The Florida Bar
www.floridabar.org
The Florida Bar Journal
September/October, 2012 Volume 86, No. 8
Practice Tips for Private Attorneys New to Administrative Law

by Garnett Chisenhall

Page 61

In the course of representing state agencies over the last 10 years, I have worked with many outstanding private attorneys who know the Administrative Procedure Act (i.e., F.S. Ch. 120) backward and forward. I have also worked with private attorneys who had little or no previous experience with administrative law. Sometimes, these attorneys became involved in an administrative law case because a client had an issue with an agency and did not want to retain an attorney with whom they had no previous dealings. Those attorneys were very knowledgeable in their customary practice areas, but often failed to appreciate the unique aspects of administrative law. While an attorney new to administrative practice will probably discover that hearsay is admissible in an administrative proceeding upon making the first hearsay objection during an administrative hearing, other unique aspects of administrative law are not so easily discoverable.1 As a result, attorneys unfamiliar with this field run the risk of committing significant errors that will undermine their cases and their clients’ best interests. For private attorneys new to administrative law, this article explains some basic (but extremely important) steps that can be taken to avoid those errors.

Getting Started
The first task in administrative litigation is to ascertain what portion of the Administrative Procedure Act governs your case. For instance, if you are challenging an existing or unadopted agency rule, then your case will be governed by the procedures set forth in F.S. §120.56. On the other hand, if you are challenging proposed agency action, such as an application denial or licensure discipline, then your case will be governed by the procedures set forth in F.S. §§120.569 and 120.57.

In any cases under §120.57, you will file a petition or a request for hearing with the agency in question, and the agency will refer the matter to the Division of Administrative Hearings (DOAH) if there are any disputed issues of material fact that must be resolved by an impartial fact-finder.2 If the case proceeds to a formal hearing before an administrative law judge, then DOAH will issue a recommended order that the agency may adopt as its final order.3

In contrast to cases under §120.57(1), in which DOAH issues a recommended order, DOAH has final order authority in rule challenges conducted pursuant to §120.56. The agency in question acts merely as a party litigant and will not be issuing the final order. Also, petitions under §120.56 are filed directly with DOAH rather than with the agency.4

Administrative proceedings are also governed by the rules set forth in Ch. 28-106 of the Florida Administrative Code. Counsel should read the rules and be aware that the agency and the administrative law judges follow them and expect them to be followed. For example, before filing a petition or request for hearing, be sure that your pleading satisfies the requirements set forth in Rules 28-106.201, 28-106.2015, and 28-106.301. If one of the elements required by the rules is not alleged, there is a risk that your petition will be dismissed.

There is a significant difference in motion practice between DOAH and circuit court. Rule 28-106.204(1) provides for the filing of responses to motions within seven days of service. The ALJ will schedule a hearing if needed; otherwise, the ALJ will decide the motion without argument based on the motion, any supporting memoranda, and the response. Filing a timely response to a motion is advisable in almost every instance.

Rule 28-106.204(2) requires that any motion, other than a motion to dismiss, contain a statement that the movant has conferred with other parties of record and state whether the parties object to the motion. Counsel should be aware that administrative law judges have summarily denied motions that fail to contain this required statement.

Practitioners new to DOAH will be comforted by the fact that other provisions in Ch. 28-106 cause DOAH proceedings to be very much like civil litigation.5

Regardless of whether you are at DOAH under §120.56 or §120.57, all pleadings must be filed by electronic means through DOAH’s e-filing system.6

Always File Exceptions to an Unfavorable Recommended Order
As discussed above, DOAH has final order authority in some cases, and those final orders can be appealed directly to a district court of appeal.7 However, in the majority of cases, DOAH acts as a finder-of-fact and issues a recommended order that an agency may adopt as its final order. In those cases, “exceptions” are the means through which a party presents argument to the agency identifying asserted errors committed by an administrative law judge. If the agency considers an exception to be well taken, then it will not adopt the portion of the recommended order to which the exception was directed. However, and as discussed in more detail in the next section, an agency’s ability to reject any portion of a recommended order is very limited.8

The very end of every recommended order from DOAH has a paragraph entitled, “Notice of Right to Submit Exceptions.” The paragraph states that “[a]ll parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.”9 Over the course of my career defending appeals for state agencies, I have won many cases simply because attorneys new to administrative practice often failed to appreciate the significance of this paragraph. As explained below, it is vitally important that an attorney not overlook this unique aspect of administrative litigation.

While the paragraph at the end of every recommended order states that “[a]ll parties have the right to submit written exceptions,” exceptions are absolutely essential if one has any intention of appealing a final order adopting an unfavorable recommended order.10 In the administrative arena, as in criminal litigation and other types of civil litigation, issues must be preserved for appeal. It is well established that exceptions are the means by which a party preserves arguments for appellate review and the failure to do so can waive the issue on appeal.11

Even though it is not expressly required by any statute or rule, an attorney filing an exception to an administrative law judge’s findings of fact must have a transcript. An agency can only reject an administrative law judge’s finding of fact if a review of the entire record demonstrates the finding in question was unsupported by competent, substantial evidence.12 As a result, it is impossible for the proponent of an exception to carry that burden without furnishing the agency with a transcript of the evidentiary hearing conducted by the administrative law judge.

An attorney who is faced with the task of preparing exceptions should make sure to devote sufficient effort to developing the arguments set forth in them because “[o]rdinarily, an issue will not be considered on appeal unless the precise legal argument forwarded in the appellate court was presented to the lower tribunal.”13

While any significant discussion is beyond the scope of this article, it should be noted that a small handful of issues can be raised on appeal even if they were not set forth in exceptions to a recommended order. For example, one does not have to argue in exceptions that a statute is facially unconstitutional because an agency is prohibited from declaring a statute unconstitutional.14

However, the vast majority of arguments not set forth in exceptions can only be raised on appeal if the alleged error was fundamental in nature.15 As anyone familiar with appellate practice can attest, one should take all measures necessary to avoid being in the unenviable position of arguing that a lower tribunal committed fundamental error, or worse, arguing that one’s neglect was excusable.

In addition to filing exceptions setting forth the precise legal argument one intends to raise in a potential appeal, one must file timely exceptions. Unless the agency that will rule on the exceptions grants a motion for extension of time, exceptions must be filed within 15 days following entry of the recommended order.16 If this deadline is missed, then a party runs the risk of having its exceptions stricken and the arguments raised therein deemed unpreserved for appellate review.17

Not only must exceptions be precise and timely filed, they must also be filed in the right place. Even though the paragraph at the very end of every recommended order states “[a]ny exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case,” I have occasionally seen attorneys file their exceptions with DOAH rather than with the agency responsible for issuing the final order. While misfiled exceptions may ultimately find their way to the agency responsible for rendering the final order, a party runs the risk of having its exceptions stricken as untimely if they are filed with the wrong government office.18 Therefore, before one’s exceptions are due to be filed, contact the clerk of the agency in question and ascertain the precise mailing address of the clerk’s office (not just the general mailing address for the agency) and inquire as to whether the exceptions can be filed electronically or by facsimile.

It is also important that exceptions satisfy the requirements of Rule 28-106.217(1) of the Florida Administrative Code. For instance, the rule mandates that “[e]xceptions shall identify the disputed portion of the recommended order by page number and paragraph, shall identify the legal basis for the exception, and shall include any appropriate and specific citations to the record.”19 I have often seen agencies deny exceptions simply because a party neglected to “identify the disputed portion of the recommended order by page number and paragraph.” Therefore, to avoid having your well-taken exceptions denied on nonsubstantive grounds (or because the agency could not easily find the target of your exceptions), take the time to comply with Rule 28-106.217(1).

If one has prevailed at DOAH and received a recommended order completely favorable to the client, there is obviously no need to file exceptions. However, the opposing party may file exceptions, and attorneys new to administrative practice should be aware that they have the right to respond.20 While responding to an opposing party’s exceptions is not mandatory, one should think twice before passing up this opportunity. Also, note that Rule 28-106.217(4) states no additional time shall be added to the time limits for filing exceptions or responses to exceptions when service is made by mail. Not responding to exceptions is very much like not responding to a motion, and a party could be undermined by failing to state its position for the record. Consider responses to exceptions as your opportunity to tell the agency not only why, but how, it should deny each of your adversary’s exceptions.

Dealing with Unfavorable Findings of Fact
The preceding section primarily dealt with the procedural aspects of filing exceptions, but any discussion about exceptions would be incomplete without addressing certain substantive limitations on exceptions. For instance, what can one do upon receiving a recommended order containing unfavorable findings of fact? The answer is very little. Section 120.57(1)(l) provides that an agency cannot reject findings of fact in a recommended order unless those findings are unsupported by “competent, substantial evidence.” Obviously, one would then ask, “What is competent, substantial evidence?” In order to answer that question, legal practitioners usually turn to DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957), in which the Florida Supreme Court explained that “[s]ubstantial evidence has been described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred.” In explaining what it means for evidence to be “competent,” the court stated “[w]e are of the view …that the evidence relied upon to sustain the ultimate finding should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.”21

The definition of “competent, substantial evidence” results in administrative law judges having an extreme amount of deference when it comes to findings of fact. I have probably handled a few hundred administrative law appeals and have frequently seen opposing attorneys argue that an administrative law judge’s findings of fact were not supported by competent, substantial evidence. However, I have never been involved in a case in which that argument turned out to be a winner. That is because administrative law judges are very unlikely to base a finding of fact on no evidence or evidence a reasonable person could not rely on to make a particular finding.

Attorneys new to administrative law may assume that the unfavorable findings of fact can be rejected because the amount of evidence supporting their position far outweighs the evidence relied on by the administrative law judge. However, even if your position was supported by a mountain of evidence the size of Mount Everest, an administrative law judge is free to rely on contrary evidence the size of a molehill. The First District Court of Appeal said it best in Heifetz v. Department of Business Regulation, Division of Alcoholic Beverages & Tobacco, 475 So. 2d 1277, 1282 (Fla. 1st DCA 1985):

It is the hearing officer’s function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence. If, as is often the case, the evidence presented supports two inconsistent findings, it is the hearing officer’s role to decide the issue one way or the other. The agency may not reject the hearing officer’s finding unless there is no competent, substantial evidence from which the finding could reasonably be inferred. The agency is not authorized to weigh the evidence presented, judge credibility of witnesses, or otherwise interpret the evidence to fit its desired ultimate conclusion. (Emphasis added.)

The passage above states that administrative law judges get to evaluate the credibility of witnesses, and that further demonstrates why there is very little one can do about unfavorable findings of fact. For example, consider a case that boiled down to a “battle of the experts” in which an administrative law judge is going to rule based on the expert testimony found to be more credible. Even if your expert has a doctorate from an Ivy League university and has published a treatise considered to be the ultimate authority in a particular field, an administrative law judge could theoretically base findings of fact on testimony from the opposing “expert” who received a bachelor’s degree last week. While you might be tempted to argue that an agency could reject the findings of fact because the opposing expert’s testimony was not competent, substantial evidence, that may not prove to be a winning argument on appeal. As explained by the First District Court of Appeal in Orthopaedic Medical Group of Tampa Bay/Stuart A. Goldsmith, P.A. v. Agency for Health Care Administration, 957 So. 2d 18, 19 (Fla. 1st DCA 2007), “[t]he determination of a witness’s qualifications to express an expert opinion is within the discretion of the ALJ and will not be reversed absent a showing of clear error.”

To this point, the discussion paints a pretty bleak picture, but there is some hope if one is confronted with unfavorable findings of fact. In addition to assessing whether the findings of fact were supported by competent, substantial evidence, one should also consider whether there are compelling policy-based reasons that justify rejection of the findings of fact. For instance, the First District Court of Appeal recognized in Baptist Hosp., Inc. v. Dep’t of Health & Rehab. Serv., 500 So. 2d 620, 623 (Fla. 1st DCA 1987), that “[m]atters that are susceptible of ordinary methods of proof, such as determining the credibility of witnesses or the weight to accord evidence, are factual matters to be determined by the hearing officer.” In the very next sentence, the court stated “[o]n the other hand, matters infused with overriding policy considerations are left to the agency discretion.”22 This principle has been referred to as “the deference rule,” and it “recognizes that policy considerations left to the discretion of an agency may take precedence over findings of fact by an administrative law judge.”23 I believe that the best example of the deference rule is Utilities of Fla. v. Public Serv. Comm’n, 420 So. 2d 331, 333 (Fla. 1st DCA 1982). In that case, the First District Court of Appeal affirmed the Public Service Commission’s rejection of an administrative law judge’s finding of fact by explaining that “[t]he factual issue with which the PSC was concerned, i.e., the fair and proper rate of return on equity capital for a utility of the type and size of appellant, was not one susceptible to ordinary methods of proof; instead, it was essentially a matter of opinion which necessarily had to be infused by policy considerations for which the PSC has special responsibility.”

Dealing with Unfavorable Conclusions of Law
In contrast to the situation above, one could receive a recommended order with favorable findings of fact, but unfavorable conclusions of law. Here, agencies have a little more leeway when it comes to rejecting conclusions of law. F.S. §120.57(1)(l) provides that an agency “may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction.”

Just as §120.57(1)(l) left us to ponder the meaning of “competent, substantial evidence” when it came to rejecting findings of fact, the statute leaves us to ponder the meaning of “substantive jurisdiction” when it comes to rejecting conclusions of law. In my discussions with colleagues over the years, two well-defined schools of thought have emerged. One school of thought asserts that any statute administered by an agency is within that agency’s substantive jurisdiction. For example, the Construction Industry Licensing Board administers F.S. Ch. 489, and advocates of this school of thought would argue that the board is free to reject a conclusion of law based on an interpretation of any statute within Ch. 489. Those practitioners would also argue that the board’s interpretation would have to be affirmed on appeal unless it was clearly erroneous, unreasonable, or outside the range of possible interpretations.24

The other school of thought, more commonly espoused by nongovernment attorneys, is that an agency cannot reject a conclusion of law unless the agency in question is applying some special expertise. For example, if Ch. 489 contained a statute providing for attorneys’ fees, this school of thought would hold that interpreting such a statute would be outside the Construction Industry Licensing Board’s substantive jurisdiction because the board has no special expertise with attorneys’ fees. Therefore, §120.57(1)(l) would preclude the board from rejecting an administrative law judge’s interpretation of this hypothetical fees statute. Or, at the very least, the agency’s interpretation would receive no deference on appeal.25

In addition to interpretations of relevant authorities, a conclusion of law may also set forth an administrative law judge’s ultimate determination on whether a respondent committed the violations at issue in an administrative complaint. Fortunately for attorneys defending those being prosecuted, agencies do not have unfettered discretion to reject such determinations.26

Filing a Petition for Review
After reading above, a practitioner new to administrative law may be wondering if it is possible to appeal an administrative law judge’s nonfinal order. The answer is “yes” because Rule 9.100(c)(3) of the Florida Rules of Appellate Procedure enables a party to file a pleading known as a petition to review nonfinal agency action.27 I think of a petition for review as the administrative law equivalent of a petition for writ of certiorari. Like certiorari petitions, petitions for review are directed toward nonfinal orders. Also, both petitions must explain why the harm at issue cannot be remedied on appeal from a final order. In the administrative law context, the irreparable harm results from the fact that agencies cannot correct erroneous evidentiary rulings and they cannot reject conclusions of law outside their substantive jurisdiction.28

Unfortunately, petitions for review have the same drawbacks associated with petitions for certiorari. For instance, a petition for review must be filed within 30 days of rendition of the order to be reviewed.29 Also, a petition for review is equivalent to an initial brief in terms of the time and effort necessary to prepare a good product. In stark contrast to a one- or two-page notice of appeal, a petition for review must set forth the facts on which the petitioner relies and a complete legal argument explaining why the petitioner is entitled to the sought-after relief.30 So, before you boot up your word-processing program, be very sure you have a good explanation for why your case will be irreparably harmed if the appellate court does not grant immediate judicial review.

Attend the Board or Commission Hearing
If one is litigating against an agency managed by a secretary (such as the Agency for Health Care Administration or the Department of Environmental Protection), then one simply waits to receive the final order after any exceptions and responses to exceptions are filed. However, if the agency in question is a collegial body that meets periodically in order to manage its affairs (such as the Board of Medicine or the Florida Real Estate Commission), then a conscientious attorney will attend the meeting where the client’s case will be considered. In my experience, the attorneys who appear before a collegial body in support of their exceptions have more success than those who do not. The personal appearance may ultimately save the client from incurring the time, expense, and effort associated with appealing an unfavorable final order.

Even if one has received a recommended order from DOAH completely favorable to the client’s position, one should definitely attend the board or commission meeting if opposing counsel filed exceptions. Even if those exceptions are meritless, they may be granted if no one is present to advocate on your client’s behalf.

When attending a board or commission meeting on a client’s behalf, it is an excellent idea to obtain the contact information of whoever is recording the meeting.31 In fact, consider bringing your own certified court reporter to the meeting. By doing so, you increase the likelihood of having an intelligible transcript to include in the record on appeal.32

Points to Remember about Administrative Appeals
If the agency in question renders a final order adverse to your client, your first reaction may be to file a motion for rehearing or reconsideration. If the agency in question is a collegial body that meets monthly or bimonthly, your motion will probably not be heard before your time for filing a notice of appeal has run. If the agency in question is not a collegial body, then a motion for rehearing or reconsideration is a more viable option. However, regardless of the type of agency, you must be very careful not to allow your time for filing a notice of appeal to expire. Like typical civil and criminal cases, a notice of appeal in an administrative law case must be filed within 30 days from the day the final order at issue was rendered.33 However, unlike typical civil and criminal cases, a motion for rehearing or reconsideration does not toll rendition of a final order in an administrative law case unless a procedural rule authorizes such motions.34 Consequently, if you elect to file a motion asking an agency to reconsider its final order, then you should have a notice of appeal ready to be filed if your motion is denied or not ruled upon by day 30.

Unlike a typical civil appeal in which the original notice of appeal and one copy have to be filed with the lower tribunal, an appellant in an administrative law case must file the original notice of appeal with the agency in question and a copy with the appropriate district court of appeal.35

Unlike the typical civil appeal, F.S. §120.68(2)(a) may give you some flexibility with regard to which court hears your administrative appeal.36 Most state agencies are headquartered in Tallahassee, so the First District Court of Appeal is often an option. However, if your client resides within the jurisdiction of an appellate court other than the First DCA, consider whether you have a better chance of prevailing in the other district. There may be favorable precedent in the other district that is not present in the First DCA, or the two appellate courts may have issued conflicting rulings on the same issue. Either way, before selecting your appellate forum, identify your DCA options and then do some research into whatever issue or issues you intend to raise.

However, before one files a notice of appeal, it is an excellent idea to consider the chances of prevailing. F.S. §120.68(7) enumerates the grounds upon which an appellate court “shall remand a case to the agency for further proceedings consistent with the court’s decision or set aside agency action, as appropriate . . ..” For example, a party can be successful on appeal if it can demonstrate that “[t]he 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.”37 Another avenue to a successful appeal is to demonstrate that “[t]he agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action.”38 Finally, an appellate court will reverse a final order if the agency in question abused its discretion.39

If the final agency action from which you are appealing imposed an immediate detriment on your client, such as a fine, then your client will probably want you to seek a stay. Some private attorneys unfamiliar with administrative law erroneously assume filing a notice of appeal results in an automatic stay of the final order. However, that is usually not the case, and a motion for stay will be necessary.40

Even if the final order in question suspended or revoked your client’s license, a motion for stay is still required, and you should file that motion directly with the appellate court.41 The good news is that your motion for stay will be granted unless the agency can persuasively argue in its response that your client’s continued practice is a probable danger to the health, safety, or welfare of the state.42

As for where to file a motion for stay when your client’s license has not been suspended or revoked, case law and Rule 9.190(e)(2)(A) suggest the motion should be filed with the lower tribunal.43 However, if the agency is a collegial body that only meets periodically, then you have good cause for bypassing the agency and filing the motion for stay directly with the appellate court. If the motion for stay is filed with the agency and is denied, then a stay can be sought from the appellate court.44

My final point on administrative appeals concerns instances when a private party prevails at DOAH but the agency in question ignores F.S. §120.57(1)(l) by improperly rejecting the administrative law judge’s findings of fact and/or conclusions of law. While an attorney new to administrative law may feel demoralized about having to inform a client that it may be necessary to pursue a time-consuming and expensive appeal, please keep in mind that agencies face serious financial consequences for rejecting findings of fact supported by competent, substantial evidence. Specifically, F.S. §120.595(5) (2011), provides:

When there is an appeal, the court in its discretion may award reasonable attorney’s fees and reasonable costs to the prevailing party if the court finds that the appeal was frivolous, meritless, or an abuse of the appellate process, or that the agency action which precipitated the appeal was a gross abuse of the agency’s discretion. Upon review of agency action that precipitates an appeal, if the court finds that the agency improperly rejected or modified findings of fact in a recommended order, the court shall award reasonable attorney’s fees and reasonable costs to a prevailing party for the administrative proceeding and the appellate proceeding.45

Although it appears that a private party is not entitled to a mandatory award of attorneys’ fees if an agency improperly rejected an administrative law judge’s conclusions of law, one should certainly consider whether a colorable argument can be made that the agency’s action was “a gross abuse of the agency’s discretion.”

Conclusion
In closing, I sincerely hope this article proves beneficial to private attorneys new to administrative law. Just like any other practice area, administrative law has its own unique aspects that attorneys must be aware of in order to successfully represent their clients.


1 See Fla. Admin. Code R. 28-106.213(3) (providing “[h]earsay evidence, whether received in evidence over objection or not, may be used to supplement or explain other evidence, but shall not be sufficient in itself to support a finding unless the evidence falls within an exception to the hearsay rule as found in Chapter 90, F.S.”).

2 See Fla. Stat. §120.569(2)(a) (2011) (providing in pertinent part that “a petition or request for a hearing under this section shall be filed with the agency. If the agency requests an administrative law judge from the division, it shall so notify the division within 15 days after receipt of the petition or request.”); Fla. Stat. §120.57(1)(a) (2011) (providing in pertinent part that “an administrative law judge assigned by the division shall conduct all hearings under this subsection . . .”). If there are no disputed issues of material fact, then the agency will conduct an informal hearing pursuant to the procedures set forth in Fla. Stat. §120.57(2) and will issue a final order that is directly appealable.

3 See Fla. Stat. §120.57(1)(k) (2011) (providing that “[t]he presiding officer shall complete and submit to the agency and all parties a recommended order consisting of findings of fact, conclusions of law, and recommended disposition or penalty, if applicable, and any other information required by law to be contained in the final order.”).

4 See Fla. Stat. §120.56(1)(c) (2011) (mandating that “[t]he petition shall be filed with the division which shall, immediately upon filing, forward copies to the agency whose rule is challenged . . .”).

5 See Fla. Admin. Code R. 28-106.206 (providing that “parties may obtain discovery through the means and in the manner provided in Rules 1.280 through 1.400, Florida Rules of Civil Procedure”); Fla. Admin. Code R. 28-106.213 (providing that “[t]he rules of privilege apply to the same extent as in civil actions under Florida law”).

6 For more information on this very user-friendly system, visit http://www.doah.state.fl.us.

7 See generally Fla. Stat. §120.68 (2011) (setting forth the parameters governing judicial review of agency action).

8 See Fla. Stat. §120.57(1)(l) (2011).

9 See also Fla. Stat. §120.57(1)(k) (2011) (mandating that “[t]he agency shall allow each party 15 days in which to submit written exceptions to the recommended order.”).

10 Even pro se parties are not exempt from filing exceptions. See Stueber v. Gallagher, 812 So. 2d 454, 457 (Fla. 5th DCA 2002) (rejecting “Stueber’s contention that the law of waiver should not be applied here because, as a non-lawyer representing himself before the EPC, he was not aware of the legal requirements relating to the preservation of error. In Florida, pro se litigants are bound by the same rules that apply to counsel.”).

11 See Rosenzweig v. Dep’t of Transp., 979 So. 2d 1050, 1056 (Fla. 1st DCA 2008) (“It is well established that a claim of error, even in the administrative law context, cannot be raised for the first time on appeal.”); Couch v. Comm’n on Ethics, 617 So. 2d 1119, 1124 (Fla. 5th DCA 1993) (holding that a party “cannot argue on appeal matters which were not properly excepted to or challenged before the Commission and thus were not preserved for appellate review”); Worster, D.D.S. v. Dep’t of Health, 767 So. 2d 1239, 1240 (Fla. 1st DCA 2000) (holding that “[i]n an appeal from an administrative proceeding, a party cannot argue on appeal matters which were not properly excepted to or challenged before the agency”); Fla. Dep’t of Corr. v. Bradley, 510 So. 2d 1122, 1124 (Fla. 1st DCA 1987) (holding that in administrative proceedings, a party unwilling to accept findings of fact in a recommended order must alert the agency to any perceived defects in the hearing officer’s factual findings); Comm’n on Ethics v. Barker, 677 So. 2d 254, 256-57 (Fla. 1996) (holding the appellee preserved the issue of whether a hearing officer’s findings were supported by competent, substantial evidence by filing exceptions to the recommended order).

12 See Fla. Stat. §120.57(1)(l) (2011) (mandating “[t]he agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent, substantial evidence . . .”).

13 Verizon Business Network Serv., Inc. ex rel. MCI Communications, Inc. v. Dep’t of Corr., 988 So. 2d 1148, 1150 (Fla. 1st DCA 2008) (emphasis added).

14 See Key Haven Associated Enter., Inc. v. Bd. of Trs., 427 So. 2d 153, 157 (Fla. 1982); Gulf Pines Mem’l Park, Inc. v. Oaklawn Mem’l Park, Inc., 361 So. 2d 695, 699 (Fla. 1978).

15 See Henderson v. Dep’t of Health, Bd. of Nursing, 954 So. 2d 77, 81, n. 2 (Fla. 5th DCA 2007) (“Matters not excepted to or raised properly before a licensing board may still be raised where an appellant can show excusable neglect or fundamental error.”).

16 See Fla. Admin. Code R. 28-106.217(1) (“Parties may file exceptions to findings of fact and conclusions of law contained in recommended orders with the agency responsible for rendering final agency action within 15 days of entry of the recommended order….”).

17 See Colonnade Medical Center, Inc. v. Agency for Health Care Admin., 847 So. 2d 540, 542 (Fla. 4th DCA 2003) (“Colonnade failed to timely file exceptions to the recommended order and the exceptions were stricken. Because Colonnade failed to properly challenge the factual findings before AHCA, Colonnade cannot do so for the first time on appeal.”).

18 See Fla. Admin. Code R. 28-106.217(1) (providing “[p]arties may file exceptions to findings of fact and conclusions of law contained in recommended orders with the agency responsible for rendering final agency action . . .”) (emphasis added).

19 Fla. Admin. Code R. 28-106.217(1) (emphasis added).

20 See Fla. Admin. Code R. 28-106.217(3) (“Any party may file responses to another party’s exceptions within 10 days from the date the exceptions were filed with the agency.”).

21 DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957). See also City of Hialeah Gardens v. Miami-Dade Charter Foundation, 857 So. 2d 202, 204 (Fla. 3d DCA 2003) (explaining that “competent evidence is evidence sufficiently relevant and material to the ultimate determination ‘that a reasonable mind would accept it as adequate to support the conclusion reached.’ Substantial evidence is evidence that provides a factual basis from which a fact at issue may reasonably be inferred.”)(citing DeGroot v. Sheffield). In my own practice, I rely on a shorthand definition in which “competent, substantial evidence” is simply anything that a reasonable person could reasonably rely on to support a finding of fact.

22 Baptist Hosp., Inc. v. Dep’t of Health & Rehab. Serv., 500 So. 2d 620, 623 (Fla. 1st DCA 1987).

23 Gross v. Dep’t of Health, 819 So. 2d 997, 1002 (Fla. 5th DCA 2002).

24 See generally Wallace Corp. v. City of Miami Beach, 793 So. 2d 1134, 1140 (Fla. 1st DCA 2001) (“An agency construction of a statute which it is given the power to administer will not be overturned on appeal unless it is clearly erroneous.”); Pershing Indus., Inc. v. Dep’t of Banking & Fin., 591 So. 2d 991, 993 (Fla. 1st DCA 1991) (“If an agency’s interpretation is one of several permissible interpretations, it must be upheld despite the existence of reasonable alternatives.”); Dep’t of Prof’l Regulation, Bd. of Med. Examiners v. Durrani, 455 So. 2d 515, 517 (Fla. 1st DCA 1984) (“[T]he agency’s interpretation of a statute need not be the sole possible interpretation or even the most desirable one, it need only be within the range of possible interpretations.”) (superseded on other grounds by statute) (italics in original).

25 See Doyle v. Dep’t of Bus. Regulation & Public Employees Relations Comm’n, 794 So. 2d 686, 690 (Fla. 1st DCA 2001) (noting “a court need not defer to an agency’s construction or application of a statute if special agency expertise is not required …”; noting “PERC’s field of expertise is public sector labor regulation…” and holding “interpretation of the fee statute at issue in this case does not require expertise in the field of labor organizations”). See generally Bd. of Podiatric Med. v. Fla. Medical Ass’n, 779 So. 2d 658, 660 (Fla. 1st DCA 2001) (noting “the broad discretion and deference which is accorded an agency in the interpretation of a statute which it administers” and holding the administrative law judge should not have rejected the board’s definition of “human leg”).

26 See Gross v. Dep’t of Health, 819 So. 2d 997, 1003 (Fla. 5th DCA 2002) (“Florida
[c]ourts have consistently held that the issue of whether an individual violated a statute or deviated from a standard of conduct is generally an issue of fact to be determined by the administrative law judge based on the evidence and testimony.”); Goin v. Comm’n on Ethics, 658 So. 2d 1131, 1138 (Fla. 1st DCA 1995) (“[T]he question of whether the facts, as found in the recommended order, constitute a violation of a rule or statute, is a question of ultimate fact which the agency may not reject without adequate explanation.”).

27 See also Fla. Stat. §120.68(1) (2011) (“A preliminary, procedural, or intermediate order of the agency or of an administrative law judge of the Division of Administrative Hearings is immediately reviewable if review of the final agency decision would not provide an adequate remedy.”).

28 See Barfield v. Dep’t of Health, 805 So. 2d 1008, 1012 (Fla. 1st DCA 2002) (noting the Board of Dentistry lacked the substantive jurisdiction to reject an evidentiary conclusion and that the department should have sought judicial review of the ALJ’s evidentiary ruling); G.E.L. v. Dep’t of Envtl Protection, 875 So. 2d 1257, 1264-65 (Fla. 5th DCA 2004) (Acknowledging “that uncertainty exists regarding the avenues of review available to parties and agencies aggrieved by an ALJ’s erroneous legal ruling that is not within the agency’s substantive jurisdiction to correct” and noting “[w]e agree that GEL should have appealed the ALJ’s order of dismissal directly to this court.”).

29 See Fla. R. App. P. 9.100(c).

30 See Fla. R. App. P. 9.100(g).

31 See Fla. Admin. Code R. 28-106.306(1) (“Responsibility for preserving the testimony at final hearings shall be that of the agency responsible for taking final agency action. Proceedings shall be recorded by a certified court reporter or by recording instruments.”). If an appeal becomes necessary, a transcript is essential. See generally Esaw v. Esaw, 965 So. 2d 1261, 1264 (Fla. 2d DCA 2007) (“The most salient impediment to meaningful review of a trial court’s decision is not the absence of findings, but the absence of a transcript.”).

32 See Fla. Admin. Code R. 28-106.306(2) (“Any party to a hearing may, at its own expense, provide a certified court reporter if the agency does not…. At the hearings reported by a court reporter, any party who wishes a transcript of the testimony shall order the same at its own expense. If a court reporter records the proceedings, the recordation shall become the official transcript.”).

33 See Fla. R. App. P. 9.110(c) (mandating that “[i]n an appeal to review final orders of lower administrative tribunals, the appellant shall file the original notice with the clerk of the lower administrative tribunal within 30 days of rendition of the order to be reviewed . . .”).

34 Compare Suelter v. State, Dep’t of Mgmt. Servs., Div. of Retirement, 977 So. 2d 697, 698 (Fla. 1st DCA 2008) (The appellant’s motion for reconsideration did not delay rendition of the administrative order and that the court, thus, lacked jurisdiction to consider the appeal because “the [a]gency has not promulgated a rule authorizing motions that delay rendition of its orders and has chosen instead to prohibit the use of such motions.”), with Philip J. Padovano, Florida Appellate Practice §2:4 (2011-12 ed.) (discussing motions extending rendition and explaining that “the filing of a timely and authorized motion under rule 9.020(h) suspends the date of rendition of the final order until the date of filing a signed written order disposing of the motion”).

35 Compare Fla. R. App. P. 9.110(b) (“Jurisdiction of the court under this rule shall be invoked by filing an original and [one] copy of a notice, accompanied by any filing fees prescribed by law, with the clerk of the lower tribunal within 30 days of rendition of the order to be reviewed.”), with Fla. R. App. P. 9.110(c) (“In an appeal to review final orders of lower administrative tribunals, the appellant shall file the original notice with the clerk of the lower administrative tribunal within 30 days of rendition of the order to be reviewed, and file a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the court.”) (emphasis added).

36 See Fla. Stat. §120.68(2)(a) (2011) (“Judicial review shall be sought in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.”).

37 See Fla. Stat. §120.68(7)(c) (2011).

38 See Fla. Stat. §120.68(7)(d) (2011).

39 See Fla. Stat. §120.68(7)(e) (2011).

40 See Fla. R. App. P. 9.190(e)(1) (“The filing of a notice of administrative appeal or a petition seeking review of administrative action shall not operate as a stay, except that such filing shall give rise to an automatic stay as provided in rule 9.310(b)(2) or chapter 120, Florida Statutes, or when timely review is sought of an award by an administrative law judge on a claim for birth-related neurological injuries.”).

41 See Fla. R. App. P. 9.190(e)(2)(C) (“When an agency has suspended or revoked a license other than on an emergency basis, a licensee may file with the court a motion for stay on an expedited basis.”).

42 Id. (“Unless the agency files a timely response demonstrating that a stay would constitute a probable danger to the health, safety, or welfare of the state, the court shall grant the motion and issue a stay.”). See also Fla. Stat. §120.68(3) (2011) (“The filing of the petition does not itself stay enforcement of the agency decision, but if the agency decision has the effect of suspending or revoking a license, supersedeas shall be granted as a matter of right upon such conditions as are reasonable, unless the court, upon petition of the agency, determines that a supersedeas would constitute a probable danger to the health, safety, or welfare of the state.”).

43 See Fla. R. App. P. 9.190(e)(2)(A) (“A party seeking to stay administrative action may file a motion either with the lower tribunal or, for good cause shown, with the court in which the notice or petition has been filed.”). MSQ Properties v. Fla. Dep’t of Health & Rehab. Servs., 626 So. 2d 292, 293 (Fla. 1st DCA 1993) (“[I]n most cases we shall continue to adhere to the general requirement of rule 9.310(a) that an applicant should first seek relief in the lower tribunal. By doing so, this court will continue to serve in its primary function as a court of review. The lower tribunal is in a superior position to determine whether a bond or other conditions should be required before an order is stayed and, if so, the amount of the bond or the nature of the conditions. These determinations may require fact finding which is not a function of this court.”).

44 See Fla. R. App. P. 9.190(e)(2)(A) (“Review of orders entered by lower tribunals shall be by the court on motion.”).

45 See Fla. Stat. §120.57(1)(l) (2011) (emphasis added).


Garnett Chisenhall is the chief appellate counsel for the Department of Business and Professional Regulation. Previously, he worked in the Administrative Law Section of the Attorney General’s Office and served as the chief appellate counsel at the Agency for Health Care Administration. He serves on the Administrative Law Section Executive Council. He earned a finance degree and an M.B.A. from the University of West Florida. In 1999, Chisenhall graduated with high honors from the Florida State University College of Law. The author thanks Judge Elizabeth McArthur and Paul H. Amundsen for their expert assistance on this article.

This column is submitted on behalf of the Administrative Law Section, Judge Foster Scott Boyd, chair, and Paul Amundsen, editor.

[Revised: 10-30-2012]