due process violation found where the trial court denied a litigant’s motion for continuance due to his counsel’s inability to appear because of previously scheduled depositions in another case
How later courts described this case
- due process violation found where the trial court denied a litigant’s motion for continuance due to his counsel’s inability to appear because of previously scheduled depositions in another case
- “Without any evidence, the Board’s decision cannot stand.”
- “An injustice can be found . . . where the litigant was unrepresented through no fault of his [or her] own.”
Written by the judges who cited it.
The opinion
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LADI ANITA MARCH,
Appellant,
v.
DEPARTMENT OF BUSINESS & PROFESSIONAL REGULATION,
CONSTRUCTION INDUSTRY LICENSING BOARD,
Appellee.
No. 4D20-1492
[February 9, 2022]
Appeal from the Department of Business & Professional Regulation,
Construction Industry Licensing Board; Aaron L. Boyette, Chairman; L.T.
Case No. 2017-048660.
F. Malcolm Cunningham, Jr., and Amy L. Fischer of The Cunningham
Law Firm, P.A., West Palm Beach, for appellant.
Joseph Yauger Whealdon, III, Chief Legal Counsel, Department of
Business & Professional Regulation, Tallahassee, for appellee.
ARTAU, J.
Ladi Anita March (Licensee) appeals an adverse decision against her
license by the Construction Industry Licensing Board (Board). The
Licensee asserts that the Board failed to provide her with an opportunity
to present evidence and abused its discretion in refusing to grant a
continuance of the final hearing. We agree.
BACKGROUND
Dr. Larry Gandel (Claimant) brought a separate civil lawsuit against a
construction company alleging that the company failed to complete a
remodel and expansion of his home. After obtaining a judgment against
the construction company, the Claimant sought reimbursement from the
Florida Homeowner’s Construction Recovery Fund (Recovery Fund), which
is administered by the Board. The Board alleged that the Licensee, as the
responsible license holder for the construction company, abandoned the
remodel and expansion project. Thus, the Board sought to suspend her
license and require her to reimburse the Recovery Fund as a condition
precedent to reinstatement of her license.
The Recovery Fund was established by the Florida Legislature to
compensate aggrieved homeowners who incur actual damages after
contracting for construction or improvement of their residence if the
damages were caused by “financial mismanagement or misconduct,
abandoning a construction project, or making a false statement with
respect to a project.” See § 489.1401(2), Fla. Stat. (2016).
Section 489.142(3), Florida Statutes (2016), requires that the Board
conduct a hearing “in accordance with ss. 120.569 and 120.57(2).”
Section 120.569 outlines the procedures for conducting the hearing,
including the requirement of “reasonable notice of not less than 14 days[.]”
See § 120.569(2)(b), Fla. Stat. (2016). Section 120.57(2) requires
“reasonable notice to affected persons” and “[g]ive[s] parties or their
counsel the option, at a convenient time and place, to present to the agency
or hearing officer written or oral evidence in opposition to the action of the
agency[.]” See § 120.57(2)(a)1.–2., Fla. Stat. (2016) (emphasis added).
At a prior hearing scheduled without proper notice to the Licensee, the
Board suspended her license while ordering her to reimburse the Board
for the amounts they had paid the Claimant from the Recovery Fund.
However, because adequate notice was not provided to the Licensee, that
ruling was vacated. Ultimately, the Board rescheduled its final hearing
upon relatively short notice for a day which could not be attended by
Licensee’s counsel because the governor had convened the Fifteenth
Circuit Judicial Nominating Commission (JNC) requiring counsel’s
presence as one of nine appointed JNC commissioners on that same day
to nominate qualified persons to serve as judges.
ANALYSIS
A JNC “is a constitutionally established body, mandated by the
constitution to submit the nominations . . . to the governor within thirty
days following a judicial vacancy.” Judicial Nominating Comm’n, Ninth
Circuit v. Graham, 424 So. 2d 10, 11 (Fla. 1982). The thirty–day deadline
for the JNC to complete its work can only be “extended by the governor for
a time not to exceed thirty days.” Art. V, § 11(c), Fla. Const. “Vacancies
in office are to be avoided whenever possible. We are confident that the
framers of article V intended that the nominating and appointment process
would be conducted in such a way as to avoid or at least minimize the time
that vacancies exist.” In re Advisory Op. to the Governor, 600 So. 2d 460,
462 (Fla. 1992).
2
As soon as Licensee’s counsel received notice of the final hearing date,
he immediately reached out to the Board to request a continuance due to
his previously scheduled JNC meeting. The Board failed to rule on the
continuance request in advance of the hearing. Instead, it proceeded with
the hearing as scheduled without the participation of the Licensee and her
counsel, summarily denied the continuance request, and entered the same
adverse action against the Licensee that it had entered at the prior hearing
without adequate notice.
When a board or administrative law judge (ALJ) denies a request for
continuance, our standard of review is abuse of discretion. See
Jeancharles v. Dep’t of Revenue, 273 So. 3d 1006, 1009 (Fla. 4th DCA
2019).
In evaluating whether the Board abused its discretion, we must also
consider whether the Board failed to follow its own statutorily mandated
procedures in scheduling the hearing. The operative statute specifies that
counsel should be given the option to present to the agency “at a
convenient time and place.” § 120.57(2)(a)2., Fla. Stat. (2016). We
conclude that the Board failed to adhere to this statute by scheduling the
final hearing on the same day that Licensee’s counsel had to attend the
previously scheduled JNC meeting.
The Board argues that a lawyer’s first duty is to his client and that
Fleming v. Fleming, 710 So. 2d 601 (Fla. 4th DCA 1998), sets forth factors
we should consider in determining whether discretion has been abused.
Those factors include “whether the denial of the continuance creates an
injustice for the movant; whether the cause of the request for continuance
was unforeseeable by the movant and not the result of dilatory practices;
and whether the opposing party would suffer any prejudice or
inconvenience as a result of a continuance.” Id. at 603.
In applying the Fleming factors, we conclude that the denial of the
continuance created a severe injustice for the Licensee, leaving her without
her chosen counsel who had been prepared to represent her at the final
hearing. The cause of the request was unforeseeable because the JNC has
a constitutional duty to promptly convene at the request of the governor
to nominate qualified persons for unforeseen judicial vacancies, and the
thirty–day deadline for the JNC to complete its work could only have been
extended for an additional thirty days at the discretion of the governor.
We also conclude that Licensee’s counsel was not dilatory as he
immediately advised the Board of the scheduling conflict when he received
the notice. Moreover, a brief continuance cannot be said to prejudice the
Board or the Claimant who had been paid from the Recovery Fund, and
3
the Board could have easily rescheduled the final hearing for another
convenient date and time. See Jeancharles, 273 So. 3d at 1010 (“An
injustice can be found . . . where the litigant was unrepresented through
no fault of his [or her] own.”); Leaphart v. James, 185 So. 3d 683, 686 (Fla.
2d DCA 2016) (due process violation found where the trial court denied a
litigant’s motion for continuance due to his counsel’s inability to appear
because of previously scheduled depositions in another case).
By not promptly ruling on counsel’s request for a continuance and not
rescheduling the hearing for a convenient time when he could be present,
the Board placed him in an untenable position. Counsel could forego
either his client’s hearing or the constitutional duties he took an oath to
uphold when he was appointed by the governor to serve as a JNC
commissioner. If he did not attend the JNC meeting, applicants for the
judiciary would not be subject to the full scrutiny of all nine appointed
JNC commissioners. But if he did not attend the hearing, his client would
be subjected to injustice. This Hobson’s choice should not have been
asked of counsel. Thus, we conclude that the failure to grant the
continuance was an abuse of discretion.
The Licensee was also not afforded the opportunity to “present evidence
in opposition” to the Board’s action as we required in Rodriguez v.
Department of Business & Professional Regulation, 985 So. 2d 682, 684
(Fla. 4th DCA 2008) (“Without any evidence, the Board’s decision cannot
stand.”); see also § 120.57(2)(a)2., Fla. Stat. (2016) (parties or their counsel
must be given “the option, at a convenient time and place, to present to the
agency or hearing officer written or oral evidence in opposition to the action
of the agency[.]” (emphasis added)).
A suspension or revocation of one’s license is a substantial interest.
The Licensee cannot procure further work until her licensing issue is
resolved. Given the severity of this remedy, it is too thin a reed to revoke
that interest and then order payment to reinstate it without an
opportunity for an evidentiary hearing or evidence in the record to justify
the action taken by the Board in the Licensee’s absence.
CONCLUSION
Accordingly, we reverse and remand for further proceedings to be
scheduled at a convenient date and time with the opportunity to present
evidence.
Reversed and remanded with instructions.
4
WARNER and GERBER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
5