Preserving the Testimony for Administrative Appeals
As many legal practitioners are aware, the failure to provide an appellate court with a transcript of the lower court proceeding will often lead to an affirmance. Appellate courts routinely cite the infamous Applegate case, when affirming for lack of a transcript. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979).
The requirement to provide a transcript in administrative appeals is no different. Edwards v. Dep’t of Health & Rehab. Servs., 592 So. 2d 1249 (Fla. 4th DCA 1992) (explaining that an appellate court cannot determine error, unless there is a transcript of the trial or evidentiary hearing).
Administrative action does, however, have a unique aspect when it comes to preserving testimony. Under section 120.57(1)(g), Florida Statutes, agencies must preserve testimony and provide transcripts at actual cost.
Given that agencies must preserve the testimony, a transcript should generally be available when appealing final agency action after an evidentiary hearing. But an issue could potentially arise when appealing non-final agency action under section 120.68(1)(b), Florida Statutes.
For example, if a non-evidentiary hearing is held, then there may be no testimony for the agency to preserve. To the extent the losing party seeks appellate review, a transcript of the hearing will likely be required to determine if an abuse of discretion occurred. Thus, it is critical to hire a court reporter for all non-evidentiary hearings that could potentially be appealed.
Although a transcript is not needed when facially challenging an order, the safest bet is still to preserve the testimony so all potential challenges can be raised on appeal. Sublett v. Sumter Cnty. Sch. Bd., 664 So. 2d 1178 (Fla. 5th DCA 1995).
Jonathan Taylor is the Director of Appeals 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.