JERRY ROSS SMART, APPELLANT,
v.
BOARD OF REAL ESTATE, DEPARTMENT OF PROFESSIONAL REGULATION, APPELLEES
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Jerry Smart appealed the Department of Professional Regulation's rejection of his application for a real estate broker's license following revocation in 1977 for failing to escrow funds. The court held that DPR must provide specific findings explaining why it rejected the hearing officer's conclusion that sufficient time had lapsed for Smart's rehabilitation, rather than merely rejecting it as a conclusion of law.
The court held that the determination of whether sufficient time has lapsed constitutes an ultimate finding requiring consideration of underlying factual circumstances and agency policy, obligating DPR to explain its action rather than merely reject the hearing officer's conclusion as a conclusion of law.
[1] An agency may reject or modify conclusions of law in a recommended order, but may not reject or modify findings of fact unless it determines from the complete record that…
[2] When ultimate facts in a recommended order include opinions infused with policy insights, an agency rejecting those ultimate facts must explain its action.
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Join FLexlaw to unlock all legal intelligence“in cases where ultimate facts include opinions infused with policy insights, the agency is required to explain its action”
Establishes the standard that agencies must provide explanations when rejecting ultimate findings that involve policy considerations
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Join FLexlaw to unlock all legal intelligenceSmart's real estate broker's license was revoked in 1977 after he was found guilty of attempted grand larceny by failing to escrow funds, with adjudic…
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JOANOS, Judge.
Appellant seeks review of a Department of Professional Regulation (DPR) final order rejecting his application for a real estate broker’s license. Smart’s earlier real estate broker’s license was revoked in 1977 when he was found guilty of attempted grand larceny by failing to escrow funds, with the adjudication of guilt being withheld. At a 1981 hearing to determine rehabilitation, a hearing officer concluded that Smart had met his burden of proof under Section 475.17, Florida Statutes (1979), that by lapse of time, subsequent good conduct and reputation, the public would not be hurt by his relicensure. In the final order appealed from, the Secretary of DPR found that sufficient time had not lapsed from the date Smart’s license was revoked, rejecting the hearing officer’s conclusion.
Smart contends that by rejecting the hearing officer’s finding, DPR is obligated to make a specific finding of what does constitute a sufficient lapse of time. DPR contends that it rejected a conclusion of law and, therefore, is not required to make specific findings.
Section 120.57(l)(b)9, Florida Statutes (1979), provides that an agency in its final order may reject or modify conclusions of law in the recommended order, but may not reject or modify the findings of fact unless determined from a view of the complete record, and it states with particularity, that the findings of fact were not based upon competent substantial evidence. In McDonald v. Department of Banking and Finance, 346 So. 2d 569 (Fla. 1st DCA 1977), in interpreting this statute this Court further stated that in cases where ultimate facts include opinions infused with policy insights, the agency is required to explain its action. Id. at 583.
We find that the determination of whether sufficient time has lapsed since the license revocation is an ultimate finding, which requires consideration of the underlying factual circumstances as gleaned from the transcript of the proceeding before the hearing officer and the application of agency policy. Therefore, DPR could not have made its final determination without reviewing the record. Accordingly, we REVERSE the order appealed from and REMAND for DPR to reconsider the hearing officer’s report and study the transcript of the hearing. Upon conclusion of those tasks, it should make a determination of the issues involved in this matter and render a new order setting out its determinations and appropriately explaining them.
LARRY G. SMITH, and SHAW, JJ., concur.