MARVIN REICH, M.D., APPELLANT,
v.
DEPARTMENT OF HEALTH, APPELLEE
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A physician challenged a final disciplinary order entered against him by the Department of Health's Board of Medicine, claiming his former attorney lacked authority to accept a settlement agreement on his behalf. The court reversed the Board's dismissal of his motion to vacate and remanded for an evidentiary hearing to determine whether the physician had actual notice of the final order.
An agency generally lacks power to reconsider a final order after the appeal deadline expires; however, the Board must conduct an evidentiary hearing to determine whether the appellant had actual notice of the final order. If the appellant was unaware of the order, the Board should allow the motion to vacate to proceed; if aware, the motion would be properly dismissed as untimely.
[1] An agency has inherent or implied power to rehear or reopen a cause to reconsider its action where the proceeding is essentially judicial, but this power must be exercise…
[2] A presumption of receipt of an order arises from a certificate of service showing mailing to the correct address, but this presumption is rebuttable.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“As a general rule, an agency has inherent or implied power to reheár or reopen a cause to reconsider the action taken therein, where the proceeding is in essence a judicial one.”
Establishes the general principle governing agency authority to reconsider final orders
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Join FLexlaw to unlock all legal intelligenceThe Board of Medicine presented a counter consent agreement to Appellant in response to administrative complaints. Appellant's former attorney sent a …
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PER CURIAM.
This is an appeal from a final order of the Department of Health dismissing Ap pellant’s motion to vacate a final order. We reverse the final order of dismissal and remand for an evidentiary hearing.
In response to administrative complaints against Appellant, a consent agreement was presented to the Board of Medicine for its consideration. The Board rejected this agreement and proposed a counter consent agreement. The attorney representing Appellant at that time sent a letter to the Board indicating that Appellant accepted the counter consent agreement. A final order was entered on January 16, 2002, incorporating the terms of the counter consent agreement. On August 23, 2002, Appellant’s current attorney filed a motion to vacate the final order because Appellant never authorized his attorney to accept the terms of the counter consent agreement. On June 7, 2003, the Board dismissed the motion to vacate for lack of jurisdiction.
As a general rule, an agency has inherent or implied power to reheár or reopen a cause to reconsider the action taken therein, where the proceeding is in essence a judicial one. Smull v. Town of Jupiter, 854 So. 2d 780, 782 (Fla. 4th DCA 2003). However, this power must be exercised before an appeal from the original order has been filed or before such an order has become final by the lapse of time to file a timely notice of appeal. Id. Appellant’s motion to vacate the order was filed after the time for a timely notice of appeal had expired.
However, at the hearing on the motion to vacate, Appellant stated that he did not know until August 2002 that a final order was entered in this case. The final order’s certificate of service shows that a copy of the order was mailed to Appellant’s correct address, which creates a presumption that Appellant received the order. W.T. Holding, Inc. v. State Agency for Health Care Administration, 682 So. 2d 1224, 1225 (Fla. 4th DCA 1996). However, this presumption is rebuttable. Id. Appellant’s denial of receipt of the order does not automatically overcome this presumption, but it does create a question of fact that must be resolved through an evidentiary hearing. Id. The Board never provided Appellant an opportunity to prove that he did not receive the final order and that he was not on notice of entry of the final order. If Appellant was aware of the final order, his motion to vacate the final order would be untimely and the Board would have correctly determined that it was without jurisdiction to rule on the motion. However, if Appellant was unaware of the motion, the Board should have reissued the order and allowed Appellant to proceed on his motion to vacate. Id.
We, therefore, reverse the dismissal of Appellant’s motion and remand for an evidentiary hearing to determine whether Appellant was on notice of the entry of a final order in this case.
REVERSED and REMANDED.
BOOTH, POLSTON and HAWKES, JJ., concur.
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J P Morgan Chase Bank v. Combee, 883 So. 2d 330 (Fla. 1st DCA 2004)…g receipt of the order of dismissal, argued it did not receive the order scheduling the second hearing. That the second order lists Morgan as being copied creates a rebuttable presumption that Morgan received the order. See Reich v. Dep’t of Health, 868 So. 2d 1275, 1276 (Fla. 1st DCA 2004). Morgan’s denial of receipt of the order does not automatically overcome this presumption, but it does create a question of fact to be resolved through an evidentia-ry hearing. See id. A hearing was held. However, Morgan f…
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AETNA Health, Inc. v. 21st Century Oncology, Inc., 919 So. 2d 619 (Fla. 1st DCA 2006)…pplies to unresolved claim disputes. Because the parties have resolved their claim disputes at issue, section 408.7057(4) does not prohibit AHCA from vacating its prior final order to facilitate the parties’ settlement. See Reich v. Dep’t of Health, 868 So. 2d 1275, 1276 (Fla. 1st DCA 2004) (reversing the Department of Health’s dismissal, for lack of jurisdiction, of appellant’s motion to vacate a final order entered by the Board of Medicine; stating that “[a]s a general rule, an agency has inherent or implied…
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Christos Stasinos v. State, 209 So. 3d 18 (Fla. 4th DCA 2016)…ence a judicial one,” an agency whose final orders are subject to review under the Florida Administrative Procedure Act “has the inherent or implied power to rehear or reopen a cause to reconsider the action taken therein.” Reich v. Dep’t of Health, 868 So. 2d 1275, 1276 (Fla. 1st DCA 2004), (citing Smull v. Town of Jupiter, 854 So. 2d 780, 782 (Fla. 4th DCA 2003)). “[T]his power must be exercised before an appeal from the original order has been filed or before such an order has become final by the lapse of t…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- W.T. Holding, Inc. v. State, 682 So. 2d 1224 (Fla. 4th DCA 1996)
- Smull v. The Town OF Jupiter, 854 So. 2d 780 (Fla. 4th DCA 2003)