Adjudication of disputed issues of fact under the APA.

There are many types of disputes arising between persons whose substantial interests are determined by an agency and the agency, that are subject to the Administrative Procedure Act, F.S. Ch. 120. These include, but are not limited to, professional licensing, including discipline; environmental permitting, including environmental resource and consumptive water use permits; growth management decisions, including comprehensive plan amendments; bid protests by vendors vying for business with agencies; employment discrimination cases originating with the Commission on Human Relations; ethics and election violation cases; and many more.

These matters have common procedural threads running throughout to the extent the matters involve disputed issues of material fact; that is, unless exempted, they are resolved pursuant to the procedures set forth in the APA. Litigation under the APA can be complex and time-consuming, but resolution occurs within a relatively short period of time. The purpose of this article is to acquaint the novice with the basic procedures when either representing an agency or a person who is the subject of agency action. There are many other issues that are commonplace in administrative adjudication, such as the concepts of standing, (1) intervention, (2) exhaustion of administrative remedies, (3) challenges to the constitutionality of statutes and rules on their face and as applied, (4) circuit court jurisdiction, (5) sanctions for signing a pleading for an improper purpose (6) that are not discussed in this article.

The following case involving Mr. Jones and the fictional agency present a real-life scenario.

The Plight of Mr. Jones

Mr. Jones has applied to be licensed as an operator of widgets in the state of Florida. He filed his application with the Board of Widgets (board). However, upon review, it was determined that Mr. Jones had had several negligence cases filed against him; some resulted in settlements, while others were dismissed. He also had disciplinary action taken in another state as a result of one negligence case.

Mr. Jones appeared at a credentials committee (composed of members of the board) meeting, but did not convince the committee that he can operate widgets with the requisite skill and safety. The committee recommended that the board deny him a license. The full board agreed and voted to deny Mr. Jones' application.

Thereafter, the board sent Mr. Jones a letter by certified mail, advising him of its negative "agency action" and further advising him of a "point of entry" (7) to seek a hearing under the APA and the Uniform Rules of Procedure (Ch. 28, Florida Administrative Code) including the right to file a "petition" (8) requesting a "hearinge" (9) within 21 days after receiving the letter/notice. (10)

You have determined from reading the application file that there are disputed issues of material fact, so you timely file a petition with the board and request the board to refer the petition to DOAH for the assignment of an administrative law judge (ALJ). The board must determine whether the petition complies with all pleading requirements and within 15 days of receipt, the board shall refer the petition to DOAH, requesting the assignment of an ALJ. (11)

Once the petition is sent to DOAH, the referring agency, here the board, shall take no further action with respect to a proceeding under [section] 120.57(1), except as a party litigant, as long as DOAH has jurisdiction over the proceeding under [section] 120.57(1). (12)

All proceedings conducted pursuant to F.S. [section] 120.57(1), "shall be de novo." Section 120.57 hearings "are to aid in the formulation of final agency action and are not intended solely for review of action taken earlier and preliminarily." (13) In other words, there is no presumption of correctness that attaches to the agency action that is subject to the [section] 120.57(1) hearing.

Upon receipt of the petition, DOAH will assign an ALJ and will send each party an initial order that requires the parties to respond in seven days and provide proposed dates and the numbers of days needed for hearing, whether there are any related cases, and a proposed place for conducting the hearing. (14)

Upon receipt of the response to the initial order, the ALJ will set the date for the final hearing. Generally, cases are set for hearing within 30 to 70 days after an ALJ is assigned.

The issues are as stated in the petition unless the petition is amended or unless the parties raise additional issues. (15) The proceeding before DOAH will be conducted pursuant to the APA and the Uniform Rules of Procedure. (16) The board's substantive practice act will also be considered and applied. A pre-hearing conference may be held at the discretion of the ALJ. (17)

You have the opportunity to conduct discovery pursuant to Fla. R. Civ. P. 1.280 through 1.400. (18) The presiding officer, here the ALJ, may issue appropriate orders to effectuate discovery and to prevent delay, including the imposition of sanctions, except contempt. (19) The ALJ issues subpoenas. (20)

The board has served your client with interrogatories and a request for production of documents. You evaluate them and respond to some, but object to others. The board moves to compel, and after considering the motion to compel and a response, the ALJ orders your client to respond. (21) If you fail to respond, sanctions may be imposed, (22) but enforcement of the order may only be pursued in circuit court. (23)

You also may seek review of this nonfinal order in the appropriate appellate court pursuant to [section] 120.68(1) and Fla. R. App. P. 9.100(b) and (c) and 9.190(b) (2). The order is reviewable upon a limited basis "if review of the final agency decision would not provide an adequate remedy." (24) Let us assume you respond; the parties complete discovery and proceed to the final hearing. (25)

Before the final hearing, the parties should discuss which party is required to proceed first. Stated otherwise, which party has the burden of proof and ultimate burden of persuasion? Do both parties have a burden of proof?. Also, what is the standard of proof?. If the parties cannot agree, the ALJ will decide. (26)

Here, Mr. Jones is the applicant, so he would proceed first and has the burden of proving, by a preponderance of the evidence, entitlement to be licensed. The board proceeds next followed by rebuttal, if appropriate. In disciplinary cases, the agency has the burden of proof and ultimate burden of persuasion and proceeds first. (27) Unless otherwise provided by law, the agency is required to prove allegations by clear and convincing evidence in order to impose an administrative fine. (28)

During the final hearing, all parties have the right to respond, present evidence, and argument on all issues involved, to conduct cross-examination, and submit rebuttal evidence. The agency, here the board, is required to "accurately and completely preserve all testimony in the proceeding, and on the request of any party, it shall make a full or partial transcript available at no more than actual cost." (29) The parties, including the agency, are not required to have the testimony transcribed. This may be problematic if exceptions are filed regarding an ALJ's findings of fact, or recommendation of a penalty in a disciplinary or penal case, because, without a transcript, it is not possible to determine, for example, if there is competent substantial evidence to support the findings of fact, as required by [section] 120.57(1)(1). (30) The "official transcript" is part of the "entire record." (31)

Irrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of Florida. Any part of the evidence may be received in written form, and all testimony of parties and witnesses shall be made under oath. (32)

Under the APA, "any type of competent evidence (evidence 'admissible over objection in civil actions,') may support a finding of fact, as long as it is substantial in light of the record as a whole." (33) "Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions." (34) You should make a timely objection to any objectionable evidence, including hearsay. (35)

Both parties have presented their respective cases and have rested. Each party may submit proposed recommended orders (PROs), which contain findings of fact, conclusions of law, and a recommendation. (36) Unless otherwise authorized by the presiding officer, proposed orders shall be limited to 40 pages. Memoranda on the issues may also be submitted. The PROs should contain appearances; a statement of the issues; a brief preliminary statement, which sets forth the procedural history of the case; findings of fact referring only to evidence adduced during the hearing, including matters officially recognized, with citations to the record (transcript if available); conclusions of law with citations to applicable statutes, rules, and administrative and appellate cases and legal discussion; and an ultimate recommendation.

The presiding officer, here the ALJ, is required to file a recommended order with the agency, here the board, which sets forth appearances, a statement of the issues, findings of fact, conclusions of law, and a recommendation, within 30 days, unless otherwise provided by law, (37) after the final hearing or receipt of the hearing transcript, whichever is later. This means that the PROs must be filed within 10 days after the final hearing or receipt of the transcript, whichever is later. If the parties agree to extend the time for submission of the PROs to more than 10 days, the parties waive the 30-day requirement for the submission of the recommended order. (38)

The parties may file exceptions within 15 days (unless otherwise provided by law) of entry of the recommended order. The exceptions are filed with the agency responsible for entry of the final order, here the board. Any party may file a response within 10 days from the date the exceptions are served. No additional time is added to the time limits for filing exceptions or responses when service is by mail. (39)

After receiving the recommended order and the entire record of the DOAH proceeding,

The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action. (40)

In this context, competent substantial evidence is a standard of agency review, not a burden of proof.

After the agency enters a final order, a party who is adversely affected by the final order is entitled to judicial review. (41) "Judicial review shall be sought in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law. All proceedings shall be instituted by filing a notice of appeal ... in accordance with the Florida Rules of Appellate Procedure within 30 days after the rendition of the" final order. (42) "An order is rendered when a signed, written order is filed with the clerk of the lower tribunal," here the board. (43)

Rehearing is not "authorized" under the APA or Uniform Rules of Procedure. There is a split of authority regarding whether an agency's rule "authorizing" rehearing is valid. (44) The problem is that only "authorized" motions for rehearing will toll the rendition of the final order for the purpose of seeking appellate review. (45)

Here, the board rejected Mr. Jones' exceptions, adopted the ALJ's recommended order, and denied Mr. Jones a license. Mr. Jones is adversely Affected (46) by the final order because he was not licensed. As a result, he may file a notice of administrative appeal with the board's clerk and seek review either in the First (agency headquarters) or Third (Mr. Jones resides in Miami) district court of appeal. A copy of the notice is filed with the appellate court with the filing fees prescribed by law. (47)

Under the Florida Rules of Appellate Procedure, within 50 days of filing the notice, the agency clerk will prepare the record and serve copies of the index on all parties. The agency clerk is required to transmit the record to the appellate court within 110 days of filing the notice. (48)

As the appellant, Mr. Jones' initial brief shall be served within 70 days after the notice is filed. (49) The Florida Rules of Appellate Procedure also prescribe the time requirements for filing the answer and reply briefs and the content of each brief. (50)

Judicial review of any agency action is confined to the record transmitted and any additions made pursuant to F.S. [section] 120.68(7) (a) and Fla. R. App. P. 9.200(f). "The reviewing court's decision may be mandatory, prohibitory, or declaratory in form, and it shall provide whatever relief is appropriate." (51) The appellate court has a full panoply of remedies available. (52) "Unless the court finds a ground for setting aside, modifying, remanding, or ordering agency action or ancillary relief under a specified provision of this section, it shall affirm the agency's action." (53)

Importantly, there are several standards of review that the appellate court considers to decide a case. (54) For example,

[i]f an administrative law judge's final order depends on any fact found by the administrative law judge, the court shall not substitute its judgment for that of the administrative law judge as to the weight of the evidence on any disputed finding of fact. The court shall, however, set aside the final order of the administrative law judge or remand the case to the administrative law judge, if it finds that the final order depends on any finding of fact that is not supported by competent substantial evidence in the record of the proceeding. (55)

In this context, competent substantial evidence is a standard of appellate review, not a burden of proof. (56)

You may request oral argument in a separately filed document. (57) After oral argument, if afforded, the appellate court will decide the case and render its decision. (58)

Conclusion

With all of its apparent complexities, the APA and the Uniform Rules of Procedure provide a reasonable procedural framework for a person to receive due process with a decision made in a relatively short period of time. It is a dispute resolution mechanism that serves us well.

(1) See NAACP, Inc. v. Florida Board of Regents, 863 So. 2d 294 (Fla. 2003); Agrico Chemical Co. v. Department of Environmental Regulation, 406 So. 2d 478 (Fla. 2d D.C.A. 1981), rev. denied, 415 So. 2d 1359 (Fla. 1982), and 415 So. 2d 1361 (Fla. 1982).

(2) See Environmental Confederation of Southwest Florida., Inc. v. IMC Phosphates, Inc., 857 So. 2d 207 (Fla. 1st D.C.A. 2003); FLA. ADMIN. CODE R. 28-106.205.

(3) See Florida Department of Agriculture and Consumer Services v. Haire, 29 Fla. L. Weekly D248 (Fla. 4th D.C.A. Jan. 24, 2004); Florida Department of Agriculture & Consumer Services v. City of Pompano Beach, 792 So. 2d 539 (Fla. 4th D.C.A. 2001); Bankers insurance Co. v. Florida Residential Property & Casualty Joint Underwriting Association, 689 So. 2d 1127 (Fla. 1st D.C.A. 1997); State, Department of Environmental Protection v. PZ Construction Co., 633 So. 2d 76 (Fla. 3d D.C.A. 1994).

(4) See Key Haven Associated Enterprises, Inc. v. Board of Trustees of Internal Improvement Trust Fund, 427 So. 2d 153 (Fla. 1983).

(5) See State ex rel. Department of General Services v. Willis, 344 So. 2d 580 (Fla. 1st D.C.A. 1977); FLA. STAT. [section] 120.73.

(6) See Friends of Nassau County, Inc. v. Nassau County, 752 So. 2d 42 (Fla. 1st D.C.A. 2000).

(7) All agencies, defined in [section] 120.52(1), shall inform, in writing, a party, defined in [section] 120.52(12), whose substantial interests are determined by the agency's decision of any administrative hearing or judicial review that is available under [section] 120.569, 120.57, or 120.68; shall state the procedure which must be followed to obtain the hearing or judicial review; and shall state the time limits which apply. FLA. STAT. [section] 120.569(1). See generally Capelstti Brothers, Inc. v. State, Department of Transportation, 362 So. 2d 346 (Fla. 1st D.C.A. 1978) (discussing the point of entry concept). (The Florida Bar's "Florida Administrative Practice" (6th ed.), currently under revision, is an excellent resource for all of the issues covered herein.)

(8) Under the scenario presented, the "petition" must be filed, not served, with the agency, here the board, within 21 days after receipt of the agency action, here denial of a license. The 21-day period is established in FLA. ADMIN. CODE R. 28-106.111(2). (Challenges to proposed and existing rules and agency statements alleged to be unpromulgated rules, are filed with the Division of Administrative Hearings (DOAH). FLA. STAT. [subsection] 120.56 and 120.569(2)(a). Other statutes may also require the filing of a petition with DOAH. See, e.g., FLA. STAT. [section] 163.3187(3)(a).)

There are statutes that establish different time frames for filing petitions. See, e.g., FLA. STAT. [section] 163.3187(3)(a). Some may be jurisdictional. See, e.g., Lee v. St. Johns County Board of County Commissioners, 776 So. 2d 1110 (Fla. 5th D.C.A. 2001) ("The time limit specified in [section] 163.3215(4) is jurisdictional." (Citations omitted.) See also Department of Community Affairs, James Veal, and Kerry M. Culligan v. Escambia County, Case No. 99-2039GM (DOAH Final Order Aug. 9, 1999), aff'd, Veal v. Escambia County, 773 So. 2d 625 (Fla. 1st D.C.A. 2000)(implicitly suggesting that [section] 163.3213(3)is jurisdictional); State, Department of Health and Rehabilitative Services v. Alice P., 367 So. 2d 1045 (Fla. 1st D.C.A. 1979) (concluding that [section] 120.54(4) (b) (1977) (rule challenge), is jurisdictional.)) See supra note 10.

The petition must contain several items listed in Rule 28-106.201(2) (a)(g). The agency is required to review the petition and determine whether the petition contains all of the required information. The agency shall dismiss the petition if it is not in substantial compliance with these requirements or it has been untimely filed. Dismissal of a petition shall, at least once, be without prejudice to the petitioner's filing of an amended petition curing the defect, unless it conclusively appears from the face of the petition that the defect cannot be cured. The agency shall provide written notice to all of the parties of the action taken on the petition. FLA. STAT [section] 120.569(2) (c).

(9) The provisions of [section] 120.569 "apply in all proceedings in which the substantial interests of a party are determined by an agency, unless the parties are proceeding under s. 120.573 or s. 120.574." FLA. STAT. [section] 120.569(1). Under the scenario presented, there are two types of proceedings. The first type involves a petition alleging disputed issues of material fact, and unless waived by all parties, [section] 120.57(1) applies. The second type involves a petition that does not allege disputed issues of material fact, and unless otherwise agreed, [section] 120.57(2) applies. FLA. STAT. [subsection] 120.569(1) and 120.57(1) and (2). Mediation may be an option. FLA. STAT. [section] 120.573.

(10) The 21-day time period provided by rule is net jurisdictional, but may be waived. FLA. ADMIN. CODE R. 28-106.111(2) and (4). See also Machules v. Department of Administration, 523 So. 2d 1132 (Fla. 1988). See supra note 8. However, at least two appellate courts have held that excusable neglect does net apply. Cannv. Department of Children and Family Services, 813 So. 2d 237 (Fla. 2d D.C.A. 2002); Patz v. Department of Health, 864 So. 2d 79 (Fla. 3d D.C.A. 2003). The doctrine of equitable tolling may apply. Machules.

(11) "Except as provided in ss. 120.80 and 120.81, an [ALJ] assigned by [DOAH] shall conduct all hearings under [Section 120.57(1)], except for hearings before agency heads or a member thereof." FLA. STAT. [section] 120.57(1).

(12) FLA. STAT. [section] 120.569(2) (a). FLA. STAT. [section] 120.57(4) provides: "Unless precluded by law, informal disposition may be made of any proceeding by stipulation, agreed settlement, or consent order."

(13) FLA. STAT. [section] 120.57(1)(k). See also Boca Raton Artificial Kidney Center, Inc. v. Department of Health and Rehabilitative Services, 475 So. 2d 260, 262 (Fla. 1st D.C.A. 1975).

(14) DOAH divides the state into three geographical districts: southern, middle, and northern. Mr. Jones resides in Miami. Therefore, the case will most likely be assigned to the southern district. DOAH also has statewide medical and environmental sections.

(15) See FLA. ADMIN. CODE R. 28-106.202.

(16) The ALJ will also issue a order of pre-hearing instructions that requires the parties to meet, for example, 15 days prior to the date for the final hearing and discuss the possibility of settlement, stipulate to as many facts and issues as possible, prepare a pre-hearing stipulation; examine all exhibits except for impeachment exhibits proposed to offered at the hearing, and furnish opposing counsel the names and addresses of all witness except impeachment witnesses. This order also requires the parties to meet and enter into a pre-hearing stipulation that shall contain, in part, a concise statement of the nature of the controversy; a brief description of each party's position, a list of all exhibits and names and addresses of all witnesses except impeachment witnesses and exhibits, facts which are admitted; issues of law on which there is agreement, issues of fact and law that remain to be litigated, a list of pending motions, estimated length of time required for the final hearing, and signature of the parties or counsel for all parties. If the parties cannot agree to a pre-hearing stipulation, then each party shall serve separate pre-hearing statements no later than, for example, seven days before the final hearing with a statement as to the reasons why no agreement was reached on the stipulation.

(17) FLA. ADMIN. CODE R. 28-106.209.

(18) FLA. STAT. [section] 120.569(2) (D; FLA. ADM]N. CODE R. 28-106.206.

(19) ID.

(20) FLA, ADMIN. CODE R. 28-106.212.

(21) All motions must comply with FLA. ADMIN. CODE R. 28-106.204. All motions, other than a motion to dismiss, "shall include a statement that the movant has conferred with all parties of record and shall state as to each party whether the party has any objection to the motion." Parties may respond within seven or 12 days of service depending on how the motion was served. See FLA. ADMIN. CODE R. 28-106.103 regarding computation of time.

(22) FLA. STAT. [section] 120.569(1) (f). See also Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981); Mathis v. Florida Department of Corrections, 726 So. 2d 389 (Fla. 1st D.C.A. 1999).

(23) FLA. STAT. [section] 120.569(2) (k)2.

(24) FLA. STAT. [section] 120.68(1).

(25) Continuances may only be granted "for good cause shown." FLA. ADMIN. CODE R. 28-106.210.

(26) See Florida Department of Transportation v. J.W.C., 396 So. 2d 778 (Fla. 1st D.C.A. 1981). See also Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st D.C.A. 1977) ("[T]he burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal." (Citations omitted.)); FLA. STAT. [section] 120.57(1) (j). ("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute, and shall be based exclusively on the evidence of record and on matters officially recognized.")

(27) See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).

(28) Id. See, e.g., FLA. STAT. [section] 403.121(2) (d) (for the agency to impose administrative penalties in environmental enforcement actions under FLA. STAT. ch. 403, the agency must prove by a preponderance of the evidence that the respondent is responsible for the violation).

(29) FLA. STAT. [section] 120.57(1) (g) (emphasis added.) FLA. ADMIN. Cone R. 28-106.213214. See FLA. STAT. [section] 120.57(1) (f)1.-9. for the scope of the record in the proceeding.

(30) "The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law." FLA. STAT. [section] 120.57(1) (1).

(31) FLA. STAT. [section] 120.57(1) (f)9. See Roberts v. Department of Corrections, 690 So. 2d 1383 (Fla. 1st D.C.A. 1997); National Industries, Inc. v. Commission on Human Relations, 527 So. 2d 894 (Fla. 5th D.C.A. 1988).

(32) FLA. STAT. [section] 120.569(2) (g); FLA. ADMIN. CODE R. 28-106.213. See also FLA. STAT. [subsection] 120.569(2) (h)-(j).

(33) Miller v. State, Division of Retirement, 796 So. 2d 644 (Fla. 1st D.C.A. 2001) (citation omitted.)

(34) FLA. STAT, [section] 120.57(1) (c).

(35) Compare Harris v. Game and Fresh Water Fish Commission, 495 So. 2d 806 (Fla. 1st D.C.A. 1986), with Miller, State, Division of Retirement, 796 So. 2d 644 (Fla. 1st D.C.A. 2001), and Bellsouth Advertising and Publishing Corporation v. Unemployment Appeals Commission, 654 So. 2d 292 (Fla. 5th D.C.A. 1995), for discussion of the objection, no objection controversy. See Barfield v. Department of Health, 805 So. 2d 1008 (Fla. 1st D.C.A. 2002), Orasan v. Agency for Health Care Administration, Board of Medicine, 668 So. 2d 1062 (Fla. 1st D.C.A. 1996), and Grabau v. Department of Health, Board of Psychology, 816 So. 2d 701 (Fla. 1st D.C.A. 2002), for discussion of the admissibility of hearsay.

(36) FLA. STAT. [section] 120.57(1) (b); FLA. ADMIN. CODE R. 28-108.215.

(37) See, e.g., FLA. STAT.. [section] 403.527(3) (a) (providing that the recommended order will be issued no later than 60 days after the transcripts of the transmission line site certification hearing and public hearings are filed).

(38) FLA. STAT. [section] 120.57(1) (k); FLA. ADMIN. CODE R. 28-106.216.

(39) FLA. ADMIN. CODE R. 28-106.217.

(40) FLA. STAT. [section] 120.57(1) (1). The case law interpreting this subsection is too extensive to cite here. However, the following cases may assist in providing a general understanding of the scope and extent of an agency's review of a recommended order and the roles of the ALJ and the agency. Gross v. Department of Health, 823 So. 2d 997 (Fla. 5th D.C.A. 2002); Barfield v. Department of Health, 805 So. 2d 1008 (Fla. 1st D.C.A. 2002); Bush v. Brogan, 725 So. 2d 1237 (Fla. 2d D.C.A. 1999).

(41) FLA. STAT. [section] 120.68(1).

(42) FLA. STAT. [section] 120.68(2) (a). See also FLA. R. APP. P. 9.190(b) (1).

(43) FLA. R. APP. P. 9.020(h).

(44) Compare Department of Corrections v. Saulter, 742 So. 2d 368 (Fla. 1st D.C.A. 1999) (rehearing rule invalid), with Florida Department of Children and Families v. Crawford, 785 So. 2d 505 (Fla. 3d D.C.A. 2000) (rehearing rule valid), rev. dismissed, 761 So. 2d 328 (Fla. 2000).

(45) See FLA. R. APP. P. 9.020(h).

(46) In other contexts, the concept of whether a party below is "adversely affected" by an agency's final order can be problematic. See generally Environmental Confederation of Southwest Florida, Inc. v. IMC Phosphates, Inc., 857 So. 2d 207 (Fla. 1st D.C.A. 2003); Florida Chapter of the Sierra Club v. Suwannee American Cement Co., Inc., 802 So. 2d 520 (Fla. 1st D.C.A. 2001).

(47) FLA. R. APP. P. 9.110(c).

(48) FLA. R. APP. P. 9.110(e). See FLA. R. APP. P. 9.190(c) for the contents of the record.

(49) FLA. R. APP. P. 9.110(f).

(50) APP FLA. R. APP. P. 9.210.

(51) FLA. STAT. [section] 120.68(6) (a).

(52) FLA. STAT. [section] 120.68(6)-(7).

(53) FLA. STAT. [section] 120.68(8).

(54) FLA. STAT. [section] 120.68(7). There may be other standards of review applicable to a particular case. See, e.g., FLA. STAT. [section] 408.039(6) (b).

(55) FLA. STAT. [section] 120.68(10).

(56) See, e.g., Southwest Florida Water Management District v. Save the Manatee Club, Inc., 773 So. 2d 594, 597 (Fla. 1st D.C.A. 2000). See supra note 40. See De Greet v. Sheffield, 95 So. 2d 912,916 (Fla. 1957) for a good discussion of what is competent substantial evidence.

(57) FLA. R. APP. P. 9.320.

(58) Please consult the Florida Rules of Appellate Procedure for other available procedures which post-data the court's decision, including but not limited to rehearing and review in the Florida Supreme Court where appropriate.

Charles A. Stampelos is an administrative law judge with the Division of Administrative Hearings in Tallahassee. He is a member of The Florida Bar and is also admitted to practice in the District of Columbia and Virginia. He received his J.D. in 1976 from the College of William and Mary.

This column is submitted on behalf of the Administrative Law Section, Donna E. Blanton, chair, and Richard M. Ellis, editor.