In a blog posted last week, I discussed the importance of timely requesting an administrative hearing.  The Fifth DCA recently issued an opinion touching on this issue.  The case is C.B. v. Department of Children and Families.

The case arose when the Department denied C.B.’s application for Medicaid benefits.  C.B. timely challenged the denial and an administrative hearing was scheduled.

C.B.’s attorney then requested a continuance of the hearing.  Here is where the dispute occurred:  the Department issued a notice rescheduling the hearing, but no address was listed on the notice and C.B. and her attorney claimed they never received the notice.  C.B. thus failed to attend the rescheduled hearing and the Department closed the case as abandoned.

After C.B. learned the case was closed, she moved for a new hearing alleging she did not timely receive notice of the hearing or abandonment.  The Department denied the motion as untimely and entered a final order of abandonment.  C.B. appealed the final order.

On appeal, the Fifth DCA reversed the final order.  The Court relied on section 120.68(7)(c), Florida Statutes, which authorizes an appellate court to reverse an agency order when it finds that “[t]he fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure.”  The Court held that the statute applies when a person’s due process rights may have been violated.  Because C.B. alleged she did not timely receive notice of the Department’s action, the Court held that C.B. was entitled to a hearing on her motion.

This case highlights the importance of procedural due process in administrative proceedings.  Parties that are affected by agency action are entitled to notice of the action and an opportunity to dispute the notice at an administrative hearing.  Wilson v. Dep’t of Child. & Families, 259 So. 3d 987, 987-88 (Fla. 5th DCA 2018).

What happens if the agency sends a final order to an incorrect address and you miss the administrative appeal deadline?  In such a scenario, you can likely appeal the final order and argue on appeal that the agency violated your procedural due process rights.  Millinger v. Broward Cnty. Mental Health Div. & Risk Mgmt., 672 So. 2d 24, 27 (Fla. 1996).  A violation of due process is fundamental error, which can be raised for the first time on appeal.  Verizon Bus. Network Servs., Inc. v. Dep’t of Corr., 988 So. 2d 1148, 1150-51 (Fla. 1st DCA 2008).

Although the issue can be raised for the first time on appeal, it is also helpful if the record on appeal supports your position.  To help support your position, you can, before appealing, file a motion or sworn notice with the agency explaining why you missed the deadline.  The agency may not rule on the motion or enter an amended final order, but at least the motion or notice will be part of the appellate record.

Jonathan Taylor is an associate attorney with The Law Offices of Moffa, Sutton, & Donnini, P.A.  Mr. Taylor concentrates in the areas of Florida tax appeals and general administrative appeals.  Mr. Taylor also volunteers with Guardian ad Litem to handle appellate matters.  Mr. Taylor can be reached at 954-234-2884 or