STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 93-2295

)

CECELIA M. SMILE DILLON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on September 13, 1993. The hearing was conducted by telephone at the request of the parties.

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

Department of Business and Professional Regulation

401 North West 2nd Avenue, Suite N-607 Miami, Florida 33128

For Respondent: Cecelia M. Smile (Dillon), pro se

810 Rutland Drive, Apartment 726

Lincoln, Nebraska 68512 STATEMENT OF THE ISSUES

Whether the Respondent committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

Respondent is licensed in the State of Florida as a real estate salesperson. Petitioner filed an administrative complaint against Respondent on July 16, 1991, and referred the matter to the Division of Administrative Hearings (DOAH) after Respondent filed a timely challenged the allegations of the administrative complaint. The matter was assigned DOAH Case Number 91-4852. Following a formal hearing, a recommended order was entered by the Hearing Officer, which found that Respondent had committed the violations alleged in the administrative complaint. The recommended penalty included the assessment of an administrative fine of $1,000. Thereafter, a Final Order was entered by Petitioner on April 3, 1992, which adopted the findings of fact, conclusions of law, and recommendation of the Hearing Officer. Pertinent to this proceeding, the Final Order imposed an administrative fine against Respondent in the amount

of $1,000. Thereafter, Respondent appealed the Final Order, but the appeal was subsequently dismissed by the Third District Court of Appeal. On March 18, 1993, Petitioner filed the subject administrative complaint against Respondent, which alleged that Respondent had violated the provisions of Sections 475.25(1)(e) and 475.42(1)(e), Florida Statutes, based on her failure to pay the administrative fine that had been assessed against her.

At the formal hearing, Petitioner presented the testimony of Cornelius L. Reagan, one of its investigators, and introduced three exhibits, each of which was accepted into evidence. Respondent testified on her own behalf and submitted as a late-filed exhibit certain correspondence pertaining to a complaint that was filed against Respondent and subsequently dismissed by Petitioner's Probable Cause Panel.

No transcript of the proceeding has been filed. Both the Petitioner and the Respondent timely filed a post-hearing submittal. The proposed findings of fact submitted by Petitioner are adopted in material part by this Recommended Order. At the formal hearing conducted in this proceeding and in her post- hearing submittal, Respondent attempted to relitigate the merits of the 1991 proceeding that culminated in the Final Order dated April 3, 1992. Because the merits of the 1991 administrative complaint were litigated and resolved by the formal proceedings that culminated in the Final Order dated April 3, 1992, Respondent's proposed findings of fact pertaining to the underlying facts of the 1991 proceeding are not relevant to the issue of whether she violated the provisions of Sections 475.25(1)(e) and 475.42(1)(e), Florida Statutes, by failing to pay the administrative fine imposed against her by that Final Order. Consequently, the proposed findings of fact submitted by Respondent are rejected as being irrelevant to the issues raised in this proceeding.

FINDINGS OF FACT

1. Petitioner is the state licensing and regulatory agency charged with the responsibility for regulating the real estate profession in the State of Florida.

   
   

2. At all times pertinent to this proceeding, the Respondent was a licensed real estate salesperson in the State of Florida, having been issued license number 0189734 in accordance with Chapter 475, Florida Statutes.

   
   

3. On July 16, 1991, Petitioner filed an administrative complaint against Respondent which contained certain factual allegations and which charged Respondent with violating certain statutory provisions and rules regulating licensed real estate professionals in the State of Florida. The matter was assigned Case No. 9181335 by Petitioner.

   
   

4. Thereafter, the matter was referred to the Florida Division of Administrative Hearing (DOAH) for formal proceedings pursuant to Chapter 120, Florida Statutes. Upon being referred to DOAH, the matter was assigned DOAH Case No. 91-4852. On October 31, 1991, a formal hearing was conducted by a DOAH Hearing Officer. The Respondent was represented by counsel at that formal hearing.

5. Following the formal hearing, a Recommended Order was duly entered by the Hearing Officer which contained findings of fact, conclusions of law, and a recommended disposition of the proceeding. The Hearing Officer found that Petitioner had proved the violations alleged against Respondent by clear and convincing evidence and recommended that Petitioner impose an administrative fine against Respondent in the amount of $1,000.

   
   

6. On April 3, 1992, Petitioner entered a Final Order that adopted the findings of fact, conclusions of law, and recommended disposition submitted by the Hearing Officer in DOAH Case 91-4852. The Final Order imposed an administrative fine against Respondent in the amount of $1,000.

   
   

7. Respondent thereafter appealed the Final Order to the Third District Court of Appeal of Florida where it was assigned Case No. 92-01033. On June 3, 1992, Petitioner entered an "Order Granting Stay" which stayed the Final Order pending the appeal. On September 21, 1992, Respondent's appeal was dismissed by order of the Third District Court of Appeal.

   
   

8. The Final Order entered by Petitioner on April 3, 1992, was lawfully imposed, is final, and is binding on Respondent.

   
   

9. At the time of the formal hearing conducted in this proceeding, Respondent had not paid the $1,000 administrative fine that was imposed upon her by the Final Order entered in Case No. 9181335 (DOAH Case No. 91-4852) on April 3, 1992.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

11. Section 475.25(1)(e), Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. The commission may . . . place a licensee, registrant, or permittee on probation; may suspend a license, a 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.

       
       

12. Section 475.42(1)(e), Florida Statutes, provides as follows:

    
    

    (e) No person shall violate any lawful order or rule of the commission which is binding upon him.

13. Rule 21V-10.031, Florida Administrative Code, provides as follows:

    
    

    In cases where the Commission imposes a civil penalty for violations of Chapter 455 and 475, Florida Statutes, or the rules promulgated thereunder, the penalty shall be

    paid within 30 days of its imposition by order of the Commission.

    
    

14. 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).

    
    

15. Petitioner proved by clear and convincing evidence that Respondent failed to pay the administrative fine imposed by the Final Order entered in Case No. 9181335 (DOAH Case No. 91-4852) on April 3, 1992. This failure constitutes a violation of Section 475.25(1)(e) and Section 472.42(1)(e), Florida Statutes.

    
    

16. Rule 21V-24.001(3)(f), Florida Administrative Code, provides certain disciplinary guidelines pertinent to this proceeding. For a violation of either Section 475.25(1)(e) or Section 472.42(1)(e), Florida Statutes, the penalties range from reprimand and the imposition of a fine up to $1,000 to suspension for eight years or revocation of licensure.

    
    

17. Petitioner asserts that the appropriate penalty for this proceeding is the suspension of Respondent's license up to ten years or until the $1,000 administrative fine has been paid, whichever is sooner. Petitioner seeks suspension up to ten years as opposed to eight years because Respondent has been previously disciplined, which is an aggravating factor permitted by Rule 21V- 24.001, Florida Administrative Code. Petitioner does not seek an additional administrative fine against Respondent. The undersigned concludes that the penalty recommended by Petitioner is reasonable under the circumstances of this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order which finds that Respondent

violated the provisions of Section 475.25(1)(e) and of Section 475.42(1)(e), Florida Statutes, and which suspends Respondent's license as a real estate salesperson for ten years. It is further recommended that the final order provide that the suspension of Respondent's license be terminated upon her paying the $1,000.00 administrative fine that was imposed upon her by the Final Order entered in Case No. 9181335 (DOAH Case No. 91-4852).

DONE AND ORDERED this 13th day of October, 1993, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1993.

COPIES FURNISHED:

Theodore R. Gary, Esquire Department of Business and

Professional Regulation

401 Northwest Second Avenue, Suite N-607 Miami, Florida 33128

Cecelia M. Smile

810 Rutland Drive, Apartment 726

Lincoln, Nebraska 68512

Darlene F. Keller, Director Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

Jack McRay, 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 to this recommended order. All agencies allow each party at least ten 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: 93-002295

Orders for Case No: 93-002295