STATE OF FLORIDA, DEPARTMENT OF FINANCIAL SERVICES, PETITIONER,
v.
KELLY MARIE MISTRETTA, RESPONDENT
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Florida's Department of Financial Services' petition for review is granted; the court quashes an ALJ's recommended order granting an insurance agent license by operation of law because the ALJ raised and decided the default issue sua sponte without affording DFS due process.
An ALJ who sua sponte raises and decides a default issue after the final hearing without giving parties an opportunity to present evidence and argument violates due process and departs from essential requirements of law.
[1] An administrative law judge violates due process by sua sponte raising and deciding a default issue after the final hearing without affording the parties an opportunity t…
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Join FLexlaw to unlock all legal intelligenceThe Department of Financial Services challenged an applicant's application for an insurance agent license. An administrative law judge recommended tha…
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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 der 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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- Charlotte Cnty. v. Gen. Dev. Utils., Inc., 653 So. 2d 1081 (Fla. 1st DCA 1995)