This post discusses how to determine whether an administrative body is an “agency” under chapter 120, Florida Statutes; and briefly discusses the differences between challenging final action of agencies under chapter 120 and challenging final action of administrative bodies not considered agencies under chapter 120.

Administrative bodies generally fall into two categories:  those within the definition of agency under section 120.52(1), Florida Statutes, and those that are not.  This distinction is important when challenging final administrative action.

If the body is an agency subject to chapter 120, then final action is challenged through appeal under section 120.68, Florida Statutes, to the appropriate district court of appeal.  If the body is not an agency subject to chapter 120, then final action is challenged through filing a petition for certiorari in the appropriate circuit court.  City of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982).

To determine whether an administrative body is subject to chapter 120, the analysis begins with section 120.52(1), which defines “agency.”  With limited exception detailed in section 120.52(1), agencies are typically considered officers and governmental entities that have statewide jurisdiction or jurisdiction in more than one county.  Coastal Fuels Mktg., Inc. v. Canaveral Port Auth., 962 So. 942 (Fla. 5th DCA 2007).

For example, the Florida Department of Revenue is an “agency” because it operates throughout Florida.  Conversely, the Canaveral Port Authority is not an “agency” because it operates only in Brevard County and is not otherwise made subject to chapter 120.  Coastal Fuels, 962 So. 2d at 944.

The review process for challenging final “agency” action is governed by section 120.68(2), Florida Statutes.  Under that statute, a party who is adversely affected by final action can seek judicial review by filing a notice of appeal in the appropriate district court of appeal.  The appealing party typically has two choices of where to file the appeal:  the district court of appeal where the agency is headquartered or the district court of appeal where the party resides.  § 120.68(2)(a), Fla. Stat.

Final “non-agency” action is generally challenged by filing a petition for certiorari in circuit court.  Miami-Dade Cnty. v. Omnipoint Holdings, Inc., 863 So. 2d 195, 199 (Fla. 2003); Fla. R. App. P. 9.190(b)(3).  The circuit court reviews whether procedural due process was accorded; the essential requirements of law were followed; and the findings were supported by competent substantial evidence. Omnipoint Holdings, 863 So. 2d at 199.

The circuit court’s ruling can be reviewed by “second tier” certiorari in the district court of appeal.  Fla. R. App. P. 9.030(b)(2)(B); Fla. R. App. P. 9.100.  The DCA’s review is limited to whether procedural due process was accorded and whether the law was correctly applied.  City of Deerfield Beach, 419 So. 2d at 626.

When challenging final “non-agency” action, note that only quasi-judicial decisions are reviewed by certiorari; quasi-legislative decisions are generally challenged by declaratory or injunctive relief.  See Neapolitan Enters., LLC v. City of Naples, 185 So. 3d 585 (Fla. 2d DCA 2016).

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 jonathantaylor@floridasalestax.com.

Posted in Administrative Appeals, Administrative Law