This post discusses the basic steps to applying for a stay pending judicial review of an agency order. Suppose an agency enters a final order suspending your license, and you timely appeal the order. If you want to potentially continue working pending judicial review of the order, then you must apply for a stay of the order. This is because the filing of a notice of administrative appeal or petition to review non-final agency action does not automatically stay the order. Fla. R. App. P. 9.190(e)(1).
The process for staying agency orders is generally governed under Florida Rule of Appellate Procedure 9.190(e)(2). That rule discusses three types of agency orders: emergency suspension orders, non-emergency license suspension orders, and all-other type agency orders.
In a blog dated April 1, 2021, I discussed the process for staying emergency suspension orders. You can access that article here https://msdtaxlaw.com/uncategorized/interim-stay-of-nonfinal-emergency-suspension-order-pending-judicial-review/
For non-emergency license suspension orders, the affected party can file a motion to stay directly with the DCA. The agency then has 10 days to file a response; the response deadline can potentially be shortened if requested by the licensee. Fla. R. App. P. 9.190(e)(2)(C).
The motion to stay will likely be granted unless the agency can show that granting a stay would “constitute a probable danger to the health, safety, or welfare of the state.” Id. In your motion, you should thus argue that a stay is warranted because of irreparable harm and because granting the stay would not constitute a probable danger.
To request a stay of the “all-other type” orders, the affected party typically must file a motion to stay first with the agency. If the agency enters an order denying your motion, then you can file a motion in the DCA to review the order. Fla. R. App. P. 9.190(e)(2)(A).
In certain circumstances, you can file the motion to stay directly with the DCA, foregoing the agency. But you must show good cause for not first filing the motion with the agency. Id. The 2000 Committee Note to Rule 9.190 states that good cause can likely be shown when the agency has collegial heads that meet only occasionally.
To obtain a stay of an “all-other type” order, you generally must show a likelihood of success on the merits and irreparable harm. Perez v. Perez, 769 So. 2d 389, 391 n. 4 (Fla. 3d DCA 1999). If seeking review of an agency order denying a motion to stay, the abuse of discretion standard applies. Mariner Health Care of Nashville, Inc. v. Baker, 739 So. 2d 608, 609 (Fla. 1st DCA 1999).
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 firstname.lastname@example.org.