JOSEPH CONDERMANN, APPELLANT,
v.
DOROTHY L. M. POTTER AND WILLIAM J. POTTER, APPELLEES
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The Florida Real Estate Commission suspended Condermann's brokerage registration for six months based on fraud findings. The circuit court reversed, finding the charges unproven by a preponderance of the evidence. The District Court of Appeal affirmed the circuit court's reversal, holding that when an examiner (rather than the commission itself) hears evidence, the circuit court is equally positioned to evaluate the record de novo.
The circuit court properly reversed the commission's order. When evidence is presented to an examiner rather than directly to the administrative body, and the examiner does not make findings of fact, the circuit court on review is in an equally advantageous position to evaluate the evidence as the administrative body and may reverse if the decision is contrary to the preponderance of the evidence.
“decisions of administrative boards made in exercise of quasi-judicial powers are entitled to be upheld where based on competent substantial evidence”
Statement of the general rule for reviewing administrative decisions that the appellant argued should apply
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Join FLexlaw to unlock all legal intelligenceThe Florida Real Estate Commission found Condermann guilty of certain fraud charges and suspended his brokerage registration for six months. Evidence …
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The Florida Real Estate Commission found the petitioners guilty of certain fraud and made an order suspending their brokerage registrations for a six month period, proceeding under chapter 475, Fla. Stat., F.S.A.
On review by the circuit court (Codorno v. Shaw, Fla.1958, 99 So.2d 849), that court reversed the commission’s order, concluding that the charges had not been proved by a preponderance of the evidence. The commission appealed to this court. See Bluesten v. Florida Real Estate Commission, Fla.1960, 125 So.2d 567.1
In contending for reversal the appellant argues that the circuit court should have observed the rule that decisions of administrative boards made in exercise of quasi-judicial powers are entitled to be upheld where based on competent substantial evidence. See Schott v. Brooks, Fla.1952, 56 So.2d 456; De Groot v. Sheffield, Fla. 1957, 95 So.2d 912; State Beverage Department v. Ernal, Inc., Fla.App.1959, 115 So.2d 566. The cases embracing that rule are those in which the administrative body which made the findings and decision also held the trial and had the opportunity to hear the witnesses, observe their manner and demeanor, and thus judge their credibility and the weight of the evidence. Here the evidence was presented to an examiner, who then reported it to the commission without findings. The commission’s decision, was based on its reading of the cold record. Therefore, the circuit court was as well able to evaluate the evidence as was the commission. Commenting on that situation, in Graham v. Florida Real Estate Commission, Fla.App. 1960, 119 So.2d 88, 93, the second district court of appeal said:
“The testimony was not taken before the Commission but by an examiner who was not authorized to and did not make findings of fact; the findings of fact by the Commission were based on the transcript of the testimony supplied by the examiner. Hence the rule that findings of fact, made by one who had *744the opportunity to judge the credibility of the witnesses upon their oral examination may not be set aside unless ‘clearly erroneous’ does not have full application here. This court is in just as an advantageous position to make its findings as was the Commission. * *”
The learned circuit judge, on his review of the commission’s order, examined and considered the evidence and determined that the decision of the commission was contrary to the preponderance and probative force of the evidence. In so doing, the circuit judge was acting within his province. No error having been made to appear on this appeal, the order appealed from should be and hereby is
Affirmed.
HORTON, C. J., and PEARSON, J., concur.
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Brod v. Jernigan, 188 So. 2d 575 (Fla. 2d DCA 1966)…5.35 F.S.A.; F.S. Sec. 120.-31 F.S.A.; Rule 4.1 F.A.R., 31 F.S.A. . See Ward v. Florida Real Estate Commission, Fla.App.1962, 141 So. 2d 811; Graham v. Florida Real Estate Commission, Fla.App.1960, 119 So. 2d 88; Condermann v. Potter, Fla.App.1961, 126 So. 2d 743; cf. Harmon v. Harmon, Fla. 1949, 40 So. 2d 209; Fry v. Benson, Fla.App.1961, 132 So. 2d 617; Thorn v. Florida Real Estate Commission, Fla.App. 1962, 146 So. 2d 907, text 909; Board of County Commissioners of Dade County v. State ex rel. Frazier, Fl…
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Schindler v. Fla. Real Est. Comm'n & Edward A. Curry, 144 So. 2d 862 (Fla. 3d DCA 1962)…r oral examination may not be set aside unless ‘clearly erroneous’ does not have full application here. This court is in just as an advantageous position to make its findings as was the Commission. * * * ” See also Conderman v. Potter, Fla.App.1961, 126 So. 2d 743.…
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Hoffman v. Condermann, 146 So. 2d 776 (Fla. 2d DCA 1962)…r of fact been the finder of fact. This court is just as capable, under the circumstances, to evaluate the cold record as was the Commission. Graham v. Florida Real Estate Commission, Fla.App.1960, 119 So. 2d 88; Condermann v. Potter, Fla.App. 1961, 126 So. 2d 743; cf. Harmon v. Harmon, Fla.1949, 40 So. 2d 209; Fry v. Benson, Fla.App.1961, 132 So. 2d 617; Ward v. Florida Real Estate Commission, Fla.App.1962, 141 So. 2d 811. We therefore hold that the findings of the Commission do not have a sufficient basis…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- de Groot v. Sheffield, 95 So. 2d 912 (Fla. 1957)
- Codomo v. Shaw, 99 So. 2d 849 (Fla. 1958)
- State Bev. Dep't of Fla. v. Ernal, Inc., 115 So. 2d 566 (Fla. 3d DCA 1959)
- Schott v. Brooks, 56 So. 2d 456 (Fla. 1952)
- Graham v. Honorable Ray Pearson, 115 So. 2d 566 (Fla. 3d DCA 1959)
- Graham v. Fla. Real Est. Comm'n & Jack King, 119 So. 2d 88 (Fla. 2d DCA 1960)
- Bluesten v. Fla. Real Est. Comm'n & Joseph Conderman, 125 So. 2d 567 (Fla. 1960)