PURE FRESH ENTERPRISES, INC., D/B/A PONDEROSA PUB, APPELLANT,
v.
DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, APPELLEE
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The court held that a procedural error in failing to serve a recommended order warrants remand.
Appellant argued the fairness of proceedings was impaired by not receiving a hearing officer's recommended order. Appellee moved to remand the case to…
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ON APPELLEE’S MOTION FOR REMAND
PER CURIAM.
The initial brief in this administrative appeal argues that the fairness of the proceedings and the correctness of the final order have been impaired by a material error in procedure. Appellant’s counsel represents that he was not served a copy of a hearing officer’s recommended order and that the first counsel knew of its existence was when a final order was received adopting the recommended order. In response, appellee moves to remand the cause back to the agency to allow appellant to file exceptions to the recommended order. Appellee also joins in a stipulation to supplement the record with an affidavit executed by appellant’s counsel wherein he attests to not receiving the recommended order when it was submitted to the agency.1
We elect to treat the agency’s motion for remand as a confession of error and the appealed order is reversed and remanded for further proceedings, see Sierra Club Committee on Political Education Florida Fund v. Florida Elections Commission, Department of State, 507 So. 2d 702 (Fla. 1st DCA 1987).
BOOTH, THOMPSON and WIGGINTON, JJ., concur. . Although clearly not a proper part of the record on appeal, such an affidavit may accompany a motion, Rule 9.300(a), Florida Rules of Appellate Procedure.
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Citator
Cited By
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Barfield v. Dep't of State, 568 So. 2d 493 (Fla. 1st DCA 1990)…the appellee’s motion as in the nature of a confession of error, and reverse and remand this cause for proceedings consistent with the Florida Administrative Procedure Act. Pure Fresh Enterprises, Inc. v. Division of Alcoholic Beverages and Tobacco, 519 So. 2d 676 (Fla. 1st DCA 1988); Sierra Club Committee on Political Education Florida Fund v. Florida Elections Commission, Department of State, 507 So. 2d 702 (Fla. 1st DCA 1987). Appellant may apply to the lower tribunal for an award of costs. He has not, how…
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Riley v. Dep't OF Corr., 605 So. 2d 571 (Fla. 1st DCA 1992)…ourt will treat appellee’s motion for relinquishment of jurisdiction as a confession of error that summary denial of the petition for writ of mandamus was error. See, e.g., Pure Fresh Enterprises, Inc. v. Division of Alcoholic Beverages and Tobacco, 519 So. 2d 676 (Fla. 1st DCA 1988). Accordingly, the order on appeal is reversed and remanded for further proceedings. JOANOS, C.J., and ERVIN and BARFIELD, JJ., concur.…
Authorities Cited
- Sierra Club Comm. on Political Educ. Fla. Fund v. Fla. Elections Comm'n, 507 So. 2d 702 (Fla. 1st DCA 1987)