The Fourth District Court of Appeal recently held that the due process rights of a party are not violated in the circumstance where the administrative law judge who issued the recommended order was not the same administrative law judge (because of retirement) before whom the final hearing was conducted. Sabates v. State of Florida, Department of Health, — So. 3d, 38 Fla. L. Weekly (Fla. 4th DCA December 19, 2012).
The Court explained that “due process is afforded, even in a professional discipline / licensing context when the agency comports with the requirements of Chapter 120” which, in this case, specifically provides “[i]f the administrative law judge assigned to the case becomes unavailable, the division shall assign another administrative law judge who shall use any existing record and receive any additional evidence or argument, if any, which the new administrative law judge finds necessary.” See Section 120.57(1)(a), Florida Statutes.
Another issue in the case involved the imposition of attorney’s fees and investigative costs for disciplinary proceedings undertaken by the Department of Health. See Section 456.072(4), Florida Statutes. The Court held, consistent with Georges v. Department of Health, 75 So. 3d 759 (Fla. 2d DCA 2011), that “an award of attorneys’ fees under Section 456.072(4) ‘must be supported by competent substantial evidence by the attorney performing the services and by an expert as to the value of those services.” 75 So. 3d at 762. On this issue, the Court noted that the First District Court of Appeal has certified conflict with the Georges case in Carlisle v. Department of Heath, 101 So. 3d 833 (Fla. 1st DCA 2012).