BILLY J. MURPHY, PETITIONER,
v.
STATE OF FLORIDA, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, AND STATE OF FLORIDA RETIREMENT COMMISSION, RESPONDENTS
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The Florida District Court of Appeal held that when an administrative agency's final order is mailed to a party, the 30-day period for filing a petition for certiorari begins on the date the order is mailed plus an additional three days, following the precedent established in Dubin. Murphy's petition filed 33 days after the mailed order was thus timely, and the agency's motion to dismiss was denied.
The court held that the Dubin rule applies under the 1974 Administrative Procedure Act. Regardless of any verbal notice, the 30-day period for seeking judicial review of a final order that is required to be mailed under Section 120.59(4) begins three days after the order is mailed. Murphy's petition, filed 33 days after the mailed order, was timely.
[1] An agency's final order is not deemed complete for the purpose of calculating the time for seeking judicial review until three days following the date upon which the agen…
[2] The rationale of Dubin v. …
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Join FLexlaw to unlock all legal intelligence“is not deemed complete, and thus 'rendered', until three days following the date upon which the agency served its order on the party respondent by mail”
Establishes the Dubin rule that the rendering date for calculating appeal deadlines is three days after mailing, not the date the order is announced
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Join FLexlaw to unlock all legal intelligenceThe Retirement Commission issued a final order denying petitioner Murphy certain retirement benefits. The order was announced by voice vote at a publi…
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SMITH, Judge.
Respondent’s motion to dismiss Murphy’s petition for certiorari as untimely questions whether our decision in Dubin v. Department of Business Regulation, 252 So. 2d 290 (Fla. 1st DCA 1971) applies in the calculation of the time for filing a petition for review under the 1974 Administrative Procedure Act. Dubin held, in the context of the 1961 Administrative Procedure Act, that an agency’s adjudicatory decision
“. . . is not deemed complete, and thus ‘rendered’, until three days following the date upon which the agency served its order on the party respondent by mail.” 252 So. 2d at 292.
The petition in this case seeks certiorari review of the Retirement Commission’s order denying petitioner certain retirement benefits. The petition is in the form contemplated by our decision in Yamaha Int’l Corp. v. Ehrman, 318 So. 2d 196 (Fla. 1st DCA 1975), approved in Shevin v. Public Serv. Comm’n, 333 So. 2d 9 (Fla.1976). It was filed within thirty-three days, but not within thirty days, after a copy of the agency decision was mailed to petitioner. See Fla.App. Rules 3.2, 3.4. The respondent Commission urges the petition is untimely because the Commission’s decision was stated in the record by voice vote at a public meeting and petitioner was verbally notified of the decision the same day — more than thirty days before the petition for review was filed.
Section 120.59, Florida Statutes (1975) provides in relevant part:
“(1) The final order in a proceeding which affects substantial interests shall be in writing or stated in the record
“(4) Parties shall be notified either personally or by mail of any order, and, unless waived a copy of the final order shall be delivered or mailed to each party or to his attorney of record.”
By virtue of the quoted Section 120.59(4), the parties — who alone are conceivably interested in calculating the time for seeking judicial review — are entitled in the absence of waiver to notice of the final order affecting substantial interests by delivery or mailing of a copy. We conceive that, irrespective of any verbal notice an affécted party may have, the rationale of Dubin should be applied to the 1974 Administrative Procedure Act to add three days to the time for seeking judicial review of a final order which is required to be delivered or mailed to parties and which is mailed. Uncertainty would rule if the time for judicial review should be made to depend upon proof of the fact and extent of a party’s verbal notice of agency action.
In order to assure that affected parties have notice of their actions and that judicial review will be promptly sought, if at all, agencies should take care to comply with Section 120.59(4) immediately upon adopting a final order, and they should preserve in writing proof of service, as by appending to their orders appropriate certificates of the date of delivery or mailing. See Fox v. South Florida Regional Planning Council, 327 So. 2d 56, 59 (Fla. 1st DCA 1976).
The petition for review, having been filed within thirty-three days after the agency’s order was mailed to petitioner, was timely. The motion to dismiss is
DENIED.
RAWLS, Acting C. J., and MILLS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Franchi v. Fla. Dep't of Commerce, 375 So. 2d 1154 (Fla. 4th DCA 1979)…ascertain when the person affected thereby was promptly notified and thus to deem the order “rendered” for purposes of initiating further review when the person affected received notice. See also Murphy v. State Dept. of Admin., Div. of Retirement, 342 So. 2d 147 (Fla. 1st DCA 1977). However, the necessity for developing a scheme to determine when an administrative order was rendered ended with the adoption of the new appellate rules. Fla.R.App.P. 9.020(g) defines the rendition of an order as the filing of…
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Colonnades, Inc. v. Florida Dept. of Commerce, 357 So. 2d 238 (Fla. 1st DCA 1978)…do, that local governments minimize the uncertainty of the rendition dates of their order by appending to them appropriate certificates of the transmittal dates." (327 So. 2d at page 59) And again in Murphy v. State, Dept. of Admin., Div. of Ret., 342 So. 2d 147 (Fla.App. 1 1977) the same author, citing Fox v. South Florida Regional Planning Council, supra, wrote: "In order to assure that affected parties have notice of their actions and that judicial review will be promptly sought, if at all, agencies sho…1 / 2
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Colonnades, Inc. v. Fla. Dep't OF Commerce, 357 So. 2d 233 (Fla. 1st DCA 1978)…do, that local governments minimize the uncertainty of the rendition dates of their order by appending to them appropriate certificates of the transmittal dates.” (327 So. 2d at page 59) And again in Murphy v. State, Dept. of Admin., Div. of Ret., 342 So. 2d 147 (Fla.App. 1 1977) the same author, citing Fox v. South Florida Regional Planning Council, supra, wrote: “In order to assure that affected parties have notice of their actions and that judicial review will be promptly sought, if at all, agencies sho…1 / 2
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
- Shevin v. Pub. Serv. Comm'n, 333 So. 2d 9 (Fla. 1976)
- Yamaha Int'l Corp. v. Ehrman, 318 So. 2d 196 (Fla. 1st DCA 1975)
- Midgahl v. Captain DeBOIS, 252 So. 2d 290 (Fla. 4th DCA 1971)
- FOX v. The S. Fla. Reg'l Planning Council & the Fla. Land & Water Adjudicatory Comm'n, 327 So. 2d 56 (Fla. 1st DCA 1976)