TWINS D & D, INC., D/B/A GULFPORT LIQUORS/SHARP A'S LOUNGE, APPELLANT,
v.
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, APPELLEE
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The court held that while an ex parte communication was improper, the appellant failed to preserve the issue of the informal hearing for review.
[1] An ex parte communication between a hearing officer and a law enforcement officer during an administrative proceeding renders a final agency order subject to reversal.
[2] A party waives the right to a formal administrative hearing by failing to object to an informal hearing when given multiple opportunities to do so.
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PER CURIAM.
Twins D & D, Inc. (“Twins D & D”), appeals a final order of the Department of Business and Professional Regulation (“Department”) revoking its alcohol license.
We reverse and remand for an informal hearing before a different hearing officer.
On September 27, 1996, the Division of Alcoholic Beverages and Tobacco (“DABT”) initiated an administrative action charging Twins D & D with thirteen counts of unlawfully selling, possessing, and delivering marijuana and cocaine, and one count of unlawful possession of lewd video tapes with intent to sell. The Department conducted an informal telephonic hearing on February 17, 1997. Thereafter, the Department entered a final order revoking Twins D & D’s alcohol license. In this final order, in a section entitled “Other Mitigation,” the Department found that there had been an ex parte communication between the hearing officer who conducted the informal hearing and an offi-^ cer of the Gulfport Police Department. Nev- \ ertheless, the Department entered the order revoking Twins D & D’s license. ,
On appeal, the Department concedes that this ex parte communication was improper. The Department argues that the final order should be reversed for another informal hearing in front of a different hearing officer. Twins D & D argues that the case should be remanded for a formal hearing.
We agree that the Department’s final order must be reversed for another hearing before a different hearing officer. However, Twins D & D failed to object to the agency’s decision to grant an informal hearing, despite several opportunities to demand a formal hearing pursuant to section 120.57(1), Florida Statutes (1997). Having failed to do so, Twins D & D did not preserve this issue for review. See A.H. Robins v. Ford, 468 So. 2d 318 (Fla. 3d DCA 1985); Murray v. Chillemi, 396 So. 2d 1222 (Fla. 4th DCA 1981). Accordingly, we remand for' an informal hearing.
Reversed and remanded for an informal hearing before a different hearing officer. QUINCE, A.C.J., and WHATLEY and SALCINES, JJ., Concur.
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Rosenzweig v. Dep't OF Transp., 979 So. 2d 1050 (Fla. 1st DCA 2008)…the administrative context, cannot be raised for the first time on appeal. See Goodson v. Fla. Dep’t of Bus. & Prof'l Regulation, Div. of Real Estate, 978 So. 2d 195 (Fla. 1st DCA 2008) (citing Twins D & D, Inc. v. Dep’t of Bus. & Prof'l Regulation, 722 So. 2d 234 (Fla. 2d DCA 1998); Shady Oaks Mobile Modular Estates, Inc. v. Fla. Pub. Serv. Comm’n, 654 So. 2d 678 (Fla. 1st DCA 1995)). In Goodson, this court interpreted section 455.225(5), Florida Statutes, which requires that “[i]f any party raises an issue…
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Ronny Goodson v. Fla. Dep't of Bus. & Prof'l Reg., 978 So. 2d 195 (Fla. 1st DCA 2008)…shall be held.” Despite the mandatory language of this provision, it is well established that a claim of error, even in the administrative context, cannot be raised for the first time on appeal. See Twins D & D, Inc. v. Dep’t of Bus. & Prof'l Reg., 722 So. 2d 234 (Fla. 2d DCA 1998); Shady Oaks Mobile Modular Estates v. Florida Pub. Serv. Comm’n, 654 So. 2d 678 (Fla. 1st DCA 1995). We see no reason to relax [*197] this principle in the present case. Indeed, at least one other Florida appellate court has concl…
Authorities Cited
- A.H. Robins Co., Inc. v. Laureen Ford, 468 So. 2d 318 (Fla. 3d DCA 1985)
- Murray v. Michael F. Chillemi t/a Chillemi & Assocs., 396 So. 2d 1222 (Fla. 4th DCA 1981)