KENNETH KASHA, APPELLANT,
v.
DEPARTMENT OF LEGAL AFFAIRS, AN AGENCY OF THE STATE OF FLORIDA, APPELLEE
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Kenneth Kasha appealed the Department of Legal Affairs' reversal of a hearing examiner's "no probable cause" finding in a fraud proceeding under Florida's "little FTC Act." The court affirmed the Department's decision, holding that probable cause hearings in administrative proceedings do not require the same evidentiary standard as criminal or civil proceedings, and that official regulatory orders and corroborating hearsay affidavits were properly admissible.
The court held that evidence in a probable cause hearing in administrative proceedings need not meet the same evidentiary standard as criminal or civil proceedings; it is sufficient if "reasonably prudent persons in the conduct of their affairs" would think a violation had taken place. Official regulatory orders of the State of Florida were properly admissible and constituted adequate proof of probable cause, and hearsay affidavits offered to corroborate and supplement those orders should have been admitted.
[1] Hearsay statements and certain official records may be admissible in administrative probable cause hearings.
[2] The evidence required for an administrative probable cause hearing is less stringent than that required for criminal or civil proceedings.
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Join FLexlaw to unlock all legal intelligence“It is sufficient if "reasonably prudent persons in the conduct of their affairs" would think a violation had taken place.”
Establishes the proper standard of proof for probable cause in administrative proceedings under Section 120.58, Florida Statutes.
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Join FLexlaw to unlock all legal intelligenceKasha was the respondent in proceedings brought under Florida's "little FTC Act" alleging fraudulent real estate practices. A hearing examiner conduct…
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BARKDULL, Judge.
Kenneth Kasha, who was respondent in proceedings brought pursuant to Florida’s “little FTC Act”, complains that the Department of Legal Affairs erred in reversing a “no probable cause” finding by a hearing examiner. As required by Section 501.207, Florida Statutes (1977), the Agency conducted a hearing to determine whether there was probable cause to institute a civil proceeding against Kasha for allegedly fraudulent real estate practices. The hearing examiner found that at such a hearing it would be improper to permit the introduction of hearsay statements or certain official records,1 and that the burden of proof was a preponderance of the evidence. The type of “evidence” that is to be considered is outlined in Chapter 120 [see: Section 120.68, Florida Statutes (1977)]. Upon a review of the report of the hearing examiner, the Attorney General (as the head of the Department of Legal Affairs) found that the examiner departed from the essential requirements of law and, pursuant to the authority of Section 120.57(l)(b)(9), Florida Statutes (1977), reversed the finding of the hearing examiner and determined that there was probable cause to institute a civil proceeding. We affirm.
First, the evidence before the hearing examiner on a probable cause hearing in this administrative proceeding is not required to be of the same degree as that necessary in either a criminal or a civil proceeding. See: State v. Wolff, 310 So. 2d 729 (Fla.1975); Sheff v. State, 301 So. 2d 13 (Fla. 1st DCA 1974). It is sufficient if “reasonably prudent persons in the conduct of their affairs” would think a violation had taken place. See: Section 120.58, Florida Statutes (1977). The two official orders of regulatory business of the State of Florida, which were entitled to be admitted into evidence [Corbett v. Berg, 152 So. 2d 196 (Fla. 3d DCA 1963); Sections 92.12, 120.59, Florida Statutes (1977)] were, in and of themselves, adequate proof of probable cause for the institution of a civil suit. Second, the hearsay affidavits which were tendered to corroborate and supplement the official orders should have been admitted. Pasco County School Board v. Florida Public Relations Commission, 353 So. 2d 108 (Fla. 1st DCA 1978); Section 120.58(l)(a), Florida Statutes (1977).
Therefore, the order under review is affirmed.
. The hearing examiner did let into evidence a final order of the Florida Real Estate Commission revoking the respondent’s real estate license, but denied admission of the final order of the Division of Land Sales and Condominiums requiring the respondent to cease and desist certain real estate practices.
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Citator
Cited By
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Ferris v. Austin, 487 So. 2d 1163 (Fla. 5th DCA 1986)…andard of evidence required for a dismissal of a teacher is not by “clear and convincing evidence”, but is by a preponderance of evidence. Venetian Shores Homes and Property Owners v. Ruzahawski, 336 So. 2d 399; Kasha v. Department of Legal Affairs, 375 So. 2d 43; Brevard County Sheriff's Department v. Community on Human Relations, 429 So. 2d 1235. 3. The Board rejects the hearing officer’s conclusions of law in paragraph 12, because it misconceives the standard of evidence required in this cause. 4. The B…
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Kasha v. Dep't OF Legal Affairs, 375 So. 2d 44 (Fla. 3d DCA 1979)…PER CURIAM. Affirmed on the authority of Kasha v. Department of Legal Affairs, 375 So. 2d 43 (Fla. 3d DCA 1979).…
Authorities Cited
- Pasco Cnty. Sch. Bd. v. Fla. Pub. Emps. Relations Comm'n & Pasco Cnty. Classroom Teachers Ass'n, 353 So. 2d 108 (Fla. 1st DCA 1977)
- State v. Wolff, 310 So. 2d 729 (Fla. 1975)
- Sheff v. State, 301 So. 2d 13 (Fla. 1st DCA 1974)
- Corbett v. Berg, 152 So. 2d 196 (Fla. 3d DCA 1963)