AMR SALAM, PETITIONER,
v.
BOARD OF PROFESSIONAL ENGINEERS, RESPONDENT
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An applicant for professional engineer licensure sought mandamus relief against the Board of Professional Engineers for failing to grant or deny his petition for formal hearing within the statutory 15-day period. The court granted the petition, awarded attorney's fees, and held that the agency's unexplained delay constituted a gross abuse of discretion.
The court granted mandamus relief, requiring the Board to rule on the petition for formal hearing within 15 days. The agency's failure to rule within the statutory timeframe constituted a gross abuse of discretion justifying an award of attorney's fees under section 120.595(5).
[1] A writ of mandamus may be granted to compel an agency to rule on a petition for formal hearing within the statutory timeframe.
[2] An agency's failure to grant or deny a petition for formal hearing within 15 days of receipt, as required by statute, constitutes a gross abuse of discretion.
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Join FLexlaw to unlock all legal intelligence“In the administrative process, it is fundamental that an aggrieved person receive a formal administrative hearing upon request.”
Establishes the fundamental right to a hearing and the agency's duty to rule on hearing petitions timely.
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Join FLexlaw to unlock all legal intelligencePetitioner applied for licensure as a professional engineer and timely submitted a petition for formal hearing. The Board of Professional Engineers fa…
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PER CURIAM.
Petitioner, an applicant for licensure as a professional engineer, sought a writ of mandamus complaining that the Board of Professional Engineers failed to grant or deny his petition for formal hearing within 15 days of receipt as required by section 120.569(2)(a), Florida Statutes (2005). By unpublished order, we granted the petition and directed the Board to rule on the petition for formal hearing within 15 days. See Teachers Educators Ass’n, Inc. v. Duval County Sck. Dist., 763 So. 2d 1265 (Fla. 1st DCA 2000).
Because petitioner has obtained the relief sought in his petition for writ of mandamus,’ we grant petitioner’s request for attorney’s fees. The agency’s action in failing to rule on his petition for formal hearing within 15 days as required by section 120.569(2)(a) constituted a gross abuse justifying an award of attorney’s fees to petitioner pursuant to section 120.595(5).
In the administrative process, it is fundamental that an aggrieved person receive a formal administrative hearing upon request. Here, that request was timely made and the agency randomly put it on hold; by so doing, the agency exercised its discretion arbitrarily and capriciously in violation of fundamental requirements. The agency’s unexplained delay necessarily involved a discretionary act, which under the circumstances of this case was gross. The agency’s inexplicable delay put petitioner’s request for licensure on hold for four months while the agency postponed ruling on his request for a formal hearing. A citizen’s rights under the Florida Statutes must be taken seriously by the State’s agencies, and handled expeditiously.
BROWNING, C.J., and BARFIELD, J., concur. VAN NORTWICK, J., concurs in part and dissents in part with written opinion.
concurring in part and dissenting in part.
I agree with the majority that the petition for writ of mandamus should have been granted. I dissent with respect to the award of attorney’s fees to petitioner.
Section 120.595(5), Florida Statutes (2005), provides that when there is an appeal, the court may award reasonable attorney’s fees and costs “to the prevailing party if the court finds ... that the agency action which precipitated the appeal was a gross abuse of the agency’s discretion.” Here, the Board of Professional Engineers did not exercise its discretion when it failed to act on the petition for formal hearing within 15 days of receipt. Instead, the Board failed to perform the ministerial duty of ruling on the petition for formal hearing.1 The Board will exercise its discretion when it determines whether to grant or deny the petition for formal hearing. The failure to ministerially rule on the petition cannot be “a gross abuse of discretion” under section 120.595(5).
Compare, Residential Plaza At Blue Lagoon, Inc. v. Agency for Health Care Admin., 891 So. 2d 604 (Fla. 1st DCA 2005) (granting attorney fees where the court found that the agency grossly abused its discretion by denying renewal of a license, refusing to grant a formal hearing on the denial and failing to respond to substantive arguments on appeal).
. “Mandamus does not lie to compel the exercise of discretion in a particular fashion or to establish a right.” Marshall v. State, 838 So. 2d 702, 703 (Fla. 5th DCA 2003).
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FT. Myers Real Est. Holdings, LLC v. Dep't of Bus. & Prof'l Reg., 53 So. 3d 1158 (Fla. 1st DCA 2011)…ained in this appeal, is so contrary to the fundamental principles of administrative law that, by separate order, we have granted Appellant’s motion for attorney's fees under section 120.595(5), Florida Statutes. Accord Salam v. Bd. of Profl Eng’rs, 946 So. 2d 48 (Fla. 1st DCA 2006) (awarding attorney’s fees when agency delayed ruling on a petition for formal hearing); Residential Plaza at Blue Lagoon, Inc. v. Agency for Health Care Admin., 891 So. 2d 604 (Fla. 1st DCA 2005) (awarding attorney's fees because…
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PRO Tech Monitoring, Inc. v. State, 72 So. 3d 277 (Fla. 1st DCA 2011)…n. 4 (Fla. 1st DCA 2011) (awarding section 120.595(5) fees where the agency dismissed a petition for formal administrative hearing for lack of standing, contrary to the basic, settled principles of administrative law); Salam v. Bd. of Prof'l Eng’rs, 946 So. 2d 48, 49 (Fla. 1st DCA 2006) (awarding section 120.595(5) fees where the agency arbitrarily and capriciously failed to act on a petition for formal hearing within the required time, thus putting the petitioner’s rights "on hold”). The Department’s action…
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Failer v. State, 139 So. 3d 359 (Fla. 1st DCA 2014)…Fla. 1st DCA 2007) (“An agency is not entitled to ignore a properly filed request for hearing, and if it determines that the petitioner is not entitled to a hearing, it is obligated to issue an order to that effect.”); Salam v. Bd. of Prof'l Eng’rs, 946 So. 2d 48, 49 (Fla. 1st DCA 2006) (granting petition for writ of mandamus and instructing agency to rule on Salam’s petition for formal hearing within 15 days). After reviewing an agency’s action, this court may order the agency to perform an action required…
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- Residential Plaza AT Blue Lagoon, Inc. v. Agency for Health Care Admin., 891 So. 2d 604 (Fla. 1st DCA 2005)
- Manuela Marshall v. State, 838 So. 2d 702 (Fla. 5th DCA 2003)
- Teachers Educators Ass'n, Inc. v. Duval Cnty. Sch. Dist., 763 So. 2d 1265 (Fla. 1st DCA 2000)
- LaDale Maurice Mathis v. State, 763 So. 2d 1265 (Fla. 1st DCA 2000)