State, Department of Financial Services v. Mistretta

District Court of Appeal of Florida

State, Department of Financial Services v. Mistretta

946 So. 2d 79, 2006 Fla. App. LEXIS 21541, 2006 WL 3780412

CourtDistrict Court of Appeal of Florida

DecidedDecember 27, 2006

DocketNo. 1D06-3096

StatusPublished

This text of 946 So. 2d 79 (State, Department of Financial Services v. Mistretta) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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State, Department of Financial Services v. Mistretta, 946 So. 2d 79, 2006 Fla. App. LEXIS 21541, 2006 WL 3780412 (Fla. Ct. App. 2006).

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Opinion

PER CURIAM.

The Department of Financial Services (DFS) petitions this court for review of a non-final order entered by an administrative law judge (ALJ) of the Department of Administrative Hearings, recommending that DFS enter a final order determining that Respondent’s application to be licensed as an insurance agent “has been granted by operation of law” under the default provision of section 120.60(1), Florida Statutes. We have jurisdiction to review a non-final administrative order un[80]*80der section 120.68(1), Florida Statutes, and Florida Rule of Appellate Procedure 9.190(b)(2) when review of the final agency action would not provide an adequate remedy. We have stated that the scope of review in such a matter “is analogous to and no broader than the right of review by common law certiorari,” see Charlotte County v. Gen. Dev. Utils., Inc., 653 So.2d 1081, 1084 (Fla. 1st DCA1995).

We find that the ALJ, who sua sponte raised and decided the issue of default after the final hearing without giving the parties an opportunity to present evidence and/or argument, departed from the essential requirements of law by denying DFS due process, for which the remedy of appeal following the conclusion of the administrative proceedings will be inadequate. The challenged recommended order is therefore QUASHED, and the case is REMANDED to the ALJ for further proceedings consistent with this opinion.

ERVIN, BARFIELD, and POLSTON, JJ., concur.

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PER CURIAM.

The Department of Financial Services (DFS) petitions this court for review of a non-final order entered by an administrative law judge (ALJ) of the Department of Administrative Hearings, recommending that DFS enter a final order determining that Respondent’s application to be licensed as an insurance agent “has been granted by operation of law” under the default provision of section 120.60(1), Florida Statutes. We have jurisdiction to review a non-final administrative order un[80]*80der section 120.68(1), Florida Statutes, and Florida Rule of Appellate Procedure 9.190(b)(2) when review of the final agency action would not provide an adequate remedy. We have stated that the scope of review in such a matter “is analogous to and no broader than the right of review by common law certiorari,” see Charlotte County v. Gen. Dev. Utils., Inc., 653 So.2d 1081, 1084 (Fla. 1st DCA1995).

We find that the ALJ, who sua sponte raised and decided the issue of default after the final hearing without giving the parties an opportunity to present evidence and/or argument, departed from the essential requirements of law by denying DFS due process, for which the remedy of appeal following the conclusion of the administrative proceedings will be inadequate. The challenged recommended order is therefore QUASHED, and the case is REMANDED to the ALJ for further proceedings consistent with this opinion.

ERVIN, BARFIELD, and POLSTON, JJ., concur.

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946 So. 2d 79, 2006 Fla. App. LEXIS 21541, 2006 WL 3780412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-department-of-financial-services-v-mistretta-fladistctapp-2006.

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