PATRICIA PETE, APPELLANT,
v.
DIETETICS AND NUTRITION PRACTICE COUNCIL, APPELLEE

Fla. 4th DCA | 1993-04-14
No. 91-2479
GLICKSTEIN, C.J., and WARNER, J., concur., LETTS, J., concurs in part and dissents in part with opinion.
616 So. 2d 1139 Florida District Court of Appeal, Fourth District (1993)

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Synopsis

Patricia Pete appealed the Dietetics and Nutrition Practice Council's denial of her application for licensure as a nutritional counselor. The court reversed and remanded because Pete was not provided notice of the informal hearing, violating her due process rights under the Administrative Procedure Act.


Holding

Yes. The court held that section 120.57(2) of the Administrative Procedure Act requires that affected persons be given notice of the hearing, and because Pete was not notified of her opportunity to be heard, the final order must be reversed and remanded for further proceedings.


Headnotes

[1] An agency must provide affected persons with notice of the time and place of an informal hearing to present evidence in opposition to agency action or inaction.

[2] Failure to provide notice of an informal hearing to an affected party denies that party the opportunity to present evidence, requiring reversal of the agency's final orde…

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Key Quotes

“Give affected persons or parties or their counsel an opportunity, at a convenient time and place, to present to the agency or hearing officer written or oral evidence in opposition to the action of the agency or of its refusal to act”

Establishes the statutory requirement for notice and opportunity to be heard under the Administrative Procedure Act

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Facts & Procedural History

The Council conducted an informal hearing on Pete's application for licensure as a nutritional counselor pursuant to the Administrative Procedure Act.…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Patricia Pete appeals a final order entered by the Dietetics and Nutrition Practice Council of the Board of Medicine (the Council) denying her application for licen-sure as a nutritional counselor. We reverse and remand with direction to conduct an informal hearing upon giving due notice to appellant.

In the instant case, the Council conducted an informal hearing pursuant to the Administrative Procedure Act, chapter 120, Florida Statutes (1991). Section 120.-57(2)(a)2, Florida Statutes (1991), provides that in conducting such a hearing, the agency shall:

Give affected persons or parties or their counsel an opportunity, at a convenient time and place, to present to the agency or hearing officer written or oral evidence in opposition to the action of the agency or of its refusal to act, or a written statement challenging the grounds upon which the agency has chosen to justify its action or inaction.

While the Council apparently did comply with section 120.57(2) in scheduling a hearing, appellant never received notice of the time and place; therefore, she was denied her opportunity to present written or oral evidence in opposition to the Council’s denial of her application for licensure. Section 120.57(2) requires notice, opportunity and a final order complying with section 120.59, Florida Statutes. City of Punta Gorda v. Public Employees Relations Comm’n, 358 So. 2d 81, 82 (Fla. 1st DCA), cert. denied, 365 So. 2d 710 (Fla.1978). .Because appellant was not notified of her opportunity to be heard, we reverse the final order and remand for further proceedings. See Brooks v. Dep’t of Professional Regulation, 578 So. 2d 381 (Fla. 1st DCA 1991), and Highsmith v. Dep’t of Professional Regulation, 499 So. 2d 19 (Fla. 1st DCA 1986).

In remanding for a hearing, we direct that in making its decision, the Council is to consider the absence of separate billing as only a factor, not a conclusory determination, and we request the Council to make findings of fact in its decision whether appellant did practice as a nutrition counselor prior to April 1, 1988. GLICKSTEIN, C.J., and WARNER, J., concur. LETTS, J., concurs in part and dissents in part with opinion.

Other
LETTS, Judge,

LETTS, Judge,

concurring in part and dissenting in part.

I concur in the reversal of this case, but see no reason to remand it. The record establishes that appellant did, in fact, practice as a nutrition counselor prior to April 1, 1988, and she is eligible to do so under the grandfather clause set forth in section 468.51, Florida Statutes (1991). The appel-lee argues that the appellant was not “employed” as a nutrition counselor since she did not charge separately for this service when sending out her bills as a licensed massage therapist. I see no such requirement under the law. The question is: did she perform services as a nutrition counsel-or — clearly she did.


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