98-000438 Division Of Real Estate vs. Rosemary Nixon Status: Closed Recommended Order on Tuesday, June 9, 1998.

Summary: Applicant for renewal of license misrepresented her continuing education status. Fine per rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 98-0438

)

ROSEMARY NIXON, )

)

Respondent, )

___________________________________)

RECOMMENDED ORDER

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

on May 12, 1998, at West Palm Beach, Florida, before Claude B.

Arrington, a duly designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Geoffrey T. Kirk, Esquire

Department of Business and Professional

Regulation, Division of Real Estate

400 West Robinson Street, N-308

Orlando, Florida 32802

For Respondent: Rosemary Nixon, pro se

6565 Parkview Drive

Boca Raton, Florida 33433

STATEMENT OF THE ISSUES

Whether Respondent, a licensed real estate salesperson,

committed the offenses alleged in the Administrative Complaint,

and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against

Respondent that alleged certain facts as to the application she

submitted to renew her license as a real estate salesperson and

thereafter alleged two separate violations of the laws and rules

regulating the practice of real estate. In Count I, Petitioner

alleged that Respondent obtained a license by misrepresentation

in violation of Section 475.25(1)(m), Florida Statutes. In

Count II, Petitioner alleged that Respondent failed to comply

with the continuing education requirements contained in

Rule 61J2-3.009, Florida Administrative Code, thereby violating

the provisions of Section 475.25(1)(e), Florida Statutes.

Petitioner timely challenged the allegations of the

Administrative Complaint, the matter was referred to Division of

Administrative Hearings, and this proceeding followed.

At the formal hearing, Petitioner presented the testimony of

one witness (an investigator) and presented six exhibits, each of

which was accepted into evidence. Respondent testified on her

own behalf, but presented no other testimony and no exhibits.

A transcript of the proceedings has been filed. The

Petitioner filed a proposed recommended order, which has been

duly considered by the undersigned in the preparation of this

Recommended Order. Respondent did not submit a proposed

recommended order.

FINDINGS OF FACT

1. 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, Chapters 455 and 475, Florida Statutes,

and Title 61J2, Florida Administrative Code.

2. Respondent has been a duly licensed real estate sales

person in the State of Florida at all times pertinent to this

proceeding.

3. Prior to March 31, 1997, Petitioner mailed to Respondent

a renewal notice that reminded her that her license would expire

on March 31, 1997.

4. Accompanying the renewal notice was an insert that

contained the following caveat:

In order to renew, the RENEWAL NOTICE MUST

BE RETURNED WITH THE APPROPRIATE FEE. By

submitting the appropriate fee to the

department, you are affirming that you have

"COMPLETED" the required classroom education.

5. Respondent submitted her renewal card along with the

requisite fee without having completed a 14-hour continuing

education course required by Rule 61J2-3.009, Florida

Administrative Code. Respondent's license was thereafter renewed

by Petitioner, effective March 31, 1997.

6. Respondent discovered from a discussion with her broker

that she should have taken the continuing education course before

she submitted her renewal application.

7. By letter dated June 12, 1997, Respondent advised

Petitioner that she sent in the paperwork for the renewal of her

license before she had taken the continuing education course.

8. Respondent successfully completed the required 14-hour

continuing education course on June 18, 1997.

9. Respondent testified without contradiction that she did

not intend to misrepresent the status of her continuing

education.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject of this

proceeding. Section 120.57(1), Florida Statutes.

11. Petitioner has the burden of proving by clear and

convincing evidence the allegations against Respondent. See

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

Co. v. Department of Agriculture and Consumer Services , 550

So. 2d 112 (Fla. 1st DCA 1989).

12. Section 475.25, Florida Statutes, provides, in

pertinent part, as follows:

(1) The commission may deny an application

for licensure, registration, or permit, or

renewal thereof; may place a licensee,

registrant, or permittee on probation; may

suspend a license, registration, or permit

for a period not exceeding 10 years; may

revoke a license, registration, or permit;

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, registrant, permittee, or

applicant:

* * *

(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.

13. Rule 61J2-3.009, Florida Administrative Code, required

Respondent to ". . . satisfactorily complete a minimum of 14

classroom hours of instruction of 50 minutes each as prescribed

by the Commission . . ." prior to the renewal of her license.

14. A misrepresentation within the meaning of Section

475.25(1)(m), Florida Statutes, can be the result of an

intentional act or as the result of a reckless or careless act.

See Walker v. Florida Department of Business and Professional

Regulation , 705 So. 2d 652 (Fla. 5th DCA 1998), and Ocean Bank of

Miami v. Inv-Uni Investment Corp. , 599 So. 2d 694, 697 (Fla.

3d DCA 1992).

15. Respondent had the responsibility to read the renewal

form and to truthfully represent to the Petitioner her

qualifications for renewal. The insert on the renewal notice

clearly advised Respondent that, by submitting the appropriate

fee to the Petitioner, she was affirming she had completed the

required classroom education. Respondent knew or should have

known that the Petitioner would rely on that representation.

Respondent's act of submitting the application for renewal

without having taken the required continuing education course was

not intentional, but it was a careless misrepresentation. Based

on the foregoing, it is concluded that Petitioner established by

clear and convincing evidence that Respondent obtained the

renewal of her license as the result of a misrepresentation in

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

16. Petitioner also established that Respondent failed to

comply with Rule 61J2-3.009, Florida Administrative Code, thereby

violating Section 475.25(1)(e), Florida Statutes.

17. Rule 61J2-24.001(3), Florida Administrative Code,

contains disciplinary guidelines pertinent to this proceeding.

For a violation of Section 475.25(1)(m), Florida Statutes, the

guideline provides as follows:

In the case of a licensee who renews the

license without having complied with Rule

61J2-3.009 and the act is discovered by the

BPR, the usual action of the Commission shall

be to impose a penalty of revocation. In the

case of a licensee who renews the license

without having complied with Rule 61J2-3.009

and the licensee brings the matter to the

attention of the BPR, the usual action of the

Commission shall be to impose a penalty of a

$1,000 administrative fine.

18. Rule 61J2-24.001(3), Florida Administrative Code,

provides the following guideline for a violation of Section

475.25(1)(e), Florida Statutes:

. . . from an 8 year suspension to revocation

and an administrative fine of $1,000.

19. The recommended penalty is consistent with the

disciplinary guideline adopted by Petitioner for a violation of

Section 475.25(1)(m), Florida Statutes. No separate penalty is

recommended for the violation of Section 475.25(1)(e), Florida

Statutes, because the conduct that established that violation

also established the violation of Section 475.25(1)(m), Florida

Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner find Respondent guilty of

violating the provisions of Sections 475.25(1)(e) and (m),

Florida Statutes, and imposes an administrative fine in the

amount of $1,000.00.

DONE AND ENTERED this 9th day of June, 1998, in Tallahassee,

Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

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 9th day of June, 1998.

COPIES FURNISHED:

Geoffrey T. Kirk, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

400 West Robinson Street

Post Office Box 1900

Orlando, Florida 32802-1900

Rosemary Nixon, pro se

6565 Parkview Drive

Boca Raton, Florida 33433

Henry M. Solares, 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

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.