FLORIDA DEPARTMENT OF TRANSPORTATION, APPELLANT,
v.
FOSTER AND KLEISER, INC., APPELLEE
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Florida Department of Transportation's appeal of an administrative order invalidating a rule is reversed and remanded because while the statutory filing deadline was mandatory, the agency must be given an opportunity to demonstrate that the deadline violation did not impair fairness or correctness under Section 120.68(8).
Although the time period for filing a proposed rule is mandatory under Section 120.54(11)(b), invalidation is not automatic; instead, the effect of any violation must be measured by whether it impaired the fairness of the proceeding or correctness of the action under Section 120.68(8).
[1] A violation of the mandatory time period for filing a proposed administrative rule does not automatically require invalidation; instead, the court must examine whether th…
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Join FLexlaw to unlock all legal intelligence“the time period prescribed by the statute is mandatory, but we will measure the effect of its violation by the provisions of Section 120.68(8)”
Court's resolution of the competing interpretations of the statute's requirements
The Florida Department of Transportation failed to file a proposed administrative rule with the Department of State within 45 days after publication i…
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BOYER, Acting Chief Judge.
DOT appeals an administrative order invalidating Fla.Admin.Code Rule 14-10.06 on the grounds that the proposed rule was not filed with the Department of State within 45 days after publication in the Florida Administrative Weekly, in violation of Section 120.54(ll)(b), Fla.Stat. (Supp.1976). DOT argues here, as it did before the hearing officer, that violations of the time frames provided for in Section 120.54 do not require invalidation unless the agency’s action impairs the fairness of the proceeding or the correctness of the action, relying on Section 120.68(8), Fla.Stat. (Supp.1976). Appellee argued to the hearing officer, and now here, that the mandatory language of Section 120.54(ll)(b) requires invalidation of the rule if there is not strict compliance with the time frames.
We conclude that the time period prescribed by the statute is mandatory, but we will measure the effect of its violation by the provisions of Section 120.68(8). G & B of Jacksonville, Inc. v. State, Dept. of Business Regulation, Div. of Beverage, 362 So. 2d 951 (Fla.lst DCA 1978). (See also City of Panama City, Florida v. Florida Public Employees Relations Commission, 364 So. 2d 109 (Fla.lst DCA 1978.) Although an examination of the record in this case does not reveal that the fairness of the proceedings nor the correctness of the action taken have been impaired by the delay, it appears that appellee was not afforded an opportunity to demonstrate prejudice. Accordingly, we REVERSE and REMAND for further proceedings not inconsistent with this opinion.
MILLS and BOOTH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- G & B OF Jacksonville, Inc. v. State, 362 So. 2d 951 (Fla. 1st DCA 1978)
- City OF Panama City v. The Fla. Pub. Emps. Relations Comm'n, 364 So. 2d 109 (Fla. 1st DCA 1978)