FOLEY v. STATE OF FLORIDA DEPARTMENT OF HEALTH (2003)

ON MOTION FOR REHEARING AND CLARIFICATION

We grant appellee's unopposed Motion for Rehearing and Clarification, withdraw the previous opinion in this case and substitute the following:

The Florida Department of Health (“Department”) filed an administrative complaint against appellant to revoke his paramedic's certificate.   The certificate of service shows that the complaint was mailed to appellant, Robert W. Foley, and received by H.W. Foley on May 10, 2001.   On June 7, 2001, the Department filed and served a Motion for Default because it did not receive appellant's Election of Rights form in a timely fashion.

Appellant alleges that he served the Election of Rights reply upon the Department on June 6, 2001.   He alleges that he checked off the box on the form indicating that he did not dispute the facts alleged in the original complaint but requested an evidentiary hearing to offer proof of mitigation.   The attorney for the Department received the election after filing the Motion for Default and then agreed to withdraw the motion.   However, the Secretary of the Department thereafter, sua sponte, entered a final order revoking Foley's certificate without a hearing or notice because appellant did not timely file or serve his election of rights.

The Department confesses error in entering this order revoking appellant's paramedic certificate without a hearing.   The Department acknowledges that it was equitably estopped from entering the order because the attorney for the Bureau of Emergency Medical Services advised appellant that his untimely “Election of Rights” form would be accepted and appellant detrimentally relied upon that representation and took no action subsequent to the filing of the election of rights form.

Accordingly, we reverse and remand this matter with instructions to the Department to conduct a proceeding pursuant to section 120.57(2), Florida Statutes, on the administrative complaint and afford appellant an opportunity to present evidence in mitigation as requested.

REVERSED AND REMANDED.

GRIMES, HUBERT L., Associate Judge.

FARMER and TAYLOR, JJ., concur.