O. B. LINKOUS AND O. B. LINKOUS REALTY, INC., APPELLANTS,
v.
DEPARTMENT OF PROFESSIONAL REGULATION AND BOARD OF REAL ESTATE, APPELLEES
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O. B. Linkous appealed an administrative order suspending his real estate broker licenses for two years and imposing a $1,000 fine. The Florida appellate court affirmed the disciplinary findings but reversed the disposition, holding that the penalties listed in the governing statute are alternatives—not cumulative—and therefore a fine and suspension cannot be imposed simultaneously for the same conduct.
The court held that the penalties listed in section 475.25(1), Florida Statutes—denial, suspension, revocation, fine, or reprimand—are separated by the disjunctive 'or' and are therefore alternative penalties, meaning only one type of penalty may be imposed for the same conduct, not multiple penalties. Additionally, the court cautioned that appellants must receive advance notice of all matters the regulatory agencies will consider at the disposition hearing.
[1] A statute imposing penalties cannot be applied ex post facto to conduct that occurred before its effective date.
[2] When a statute lists penalties separated by the disjunctive article "or," the regulatory body may impose only one penalty for the same conduct, not multiple penalties.
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Join FLexlaw to unlock all legal intelligence“the listed penalties are a series of phrases separated by the disjunctive article "or" and are thus in the alternative and, therefore, the Board of Real Estate can impose one or the other of the penalties provided, but not two or more for the same conduct”
Establishes the key holding that statutory penalties are alternatives, not cumulative
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Join FLexlaw to unlock all legal intelligenceO. B. Linkous, a real estate broker, was subject to disciplinary action by the Department of Professional Regulation and Board of Real Estate based on…
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COWART, Judge.
This is an appeal of an administrative order suspending appellant’s real estate broker licenses for two years and imposing a $1,000 fine.
We have carefully reviewed the record and find that appellants were subject to disciplinary action for the conduct alleged in the administrative complaint and that the findings of the hearing officer are supported by competent substantial evidence and are hereby approved. However, two points remain.
While section 455.227(2), Florida Statutes (1981), authorizes a fine “in addition to or in lieu of any other discipline,” that section is derived from chapter 79-35, section 5, Laws of Florida, effective July 1, 1979, a date after the conduct which is the basis for the disciplinary action in this case and, therefore, cannot be applied ex post facto. Appellants are subject only to the penalties provided in section 475.25(1), Florida Statutes (1981), which provides:
The board may deny an application for licensure or renewal, may suspend a license for a period not exceeding ten years, may revoke a license, may impose an administrative fine not to exceed $1,000.00 for each count or separate offense, or may issue a reprimand, if it finds that the licensee or applicant has:
Appellant Linkous argues, and we agree, that the listed penalties are a series of phrases separated by the disjunctive article “or” and are thus in the alternative and, therefore, the Board of Real Estate can impose one or the other of the penalties provided, but not two or more for the same conduct. Therefore, while the findings and conclusions of the appellee regulatory agencies are approved, the disposition in this case is reversed and set aside and the cause remanded for reconsideration of a proper disposition within the limits of the statute as here construed.
Appellant Linkous also complains that appellee regulatory agencies should consider only matters in the record submitted by the hearing officer1 and that, while the hearing officer can act on matters officially noticed,2 such matters must be part of the record.3 The hearing officer did not take official notice of the fact that appellant had previously been the subject of a disciplinary proceeding and did not make it part of the record. There is an indication that the appellee regulatory agencies in considering their disposition in this case did consider a certified copy of an entry from a March 13, 1961 meeting of the Florida Real Estate Commission involving some prior disciplinary action against appellant. Since we are reversing the disposition for the matters discussed above, we do caution that appellant is entitled to be given advance notice of all matters that the appellee regulatory agencies will consider at their disposition hearing so that appellant will have a fair opportunity to prepare to respond if he desires. AFFIRMED in part; REVERSED in part; and REMANDED.
DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur. . § 120.57(l)(b)8„ Fla.Stat. (1981).
. § 120.57(l)(b)7„ Fla.Stat. (1981).
.§ 120.57(l)(b)5.c., Fla.Stat. (1981).
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McINTYRE v. Seminole Cnty. Sch. Bd., 779 So. 2d 639 (Fla. 5th DCA 2001)…action is entitled to judicial review.” Fla. Stat. § 120.68(1) (1999). In reviewing an agency’s decision, an appellate court cannot substitute its judgment for that of the agency on disputed issues of fact. See Kinlaw v. Unemployment Appeals Com’n, 417 So. 2d 802 (Fla. 5th DCA 1982); see also Fla. Stat. § 120.68(7)(b). The appellate court is confined to determine whether there is competent and substantial evidence to support the agency’s action following a hearing. See Davis Des Rocher Sand Corp. v. Weight R…
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Donaldson v. State, 425 So. 2d 145 (Fla. 1st DCA 1983)…ificate of registration or may impose an administrative fine not to exceed $500.00 per day for each violation, .. .. ” This case is controlled by the rule followed in Linkous, et al. v. Department of Professional Regulation and Board of Real Estate, 417 So. 2d 802 (Fla. 5th DCA 1982), that where listed statutory penalties appear as a series of phrases separate by the disjunctive article “or,” the penalties are thus in the alternative, and the agency may impose one or the other of the penalties, but may not im…
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Sunshine JR. Stores, Inc. v. State, 556 So. 2d 1177 (Fla. 1st DCA 1990)…for the sake of argument, that Sunshine’s position is correct its remedy is not outright reversal, but rather reversal and remand with directions that proper notice be given and a new hearing accorded. Cf Linkous v. Department of Professional Reg., 417 So. 2d 802 (Fla. 5th DCA 1982). III. Finally, because we are construing Florida’s third-party defense for the first time, we should be sensitive to the policy ramifications of our decision. There are important policy reasons — economic efficiency, fairness,…
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