RONNY GOODSON, APPELLANT,
v.
FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE, APPELLEE
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Ronny Goodson appealed the revocation of his Florida real estate licenses by the Department of Business and Professional Regulation. The court affirmed the revocation, holding that Goodson failed to properly preserve for appeal his argument that the Department violated statutory requirements by not terminating an informal hearing when disputed factual issues arose.
The court affirmed the revocation on the ground that Goodson failed to properly preserve his statutory argument for appeal. Although Florida Statutes section 455.225(5) contains mandatory language requiring termination of an informal hearing when disputed factual issues arise, a party must raise such objections during the administrative proceeding, not for the first time on appeal, even in the administrative context.
[1] A party must preserve an issue for appeal by raising it before the administrative tribunal, even if the statute contains mandatory language regarding the procedure.
[2] An administrative agency is not required to terminate an informal hearing and refer the matter to a formal hearing if the party does not object to the continuation of the…
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Join FLexlaw to unlock all legal intelligence“If any party raises an issue of disputed fact during an informal hearing, the hearing shall be terminated and a formal hearing pursuant to chapter 120 shall be held.”
The statutory language at issue; contains mandatory terms but the court held it does not create an exception to the preservation requirement
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Join FLexlaw to unlock all legal intelligenceGoodson was charged with violating provisions of Florida Statutes regulating licensed real estate brokers. He initially indicated he did not dispute t…
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THOMAS, J.
In this administrative appeal, Appellant challenges a final order by which the Florida Department of Business and Professional Regulation (the Department) revoked his Florida real estate licenses. Appellant argues that the Department’s administrative complaint did not contain sufficient factual allegations to support the charged infractions. We affirm this issue without comment. Appellant also argues that the Department failed to comply with section 455.225(5), Florida Statutes, because it did not terminate the informal hearing Appellant elected to have once disputed issues of fact arose. We affirm on this issue, as it is not properly preserved for review.
Appellant was charged with violating numerous provisions of section 475.25(1), Florida Statutes, regulating the practice of licensed Florida real estate brokers. After affirmatively indicating that he did not dispute the allegations of fact set forth by the Department to support these charges, Appellant elected to appear, pro se, at an informal hearing before the Florida Real Estate Commission, pursuant to section 120.57(2), Florida Statutes. During the course of this hearing, he made various statements that potentially raised disputed issues of material fact. He did not, however, request that the informal hearing be terminated in lieu of a formal hearing or otherwise object to the continuation of the proceedings before the Commission.
Appellant argues on appeal that, despite his silence on the issue, the Commission was required by operation of section 455:225(5), Florida Statutes, to terminate the hearing and refer the matter to the Division of Administrative Hearings once disputed issues of fact arose.
We disagree.
Section 455.225(5) provides, in relevant part, “If any party raises an issue of disputed fact during an informal hearing, the hearing shall be terminated and a formal hearing pursuant to chapter 120 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 this principle in the present case. Indeed, at least one other Florida appellate court has concluded that the very argument raised by Appellant is subject to the rule of preservation. See Stueber v. Gallagher, 812 So. 2d 454 (Fla. 5th DCA 2002).
To support his position that this issue is one that may be raised for the first time on appeal, Appellant cites Mixon v. Department of State, Division of Licensing, 686 So. 2d 755 (Fla. 1st DCA 1997). We find that decision to be' unavailing. In Mixon, this court reversed the revocation of the appellant’s professional license following an informal hearing that was not terminated in lieu of a formal hearing once disputed issues of fact arose; however, nothing in our opinion indicates that the issue was not .properly preserved for appeal or was being considered as a matter of fundamental error, and we decline to employ such a reading. The order revoking Appellant’s real estate licenses is accordingly AFFIRMED.
VAN NORTWICK and LEWIS, JJ., concur.
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Rosenzweig v. Dep't OF Transp., 979 So. 2d 1050 (Fla. 1st DCA 2008)…apprised the hearing officer of this issue. It is well established that a claim of error, even in 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 int…1 / 2
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Gonzalez v. Dep't OF Health, 120 So. 3d 234 (Fla. 1st DCA 2013)…ver, it is not the responsibility of the administrative board to terminate an informal hearing when a disputed issue of material fact becomes apparent if not requested to do so. Goodson v. Fla. Dep’t of Bus. & Prof'l Regulation, Div. of Real Estate, 978 So. 2d 195, 196 (Fla. 1st DCA 2008). Appellant did not request a formal hearing when he believed a disputed issue of material fact arose during the informal hearing. Therefore, appellant’s argument was not properly preserved for review and may not be raised f…
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Fla. Dep't of Revenue v. Cochran, 253 So. 3d 731 (Fla. 1st DCA 2018)
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Stueber v. Tom Gallagher as Commissioner of Education, 812 So. 2d 454 (Fla. 5th DCA 2002)
- Mixon v. Dep't of State, 686 So. 2d 755 (Fla. 1st DCA 1997)
- Twins D & D, Inc. v. Dep't of Bus. & Prof'l Reg., 722 So. 2d 234 (Fla. 2d DCA 1998)
- Urso v. Unemployment Appeals Comm'n, 654 So. 2d 678 (Fla. 1st DCA 1995)
- Nichol J. Kaehler v. State, 654 So. 2d 678 (Fla. 3d DCA 1995)