DOUGLAS BUCHHEIT, APPELLANT,
v.
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES, APPELLEE
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Yacht broker's challenge to Department fines reversed because his letter disputing material facts should have triggered a formal hearing requirement under Florida law.
When material facts are disputed, an informal hearing is insufficient and a formal hearing under section 120.57(1), Florida Statutes must be ordered.
[1] When material facts are in dispute, an agency must conduct a formal hearing under section 120.57(1), Florida Statutes, rather than an informal hearing.
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Join FLexlaw to unlock all legal intelligence“where it is apparent that material facts are in dispute, a formal proceeding should be ordered”
Court citing Village Saloon v. Division of Alcoholic Beverages for the principle that formal hearings are required when material facts are contested.
Douglas Buchheit, a licensed yacht broker, was found guilty of allowing an unlicensed person to use his name to evade the Yacht and Ship Broker's Act.…
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STEVENSON, Judge.
Douglas Buchheit, a licensed yacht broker, challenges a final order entered by the Department of Business and Professional Regulation, after an informal hearing, imposing fines for alleged violations of the Yacht and Ship Broker’s Act.1 Because we agree with Buchheit that his letter of July 5, 1994, should have been interpreted as a request for a formal hearing, we reverse the final order and remand this cause for formal proceedings under section 120.57(1), Florida Statutes (1993). See Village Saloon v. Division of Alcoholic Beverages, 463 So. 2d 278 (Fla. 1st DCA1984) (where it is apparent that material facts are in dispute, a formal proceeding should be ordered).
Buchheit was found guilty of allowing an “unlicensed person to use his name to evade the provisions of the Yacht and Ship Broker’s Act” in violation of section 326.006(2)(e)7, Florida Statutes (1993). In his letter of July 5 responding to the notice to show cause and at the informal hearing, Buchheit steadfastly maintained that he did not allow an unlicensed person to use his name to evade the provisions of the Act. Because issues of material fact needed to be resolved, a formal hearing should have been ordered.
REVERSED AND REMANDED.
GUNTHER, C.J., and WARNER, J., concur. . Chapter 326, Florida Statutes.
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Citator
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Meller v. Fla. Real Est. Comm'n, 902 So. 2d 325 (Fla. 5th DCA 2005)…a formal proceeding under section 120.57(1). See § 120.569(1), Fla. Stat. (2003); Spuza v. Department of Health, 838 So. 2d 676 (Fla. 2d DCA 2003); Buchheit v. Department of Bus. & Prof'l Regulation, Div. of Fla. Land. Sales, Condos. & Mobile Homes, 659 So. 2d 1220 (Fla. 4th DCA 1995); Foreman v. Columbia County Sch. Bd., 408 So. 2d 653 (Fla. 1st DCA 1981). A person may waive the right to a. section 120.57(1) hearing by electing an informal hearing under section 120.57(2). § 120.569(1), Fla. Stat. (2003); Fabr…
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Fabry v. Dep't of Health & Rehabilitative Servs., 703 So. 2d 502 (Fla. 5th DCA 1997)…v. Division of Alcoholic Beverages and Tobacco, Department of Business Regulation, 463 So. 2d 278 (Fla. 1st DCA 1984), and Buchheit v. Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, 659 So. 2d 1220 (Fla. 4th DCA 1995). However, these eases are factually distinguishable and therefore not controlling. In Village Saloon, the owners of a lounge requested a formal administrative hearing in order to resolve a dispute which they had with the Divisio…
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Hadi v. Liberty Behavioral Health Corp., 927 So. 2d 34 (Fla. 1st DCA 2006)…a formal proceeding under section 120.57(1). See § 120.569(1), Fla. Stat. (2003); Spuza v. Department of Health, 838 So. 2d 676 (Fla. 2d DCA 2003); Buchheit v. Department of Bus. & Prof'l Regulation, Div. of Fla. Land Sales, Condos. & Mobile Homes, 659 So. 2d 1220 (Fla. 4th DCA 1995); Foreman v. Columbia County Sch. Bd., 408 So. 2d 653 (Fla. 1st DCA 1981).”). Accordingly, I would reverse and remand with directions that Liberty be given a two- or three-day period in which to post bond in the amount the agency…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Vill. Saloon, Inc. v. Division OF Alcoholic Beverages AND Tobacco, 463 So. 2d 278 (Fla. 1st DCA 1984)