STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-0989

)

ROY AHRINGER, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in Sebring, Florida on September 30, 1986 in the above-styled case before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The Department of Professional Regulation, Division of Real Estate (Petitioner), was represented by Susan Hartman, Esquire, but Roy Ahringer (Respondent) did not appear at the hearing, nor was he represented.

Petitioner introduced six exhibits and called one witness to testify. A transcript of the hearing was filed on October 27, 1986, and a ruling on timely filed Proposed Findings of Fact is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent has been a licensed real estate broker salesman in the State of Florida at all times material hereto having been issued license number 0158288 in accordance with Chapter 475, Florida Statutes.

   
   

2. On June 10, 1985 a Recommended Order was entered by the undersigned Hearing Officer in Division of Administrative Hearings Case Number 85-0118 concerning Respondent, which recommended that "a Final Order be issued suspending Respondent's license for a period of two (2) years and imposing an administrative fine in the amount of one thousand dollars ($1,000)."

   
   

3. On July 16, 1985 the Florida Real Estate Commission entered a Final Order imposing the penalty against Respondent which had been recommended by the undersigned Hearing Officer in Division of Administrative Hearings Case Number 85-0118. The Final Order provided further that, "This Order shall be effective thirty (30) days from the date of filing, with the Clerk of the Department of Professional Regulation." The Final Order was filed with the Clerk of the Department of Professional Regulation on July 24, 1985.

   
   

4. To date, Respondent has not paid the $1,000 fine imposed by the Florida Real Estate Commission in Division of Administrative Hearings Case Number 85- 0118.

5. Petitioner contends that Respondent was required to pay the $1,000 fine within thirty (30) days of entry of the Final Order, referenced above.

   
   

6. Rule 21V-10.31, Florida Administrative Code, imposes a thirty-day time limit for the payment of fines imposed by the Florida Real Estate Commission from the date of imposition by order of the Commission.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this cause. Section 120.57(1), Florida Statutes.

   
   

8. License disciplinary action is essentially penal in nature. Therefore, statutes and rules which form the basis for such disciplinary action must be strictly construed, and the alleged violations must be proven by competent substantial evidence. State ex rel. Vining v. Florida Real Estate Commission,

   281 So.2d 487 (Fla. 1973); Bowling v. Dept. of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981).

9. Rule 21V-10.31, Florida Administrative Code, states: Time for Payment of Civil Penalties.

   In cases where the (Commission) imposes

   a civil penalty for violation of Chapters

   455 and 475, Laws of Florida, or the rules promulgated thereunder, the penalty shall be paid within thirty (30) days of its imposition by order of the (Commission).

   
   

   The Florida Real Estate Commission has the authority to initiate disciplinary action when a licensee violates any lawful rule or order. Section 475.25(1)(e), Florida Statutes. The above cited rule is presumed to be a valid exercise of rulemaking authority under the provisions of Sections 455.227(2) and 475.42, Florida Statutes.

   
   

10. In this case, it is clear that Respondent has not paid the fine which was imposed against him in July, 1985. The thirty day time period for payment of the fine has long since passed. Therefore, Petitioner has met its burden of establishing the basis for further license disciplinary action against Respondent.

RECOMMENDATION

Based upon the foregoing, it is recommended that a Final Order be issued revoking Respondent's license-number 0158288.

DONE AND ENTERED this 24th day of November, 1986 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1986.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0989

Rulings on Petitioner's Proposed Findings of Fact:

1. Adopted in Findings of Fact 1 and 3.

2. Adopted in Findings of Fact 3 and 4.

COPIES FURNISHED:

Susan Hartman, Esquire Department of Professional Regulation

400 West Robinson Street Orlando, Florida 32802

Roy Ahringer

232 Harmony Avenue

Lake Placid, Florida 33852

Harold Huff Executive Director

Division of Real Estate

400 West Robinson Street Orlando, Florida 32802

Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Wings S. Benton, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-000989

Orders for Case No: 86-000989