97-000826 Division Of Real Estate vs. Eric R. Hartman Status: Closed Recommended Order on Thursday, August 28, 1997.

Summary: Respondent renewed his license without first successfully completing continuing education. Recommend administrative fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

DIVISION OF REAL ESTATE , )

)

Petitioner , )

) Case No. 97-0826

vs. )

)

ERIC R. HARTMAN , )

)

Respondent. )

_______________________________)

RECOMMENDED ORDER

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

on March 30, 1997, at Stuart, Florida, before Errol H. Powell, a

duly designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner : Christine M. Ryall, Esquire

Department of Business and Professional

Regulation, Division of Real Estate

400 West Robinson Street, Suite N308

Orlando, Florida 32801

For Respondent : Keith A. Lowe, Esquire

215 South Federal Highway, Suite 200

Stuart, Florida 34994

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed

the offenses set forth in the Administrative Complaint and, if

so, what action should be taken.

PRELIMINARY STATEMENT

By an Administrative Complaint filed September 19, 1996, the

Department of Business and Professional Regulation, Division of

Real Estate (Petitioner) charged Eric R. Hartman (Respondent)

with violating Subsection 475.25(1)(m), Florida Statutes, by

obtaining a license through means of fraud, misrepresentation, or

concealment. By an Election of Rights, Respondent disputed the

allegations of fact and requested a formal hearing. On

February 20, 1997, this matter was referred to the Division of

Administrative Hearings.

At hearing, Petitioner did not present the testimony of any

witnesses, but entered seven exhibits into evidence. Respondent

testified in his own behalf and entered no exhibits into

evidence.

A transcript of the hearing was not ordered. At the request

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

set for more than ten days following the hearing. The parties

filed proposed recommended orders which have been considered in

this recommended order.

FINDINGS OF FACT

1. At all times material hereto, Eric R. Hartman has been

licensed by the State of Florida as a real estate salesperson,

having been issued license number 0455304. Mr. Hartman was

originally licensed on August 12, 1985.

2. The last status of Mr. Hartman's license was

involuntarily inactive.

3. On or about June 26, 1995, Mr. Hartman forwarded his

real estate salesperson license renewal notice to the Department

of Business and Professional Regulation, Division of Real Estate

(Division of Real Estate). His license had expired on March 31,

1995.

4. Mr. Hartman submitted the license renewal notice to the

Division of Real Estate for the purpose of renewing his real

estate salesperson license. On the license renewal notice,

Mr. Hartman signed an affirmation that he had completed all of

the requirements for renewal of his license.

5. As a prerequisite for the renewal of his license,

Mr. Hartman was required to successfully complete a minimum of 14

hours of real estate continuing education. At all times material

hereto, Mr. Hartman knew of this requirement.

6. Prior to submitting his signed license renewal notice,

in order to comply with the required continuing education,

Mr. Hartman had obtained a correspondence course for 14 hours of

continuing education from the Bert Rodgers Schools of Real

Estate, Incorporated (Bert Rodgers). The correspondence course

included a course book and test booklet.

7. At the end of each chapter in the course book was a

progressive quiz, and the answers for the quiz were provided at

the end of the course book. Mr. Hartman took the progressive

quiz after completing each chapter and, for the total book, had

only two incorrect answers.

8. The test for the continuing education course was open

book. After completing the test, Mr. Hartman forwarded the test

booklet to Bert Rodgers for grading.

9. Based upon his performance on the progressive quiz after

each chapter, there was no reason for Mr. Hartman to believe that

he had not passed the test and, therefore, successfully completed

the course. Confident that he had passed the continuing

education course, Mr. Hartman submitted his license renewal

notice to the Division of Real Estate.

10. At all times material hereto, Mr. Hartman knew that he

was required to maintain and submit to the Division of Real

Estate, upon request, a course report certificate for the

continuing education. The certificate indicates that he had

timely and successfully completed the continuing education

course.

11. At the time that Mr. Hartman submitted his signed

license renewal notice, he had not received a course report

certificate from Bert Rodgers.

12. On July 10, 1995, relying upon Mr. Hartman's

representation that he had successfully completed the

requirements for renewal of his license, the Division of Real

Estate renewed Mr. Hartman's license and issued him a real estate

salesperson license. His license had an effective date of

June 23, 1995, and an expiration date of March 31, 1997.

13. Subsequently, Mr. Hartman received notification from

Bert Rodgers that the course material, including the test

booklet, had expired and was no longer valid. Simultaneously,

Bert Rodgers provided Mr. Hartman with a new and valid course

book and test booklet. He completed the new test booklet and

forwarded it to Bert Rodgers for grading.

14. At the time that Mr. Hartman signed his license renewal

notice and forwarded it to the Division of Real Estate, he had no

intent to deceive or mislead or to make a material

misrepresentation for the purpose of inducing the Division of

Real Estate to renew his license.

15. On his own initiative, by letter dated August 28, 1995,

Mr. Hartman notified the Division of Real Estate of the situation

regarding the Bert Rodgers continuing education course.

16. After having forwarded the new and valid test booklet

to Bert Rodgers, Mr. Hartman, subsequently, received a course

report certificate from Bert Rodgers. The certificate indicated,

among other things, that Mr. Hartman had taken a 14-hour

continuing education correspondence course, which was completed

on August 25, 1995, and that he had received a grade of 93.

CONCLUSIONS OF LAW

17. Pursuant to Section 120.569, Florida Statutes (Supp.

1996), and Subsection 120.57(1), Florida Statutes (Supp. 1996),

the Division of Administrative Hearings has jurisdiction over the

subject matter of this proceeding and the parties thereto.

18. License revocation proceedings are penal in nature.

The burden of proof is on the Division of Real Estate to

establish the truthfulness of the allegations in the

Administrative Complaint by clear and convincing evidence.

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987) ; Balino v.

Department of Health and Rehabilitative Services , 348 So. 2d 349

(Fla. 1st DCA 1977).

19. 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 . . .:

(m ) Has obtained a license by means of

fraud, misrepresentation, or concealment.

20. During each two year licensure period, real estate

licensees are required to complete a minimum of 14 hours of

continuing education. Section 475.182(1), Florida Statutes ;

Rule 61J2- 3.009(1), (4), and (5), Florida Administrative Code.

21. As a prerequisite to the renewal of a real estate

license for another licensure period, a licensee must

successfully complete the required continuing education.

Section 475.182(1).

22. Affirmation is required on the license renewal notice

by the licensee that the continuing education requirements for

renewal of their license have been successfully completed.

Rule 61J2-3.015(2), Florida Administrative Code.

23. A licensee is presumed to know th e requirements and

prohibitions of the law which governs the licensee's license.

Florida Board of Pharmacy v. Levin , 190 So. 2d 768 (Fla. 1968) ;

Wallen v. Florida Department of Professional Regulation, Division

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

24. Section 475.25(1)(m) as to fraud and concealment

contemplates intentional misconduct, or wrongful intent or

scienter. Munch v. Department of Professional Regulation,

Division of Real Estate , 592 So. 2d 1136, 1144 (Fla. 1st DCA

1992); Morris v. Department of Professional Regulation , 474 So.

2d 841, 843 (Fla. 5th DCA 1985).

25. Wrongful intent or scienter can be demonstrated by a

showing of actual knowledge by the person making the statement

that the representation is false, or by a showing of careless or

reckless disregard by the person making the statement for the

truthfulness of the representation. Lance v. Wade , 457 So. 2d

1008, 1011 (Fla. 1984); Ocean Bank of Miami v. Inv-Uni Investment

Corporation , 599 So. 2d 694, 697 (Fla. 3d DCA 1992).

26. The Division of Real Estate has failed to demonstrate

by clear and convincing evidence that Mr. Hartman violated

Subsection 475.25(1)(m) as to fraud and concealment. No

intentional misconduct, or wrongful intent or scienter have been

shown.

27. However, the Division of Real Estate has demonstrated

by clear and convincing evidence that Mr. Hartman violated

Subsection 475.25(1)(m) as to misrepresentation. Mr. Hartman

knew that, as a requirement and a prerequisite for renewal of his

real estate salesperson license, he had to successfully complete

a minimum of 14 hours of continuing education and that, when he

affirmed on the renewal notice his completion of the requirements

for renewal of his license, the Division of Real Estate would

rely upon his affirmation and renew his license. Even though it

was not unreasonable for Mr. Hartman to believe that he had

passed the continuing education course, he had not received the

course report certificate, indicating that he had passed the

continuing education course, at the time that he forwarded the

signed renewal notice to the Division of Real Estate.

Mr. Hartman's affirmation that he had completed all of the

requirements for renewal of his license was a material

representation, and he misrepresented that material fact.

28. As to penalty, the Division of Real Estate suggests a

$1,000.00 administrative fine.

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 imposing

a $1,000.00 administrative fine against Eric R. Hartman.

DONE AND ENTERED this 28th day of August, 1997, 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]

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of August, 1997.

ENDNOTE

1/ Exhibits 1, 2, and 3 were entered into evidence without

objection. Exhibits 4, 5, 6, and 7 were entered into evidence

over objection and address only the penalty phase of this case if

it is determined by the Administrative Law Judge that Respondent

committed the alleged violations.

COPIES FURNISHED:

Christine M. Ryall, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

Post Office Box 1900

Orlando, Florida 32802-1900

Keith A. Lowe, Esquire

215 South Federal Highway, Suite 200

Stuart, Florida 34994

Henry M. Solares, Division Director

Department of Business and

Professional Regulation

Division of Real Estate

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.