Pure Fresh Enterprises, Inc. v. Division of Alcoholic Beverages & Tobacco

519 So. 2d 676, 13 Fla. L. Weekly 257, 1988 Fla. App. LEXIS 215, 1988 WL 4030

• Court: District Court of Appeal of Florida
• Decided: January 22, 1988
• Docket: No. 87-1048
• Status: Published

Opinion

ON APPELLEE’S MOTION FOR REMAND

PER CURIAM.

The initial brief in this administrative appeal argues that the fairness of the proceedings and the correctness of the final order have been impaired by a material error in procedure. Appellant’s counsel represents that he was not served a copy of a hearing officer’s recommended order and that the first counsel knew of its existence was when a final order was received adopting the recommended order.

In response, appellee moves to remand the cause back to the agency to allow appellant to file exceptions to the recommended order. Appellee also joins in a stipulation to supplement the record with an affidavit executed by appellant’s counsel wherein he attests to not receiving the recommended order when it was submitted to the agency.¹

We elect to treat the agency’s motion for remand as a confession of error and the appealed order is reversed and remanded for further proceedings, see Sierra Club Committee on Political Education Florida Fund v. Florida Elections Commission, Department of State, 507 So.2d 702 (Fla. 1st DCA 1987).

BOOTH, THOMPSON and WIGGINTON, JJ., concur.

1 . Although clearly not a proper part of the record on appeal, such an affidavit may accompany a motion, Rule 9.300(a), Florida Rules of Appellate Procedure.