RICHARD TURNER, APPELLANT,
v.
DEPARTMENT OF PROFESSIONAL REGULATION, APPELLEE

Fla. 5th DCA | 1984-11-08
No. 83-1182
FRANK D. UPCHURCH and COWART, JJ., concur.
460 So. 2d 395 Florida District Court of Appeal, Fifth District (1984) Positive Treatment
Cited by 2 cases

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Synopsis

The Fifth District Court of Appeal reversed the Department of Professional Regulation's revocation of Turner's construction contractor license, holding that the Department failed to comply with statutory requirements for a meaningful probable cause determination before proceeding with license revocation, as mandated by Kibler v. Department of Professional Regulation.


Holding

The Department failed to follow the statutory mandate and the Kibler precedent requiring a meaningful probable cause determination before proceeding with license revocation. The court reversed the revocation order and remanded the case for the Department to begin processing again while following all statutory requirements and affording all rights to the licensee.


Headnotes

[1] A government agency must comply with statutory mandates requiring a meaningful probable cause determination before proceeding with license revocation.

[2] An agency's failure to follow a judicial interpretation of a statute, without appealing the ruling, violates basic principles of separation of powers.

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Key Quotes

“The Department chose to disregard the statutory mandate requiring a meaningful probable cause determination before proceeding further toward license revocation.”

Establishes the core violation: the Department's failure to comply with statutory requirements for probable cause proceedings.

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Facts & Procedural History

The Department of Professional Regulation revoked appellant Turner's license as a construction contractor. The Department conducted probable cause pro…

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Opinion of the Court
DAUKSCH, Judge.

DAUKSCH, Judge.

This is an appeal from an order of the Department of Professional Regulation which revoked appellant’s license as a construction contractor. Notwithstanding the clear and sound ruling of the Fourth District Court of Appeal in Kibler v. Department of Professional Regulation, 418 So. 2d 1081 (Fla. 4th DCA 1982), the Department chose to disregard the statutory mandate requiring a meaningful probable cause determination before proceeding further toward license revocation. § 455.225(3), Fla.Stat. (1983). The position of the Department in this appeal is most confrontational. First, this executive body failed to follow a legislative (statutory) requirement and then failed to honor a judicial (Kibler) interpretation and mandate. It makes no excuse for not following the statute — it merely argues the appellant failed to prove it did not. Appellant properly sought discovery of the probable cause proceedings. The appellee furnished something in response. What was furnished was no better than what was in Kibler. So, either the Department did not perform its duty as required by statute and Kibler or it has not furnished the entire record to appellant and this court; violating the law, or stonewalling, or both.

The Department likewise makes no excuse for not following Kibler. First, in its brief it says appellant never tried to obtain the transcript of the proceedings. Yet in the record before us we find a request for the composition of the probable cause panel and a request for a copy of the findings and evaluation of the probable cause panel. The Department in response furnished a transcript of the panel’s proceedings. Speaking directly about Kibler the Department sees fit to comment

It has only been cited twice so far, and neither of those two cases elaborate substantively on the Kibler rationale. See Beckum v. DPR, 427 So. 2d 27 (Fla. 1st DCA 1983); Dikiempis [sic] v. DPR, 421 So. 2d 693 (Fla. 2d DCA 1982). Kibler therefore is not the last word on the subject of probable cause proceedings, but only the first word. The full parameters [sic] of Kibler have yet to be drawn by Florida’s courts.

No person, be he a government official or a private individual should ignore a court ruling, no matter how much he may disagree. If aggrieved he should appeal. For this government body to take the position that more courts need to rule on a statute or another legal matter before it will comply is violative of all basic principles of the separation of powers under which this republic has chosen to live.

We agree with Kibler and adopt its reasoning here. The order appealed is reversed and this cause is remanded to the department to begin again with the processing of this matter, following all statutory requirements and affording all rights to its licensee.

REVERSED and REMANDED.

FRANK D. UPCHURCH and COWART, JJ., concur.


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Citator

Cited By

  • Carter v. Dep't of Prof'l Reg., 613 So. 2d 78 (Fla. 1st DCA 1993)
    …ry or burdensome rules and regulations. But to ignore such rules while they remain in force is to invite disrespect and will ultimately result in a breakdown of the system. 418 So. 2d at 1084. Accord Turner v. Department of Professional Regulation, 460 So. 2d 395 (Fla. 5th DCA 1984). Appellant points out that in respect to violations of the time constraints set forth in chapter 120, the Administrative Procedure Act, for which the legislature has not provided a specific sanction, relief to an aggrieved party…

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