GERALD A. LEWIS, AS STATE COMPTROLLER AND HEAD OF THE DEPARTMENT OF BANKING AND FINANCE, PETITIONER,
v.
CAREER SERVICE COMMISSION OF THE STATE OF FLORIDA, AND JACK BUTLER, RESPONDENTS
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The Florida Department of Banking and Finance sought a stay of an order requiring reinstatement of employee Jack Butler pending appellate review. The court clarified that a petition for review of an administrative action does not automatically stay enforcement, distinguishing it from the automatic stay provision that applies to appeals by state entities under the old certiorari rules.
A petition for review of an administrative action does not automatically stay enforcement of the agency's order. Although Rule 5.12(1) provides for automatic stays when the state files an appeal or petition for certiorari, petitions for review are governed by Section 120.68, Florida Statutes, which requires that any stay be sought either from the agency itself or from the court upon appropriate terms.
[1] The filing of a petition for certiorari by a state entity in its official capacity automatically perfects the petition and stays execution or performance of the judgment,…
[2] Review of administrative action under Section 120.68, Florida Statutes, is now by petition for review, and until the Supreme Court adopts specific appellate rules, the ru…
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Join FLexlaw to unlock all legal intelligence“the filing of the notice of appeal or the petition for certiorari as the case may be shall perfect the same and stay the execution or performance of the judgment, decree or order being reviewed and no supersedeas bond need be given unless expressly required by the court”
Rule 5.12(1) provision that the Department relied upon, establishing automatic stays for state entities in traditional appeals but not in administrative review petitions
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Join FLexlaw to unlock all legal intelligenceThe Career Service Commission entered an order requiring the Department of Banking and Finance to reinstate Jack Butler to his job. The Department fil…
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MILLS. Judge.
The Department of Banking and Finance moves the Court to reconsider its order of 3 May 1976 denying the Department’s motion to stay execution and suspend proceedings filed on 14 April.
The Department points out that on 14 April it filed a petition for writ of certiorari with this Court in which it sought review of an order entered by the Career Service Commission requiring the Department to reinstate Butler in his job with it. The Department contends that under the provisions of Rule 5.12(1), Florida Appellate Rules, it automatically perfected a stay when it filed its petition for writ of certiorari. Rule 5.12(1), Florida Appellate Rules, provides:
“(1) When Security Note Required.— When the state or any of its political subdivisions, or any officer, board, commission or other public body of the state or any of its political subdivisions, in a purely official capacity, takes an appeal or petitions for certiorari, the filing of the notice of appeal or the petition for certiorari as the case may be shall perfect the same and stay the execution or performance of the judgment, decree or order being reviewed and no supersedeas bond need be given unless expressly required by the court.”
In Yamaha International Corp. v. Ehrman, 318 So. 2d 196 (Fla.App. 1st, 1975), we pointed out that under Section 120.68, Florida Statutes, effective 1 January 1975, that review of administrative action is now by petition for review rather than by petition for certiorari, but until the Supreme Court adopts appellate rules governing -petitions for review of administrative orders, rules for such review are those governing certiorari as amplified by Section 120.68, Florida Statutes.
In City of Panama City v. Florida Public Employees Relations Commission et al., 333 So. 2d 470, opinion filed 5 May 1976, we stated that the filing of a petition for review does not itself stay enforcement of agency action, but that a stay may be granted - by the agency or by this Court upon appropriate terms. Section 120.68(3), Florida Statutes. Therefore, pursuant to Rule 5.5, Florida Appellate Rules, the mov-ant should apply to the agency for a stay or supersedeas.
We must consider the Department’s petition for writ of certiorari as a petition for review. The petition for review filed by the Department does not automatically stay the enforcement of the Commission’s order. If the Department desires to stay enforcement of the order, it should file its motion with the Commission for its consideration.
Accordingly, the motion for reconsideration is denied.
BOYER, C. J., and McCORD, J., concur.
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Amendments to the Florida Rules of Appellate Procedure, 685 So. 2d 773 (Fla. 1996)…jurisdiction is filed by the state or any other public body, other than in criminal cases, which are covered by rule 9.140(c)(3), but the lower tribunal may vacate the stay or require a bond. This rule supersedes Lewis v. Career Service Commission, 332 So. 2d 371 (Fla. 1st DCA1976). Subdivision (c) retains the substance of former rule 5.6, and states the mandatory conditions of the bond. Subdivision (d) retains the substance of former rule 5.11, with an additional provision for entry of judgment by the cou…
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In re Proposed Florida Appellate Rules, 351 So. 2d 981 (Fla. 1977)…ing jurisdiction is filed by the State or. any other public body, other than in criminal cases, which are covered by Rule 9.140(c)(2), but the lower tribunal may vacate the stay or require a bond. This rule supersedes Lewis v. Career Service Comm’n, 332 So. 2d 371 (Fla. 1st DCA 1976). Section (c) retains the substance of former Rule 5.6, and states the mandatory conditions of the bond. Section (d) retains the substance of former Rule 5.11, with an additional provision for entry of judgment by the court so t…
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Duval Cnty. Sch. Bd. v. Fla. Pub. Emps. Relations Comm'n & Duval Teachers United, Fea-Aft, AFL-CIO, 346 So. 2d 1087 (Fla. 1st DCA 1977)…ith, 260 So. 2d 489 (Fla.1972). See also Johnson v. State, 308 So. 2d 127 (Fla. 1st DCA 1975). Nevertheless we denied the Comptroller a Rule 5.12 stay on his petition under the APA for review of another agency’s action, Lewis v. Career Serv. Comm’n, 332 So. 2d 371 (Fla. 1st DCA 1976), and we held a municipality not entitled as of right to a Rule 5.12 stay on review of a PERC order not concerning unfair labor practices. Panama City v. PERC, 333 So. 2d 470 (Fla. 1st DCA 1976). In another context we noted that t…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Yamaha Int'l Corp. v. Ehrman, 318 So. 2d 196 (Fla. 1st DCA 1975)
- Panama City v. The Fla. Pub. Emps. Relations Comm'n, 333 So. 2d 470 (Fla. 1st DCA 1976)