
    TALLAHASSEE JUNIOR ACADEMY, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. AY-262.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1984.
    
      Don D. Dye, Tallahassee, for appellant.
    John D. Maher, for the Unemployment Appeals Com’n, Tallahassee, for appellee.
   ZEHMER, Judge.

We review, pursuant to section 120.68, Florida Statutes (1983), the final order of the Unemployemnt Appeals Commission (Commission) determining that claimant, Sara E. Purvis, is qualified to receive unemployment benefits by reason of the circumstances attending the termination of her employment with appellant, Tallahassee Junior Academy (Employer).

We reverse and remand for a full de novo evidentiary hearing.

Shortly after Purvis filed her claim for unemployment compensation benefits with the Florida Department of Labor and Employment Security (Department), the Department issued a wage transcript and determination finding her eligible for benefits. Purvis’s former employer then filed a letter contradicting the allegations set forth in the claim and contesting any allowable benefits. Purvis responded, denying the contentions of the employer. The Division of Unemployment Compensation (Division) issued a notice of determination granting claimant benefits and indicating that the employer would be charged its pro rata share of such benefits. The employer appealed that decision to an appeals referee, who held a de novo evidentiary hearing. The decision of the appeals referee reversed the Division’s determination and disqualified Purvis’s unemployment benefits. When Purvis received this decision, she employed an attorney and appealed her claim to the Unemployment Appeals Commission.

The Commission determined that the record was partially inaudible due to a defective tape recording of the hearing before the referee and that it needed the inaudible testimony to properly determine whether the evidence supported the referee’s decision. The Commission remanded the matter to the referee for further proceedings necessary to perfect the record.

On remand, the appeals referee conducted a second de novo hearing and, contrary to the original decision, entered a new order ruling that Mrs. Purvis was entitled to unemployment benefits based on the evidence and testimony presented at the second de novo hearing. The Commission reviewed the second decision and issued the order being appealed. The Commission’s second order stated that its prior order merely authorized the referee to “perfect the record” and that the referee exceeded his authority when he conducted a de novo hearing and made a new decision. Accordingly, the Commission quashed the second decision of the referee and reversed the first decision of the referee, finding that the first decision “is not supported by the record currently before the Commission and was likely not supported by the prior record either.” (R. 123.)

Appellant argues, among other things, that the referee’s second de novo hearing was unauthorized and prejudicial and that it was improper for the Commission to use the record from the second hearing as a basis to review the appeals referee’s first decision. Appellant also contends that during the second de novo hearing it was deprived of its right of cross-examination by legal counsel and prohibited from using or introducing into evidence those portions of Purvis’s testimony from the original proceeding which were audible and inconsistent with her testimony at the second hearing. In summary, appellant contends that it has been deprived of the fundamental right of procedural due process and a fair hearing. Appellant also argues that the appeals referee’s first decision was based upon competent, substantial evidence and, therefore, should have been affirmed by the Commission. It asks us to reinstate that original decision.

The scope of appellate court review is defined in section 120.68, Florida Statutes (1983). Subparagraph (8) of that section directs that “the court shall remand the case for further agency action if it finds that either the fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure.” We find from the record before us that faulty recording equipment prevented a complete and audible record of the original evidentiary hearing which supported the first order disqualifying Purvis from receiving benefits. For some reason unknown to us, the partially inaudible record of the first hearing was destroyed before the matter came back to the Commission a second time. The appeals referee, upon remand from the Commission with directions to perfect the original record, exceeded his authority by holding a second de novo hearing and entering a new finding based only upon the evidence adduced at the second hearing. Appellant, unrepresented by counsel, was deprived of the right to present certain evidence to impeach the claimant during that second hearing. The Commission, although properly quashing the referee’s second order, impermissibly reversed the referee’s original finding and entered its own order qualifying Purvis for benefits based solely upon the record taken in the unauthorized second de novo hearing. We can only conclude from these circumstances that no party has received the kind of fair proceeding contemplated by section 443.151 and guaranteed by the Administrative Procedures Act, chapter 120, Florida Statutes. Rather than attempt to undo this procedural quagmire, we believe the simplest and fairest solution is to permit the parties to start over with a full and fair evidentiary hearing.

Accordingly, the order is reversed and the case is remanded with directions to hold a new de novo hearing at which all parties will be afforded an opportunity to present competent and relevant evidence in support of their respective contentions.

REVERSED and REMANDED.

MILLS, J., concurs.

ERVIN, C.J., dissents with written opinion.

ERVIN, Chief Judge,

dissenting.

I respectfully dissent. Although the final order of the Unemployment Appeals Commission contains inconsistent language in stating that the appeals referee exceeded his authority when he conducted a hearing de novo and entered a second decision, therefore requiring that the decision be quashed, the Commission’s order holds that the first decision must nevertheless be reversed on the ground that it was not supported by the record before the Commission and probably was not supported by the record of the prior proceeding either, which inexplicably had been destroyed. The bottom line is, of course, that the referee’s second recommended order was ultimately upheld. In its first order remanding the case for further proceedings, the Commission “found that the tape recording of the testimony presented before the referee is defective. In the absence of the complete record of the proceedings below, we are unable to judge whether the decision of the appeals referee is supported by the evidence in the record and is in accord with the essential requirements of law.” The Commission thereupon directed the referee to conduct “such further proceedings as are necessary to perfect the record.” (e.s.) Given the rather open-ended language contained in the Commission’s first order, the appeals referee obviously, and I think logically, concluded that the Commission provided him the option, among others, to conduct a de novo hearing.

In that the Commission ultimately accepted the recommended conclusion of the appeals referee, despite its otherwise inconsistent statements, I would apply the harmless error rule to the case at bar on the ground that neither the fairness of the proceedings nor the correctness of the action was impaired by material error in procedure or a failure to follow prescribed procedure. Section 120.68(8), Florida Statutes. See also Department of Business Regulation, Division, of Pari-Mutual Wagering, v. Hyman, 417 So.2d 671, 673 (Fla.1982).

The only additional question is whether appellant was prejudiced by the procedure followed by the referee on remand. First, appellant, unrepresented by counsel, made no objection to the referee’s determination to proceed de novo. The only real question of any substance is whether appellant was deprived of its right to a full and fair cross-examination of appellee, due to the referee’s ruling prohibiting the use or introduction into evidence of appellant’s own tape recording of appellee’s testimony from the original proceeding, which purportedly was inconsistent with appellee’s testimony at the second hearing. Counsel for appel-lee objected to the attempted method of impeachment on the ground that he had no record of the prior questions that were asked, and the referee sustained his objection, stating that the tape recording of the prior testimony was partially inaudible. In my judgment, the referee’s ruling, implicitly sustained by the Commission, was a proper exercise of his discretion. Although the Florida Code of Evidence has not been adopted by the Administrative Procedure Act (APA), I cannot believe that the evidence sought to be introduced is the type contemplated by the Act to be admissible.

Section 120.58(l)(a), Florida Statutes, provides, “Irrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of Florida.” (e.s.) The Model Rules of Procedure of the Administration Commission, specifically Florida Administrative Code Rule 28-5.25(6)(c), similarly permit the admission of “[a]ny relevant evidence ... if it is the sort of evidence on which reasonable prudent men are accustomed to rely in the conduct of their affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil action....” In my view the impeachment of a party’s testimony by means of an incomplete tape recording is not that sort of evidence which is commonly relied upon by reasonably prudent persons in the conduct of their affairs; consequently even under the APA’s more relaxed standards regarding the receipt of evidence, a partially inaudible recording would still be considered inadmissible.

The Florida Evidence Code — while not as stated controlling — provides persuasive authority for this conclusion. Section 90.108 requires that “[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement that in fairness ought to be considered contemporaneously.” Additionally, Florida Rules of Civil Procedure 1.330(b) and 1.340(b) provide that when portions of depositions and interrogatories are not altered by a party, an adverse party may require the introduction of any part that in fairness ought to be considered with the part introduced, and any party may introduce any other parts. Accord American Motors Corp. v. Ellis, 403 So.2d 459 (Fla. 5th DCA 1981). Indeed, the general rule is that “[wjhere, for impeachment purposes, a portion of a statement previously made by a witness and apparently inconsistent with his present testimony is introduced, the entire statement is admissible in rebuttal.” 98 C.J.S. Witnesses § 622 (1957). In the instant case, it would have been impossible to introduce appellee’s entire testimony from the earlier hearing for the purpose of rebutting the impeaching effect of any pri- or inconsistency for the simple reason that parts of it were inaudible.

Appellant did not request the opportunity to impeach appellant’s testimony by other means, such as by “[pjroof by other witnesses that material facts are not as testified to by the witness being impeached.” Section 90.608(l)(e). No doubt the major difficulty appellant had in marshalling its defenses at the second hearing was caused by its lack of representation. Yet this was a risk that appellant knowingly assumed. The fact of unrepresentation, under the circumstances, is hardly a ground for yet another hearing.

Because I consider that it would be improper for appellant to be allowed the use of a partial tape recording of appellee’s prior testimony for the purpose of impeachment, I fail to see any requirement for a third evidentiary hearing. I would therefore affirm. 
      
      . § 443.151(2), Fla.Stat. (1983).
     
      
      . § 443.151(3), Fla.Stat. (1983).
     
      
      . § 443.151(4)(a) and (b), Fla.Stat. (1983).
     
      
      . § 443.151(4)(c), Fla.Stat. (1983).
     
      
      . § 443.151(4)(a) requires that, "The division shall provide the commission and the Appeals referees with proper facilities and assistance for the execution of their functions.” This statutory directive undoubtedly mandates that the Division provide adequate recording equipment or court reporter services to make the record required by law for Commission and appellate review. Adequate recording equipment includes backup equipment and measures designed to prevent the loss of essential testimony such as occurred in this case. The total cost to the state for the various proceedings held in this case, including the appeal to this court, will undoubtedly exceed the cost of providing backup equipment for several referees. Since imperfectly recorded testimony is not unique in administrative proceedings, we suggest that the Division consider the acquisition of adequate recording equipment or other suitable measures to insure that a proper record is made in the first instance.
     
      
      . The appeals referee granted the new de novo hearing because the claimant was then represented by counsel, who, according to the referee, was entitled to cross-examine the witnesses who testified at the first hearing. This is obviously not a legally sufficient reason for granting a new evidentiary hearing under the Commission’s remand order.
     
      
      . Clearly the Commission possesses the authority to order a second de novo hearing. The Commission may review the findings and conclusions of the appeals referee either "on the basis of the evidence previously submitted in such case, or upon the basis of such additional evidence as it may direct to be taken_” Section 443.151(4)(c), Fla.Stat. (e.s.).
     