Rehearing directed to agency final orders
When appealing an agency final order, administrative law has a unique aspect that must be considered: motions for rehearing are generally unauthorized and do not toll the 30-day deadline for appealing an agency final order. City of Palm Bay v. Palm Bay Greens, LLC, 969 So. 2d 1187 (Fla. 5th DCA 2007). This concept is distinct from civil appeals, where a timely motion for rehearing generally tolls the time for filing an appeal. Although this concept of administrative appeals may seem straightforward, interplay between the uniform rules of administrative procedure under Florida Administrative Code chapter 28-106 and specific agency rules, has caused confusion.
The uniform rules of procedure do not authorize motions for rehearing directed to agency final orders. As a general principle, a motion for rehearing directed to an agency final order is thus unauthorized and an appeal must be filed within 30 days of rendition of the final order. City of Palm Bay, 969 So. 2d at 1189-1190.
Before the uniform rules were enacted, however, at least one agency enacted a rule authorizing motions for rehearing. Is rehearing authorized in this circumstance? Courts are split on whether an agency rule authorizing rehearing, enacted before the uniform rules, is sufficient to toll the time for appellate review.
The Third DCA holds that rehearing is authorized in this circumstance and a timely motion tolls the appeal deadline. Crawford v. Dep’t of Child. & Families, 785 So. 2d 505 (Fla. 3d DCA 2000). The First DCA and Fifth DCA reached the opposite result, holding that rehearing is unauthorized even if the agency has a prior rule allowing rehearing. Dep’t of Corr. v. Saulter, 742 So. 2d 368 (Fla. 1st DCA 1999); City of Palm Bay, 969 So. 2d at 1189-1190. The Florida Supreme Court has thus far declined to settle the conflict.
If the agency has enacted a rule authorizing rehearing, the best practice is to file a notice of appeal within 30 days of rendition. If you believe an issue must be raised on rehearing, then the safest practice would be to file the appeal within 30 days and seek relinquishment from the district court of appeal to allow the agency to rule on the motion.
Another factor to consider is where you can file the appeal. Administrative law has an additional unique aspect in that appeals can be filed in the DCA where the agency is headquartered (typically Tallahassee) or the DCA where the party resides. § 120.68(2)(a), Fla. Stat. If you reside in the Third DCA’s jurisdiction (Miami-Dade and Monroe counties), then you could presumably rely on Crawford, file for rehearing, and take your appeal to the Third DCA. Although this is potentially an option, the best practice, given the uncertainty in the law, is to file an appeal within 30 days and seek relinquishment.
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.