MARLENE MONTENEGRO TOIRAC, AND HOME CENTER INTERNATIONAL CORP., APPELLANTS,
v.
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE, APPELLEE
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Marlene Montenegro Toirac and Home Center International Corporation appealed a four-year real estate license suspension imposed by the Florida Department of Business and Professional Regulation. The court reversed because the agency increased the administrative law judge's recommended penalty without complying with statutory requirements to cite the record and state reasons for the increase.
The court held that the Commission violated Florida Statutes section 120.57(1)(J) by increasing the recommended penalty without reviewing the complete record and without stating with particularity its reasons therefor by citing to the record. Accordingly, the court reversed and remanded with instructions to accept the administrative judge's recommended order.
[1] An agency may not increase a penalty recommended in a recommended order without reviewing the complete record and stating with particularity its reasons for the increase,…
[2] An agency's failure to comply with statutory requirements for increasing a recommended penalty warrants reversal and remand.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action.”
This quote from section 120.57(1)(J), Florida Statutes, establishes the statutory requirement the Commission violated by increasing the penalty without citing the record.
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Join FLexlaw to unlock all legal intelligenceToirac was a principal of Home Center. The Department charged both in two complaints: one alleging failure to pay a $4,578.60 judgment and a $7,280.95…
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Marlene Montenegro Toirac and Home Center International Corporation appeal the Final Order of appellee Florida Department of Real Estate Commission that suspended their real estate license for a period of four years. Because the Commission failed to comply with section 120.57(1)(Z), Florida Statutes, when it increased the penalty in its Final Order, we reverse.
Toirac was a principal of Home Center. The Department charged both Toirac and Home Center in two separate administrative complaints. In the 2001 complaint, the Department alleged that Montenegro and Home Center had not paid a County Court final judgment of $4,578.60 relating to a real estate commission for Elena Velo-so. The Department also alleged that Montenegro and Home Center had a trust account shortage of $7,280.95.
In the 2003 complaint, the Department alleged that Montenegro had been a real estate instructor for complainant Andres Ramirez; that she entered into a sales agreement with Ramirez for property she owned; and that she had failed to keep Ramirez’s deposit in escrow. It was undisputed that the deposit was returned when the deal was not consummated. Montenegro denied that she or Home Center acted as brokers in the transaction. The Department conceded that all the funds had been held by an attorney until they were returned.
Both cases were heard at the same time. After all the evidence was received, the Administrative Law Judge specifically found that Montenegro had, in fact, furnished to the investigator detailed proofs of how the escrow error had occurred and had been corrected. Thus, there was no failure to cooperate with any investigation. *1036He nevertheless determined that Montenegro had failed to satisfy the Veloso judgment within a reasonable time, and that the erroneous transfer of funds from the trust account did constitute a violation. The judge recommended an administrative fine of $2500, a ninety-day license suspension, and three years of probation. The commission decided to increase the penalty to four years suspension.
On appeal, the commission agrees that the final order fails to comply with section 120.57(1)(J), Florida Statutes, which states: “The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action.”
The commission admits that it failed to cite to those portions of the record which justified its increased penalty. We therefore reverse and remand with instructions to enter an order accepting the administrative judge’s Recommended Order. See N.W. v. Dep’t of Children & Family Servs., 981 So.2d 599 (Fla. 3d DCA 2008). We reject Montenegro’s other arguments.
Reversed and remanded.