrected

by the undersigned ALJ by marking the correct the Petitioner's

Exhibit 2, and re - marking the two pages that are part of the

Petitio ner's Exhibit 3, and initialing each corrected page.

3/ There is no statutory authority for assessment of "fees . "

Subsection 455.227(3)(a), Florida Statutes, permits, but does

not require, assessment of costs related to the investigation

and prosecution of a disciplinary case, "excluding costs

associated with an attorney's time."

COPIES FURNISHED :

Thomas W. O'Bryant, Jr., Director

Division of Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street, Suite 801N

Orlan do, Florida 32801

Reginald Dixon, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Marsha Evans Friels

6395 21st Way, South

St. Petersburg, Florida 33712

Joseph A. Solla, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, Suite 801N

Orlando, Florida 32801 - 1757

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.