STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, ) DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5685

)

LINDA FUTCH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Ft. Myers, Florida, on February 11, 1994, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings. The hearing officer participated by telephone.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: James H. Gillis, Senior Attorney

Division of Real Estate, Legal Section Hurston Building North Tower, Suite N-308

400 West Robinson Streeet Orlando, Floirda 32801-1772

For Respondent: Linda Futch, pro se

Post Office Box 051025 Ft. Myers, FL 33905

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is guilty of violating a lawful order of the Florida Real Estate Commission and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated March 18, 1993, Petitioner alleged that, pursuant to a final order entered August 18, 1992, the Florida Real Estate Commission suspended Respondent's license for 90 days, placed her on probation for two years with 60 hours of continuing education, and ordered her to pay a

$1000 fine. The Administrative Complaint alleges that she did not pay the fine.

By Election of Rights bearing an illegible date, Respondent demanded a formal hearing.

At the hearing, Petitioner called no witnesses and offered into evidence four exhibits. Respondent called one witness and offered no exhibits into evidence.

The transcript was filed March 2, 1994. Neither party filed a proposed recommended order.

FINDINGS OF FACT

1. On August 18, 1992, the Florida Real Estate Commission issued a final order following an administrative hearing and recommended order from a hearing officer of the Division of Administrative Hearings. The final order, which was filed September 2, 1992, concerned Respondent and several other individuals who were also named respondents.

   
   

2. The final order suspends Respondent's license for 90 days, places her license on suspension for two years thereafter, requires continuing education, and requires Respondent to pay a fine of $1000. Unlike the case with respect to another respondent required to pay a fine, the final order does not provide a time within which the fine is to be paid.

   
   

3. Respondent testified that she never received a copy of the final order when it was issued. She testified that, when she received the administrative complaint, she did not receive the sole exhibit attached to the complaint, which was the final order. She also testified that she does not have the money to pay the fine. Respondent's testimony that she has been unaware of her obligation to pay the $1000 fine is discredited.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

   
   

5. Section 475.42(1)(e) provides: "No person shall violate any lawful order or rule of the commission which is binding upon him." Section 475.25(1)(e) authorizes the Florida Real Estate Commission to impose discipline, including revocation or suspension for up to 10 years, for a violation of "any of the provisions of this chapter or any lawful order or rule made or issued under the provisions of this chapter "

   
   

6. In the absence of a explicit deadline within which to pay the administrative fine of $1000, Respondent would have a reasonable time. Eighteen months have elapsed since the issuance of the final order, and eighteen months is a reasonable time. Had she begun periodic payments when the final order was issued, Respondent would have had to pay only about $55 monthly, exclusive of interest.

   
   

7. Respondent has violated a lawful order of the Florida Real Estate Commission by not paying the fine within a reasonable time. Because the final order did not include a deadline for payment, she should be given an opportunity to pay the fine in its entirety without further disciplinary consequences.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Florida Real Estate Commission enter a final order suspending Respondent's license for a period of five years, commencing 90 days from the date of the final order; provided, however, that Respondent may avoid the suspension by paying the $1000 fine from the previous case in its entirety within 90 days from the date of the final order in the subject case.

ENTERED on March 16, 1994, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings on March 16, 1994.

COPIES FURNISHED:

Darlene F. Keller Division Director Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, FL 32802-1900

James H. Gillis, Senior Attorney Division of Real Estate

Legal Section

Hurston Bldg.--North Tower Suite N-308

400 W. Robinson St. Orlando, FL 32801-1772

Linda Futch, pro se

P.O. Box 051025

Ft. Myers, FL 33905

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-005685

Orders for Case No: 93-005685