RULE 9.190. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION

(a) Applicability. Judicial review of administrative action
will be as in civil cases except as specifically modified by this rule.

(b) Commencement.
(1) An appeal from final agency action as defined in the
Administrative Procedure Act, chapter 120, Florida Statutes,
including immediate final orders entered under section
120.569(2)(n), Florida Statutes, or other administrative action for
which judicial review is provided by general law must be
commenced in accordance with rule 9.110(c).

(2) Review of nonfinal agency action under the
Administrative Procedure Act, including nonfinal action by an
administrative law judge, and agency orders entered under section
120.60(6), Florida Statutes, must be commenced by filing a petition
for review in accordance with rules 9.100(b) and (c).

(3) Review of quasi-judicial decisions of any
administrative body, agency, board, or commission not subject to
the Administrative Procedure Act must be commenced by filing a
petition for certiorari in accordance with rules 9.100(b) and (c),
unless judicial review by appeal is provided by general law.

(c) The Record.

(1) Generally. As further described in this rule, the
record must include only materials furnished to and reviewed by
the lower tribunal in advance of the administrative action to be
reviewed by the court.

(2) Review of Final Action Under the Administrative
Procedure Act.

(A) Proceedings Involving Disputed Issues of
Material Fact. In an appeal from any proceeding under sections
120.569 and 120.57(1), Florida Statutes, the record will consist of
all notices, pleadings, motions, and intermediate rulings; evidence
admitted; those matters officially recognized; proffers of proof and
objections and rulings thereon; proposed findings and exceptions;
any decision, opinion, order, or report by the presiding officer; all
staff memoranda or data submitted to the presiding officer during
the hearing or before its disposition, after notice of submission to all
parties, except communications by advisory staff as permitted
under section 120.66(1), Florida Statutes, if such communications
are public records; all matters placed on the record after an ex
parte communication; and the official transcript.

(B) Proceedings Not Involving Disputed Issues of
Material Fact. In an appeal from any proceeding under sections
120.569 and 120.57(2), Florida Statutes, the record will consist of
the notice and summary of grounds; evidence received; all written
statements submitted; any decisions overruling objections; all
matters placed on the record after an ex parte communication; the
official transcript; and any decision, opinion, order, or report by the
presiding officer.

(C) Declaratory Statements. In an appeal from any
proceeding under section 120.565, Florida Statutes, the record will
consist of the petition seeking a declaratory statement and any
pleadings filed with the agency; all notices relating to the petition
published in the Florida Administrative Register; the declaratory
statement issued by the agency or the agency’s denial of the
petition; and all matters listed in subdivision (c)(2)(A) or (c)(2)(B) of
this rule, whichever is appropriate, if a hearing is held on the
declaratory statement petition.

(D) Summary Hearings. In an appeal from any
proceeding under section 120.574, Florida Statutes, the record will
consist of all notices, pleadings, motions, and intermediate rulings;
evidence received; a statement of matters officially recognized;
proffers of proof and objections and rulings thereon; matters placed
on the record after an ex parte communication; the written decision
of the administrative law judge presiding at the final hearing; and
the official transcript of the final hearing.

(E) Challenges to Rules.

(i) In an appeal from any proceeding
conducted under section 120.56, Florida Statutes, the record will
consist of all notices, pleadings, motions, and intermediate rulings;
evidence admitted; those matters officially recognized; proffers of
proof and objections and rulings thereon; proposed findings and
exceptions; any decision, opinion, order, or report by the presiding
officer; all staff memoranda or data submitted to the presiding
officer during the hearing or before its disposition, after notice of
submission to all parties, except communications by advisory staff
as permitted under section 120.66(1), Florida Statutes, if such
communications are public records; all matters placed on the
record after an ex parte communication; and the official transcript.

(ii) In an appeal from a rule adoption under
sections 120.54 or 120.68(9), Florida Statutes, in which the sole
issue presented by the petition is the constitutionality of a rule and
there are no disputed issues of fact, the record will consist only of
those documents from the rulemaking record compiled by the
agency that materially address the constitutional issue. The
agency’s rulemaking record consists of all notices given for the
proposed rule; any statement of estimated regulatory costs for the
rule; a written summary of hearings on the proposed rule; the
written comments and responses to written comments as required
by sections 120.54 and 120.541, Florida Statutes; all notices and
findings made under section 120.54(4), Florida Statutes; all
materials filed by the agency with the Administrative Procedures
Committee under section 120.54(3), Florida Statutes; all materials
filed with the Department of State under section 120.54(3), Florida
Statutes; and all written inquiries from standing committees of the
legislature concerning the rule.

(F) Immediate Final Orders. In an appeal from an
immediate final order entered under section 120.569(2)(n), Florida
Statutes, the record must be compiled in an appendix pursuant to
rule 9.220 and served with the briefs.

(3) Review of Nonfinal Action Pursuant to the
Administrative Procedure Act. The provisions of rules 9.100 and
9.220 govern the record in proceedings seeking review of nonfinal
administrative action.

(4) Review of Administrative Action Not Subject to the
Administrative Procedure Act. In proceedings seeking review of
administrative action not governed by the Administrative Procedure
Act, the clerk of the lower tribunal is not required to prepare a
record or record index. The petitioner or the appellant must submit
an appendix in accordance with rule 9.220. Supplemental
appendices may be submitted by any party. Appendices must not
contain any matter not made part of the record in the lower
tribunal.

(5) Videotaped Testimony. In any circumstance in
which hearing testimony is preserved through the use of videotape
rather than through an official transcript, the testimony from the
videotape must be transcribed and the transcript must be made a
part of the record before the record is transmitted to the court.

(6) Modified Record. The contents of the record may be
modified as provided in rule 9.200(a)(3).

(d) Attorneys’ Fees.

(1) Attorneys’ Fees. A motion for attorneys’ fees must
be served under rule 9.400(b).

(2) Disputes As To Amount. If the court decides to
award attorneys’ fees, the court may either remand the matter to
the lower tribunal or to the administrative law judge for
determination of the amount, or refer the matter to a special
magistrate.

(3) Review. Review of orders entered by the lower
tribunal or the administrative law judge will be conducted under
9.400(c). Objections to reports of special magistrates must be filed
with the court within 30 days after the special magistrate’s report is
filed with the court.

(e) Stays Pending Review.

(1) Effect of Initiating Review. The filing of a notice of
administrative appeal or a petition seeking review of administrative
action will not operate as a stay, except that such filing will give rise
to an automatic stay under rule 9.310(b)(2) or chapter 120, Florida
Statutes, or when timely review is sought of an award by an
administrative law judge on a claim for birth-related neurological
injuries.

(2) Application for Stay Under the Administrative
Procedure Act.

(A) A party seeking to stay administrative action
may file a motion either with the lower tribunal or, for good cause
shown, with the court in which the notice or petition has been filed.
The filing of the motion will not operate as a stay. The lower
tribunal or court may grant a stay on appropriate terms. Review of
orders entered by lower tribunals will be by the court on motion.

(B) When an agency has ordered emergency
suspension, restriction, or limitations of a license under section
120.60(6), Florida Statutes, or issued an immediate final order
under section 120.569(2)(n), Florida Statutes, the affected party
may file with the reviewing court a motion for stay on an expedited
basis. The court may issue an order to show cause and, after
considering the agency’s response, if timely filed, grant a stay on
appropriate terms.

(C) When an agency has suspended or revoked a
license other than on an emergency basis, a licensee may file with
the court a motion for stay on an expedited basis. The agency may
file a response within 10 days of the filing of the motion, or within a
shorter time period set by the court. Unless the agency files a timely
response demonstrating that a stay would constitute a probable
danger to the health, safety, or welfare of the state, the court must
grant the motion and issue a stay.

(D) When an order suspending or revoking a
license has been stayed under subdivision (e)(2)(C), an agency may
apply to the court for dissolution or modification of the stay on
grounds that subsequently acquired information demonstrates that
failure to dissolve or modify the stay would constitute a probable
danger to the public health, safety, or welfare of the state.
(3) Application for Stay or Supersedeas of Other
Administrative Action. A party seeking to stay administrative action,
not governed by the Administrative Procedure Act, must file a
motion in the lower tribunal, which has continuing jurisdiction, in
its discretion, to grant, modify, or deny such relief. A stay pending
review may be conditioned on the posting of a good and sufficient
bond, other conditions, or both. Review of orders entered by lower
tribunals will be by the court on motion.

(4) Duration. A stay entered by a lower tribunal or a
court will remain in effect during the pendency of all review
proceedings in Florida courts until a mandate issues, unless
otherwise modified or vacated.

Committee Notes

1996 Amendment. Appeals which fall within the exception
included in subdivision (b)(3) are commenced in accordance with
subdivision (b)(1). Therefore, administrative action by appeal in a
circuit court, if prescribed by general law, is commenced pursuant
to subdivision (b)(1). Unless review of administrative action in
circuit court is prescribed by general law to be by appeal, review in
circuit court is by petition for an extraordinary writ commenced
pursuant to subdivision (b)(3). See Board of County Commissioners
v. Snyder, 627 So. 2d 469 (Fla. 1993); Grace v. Town of Palm Beach,
656 So. 2d 945 (Fla. 4th DCA 1995). Subdivision (b)(3) supersedes
all local government charters, ordinances, rules and regulations
which purport to provide a method of review in conflict herewith.

Subdivision (c) was adopted to identify more clearly what
constitutes the record in appeals from administrative proceedings.
Several sections of the Florida Administrative Procedure Act, as
revised in 1996, specifically state what shall constitute the record in
certain types of proceedings, and this rule incorporates that
statutory language. The rule makes clear that the record shall
include only materials that were furnished to and reviewed by the
lower tribunal in advance of the administrative action to be
reviewed. The intent of this statement is to avoid the inclusion of
extraneous materials in the record that were never reviewed by the
lower tribunal.

Subdivision (c)(2)(A) is based on provisions of section
120.57(1)(f), Florida Statutes. This subdivision of the rule governs
the record from proceedings conducted pursuant to section 120.56
and sections 120.569 and 120.57(1), Florida Statutes. This is
because section 120.56(1)(e), Florida Statutes, states that hearings
under section 120.56, Florida Statutes, shall be conducted in the
same manner as provided by sections 120.569 and 120.57, Florida
Statutes.

Subdivision (c)(2)(B) lists the provisions of section 120.57(2)(b),
Florida Statutes. Subdivision (c)(2)(B)(vii), which refers to “any
decision, opinion, order, or report by the presiding officer,” was
added by the committee to the list of statutory requirements.

Subdivision (c)(2)(C) addresses the record on appeal from
declaratory statement requests pursuant to section 120.565, while
subdivision (c)(2)(D) lists the provisions of section 120.574(2)(d),
Florida Statutes. Subdivision (c)(2)(E) of the rule addresses
proceedings governed by sections 120.54 and 120.68(9), Florida
Statutes. The definition of the rulemaking record tracks language in
section 120.54(8), Florida Statutes.

Subdivision (c)(3) makes clear that rules 9.100 and 9.220
govern the record in proceedings seeking review of non-final
administrative action, while subdivision (c)(4) governs the record in
administrative proceedings not subject to the Administrative
Procedure Act.

Subdivision (c)(5) states that if videotape is used to preserve
hearing testimony, the videotape shall be transcribed before the
record is transmitted to the court.

Subdivision (d) was adopted to conform to the 1996 revisions
to the Administrative Procedure Act. Recoupment of costs is still
governed by rule 9.400.
2000 Amendment. Subdivision (e) was added to address
stays pending judicial review of administrative action. Ordinarily,
application for a stay must first be made to the lower tribunal, but
some agencies have collegial heads who meet only occasionally. If a
party can show good cause for applying initially to the court for a
stay, it may do so. When an appeal has been taken from a license
suspension or revocation under the Administrative Procedure Act,
good cause for not applying first to the lower tribunal is presumed.

Subdivision (e)(2)(B) deals with stays of orders which suspend
licenses on an emergency basis. Before entering an emergency
suspension order, the agency must make a finding that immediate
suspension is necessary to protect the public health, safety, or
welfare. § 120.60(6), Fla. Stat. (1999). In effect, the agency makes a
finding that would be sufficient to defeat issuance of the “stay as a
matter of right” contemplated by section 120.68(3), Florida
Statutes. The agency’s finding is subject to judicial review, however,
on application for a stay under subdivision (e)(2)(B).

Absent an emergency suspension order, the court grants a
stay as of right in Administrative Procedure Act license suspension
and revocation cases unless the licensing agency makes a timely
showing that a stay “would constitute a probable danger to the
health, safety, or welfare of the state.” § 120.68(3), Fla. Stat. (1999).
The court can shorten the 10 day period specified in subdivision
(e)(2)(c). If the court stays a nonemergency suspension or
revocation, the licensing agency can move to modify or dissolve the
stay on the basis of material information that comes to light after
the stay is issued.

Nothing in subdivision (e) precludes licensing agencies from
making suspension or revocation orders effective 30 days after
entry, granting stays pending judicial review, or taking other steps
to implement section 120.68(3), Florida Statutes.

2004 Amendment. Subdivision (e)(2)(C) was amended to
clarify that the ten days (or shorter period set by the court) within
which the agency has to respond runs from the filing of the motion
for stay. See Ludwig v. Dept. of Health, 778 So. 2d 531 (Fla. 1st
DCA 2001).
2011 Amendment. Subdivisions (b)(1) and (b)(2) were
amended to clarify the procedures for seeking judicial review of
immediate final orders and emergency orders suspending,
restricting, or limiting a license. Subdivision (c)(2)(F) was added and
subdivision (c)(2) was amended to clarify the record for purposes of
judicial review of immediate final orders.