354 So. 2d 77 | Fla. Dist. Ct. App. | 1977
Concurrence in Part
concurring and dissenting.
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
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.
Lead Opinion
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.
Dissenting Opinion
dissents.
I respectfully dissent. I would adhere to our original opinion.
Rehearing
ON PETITION FOR REHEARING
We have reconsidered our per cu-riam 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 in part 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.
BOYER, Acting C. J., dissents.
