96-005881 Division Of Real Estate vs. Deborah S. Wetmore Status: Closed Recommended Order on Monday, March 17, 1997.

Summary: Broker who falsely stated on renewal application that she completed continuing education requirements is guilty of obtaining renewal of license by misrepresentation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

vs. ) Case No. 96-5881

)

DEBORAH S. WETMORE, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was conducted

in this case on February 4, 1997, by telephone conference call

before Stuart M. Lerner, a duly designated Administrative Law Judge

of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Christine M. Ryall, Senior Attorney

Department of Business and Professional

Regulation Division of Real Estate

400 West Robinson Street

Post Office Box 1900

Orlando, Florida 32802

For Respondent: Deborah S. Wetmore, pro se

Rural Route 3, Box 103F

Carthage, New York 13619

STATEMENT OF THE ISSUES

1. Whether Respondent committed the violation of Section

475.25(1)(m), Florida Statutes, alleged in the Administrative

Complaint?

2. If so, what disciplinary action should be taken against

her?

PRELIMINARY STATEMENT

On August 23, 1996, the Department of Business and

Professional Regulation (Department) issued a one -count

Administrative Complaint against Respondent. The Administrative

Complaint alleged that Respondent, a licensed real estate broker,

"submitted to [the Department] a license renewal notice on which

she signed an affirmation that she had met all of the requirements

for license renewal," notwithstanding that, "[a]t the time she

submitted the renewal notice to [the Department], Respondent had

not completed the 14 hours of continuing education required under

[Section] 475.182(1), Fla. Stat., and Fla. Admin. Code R.

61J2 -3.009." According to the Administrative Complaint, inasmuch

as "Respondent's license was renewed based on her representation

that she had met all of the requirements for license renewal"

(which representation, the Administrative Complaint alleged, was

false), Respondent is guilty of having "obtained a license by means

of fraud, misrepresentation or concealment in violation of

[Section] 475.25(1)(m), Fla. Stat." On December 16, 1996, the case

was referred to the Division of Administrative Hearings (Division)

for the assignment of a Division Administrative Law Judge to

conduct a Section 120.57 hearing on the matter.

As noted above, the Section 120.57 hearing was held on

February 4, 1997. At the hearing, a total of two witnesses (Judy

Smith, a Department employee, and Respondent) testified. In

addition to the testimony of these two witnesses, a total of eight

exhibits (Petitioner's Exhibits A through D and Respondent's

Exhibits 1 through 4) were offered and received into evidence.

At the conclusion of the evidentiary portion of the hearing,

the undersigned, on the record, advised the parties of their right

to file proposed recommended orders and established a deadline

(March 14, 1997) for the filing of proposed recommended orders.

On March 11, 1997, the Department and Respondent filed their

post -hearing submittals. These post -hearing submittals have been

carefully considered by the undersigned. 1/

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as

a whole, the following Findings of Fact are made:

1. Respondent is a Florida -licensed real estate broker

(holding License Number 0350383). She is also licensed in the

State of New York.

2. Respondent was first licensed in the State of Florida in

July of 1983.

3. Toward the latter part of the two -year licensure period

ending March 31, 1995, the Department sent Respondent a Renewal

Notice reminding her that her broker's license (which was then in

"voluntary inactive" status) would expire on March 31, 1995, if she

did not renew the license for another two -year period by signing

the Renewal Notice and returning it to the Department along with a

$75.00 renewal fee.

4. Sometime prior to March 31, 1995, Respondent signed the

Renewal Notice and returned it to the Department along with the

$75.00 renewal fee.

5. The signed Renewal Notice that Respondent submitted to the

Department contained the following Affirmation of Eligibility for

License Renewal:

I hereby affirm that I have met all of the requirements

for license renewal set forth by the Department of

Business and Professional Regulation and/or the

professional regulatory board indicated on the reverse

side of this notice.

I understand that, within the upcoming licensure period,

if my license number is selected for audit by the

Department and/or regulatory board, I may be required to

submit proof that I have met all applicable license

renewal requirements. I understand that proof may be

required by the Department of Business and Professional

Regulation and/or professional regulatory board at any

time and that it is my responsibility to maintain all

documentation supporting my affirmation of eligibility

for license renewal.

I affirm that these statements are true and correct and

recognize that providing false information may result in

disciplinary action on my license and/or criminal

prosecution as provided in section 455.2275, Florida

Statutes.

6. At the time she signed and submitted the Renewal Notice,

Respondent had not satisfactorily completed the minimum number of

hours of continuing education required for license renewal, a

requirement of which she was (at the time) aware.

7. The Department renewed Respondent's license (for the

two -year period ending March 31, 1997) based upon Responden t's

misrepresentation (made in the signed Renewal Notice she returned

to the Department) that she had "met all of the requirements for

license renewal."

8. On July 15, 1995, Respondent's residence in New York

State (where she spends the summer months 2/ ) was damaged during

a violent summer storm.

9. Thereafter, Respondent received the following letter,

dated August 8, 1995, from the Department:

Your real estate license number has been selected for

audit of the education required in compliance with Rule

61J2 -3.015. In requesting renewal, you affirmed that you

had completed the required education for the license

period beginning 4/1/95. The course must have been

completed prior to 3/31/95.

Please submit to the address printed below, this letter

along with the Commission approved course proof or

equivalency education required at the time of your

renewal, no later than 21 days from the date of this

letter.

All requests for equivalency for credit courses taken at

universities, colleges and community colleges outside of

Florida must be accompanied by an official transcript.

An official transcript must contain the seal of the

institution and the signature of the registrar.

Failure to comply with this request within 21 days will

result in an appropriate disciplinary action being

initiated against your license.

Your prompt attention and action will be appreciated.

10. In response to the Department's request, Respondent sent

the Department documentation concerning a correspondence course she

had taken (from the Bert Rogers Schools of Real Estate) prior to

March of 1993.

11. The Department advised Respondent that such

documentation was "unacceptable."

12. On or about October 3, 1995, Respondent sent the

following letter to the Department:

After extensive searching through the records I have here

in my possession in Florida, I am unable to provide you

with documentation verifying my continuing ed

requirements.

I spend the summer in New York and many of my records are

currently there as I am there two months of the year and

I believe the documentation I need may be there.

I am a broker in both New York and Florida and have

always kept up -to -date with education requirements in the

past, the last being in 1993 through Bert Rogers School

which I have documentation for.

I remember taking the cont. ed course through the mail,

but I am unable to tell you exactly which one at the

present time.

Whatever disciplinary action you choose to apply, would

it be possible to reverse same if upon my return to N.Y.

in June, I'm able to provide the proof you require?

Thank you in advance for your patience with regard to the

matter while I have searched, and I'll await your

decision.

13. On January 29, 1996, Judy Smith, an Investigation

Specialist with the Department, sent the following letter to

Respondent:

This letter is to serve as official notice to you in

accordance with Section 455.225(1), FLORIDA STATUTES.

that a complaint has been filed against you (copy

attached) and that an investigation will be initiated

regarding the subject matter of the complaint.

I will be in contact with you at the earliest possible

date to schedule a mutually convenient appointment to

discuss the complaint in detail.

You may submit a written response to the information

contained in the complaint within 20 days after receipt

of this letter.

Any such response and/or contact with the agency

regarding this matter prior to personal contact with me,

should be directed to my attention at the address

reflected below.

Thank you for your cooperation and assistance in this

matter.

14. Smith later spoke with Respondent. Respondent told

Smith that she believed that she had taken the required continuing

education coursework (during the previous licensure period, April

1, 1993, through March 31, 1995), but was unable to recall the

school that had provided the coursework, when the coursework had

been taken and the grade she had received, nor was she able to

produce documentation demonstrating that she had taken the required

coursework.

15. On February 2, 1996, Respondent sent the following letter

to Smith:

Pursuant to our conversation earlier today, this letter

will serve to try and clear up what has transpired with

regard to my continuing education requirement

documentation proof.

I believe I took the required continuing education

requirements in order to renew my license and I normally

attach a copy of the proof of passing grade directly to

the license renewal form when I send same in for

processing.

As previously mentioned, all but my 1995 records are

currently housed in New York and when I return I will

look through financial and real estate records in order

to determine which continuing ed course I may have

utilized for the period in question.

There is, however, a possibility that I have

unintentionally and inadvertently failed to complete the

continuing education requirement due to the fact that I

may have missed a reminder notice from the school due to

changing addresses since the last notice.

I apologize for not being able to provide the burden of

proof that you require at this time.

16. On February 5, 1996, Respondent sent a second letter to

Smith, which read as follows:

Pursuant to our conversation last Friday February the 2nd

. . , I just want to thank you again for your assistance

in this matter.

As discussed, I am now awaiting your response from the

Board regarding this matter. As previously mentioned, I

believe my records are in New York, however, I am more

than willing to take another course or whatever is

required 3at this time to remedy this situation. 3/

17. On August 23, 1996, the Department issued an

Administrative Complaint alleging that Respondent had obtained the

renewal of her license "by means of fraud, misrepresentation, or

concealment in violation of [Section] 475.25(1)(m), Fla. Stat."

18. Thereafter, on or about November 15, 1996, Respondent

sent a letter to the Department's counsel of record in the instant

case, Christine Ryall, Esquire, which read, in part, as follows:

I am also enclosing copies of what I believe may be the

continuing education you require for the 93 -95 period.

The Accelerated School of Real Estate, Inc. has since

been purchased by Goldcoast School of Real Estate and

even though I have the yellow final test completed, they

have no record of my being a student there as I have

tried contacting them regarding same. They do not have

records on computer for Accelerated Students. Instead

they are in boxes which the girls have to look through

and it's certainly conceivable that some of their records

are missing due to the takeover and moving of records.

I hope that you can [ac]cept the enclosed documentation

as proof of taking the continuing education you require

for the 93 95 period. . . .

CONCLUSIONS OF LAW

19. The Florida Real Estate Commission (Commission) is

statutorily empowered to take disciplinary action against

Florida -licensed real estate brokers based upon any of the grounds

enumerated in Section 475.25(1), Florida Statutes.

20. Such disciplinary action may include one or more of the

following penalties: license revocation; license suspension (for a

period not exceeding ten years); imposition of an administrative

fine not to exceed $1,000 for each count or separate offense;

issuance of a reprimand; and placement of the licensee on

probation. Section 475.25(1), Fla. Stat.

21. Proof greater than a mere preponderance of the evidence

must be submitted. Clear and convincing evidence of the licensee's

guilt is required. See Department of Banking and Finance. Division

of Securities and Investor Protection v. Osborne Stern and Company,

670 So.2d 932, 935 (Flat 1996); Ferris v. Turlington, 510 So.2d 292

(Flat 1987); McKinney v. Castor, 667 So.2d 387, 388 (Flat 1st DCA

1995); Tenbroeck v. Castor. 640 So.2d 164, 167 (Flat 1st DCA 1994);

Nair v. Department of Business and Professional Regulation. 654

So.2d 205, 207 (Flat 1st DCA 1995); Pic N' Save v. Department of

Business Regulation. 601 So.2d 245 (Flat 1st DCA 1992); Munch v.

Department of Professional Regulation, 592 So.2d 1136 (Flat 1st DCA

1992); Newberry v. Florida Department of Law Enforcement, 585 So.2d

500 (Flat 3d DCA 1991); Pascale v. Department of Insurance, 525

So.2d 922 (Flat 3d DCA 1988); Section 120.57(1)(h), Fla. Stat.

(Supp. 1996)("[f]indings of fact shall be based on a preponderance

of the evidence, except in penal or licensure disciplinary

proceedings or except as otherwise provided by statute").

22. "'[C]lear and convincing evidence requires that the

evidence must be found to be credible; the facts to which the

witnesses testify must be distinctly remembered; the testimony must

be precise and explicit and the witnesses must be lacking in

confusion as to the facts in issue. 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.'" In re Davey, 645 So.2d

398, 404 (Flat 1994), quoting, with approval , from Slomowitz v.

Walker, 429 So.2d 797, 800 (Flat 4th DCA 1983).

23. The disciplinary action taken against the licensee may be

based only upon those offenses specifically alleged in the

administrative complaint. See Cottrill v. Department of Insurance,

21 Fla. L. Weekly D2630 (Flat 1st DCA December 12, 1996); Kinney v.

Department of State, 501 So.2d 129, 133 (Flat 5th DCA 1987); Hunter

v. Department of Professional Regulation 458 So.2d 842, 844 (Flat

2d DCA 1984).

24. In determining whether Section 475.25(1), Florida

Statutes, has been violated in the manner charged 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. Furthermore, if

there are any ambiguities included such must be construed in favor

of the . . . licensee." Lester v. Department of Professional and

Occupational Regulations 348 So.2d 923, 925 (Flat 1st DCA 1977).

25. The Administrative Complaint issued in the instant case

alleges that Respondent violated subsection (l)(m) of Section

475.25, Florida Statutes, by obtaining the renewal of her real

estate license as the result of ttsubmitt[ing] to [the Department]

a license renewal notice on which she signed an affirmation that

she had met all of the requirements for license renewal,"

notwithstanding that, "[a]t the time she submitted the renewal

notice to [the Department], Respondent had not completed the 14

hours of continuing education required under [Section] 475.182(1),

Fla. Stat., and Fla. Admin. Code R. 61J2 -3.009."

26. Subsection (l)(m) of Section 475.25, Florida Statutes,

authorizes the Commission to discipline a Florida - licensed broker

who "[h]as obtained a license by means of fraud, misrepresentation

or concealment." "[A]n intentional act [must] be proved before a

violation [of Section 475.25(1)(m), Florida Statutes] may be

found." Munch v. Department of Professional Regulation 592 So.2d

1136, 1143 -44 (Flat 1st DCA 1992); Department of Business and

Professional Regulation Division of Real Estate v. Green No.

95 -83926 (Flat Real Estate Commission February 19, 1997)(Final

Order).

27. Section 475.182(1), Florida Statues, provides as follows:

The [D]epartment shall renew a license upon receipt of

the renewal application and fee. The renewal application

for an active license as broker, broker -salesperson, or

salesperson shall include proof satisfactory to the

[C]ommission that the licensee has, since the issuance or

renewal of his current license, satisfactorily completed

at least 14 classroom hours of 50 minutes each of a

continuing education course during each biennium, as

prescribed by the [C]ommission. The [C]ommission may

accept as a substitute for such continuing education

course, on a classroom -hour -for -classroom -hour basis, any

satisfactorily completed education course that the

[C]ommission finds is adequate to educate licensees

within the intent of this section. However, the

[C]ommission may not require, for the purpose of

satisfactorily completing an approved correspondence

course, a written examination that is to be taken at a

centralized location and is to be monitored.

28. Rule 61J2 -3.009, Florida Administra tive Code, provides, in

part, as follows:

(1) All persons holding active or inactive licenses 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. . . .

29. Also pertinent to the instant case is subsection (2) of

Rule 61J2 -3.015, Florida Administrative Code, which provides as

follows:

An application for renewal or reactivation of an existing

status as a broker, broker salesperson, salesperson or

instructor shall contain an affirmation by the individual

of having satisfactorily completed the applicable

Commission prescribed, conducted or approved course(s).

The BPR shall perform random audits of up to 25 percent

of the licensees and instructor permit holders to verify

compliance with continuing education or post -license

education requirements. Each licensee and instructor

permit holder shall retain the grade report as proof of

successful completion of continuing education or

post -license education requirements for at least 2 years

following the end of the renewal period for which the

education is claimed. Failing to provide evidence of

compliance with continuing education or post license

education requirements or the furnishing of false or

misleading information regarding compliance with said

requirements shall be grounds for disciplinary action

against the licensee or instructor.

30. In light of the provisions of subsection (2) of Rule

61J2 -3.015, Florida Administrative Code, the burden was on

Respondent to produce evidence proving that she had satisfactorily

completed the continuing education coursework required (by Rule

61J2 -3.009(1), Florida Ad ministrative Code) to renew her license

for the two -year period beginning April 1, 1995, as she had claimed

she had in the Affirmation of Eligibility for License Renewal

contained in the signed Renewal Notice she submitted to the

Department as part of the license renewal process. 4/

31. Neither during the course of the Department's audit (as

the evidence adduced at the final hearing clearly and convincingly

establishes), nor at the final hearing itself, did Respondent

produce a grade report or any other persuasive evidence

demonstrating her successful completion of the required continuing

education coursework. Although Respondent testified at the final

hearing that she did satisfactorily complete such coursework, her

testimony was uncorroborated and so plagued by uncertainty and

lacking in critical details as to be unworthy of belief. She

attempted, at hearing, to explain her inability to produce

documentation substantiating her claim by suggesting that such

documentation may have been destroyed during a July 15, 1995, storm

that damaged her New York residence; however, at no time prior to

hearing (in her post -July 15, 1995, correspondence with the

Department concerning such documentation) did Respondent mention

that there was a possibility that the documentation had been

destroyed as a result of the storm. Her failure to have done so,

in the view of the undersigned, weighs heavily against a finding

that the documentation once existed, but was subsequently

destroyed, as Respondent suggested at hearing.

32. It is undisputed that Respondent, in seeking the renewal of

her license, represented to the Department that she had "met all of

the requirements for license renewal" 5/ and that, based upon

this representation, her license was renewed. Inasmuch as the

record further establishes (in the absence of any persuasive

evidence to the contrary) that Respondent's representation (at

least to the extent that it addressed continuing education

requirements) was false (as Respondent knew or should have known at

the time the representation was made), Respondent is guilty of

obtaining the renewal of her license by "misrepresentation," in

violation of subsection (l)(m) of Section 475.25, Florida Statutes,

as alleged in the Administrative Complaint.

33. In determining the particular disciplinary action the

Commission should take against Respondent for having committed this

violation, it is necessary to consult Chapter 61J2 -24, Florida

Administrative Code, which contains the Commission's "disciplinary

guidelines." Cf. Williams v. Department of Transportation. 531

So.2d 994, 996 (Flat 1st DCA 1988)(agency is required to comply

with its disciplinary guidelines in taking disciplinary action

against its employees).

34. Subsection (3)(n) of Rule 61J2 -24.001, Florida

Administrative Code, provides that the "minimum" penalty for a

violation of Section 475.25(1)(m), Florida Statutes, is "a $1,000

fine and revocation."

35. Subsection (4)(a) of Rule 61J2 -24.001, Florida

Administrative Code, however, provides that the Commission may

impose a less severe penalty if there is clear and convincing

evidence that circumstances warrant such action.

36. Subsection (4)(b) of Rule 61J2 -24.001, Florida

Administrative Code, lists (albeit not exhaustively) those

circumstances that are to be considered in determining whether a

penalty less severe than "a $1,000 fine and revocation" should be

imposed upon a licensee guilty of violating Section 475.25(1)(m),

Florida Statutes. It provides as follows:

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 licensee.

8. Violation of the provision of Chapter 475, Florida

Statutes, wherein a letter of guidance as provided in s.

455.225(3), Florida Statutes, previously has been issued

to the licensee.

37. In its proposed recommended order, the Department

requests that the undersigned recommend that Respondent's "real

estate license be revoked. 6/ Having considered the facts of the

instant case in light of the provisions of Rule 61J2 -24.001 set

forth above, the undersigned finds that the Department's proposed

penalty, the revocation of Respondent's license, is the appropriate

penalty for the Commission to impose upon Respondent for her

violation of Section 475.25(1)(m), Florida Statutes. 7/

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is hereby

RECOMMENDED that the Commission issue a final order finding

Respondent guilty of the violation of Section 475.25(1)(m), Florida

Statutes, alleged in the Administrative Complaint and

revoking her real estate license for having committed said

violation.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this

17th day of March, 1997.

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of March, 1997.

ENDNOTES

1/ Appended to Respondent's post -hearing submittal are documents

that were neither offered, nor received, into evidence at the final

hearing. No finding of fact may be based upon any of these

documents inasmuch as they are outside the evidentiary record in

this case. See General Development Utilities, Inc., v. Hawkins.

357 So.2d 408, 409 (Flat 1978); Section 120.57(1)(h), Fla. Stat.

(Supp. 1996)("[f]indings of fact . . . shall be based exclusively

on the evidence of record and on matters officially recognized").

In any event, however, the outcome of this case would be same

regardless of whether these documents were considered as a part of

the evidentiary record (upon which findings of fact may be based).

2/ Respondent was residing in New York at the time of the storm.

3/ In none of her correspondence with the Department did

Respondent suggest, as she did at the final hearing, that there was

a possibility that the proof of her satisfactory completion of the

required continuing education coursework had been destroyed during

the July 15, 1995, storm that damaged her New York residence.

4/ Where the burden of proof of a negative fact normally rests on

one party, but the opposing party has peculiar knowledge or control

of evidence as to such matter, it is not impermissible to place on

the opposing party the burden to produce such evidence Florida

Statutes, alleged in the Administrative Complaint and revoking her

real estate license for having committed said violation.

5/ It appears that Respondent had actual knowledge of what these

requirements were. In any event, licensees, such as Respondent,

are charged with the knowledge of the requirements (as well as the

prohibitions) of the licensing laws to which they are subject. See

Florida Board of Pharmacy v. Levin , 190 So. 2d 768, 770 (Fla.

1966); Wallen v. Department of Professional Regulation, Division of

Real Estate , 568 So. 2d 975 (Fla. 3d DCA 1990).

6/ Respondent is not seeking the imposition of a fine in addition

to license revocation.

7/ Rule 61J2-24.005, Florida Administrative Code, addresses the

subject of license “revocation.” It provides as follows:

Pursuant to s. 455.227(5), F.S., revocation of a license

is permanent except for the following violation:

(a) 61J2-3.015 - filing an application for renewal of

a license when the individual had not complied with the

provisions of 61J2-3.009 or 61J2-3.020, whichever is

applicable.

(2) An individual whose license has been revoked for the

above listed violation may not apply for a salesperson’s

license for a period of five (5) years after the date of

the filing of the final order revoking the license. The

applicant must meet all the requirements for initial

licensure as a salesperson, including examination, as

required in ss. 475.17 and 475.175, F.S. The Commission

may refuse to certify the applicant pursuant to ss.

475.17(1)(a), 475.181 or 475.25(1), F.S.

COPIES FURNISHED :

Christine M. Ryall

Senior Attorney

Department of Business and Professional Regulation

Division of Real Estate

400 West Robinson Street

Post Office Box 1900

Orlando, Florida 32802 -1900

Deborah S. Wetmore

R.R. 3

Box 103F

Carthage, New York 13619

Henry M. Solares

Division Director

Department of Business and Professional Regulation

Division of Real Estate

400 West Robinson Street

Post Office Box 1900

Orlando, Florida 32802 -1900

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.