Opinion
Case No. 4D01-3451.
Opinion filed September 11, 2002.
Appeal from the State of Florida Department of Health; L.T. Case No. 01-034-DFO.
Osborne Walker O'Quinn of Osborne Walker O'Quinn, P.A., Fort Pierce, for appellant.
Janine B. Myrick, Tallahassee, for appellee.
We reverse and remand for a new hearing on the issue of whether proper service of the Complaint for Revocation of the paramedic certification occurred.
The Florida Department of Health ("Department") filed an administrative complaint against appellant to revoke his paramedic's certificate. The certificate of service shows that the complaint was mailed to appellant, Robert W. Foley, and received by H. W. Foley on May 10, 2001. On June 7, 2001, the Department filed and served a Motion for Default because it did not receive appellant's Election of Rights form in a timely fashion.
Appellant alleges that he served the Election of Rights reply upon the Department on June 6, 2001. He alleges that he checked off the box on the form indicating that he did not dispute the facts alleged in the original complaint but requested an evidentiary hearing to offer proof of mitigation. The attorney for the Department received the election after it filed the Motion for Default and then agreed to withdraw the motion. However, the Secretary of the Department thereafter sua sponte entered a final order revoking Foley's certificate without a hearing or notice because appellant did not timely file or serve his election of rights. The issue presented for appellate review is whether the Department erred in entering a final order without a hearing and without adequate proof of the service of the complaint.
A party who is adversely affected by a final agency decision is entitled to judicial review. § 120.68(7)(c), Fla. Stat. (1999). In determining whether errors were made by the agency, the appellate court must not substitute its judgment for that of the agency, but instead must apply a standard of whether the fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure. § 120.68(7), Fla. Stat. (1999).
This matter falls under the axiom that "haste makes waste." In its rush to judgment and revocation of the appellant's certificate, the respondent failed to follow established procedures, which have impacted appellant's due process rights. The Department never established that appellant was the individual who was served. The appellant's name is certainly different from the person upon whom service was effected. Had it been shown that appellant received proper service and then failed to properly invoke his right to request a hearing within the twenty-one (21) day period, then default would have been proper. Moreover, the Department failed to show that appellant received proper notice of the deadline for the filing of his election of rights. Until this issue is properly addressed, we cannot decide the ultimate issue whether the license can or should be revoked. Appellant is thus entitled to an evidentiary hearing to establish whether he received proper notice of his election of rights process. See Appel v. Fla. Dep't of State, Div. of Licensing, 734 So.2d 1180 (Fla. 2d DCA 1999).
For the foregoing reasons we reverse and remand this matter to the Department with instructions to conduct an evidentiary hearing to determine whether appellant received proper notice and timely filed his election of rights.
REVERSED AND REMANDED.
FARMER and TAYLOR, JJ., concur.
NOT FINAL UNTIL THE DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.