ROBERT A. PETERSON, PETITIONER,
v.
THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, RESPONDENT
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Peterson sought judicial review of an adverse Department of Environmental Regulation order by petitioning the Florida District Court of Appeal without first exhausting his administrative remedy of appeal to the Environmental Regulation Commission. The court dismissed the petition, holding that the Administrative Procedure Act requires exhaustion of the Commission appeal before judicial review is available.
Yes. Sections 403.171, 403.121(3), and 403.804(1) must be construed to require that review by the Commission be exhausted before judicial review can commence in the courts.
[1] A party aggrieved by an action of the Department of Environmental Regulation must exhaust administrative remedies by appealing to the Environmental Regulation Commission…
[2] Statutory provisions granting judicial review of agency action are reconciled to require exhaustion of administrative remedies when a later statute creates an adjudicator…
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Join FLexlaw to unlock all legal intelligence“Any party aggrieved by any action of the department may seek appropriate judicial review”
Section 403.171 provides the general right to judicial review but does not specify the procedure or timing
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Join FLexlaw to unlock all legal intelligenceThe Department of Environmental Regulation entered an order adverse to Mr. Peterson. Peterson filed a notice of appeal with the Environmental Regulati…
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MILLS, Acting Chief Judge.
The Department of Environmental Regulation (Department) entered an order adverse to Mr. Peterson. He filed a notice of appeal with the Environmental Regulation Commission (Commission) and filed a petition for review with this court. The Department has moved to dismiss the petition filed here because Mr. Peterson has not exhausted the administrative remedy of appeal to the Commission. We agree and grant the motion to dismiss.
Section 403.171, Florida Statutes (1975), enacted in 1967, provides that “Any party aggrieved by any action of the department may seek appropriate judicial review”.
Section 403.121(3), Florida Statutes (1975), enacted in 1967, provides that every order of the department is reviewable only in accordance with the Administrative Procedure Act.
In 1975, by Section 20.261(3), Florida Statutes (1975), the legislature created the Commission and by Section 403.804(1), Florida Statutes (1975), provided that “The commission shall also act as an adjudicatory body for final actions taken by the department, except for those appeals and decisions authorized in ss. 20.261(12) and 253.76”. Subsequently, after public notice and hearing, the Department adopted rules governing appeals of its final orders to the Commission. Section 120.53(2)(b), Florida Statutes (1975). The rules were published by the Secretary of State and are set forth in Chapter 17-1, Part III of the Florida Administrative Code. Section 120.55(l)(b), Florida Statutes (1975).
The provisions of Sections 403.171 and 403.121(3), and 403.804(1) are inconsistent. If possible, we must construe the inconsistencies so as to reconcile them. Wiggins v. State, 101 So. 2d 833 (Fla. 1st DCA 1958). Otherwise, we must resolve the inconsistencies in favor of the last expression of the legislative will. Cable-Vision, Inc. v. Freeman, 324 So. 2d 149 (Fla. 3d DCA 1976).
The inconsistencies of Sections 403.-171 and 403.121(3), and 403.804(1) can be reconciled by construing them to provide for judicial review of final agency action after review of the action by the Commission. This construction also gives effect to the last expression of the legislature. We so construe them.
Having so construed Sections 403.171, 403.121(3) and 403.804(1), the review action by the Commission must be exhausted before judicial review can commence here. Phillips v. Santa Fe Community College, 342 So. 2d 108 (Fla. 1st DCA 1977).
The Department’s motion to dismiss is granted.
SMITH and ERVIN, JJ., concur.
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State v. Falls Chase Special Taxing Dist., 424 So. 2d 787 (Fla. 1st DCA 1982)…Department’s declaratory statement or other final agency action, and for briefing.11 The Commission’s action was subject, in turn, to section 120.68 appellate review in a district court of appeal. Peterson v. Department of Environmental Regulation, 350 So. 2d 544 (Fla. 1st DCA 1977); Booker Creek Preservation, Inc. v. Department of Environmental Regulation, 369 So. 2d 655 (Fla. 2d DCA 1979). Had Falls Chase, Sunshine and Elba pursued this remedy in March 1979, when the dispute arose, this rather clearcut is…
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Hill v. Division OF Retirement, 687 So. 2d 1376 (Fla. 1st DCA 1997)…egulation, Div. of Land Sales, Condominiums, and Mobile Homes, 502 So. 2d 456, 459 (Fla. 1st DCA 1986). Accord Middlebrooks v. St. Johns River Water Management Dist., 529 So. 2d 1167 (Fla. 5th DCA 1988); Peterson v. State Dep’t of Envtl. Regulation, 350 So. 2d 544 (Fla. 1st DCA 1977). In its order in the present case, the State Retirement Commission dismissed a petition on res judicata grounds without a hearing, citing Thomson v. Department of Environmental Regulation, 511 So. 2d 989 (Fla.1987). As recently…
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KEY Haven Associated Enters., Inc. v. Bd. OF Trs. OF the Internal Improvement Tr. Fund & Dept. of Env't Reg., 400 So. 2d 66 (Fla. 1st DCA 1981)…elf of such additional appeals within the executive branch as are provided by statute. See Friends of the Everglades v. State Dept. of Environmental Regulation, 387 So. 2d 511 (Fla. 1st DCA 1980); Peterson v. State Dept. of Environmental Regulation, 350 So. 2d 544 (Fla. 1st DCA 1977); Booker Creek Preservation, Inc. v. Dept. of Environmental Regulation, 369 So. 2d 655 (Fla. 2d DCA 1979). . The record of a 1975 conference shows that Key Haven’s president, when asked by state officials if he would consider sel…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wiggins v. State, 101 So. 2d 833 (Fla. 1st DCA 1958)
- Cable-Vision, Inc. v. Freeman, 324 So. 2d 149 (Fla. 3d DCA 1975)
- Phillips v. Santa FE Cmty. Coll., 342 So. 2d 108 (Fla. 1st DCA 1977)