ROBERT A. BUTTERWORTH, SHERIFF OF BROWARD COUNTY, FLORIDA, PETITIONER,
v.
THE PUBLIC EMPLOYEES RELATIONS COMMISSION, RESPONDENT
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The court denied a petition for review of a non-final administrative order striking affirmative defenses, holding that the petitioner has an adequate remedy through review of the final agency action.
A non-final administrative order striking affirmative defenses is not reviewable by interlocutory appeal when the petitioner will have an adequate remedy upon review of the final agency action.
[1] A non-final administrative order striking affirmative defenses is not subject to immediate appellate review when adequate remedy exists through review of the final agency…
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Join FLexlaw to unlock all legal intelligenceThe Sheriff of Broward County filed an unfair labor practice case before the Public Employees Relations Commission and asserted five affirmative defen…
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DOWNEY, Judge.
Petitioner seeks review of a non-final order issued by respondent striking five of the affirmative defenses which petitioner filed in an unfair labor practice case.
Upon consideration of the petition and response filed by the Public Employees Relations Commission we are disposed to deny the petition for the reason that petitioner has not demonstrated that he will not have an adequate remedy by review of the final agency action.
Were this a judicial proceeding in which the defendant suffered the elimination of some of his alternative defenses by motion to strike, that action would not be reviewable under Florida Appellate Rule 9.130. Neither would we grant certiorari because the matter could be adequately considered on plenary appeal. See, e. g., Siegel v. Abramowitz, 309 So. 2d 234 (Fla.4th DCA 1975); Chalfonte Development Corp. v. Beaudoin, 370 So. 2d 58 (Fla.4th DCA 1979). We mention the foregoing simply to demonstrate that ordinarily the subject matter of this petition is not generally considered except upon full appeal. This gives rise to the rhetorical question, why would we review such non-final action in administrative proceedings?
Petitioner seeks to proceed upon authority of Florida Appellate Rules 9.130 and 9.100 and Section 120.68, Florida Statutes (1979). Unquestionably we have jurisdiction under Rule 9.100; however, since in our opinion petitioner will have an adequate remedy by review of the final agency action, we exercise our discretion and decline to review this preliminary agency action.
PETITION DENIED.
ANSTEAD and GLICKSTEIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Jeffrey Cohen, M.D. v. DeYOUNG, 655 So. 2d 1265 (Fla. 5th DCA 1995)…orders striking affirmative defenses can normally be adequately reviewed on direct appeal, and thus they are not subject to certiorari review. Manatee County v. Estech General Chemicals Corp., 402 So. 2d 75 (Fla. 2d DCA 1981); Butter-worth v. PERC, 382 So. 2d 859 (Fla. 4th DCA 1980). Cohen argues that cases like Pearlstein v. Malunney, 500 So. 2d 585 (Fla. 2d DCA 1986) are precedent for certiorari review in this case. In Pearlstein, the trial court denied a motion to dismiss a complaint which was based on t…
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Holmes Reg'l Med. Ctr., Inc. v. Agency FOR Health Care Admin. & Wuesthoff Mem'l Hosp., Inc., 731 So. 2d 51 (Fla. 1st DCA 1999)…ding merely because the parties wish to resolve an important issue before the final hearing. See, e.g., Department of Community Affairs v. Div. of Admin. Hearings, 588 So. 2d 272 (Fla. 1st DCA 1991); Butterworth v. Public Employees Relations Comm’n, 382 So. 2d 859 (Fla. 4th DCA 1980). Rather, the opportunity to review a nonfinal order exists only in those cases in which the court must address an issue immediately to protect a substantial right that would be lost in the interim. See Prudential Ins. Co. of Amer…
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S. Broward Hosp. Dist. v. Dep't OF Health & Rehabilitative Servs. of the State of Fla., 385 So. 2d 1094 (Fla. 4th DCA 1980)…ategory. The existence of such questions preclude the granting of a writ of prohibition. Similarly we do not believe the request for review of non-final administrative action is appropriate. Butterworth v. The Public Employees Relations Commission, 382 So. 2d 859 (Fla. 4th DCA 1980). THE REQUESTED RELIEF IS DENIED. LETTS, C. J., and ANSTEAD, J., concur. GLICKSTEIN, J., dissents with opinion.…
Authorities Cited
- Humphrey v. Seminole Cnty. Court, 309 So. 2d 234 (Fla. 4th DCA 1975)
- Edwards v. Lawyers Title Guar. Fund, 370 So. 2d 58 (Fla. 3d DCA 1979)
- Wenk v. Tsiotis, 370 So. 2d 58 (Fla. 4th DCA 1979)