Smith v. Fla. Dep't of Bus. & Prof'l Regulation

• Decision Date: 31 December 2015
• Docket Number: No. 1D15–0129.,1D15–0129.
• Citation: 182 So.3d 767
• Parties: Charles Seymour SMITH, Appellant, v. FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Appellee.
• Court: Florida District Court of Appeals

182 So.3d 767

Charles Seymour SMITH, Appellant,
v.
FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Appellee.

No. 1D15–0129.

District Court of Appeal of Florida, First District.

Dec. 31, 2015.

James P. Harwood, Winter Park, for Appellant.

Marisa G. Button, Assistant General Counsel, Department of Business and Professional Regulation, Tallahassee, for Appellee.

BENTON, J.

Charles Seymour Smith asks us to overturn the order the Florida Real Estate Commission (Commission) entered suspending his real estate broker's license for five years. In proceedings under section 120.57(2), Florida Statutes (2013), the Commission concluded that he violated section 475.25(1)(u), Florida Statutes (2013), and decided a five-year suspension

182 So.3d 768

was the appropriate penalty. We do not question the Commission's determination—based on the undisputed allegations of the administrative complaint—that the violation occurred. But the Commission improperly considered additional "facts," not alleged in the administrative complaint and never admitted by Mr. Smith, in determining the penalty. Accordingly, we reverse the five-year license suspension and remand for further proceedings.

A real estate broker violates section 475.25(1)(u) when he fails to "to direct, control, or manage a broker associate or sales associate employed by such broker." § 475.25(1)(u), Fla. Stat. (2013). The proceedings below began when the Department of Business and Professional Regulation (DBPR) filed an administrative complaint alleging Mr. Smith had violated section 475.25(1)(u), Florida Statutes (2013),

a. By failing to direct, control or manage sales associate Deano McCalla when, during the period of subject's supervision of McCalla, McCalla engaged in fraud, misrepresentation and criminal theft directed toward client Junita Tan–Hamblin.

b. By failing to direct, control or manage Deano McCalla during the time Deano McCalla was defrauding Tan–Hamblin by only supervising him through phone calls and by only infrequent visits to the office location.

c. By failing to direct, control or manage Deano McCalla after having been told no real estate business was being generated but nonetheless still receiving his monthly broker commission.

Mr. Smith elected an informal hearing before the Commission under Section 120.57(2), Florida Statutes (2013), rather than a formal hearing at the Division of Administrative Hearings under section 120.57(1), Florida Statutes (2013). In so doing, he waived the opportunity to dispute the facts alleged in the administrative complaint.

"The only issues remaining after a waiver are the conclusions of law to be drawn (i.e., whether the admitted facts constitute a violation of the statutes as charged), and the penalties to be imposed." Nicks v. Dep't of Bus. & Prof'l Regulation, 957 So.2d 65, 67 n. 1 (Fla. 5th DCA 2007). See Autoworld of Am. Corp. v. Dep't of Highway Safety, 754 So.2d 76, 77 (Fla. 3d DCA 2000) (stating the purpose of informal hearings is to arrive at conclusions of law as to whether agreed facts amount to a violation of the statutes and, if so, to determine penalties).

At Mr. Smith's informal hearing, the Commission decided that the conceded facts constituted a violation of section 475.25(1)(u), and suspended his license for five years. The administrative complaint alleged in substance: While Mr. Smith...