With limited exception, an agency order must be final before the order can be appealed to a District Court of Appeal. § 120.68(1)(a), Fla. Stat. An order is generally considered final when the order resolves the substantive controversy between the agency and the party challenging agency action. Miami-Dade Water & Sewer Auth. v. Metro. Dade Cnty., 469 So. 2d 813 (Fla. 3d DCA 1985).
The First District Court of Appeal recently addressed the issue of whether an agency order is final, when the order contains conditional language. (Delasol v. Department of Environmental Protection).
In Delasol, the party filed an amended complaint against the Department of Environmental Protection (DEP). The DEP then entered an order dismissing the complaint, with the order containing the following conditional language: “This order constitutes final agency action of the Department, unless a timely amended petition is filed in compliance with this order.” (emphasis not added).
The party appealed the order to the First DCA, arguing that order was final because either “the failure to satisfy a condition turned a nonfinal order into a final order” or “the failure to satisfy a condition prevented a final order from becoming nonfinal.” The First DCA rejected both arguments.
In rejecting the arguments, the First DCA held that the order was not final because the order contained conditional language. As the party had the ability to file an amended petition, the order did not resolve the substantive controversy between the party and DEP. The Court further held that the order was not considered non-final because the party’s ability to file an amended petition precluded irreparable harm. § 120.68(1)(b), Fla. Stat.
Ultimately, the First DCA’s opinion confirms that an order—even if issued by an agency—is not final when the order purports to become final upon the happening of a specified event.
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 email@example.com.