CHARLES E. NELSON AND ARTHUR ANDERSON & CO., PETITIONERS,
v.
STATE BOARD OF ACCOUNTANCY, DIVISION OF PROFESSIONS, DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION, RESPONDENT
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Charles E. Nelson and Arthur Anderson & Co. petitioned for review of an administrative action by the State Board of Accountancy arising from a complaint that they violated certain statutes and rules. The court held that the Board properly initiated the complaint process and that petitioners' challenge to the Board's probable cause findings should be directed to the administrative hearing officer rather than to the court at this preliminary stage.
The court lacks subject matter jurisdiction to review the preliminary agency action at this stage. The hearing officer has authority to make preliminary rulings on the legality of the Board's probable cause findings, and ultimate review of the final agency decision by the court will provide an adequate remedy to petitioners.
[1] A petition for review of preliminary, procedural, or intermediate agency action is not properly before an appellate court when a final agency decision will provide an ade…
[2] An appellate court lacks subject matter jurisdiction to review intermediate agency actions if a final agency decision offers an adequate remedy.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is our ruling that the hearing officer has authority to make such preliminary ruling which will, of course, be subject to ultimate review by this Court; that such ultimate review of final agency action will provide an adequate remedy to petitioner.”
Establishes that the hearing officer, not the appellate court, is the proper forum for the preliminary challenge to the Board's probable cause findings.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe State Board of Accountancy filed a complaint against Nelson and Arthur Anderson & Co., alleging violations of certain statutes and rules. The comp…
The full statement of facts, procedural history, and disposition for this case are member content.
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McCORD, Chief Judge.
This cause is before the court on the petition of Charles E. Nelson and Arthur Anderson & Co., for review of preliminary, procedural, or intermediate agency action pursuant to § 120.68(1), Florida Statutes (1975), and on the State Board of Accountancy’s motion to dismiss the petition for review. Pursuant to § 473.261(4), Florida Statutes (1975), respondent filed a complaint against the petitioners purportedly based upon findings by respondent that petitioners had violated certain statutes and rules of respondent. The complaint is now pending before the Division of Administrative Hearings under § 120.57(1), Florida Statutes (1975), upon petitioners’ request for hearing.
Petitioners contend that respondent Board failed to comply with requirements of law essential to probable cause findings against petitioner. Respondent, by its motion to dismiss, contends that this Court lacks subject matter jurisdiction under § 120.68, Florida Statutes, in that review of the final agency decision will provide an adequate remedy to petitioners. It appears that petitioners have raised before the hearing officer the question which they now raise here, and the hearing officer has not ruled upon such question. Petitioners are in doubt whether or not the hearing officer has authority to make such ruling and by this proceeding seeks this Court’s ruling in lieu of a ruling by the hearing officer. It is our ruling that the hearing officer has authority to make such preliminary ruling which will, of course, be subject to ultimate review by this Court; that such ultimate review of final agency action will provide an adequate remedy to petitioner. The petition for review is dismissed.
BOYER, J., and MASON, ERNEST E., Associate Judge, concur.
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Dep't OF Prof'l Reg. v. John H. LeBARON, D.D.S., 443 So. 2d 225 (Fla. 1st DCA 1983)…is only entitled to immediate non-final review if ultimate review of the final agency action will not provide an adequate remedy. Nelson v. State Board of Accountancy, Division of Professions, Department of Professional and Occupational Regulation, 355 So. 2d 216 (Fla. 1st DCA 1978). Cf., Boedy, supra, indicating that a challenge to an agency’s power to act at all — because the agency is assuming regulatory powers not granted by the pertinent statutes — is “the sort of issue that may qualify, depending on th…
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Fla. Real Est. Comm'n v. Frost, 373 So. 2d 939 (Fla. 4th DCA 1979)…the Hearing Officer is to hear the facts and recommend disposition. We disagree with the petitioner and agree with the holding in Nelson v. State Board of Accountancy, Division of Professions, Department of Professional and Occupational Regulation, 355 So. 2d 216 (Fla. 1 DCA 1978) which says Hearing Officers have authority to make preliminary rulings on motions to dismiss cases properly before them. CERTIORARI DENIED. ANSTEAD and MOORE, JJ., concur. . Section 120.60(5), Florida Statutes (1977): No revoca…
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Morry S. FOX v. Fla. State Bd. of Osteopathic Med. Exam'rs, 366 So. 2d 515 (Fla. 1st DCA 1979)…motion to dismiss the administrative complaint was filed below, the hearing officer has never ruled upon its propriety, and I consider it premature for us to do so now. In my opinion, this case is controlled by Nelson v. State Board of Accountancy, 355 So. 2d 216 (Fla. 1st DCA 1978), where the Board filed a complaint against Nelson alleging that he had violated certain rules and statutes of the board. Prior to any decision by the hearing officer on the propriety of the complaint, Nelson petitioned for review…