Summary
In Carlton, the First District determined that Section 120.68(12), Florida Statutes (Supp. 1976), prohibits judicial review of the penalty imposed by an agency unless abuse of discretion clearly appears from the record.
Summary of this case from Florida Real Estate Com'n v. WebbOpinion
No. GG-172.
November 23, 1977. On Rehearing February 8, 1978.
Petition for review from the Florida Real Estate Commission.
Stanley Bruce Powell of Douglass Powell, Tallahassee, for petitioner.
Howard Hadley, Winter Garden, and Louis B. Guttman, III, Winter Park, for respondents.
By petition for certiorari the petitioner, Loran C. Carlton, a real estate salesman, seeks review and reversal of a final order of the respondent Florida Real Estate Commission finding that petitioner had "actively concealed his personal interest" in a parcel of property of which he was the procuring cause of the execution of a contract to purchase by one Virgil Norris for which infraction the respondent Commission imposed the maximum penalty allowed by law, suspension of his license for a period of two years. A hearing officer submitted a recommended order containing findings and conclusions. The Commission accepted the findings but rejected the conclusions. It is clear that the public records revealed that petitioner had an interest in the subject property as did the abstract and title insurance binder ultimately submitted to the prospective purchaser. Although it is apparent that petitioner was guilty of a "technical" violation the record does not establish a conscious effort to deceive nor does it reflect such conduct as to justify imposition of the maximum penalty allowed by law. (See Poirier v. Division of Health, Department of Health and Rehabilitative Services, 351 So.2d 50 (Fla. 1st DCA 1977), opinion filed August 5, 1977, authorities therein cited.) Accordingly, the petition is granted but the order of which review is sought is approved and affirmed except as to the period of suspension which is hereby reduced to one year.
IT IS SO ORDERED.
BOYER, Acting C.J., and MILLS, concur.
ERVIN, J., concurring and dissenting.
ON PETITION FOR REHEARING
We have reconsidered our per curiam opinion filed November 23, 1977, in light of the authorities cited in the petition for rehearing, and conclude that the petition should be granted. We now determine that Section 120.68(12), Florida Statutes (Supp. 1976), prohibits judicial review of a penalty imposed by an agency unless abuse of discretion clearly appears from the record. It is impossible to state with precision a general rule locating the outer perimeters of appropriate agency discretion. This may only be done on a case-by-case basis. We previously recognized that judicial review to reduce penalties imposed extends to situations where an agency's findings were inpart reversed. Poirer v. Division of Health, Department of Health and Rehabilitative Services, 351 So.2d 50 (Fla. 1st DCA 1977).
In different contexts we have limited circuit courts' jurisdiction to enjoin agency action except in most extraordinary circumstances, State ex rel. Dept. of General Serv. v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977), and their jurisdiction to render declaratory judgments in cases involving agencies. School Bd. of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977). The 1974 APA similarly requires that we proceed cautiously and with restraint in reviewing an agency's imposition of penalties. Having determined there was competent and substantial evidence in support of the findings made by the Commission, we may not now substitute our judgment for that of the agency on an issue of discretion.
Petition for rehearing is granted and the order of the Commission affirmed.
MILLS, J., concurs.
BOYER, Acting C.J., dissents.
I concur in this court's decision there was competent and substantial evidence in support of the Commission's finding that petitioner had concealed his personal interest in a parcel of property of which he was the procuring cause of the purchase contract. I disagree, however, with the portion of the decision reducing petitioner's suspension to a period of one year. Section 475.25(1), Florida Statutes (1975), permits the Commission to suspend a registrant for a period not exceeding two years. This the Commission did within the exercise of its discretion. Section 120.68(12) prohibits us from substituting our judgment for that of an agency on an issue of discretion. We have reviewed the agency's order and have found competent substantial evidence supports the findings made; however by reducing the penalty imposed we are in effect substituting our discretion for that of the agency.
As stated in Erwin v. State, Dept. of P. O.R., etc., Bd. of Dentistry, 320 So.2d 2, 6 (Fla. 2nd DCA 1975), "Where the penalty is imposed by a peer group of professionals and is within the allowable range, [the courts are] reluctant to disturb it." True, in Poirier v. Division of Health, Department of Health and Rehabilitative Services, 351 So.2d 50 (Fla. 1st DCA 1977), opinion filed August 5, 1977, we recently reduced the agency's order suspending petitioner's license from one year to 90 days, however, we did not sustain the agency's findings which approved all the charges filed against petitioner; we set aside a portion of the order finding the petitioner permitted the selling and fitting of hearing aids by suspended or unregistered persons. Here we have affirmed in all respects the agency's findings. To hold as the majority has done is, in my opinion, an unwarranted incursion by our court into an area appropriately reserved to agency discretion. I would deny the petition for review and affirm the order of the Commission as entered.
I respectfully dissent. I would adhere to our original opinion.