CRAIG BUTTERFIELD, APPELLANT,
v.
DEPARTMENT OF ENVIRONMENTAL REGULATION, STATE OF FLORIDA, APPELLEE
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The Florida Fifth District Court of Appeal dismissed an appeal because the appellant failed to timely file his notice of appeal with the correct tribunal. Although the appellant filed a notice of appeal with the Division of Administrative Hearings within thirty days of the hearing officer's recommended order, he was required to file with the Department of Environmental Regulation (DER) within thirty days of DER's final agency order adopting that recommendation.
Filing the notice of appeal with the Division of Administrative Hearings does not satisfy the jurisdictional requirement. The notice of appeal must be filed with DER, the lower tribunal whose final order is being reviewed, within thirty days of that final order. The hearing officer's recommended order is not the order to be reviewed; DER's final agency action is the order subject to judicial review.
[1] A notice of appeal must be filed with the clerk of the lower tribunal within thirty days of the rendition of the order to be reviewed to invoke appellate jurisdiction.
[2] The Division of Administrative Hearings is not the lower tribunal for the purpose of filing a notice of appeal when the agency's final order adopts a hearing officer's re…
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Join FLexlaw to unlock all legal intelligence“Pursuant to Florida Rule of Appellate Procedure 9.110(b) and (c), a party seeking judicial review of administrative action must invoke this court's jurisdiction by filing one copy of a notice of appeal with the clerk of the lower tribunal, and a second copy along with the filing fee with the court, within thirty days of rendition of the order to be reviewed.”
Establishes the mandatory jurisdictional requirement for timely filing a notice of appeal in the correct tribunal.
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Join FLexlaw to unlock all legal intelligenceDER issued a final order on February 25, 1985, adopting in its entirety the hearing officer's recommended order from a formal administrative adjudicat…
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DAUKSCH, Judge.
ON MOTION TO DISMISS
This case is before the court on appellee, Department of Environmental Regulation’s (DER), motion to dismiss the appeal. We grant the motion because appellant did not timely file his notice of appeal in the lower tribunal as Florida Rule of Appellate Procedure 9.110(b) requires.
On February 25, 1985, DER rendered a final order which adopted the hearing officer’s recommended order. Appellant timely filed a notice of appeal with the Division of Administrative Hearings, which provided the hearing officer who presided at the hearing in the instant administrative, formal adjudication under section 120.57(1), Florida Statutes (1983). However, appellant did not file a notice of appeal in the DER or in this court until eight days after the expiration of the thirty day period provided for in Rule 9.110(b).'
Appellant admits he did not file a notice of appeal in the DER until after thirty days from rendition of DER’s final order. Appellant submits, however, that filing the notice with the Division of Administrative Hearings is sufficient to invoke this court’s jurisdiction because DER, in its final order, merely adopted the recommended order of the Division’s hearing officer. Pursuant to Florida Rule of Appellate Procedure 9.110(b) and (c), a party seeking judicial review of administrative action must invoke this court’s jurisdiction by filing one copy of a notice of appeal with the clerk of the lower tribunal, and a second copy along with the filing fee with the court, within thirty days of rendition of the order to be reviewed. Rule 9.020(d) defines a lower tribunal as “[t]he court, agency, ... or body whose order is to be reviewed.” The hearing officer’s recommended order is not the order to be reviewed notwithstanding the fact that DER adopted the recommended order in toto in its final order. DER was under no obligation to adopt the hearing officer’s recommended order. See § 120.57(l)(b)9, Fla.Stat. (1983). Since the hearing officer’s recommended order is not the order to be reviewed, the Division of Administrative Hearings is not the lower tribunal for purposes of filing a notice of appeal.
Section 120.68(1), Florida Statutes (1983) secures judicial review for “[a] party who is adversely affected by final agency action.” In Bureau of Community Med. Fac., etc. v. Samson, 341 So. 2d 1071 (Fla. 1st DCA 1977), the court held that a hearing officer designated to conduct a formal administrative hearing was not an “agency” for purposes of rendering final agency action and thus, his order was not subject to judicial review. Appellant did not invoke this court's jurisdiction when he mailed his notice of appeal to the Division of Administrative Hearings within thirty days after DER rendered its final order. He should have followed the instructions in the final order, and filed the Notice with DER. APPEAL DISMISSED.
SHARP, and COWART, JJ., concur.
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Broxton v. State Bd. OF Educ., 601 So. 2d 1292 (Fla. 5th DCA 1992)…DAUKSCH, Judge. ON MOTION TO DISMISS Appellee moves to dismiss this appeal on the basis that this court lacks jurisdiction because the notice of appeal was not timely filed. He cites Butterfield v. Dept. of Environmental Regulation, 470 So. 2d 95 (Fla. 5th DCA 1985) as authority and says that because appellant did not file the notice of appeal with the agency clerk, the Department of Education, within the proper time — thirty days from the rendering of the decision below — that this court sh…
Authorities Cited
- Boggs v. AETNA Cas. & Sur. Co., 341 So. 2d 1071 (Fla. 1st DCA 1977)
- Bureau OF Cmty. Med. Facilities Planning OF Dep't OF Health & Rehabilitative Servs. v. Samson, 341 So. 2d 1071 (Fla. 1st DCA 1977)