STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6929

)

ROMIE L. HUNTSINGER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on January 31, 1990, in Orlando, Florida.

APPEARANCES

For Petitioner: Cynthia Gelmine, Esquire

Department of Professional Regulation 1940 N. Monroe Street

Tallahassee, FL 32399-0792

For Respondent: Romie L. Hunstinger

3119 Illinworth Avenue

Orlando, FL 32866 STATEMENT OF THE ISSUE$

The issue for determination is whether Respondent violated Rule 21BB- 5.001(2), FAC and Section 468.389(1)(j), F.S. by allowing an unlicensed person to conduct bid calling. If the violation occurred, it is necessary to determine an appropriate penalty.

PRELIMINARY STATEMENT

The administrative complaint dated August 10, 1989, alleged a single violation of the standards of practice for conducting an auction. Respondent answered with a timely request for formal hearing.

At the hearing, the Department of Professional Regulation presented the testimony of James Dee and Robert Shiffler. Its two exhibits, a license file and a certificate of non-licensure, were admitted in evidence without objection.

Respondent, Romie Huntsinger, testified in his own behalf and presented the additional testimony of James D. Poe and Orrel Buckler.

No transcript was prepared and neither party submitted post-hearing argument or proposed recommended orders.

FINDINGS OF FACT

1. Romie Huntsinger has been an auctioneer since 1970, and was licensed by the State of Florida with license number AU- 0000307 on March 7, 1988, shortly after the profession became regulated by the state.

   
   

   His license has remained current and in good standing since that date.

   
   

2. On November 29, 1988, Huntsinger was conducting an auction as principal auctioneer in Orlando, Florida.

   
   

   A friend of his, James Poe, was standing near him when he received an irresistible call of nature (in his words). Huntsinger thrust the microphone at Poe and asked him to sell the next few items (call the bids).

   
   

3. There is conflicting testimony as to whether Huntsinger was gone no more than 15 minutes or at least 45 minutes, but it is undisputed that Poe was calling the bids in his absence.

   
   

4. James Poe was an auctioneer for many years and had his own business, but when the practice of auctioneering became regulated in 1987, he did not apply for a license.

   
   

5. Time is of the essence in the conduct of an auction as each seller is allotted limited minutes for his lot to be offered.

   
   

   It was proper that Huntsinger delegate a substitute so that he could leave the microphone, but there were at least two other licensed auctioneers in the room.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.57(1) and 455.225(4), F.S.

   
   

7. In license discipline cases such as this the Department of Professional Regulation is required to prove by clear and convincing evidence that the alleged violations occurred. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

8. The following statutes and rule proscribe Romie Huntsinger's delegation to James Poe:

   
   

   468.385 Licenses required; qualification; examination; bond -

   * * *

   2. No person shall auction or offer to auction any property in this state unless he is licensed by the department or is exempt from licensure under this act.

   * * *

   468.389 Prohibited acts; penalties -

   1. The following ac s shall be grounds for the disciplinary activities provided in subsections

   (2) and (3):

   * * *

   j. Violating a statute or administrative rule regulating practice under this part or a lawful disciplinary order of the board or the department. 21BB-5.001 Requirements for Conducting an

   Auction -

   * * *

   2. A principal auctioneer shall be designated for each auction. The principal auctioneer is the licensed auctioneer or apprentice who has accepted responsibility for all aspects of the auction, including contract negotiations, advertising, auction organization and layout, bid calling, merchandise distribution and final settlement with the seller. The principal auctioneer may delegate in whole, or in part, different aspects of the auction, only to the extent that such delegation is permitted by law and that such delegation will not impede the principal auctioneer's ability to assure the proper conduct of his independent responsibility for the auction. Bid calling may only be delegated to a licensed auctioneer or licensed apprentice.

   * * *

   
   

9. The department met its burden of proof. As observed by the complaining witness, it would be patently unfair to allow individuals to continue to practice without licensure no matter how qualified they might otherwise be, when their peers have made the effort and paid the fees to meet the state's regulatory standards.

   
   

10. Penalties for violation of the statutes and rules governing auctioneering include revocation or suspension of the license, an administrative fine not to exceed $1,000.00 for each offense, probation and reprimand. Section 468.389(2), F.S. and Rule 21BB-1.017, FAC.

RECOMMENDATION

Based on the foregoing, including the disciplinary guidelines in Rule 21BB- 1.017, FAC, it is hereby,

RECOMMENDED:

That the Board of Aucti6neers issue its Final order finding that Romie Huntsinger violated Section 468.389(1)(j), F.S. and Rule 21BB 5.001(1), FAC, and imposing a reprimand and fine of $150.00.

DONE and RECOMMENDED this 28th day of February, 1990, in Tallahassee, Florida.

MARY CLARK

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 this 28th day of February, 1990.

COPIES FURNISHED:

Cynthia Gelmine, Esquire

Dept. of Professional Regulation 1940 N. Monroe St., Suite 60

Tallahassee, FL 32399-0792

Romie L. Huntsinger 3119 Illinworth Avenue

Orlando, FL 32806

Kenneth D. Easley General Counsel

Dept. of Professional Regulation 1940 N. Monroe St., Suite 60

Tallahassee, FL 32399-0792

Ms. LouElla Cook Executive Director

Dept. of Professional Regulation Board of Auctioneers

1940 N. Monroe St., Suite 60

Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the final order in this case concerning their 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: 89-006929

Orders for Case No: 89-006929