5D04-3490 Keen v.Dept. of Business

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D04-3490

Case Date: 02/13/2006

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2006 TIMOTHY KEEN, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL, ETC., Appellee. ________________________________/ Opinion filed February 17, 2006 Administrative Appeal from the Department of Business and Professional Regulation. Tami L. Diebel of Mateer & Harbert, P.A., Orlando, for Appellant. Stacy N. Robinson Pierce of the Department of Business and Professional Regulation Division of Real Estate, Orlando, for Appellee. PALMER, J. Timothy Keen appeals the final order issued by the Florida Real Estate Appraisal Board (FREAB) suspending his real estate appraisal license for one year and imposing other terms and conditions as sanctions for his misconduct. Concluding that the final order contains certain scrivener's errors, we remand for correction of same. Finding no other reversible error, we otherwise affirm. The Department of Business and Professional Regulation (Department) filed an administrative complaint against Keen charging him with four counts of alleged misconduct in connection with the performance of real estate appraisal services. Case No. 5D04-3490

Keen was provided with a Notice to Respondents indicating his right to seek either a formal hearing if there were factual matters in dispute, or an informal hearing if there were no factual matters in dispute. Keen signed an election of remedies form indicating that he factually disputed counts I and IV of the complaint and that he did not factually dispute counts II and III of the complaint. Subsequently, Keen and the Department filed a joint motion with FREAB requesting an informal hearing. The joint motion followed an agreement by the Department to drop counts I and IV of the complaint. This motion was signed by counsel for the Department and indicated that a copy had been sent to Keen in care of his attorney. The Department then sent a notice setting a hearing on the joint motion for an informal hearing. The notice indicated that, if the request were granted, an informal hearing would be held immediately. The notice was sent via registered mail to Keen at his home address. The hearing was held on the date scheduled. Neither Keen nor counsel on his behalf appeared. At the hearing, the parties' request for an informal hearing was granted and the hearing was immediately held. FREAB found Keen guilty on counts II and III and then sanctioned him by suspending his license for one year. This appeal timely followed. The standard of review of an administrative agency's adjudicative findings is whether those findings are supported by substantial competent record evidence. Cain v. Unemployment Appeals Com'n, 876 So.2d 592 (Fla. 5th DCA 2004).

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Keen first argues that this case should be remanded for a new hearing because he did not receive proper notice of the hearing. Substantial competent evidence is contained in the record showing that Keen had ample notice of both the time of the informal hearing and the charges filed against him. See Ford v. Bay County School Bd., 246 So.2d 119 (Fla. 1st DCA 1970). If Keen had any objections to the informal hearing process he should have raised his objections at or prior to the hearing. Keen also challenges FREAB's final order claiming that FREAB failed to follow the proper procedures set forth by Chapter 120 of the Florida Administrative Procedures Act. Section 120.569 (1) & (2)(a) of the Florida Statutes provides: 120.569. Decisions which affect substantial interests (1) The provisions of this section apply in all proceedings in which the substantial interests of a party are determined by an agency, unless the parties are proceeding under s. 120.573 or s. 120.574. Unless waived by all parties, s. 120.57(1) applies whenever the proceeding involves a disputed issue of material fact. Unless otherwise agreed, s. 120.57(2) applies in all other cases. ... (2)(a) Except for any proceeding conducted as prescribed in s. 120.56, a petition or request for a hearing under this section shall be filed with the agency. If the agency requests an administrative law judge from the division, it shall so notify the division within 15 days after receipt of the petition or request. A request for a hearing shall be granted or denied within 15 days after receipt.

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