Florida/Georgia Personal Injury & Workers Compensation

...for authority to organize and operate First Bank of Port Richey. Here they seek judicial review of the Department's final order which denied their application after formal proceedings were conducted under the Administrative Procedure *574 Act (APA), Section 120.57, [1] by a hearing officer of the Division of Administrative Hearings....

...tisfaction of subsections 659.03(2)(c) through (f). Petitioners thereupon requested that formal proceedings be conducted as required by the APA when a party's substantial interests are to be determined and there is a disputed issue of material fact. Section 120.57(1)....

...Litigation ensued in the Leon County circuit court, as a result of which, on January 6, 1976, the court found Comptroller Lewis had agreed to process bank charter applications in accordance with the newly effective APA [4] and ordered formal proceedings under Section 120.57(1). Comptroller Lewis, though authorized as agency head to conduct formal proceedings under Section 120.57(1), referred the matter to the Division of Administrative Hearings, whose assigned hearing officer, Diane D....

...of of incipient policy not expressed in rules and permits countervailing evidence and argument; and (3) it requires an agency to explain the exercise of its discretion and subjects that explanation to judicial review. 1. When the facts are disputed, Section 120.57(1) prescribes a trial type proceeding to find the facts on which the agency's discretion is permitted to operate....

...Except when an agency acts by formal rulemaking (Section 120.54) or by declaratory statement concerning the applicability of a statute, rule or order (Section 120.565), all agency action, on appropriate challenge, will mature into an order impressed with characteristics of the APA's Section 120.57. *578 A party whose substantial interests are or will be affected by agency action is entitled to a Section 120.57 hearing....

...nally conduct all formal proceedings on bank applications, requested assignment of a hearing officer. In consequence, the Department was required to honor the hearing officer's findings of fact unless "not based upon competent substantial evidence." Section 120.57(1)(b)9; Venetian Shores Home & Prop....

...We are therefore free to reconcile the potentially conflicting statutory demands by adopting Universal Camera's standard of judicial review. The Florida APA, like the federal, makes the hearing officer's recommended order part of the record in the reviewing court. Section 120.57(1)(b); 120.68(5)(a)....

...rable from review of agency "determinations of ... policy within the agency's exercise of delegated discretion." Section 120.68(7). 2. Sections 120.52(14) and .54 require that agency policy statements of general applicability be adopted as rules and Section 120.57 requires proof of incipient agency policy not expressed in rules and subjects it to countervailing evidence and argument....

...Code Rules 3-3, 3C-10. Proceedings on petitioners' application for banking authority followed the Department's prescribed informal procedures through investigation, hearing, and "final" decision, all before petitioners requested formal proceedings under Section 120.57(1)....

...[6] Therefore we have recognized the availability of an administrative remedy against any agency policy statement of general applicability which has not been adopted through rulemaking. Section 120.56; Dep't of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA, 1977). A remedy is available also in Section 120.57 proceedings affecting a party's substantial interests....

...y, public debate, review by the Administrative Procedures Committee and finally publication in the Florida Administrative Code. Given such strictures on policy utterance, public information concerning agency purpose would vanish. Agency orders under Section 120.57 and agency declaratory statements of the applicability of its rules, Section 120.565, would tend to become arid, unreasoning edicts because explanation and interpretation, without rulemaking, would be held fatal to the intended action....

...ovisions, agency procedures for argument of policy issues before the agency. In informal proceedings affecting a party's substantial interests, the agency is required to state and entertain challenges to the "policy grounds" for its intended action. Section 120.57(2)(a)1, 2. The agency's final order in 120.57 proceedings must describe its "policy within the agency's exercise of delegated discretion" sufficiently for judicial review....

...n and copying by the public in an ever-expanding library of precedents to which the agency must adhere or explain its deviation. Sections 120.53(2), 120.68(12)(b). The APA's provision for agency policymaking by adjudication has significant effect on Section 120.57(1) proceedings, such as those before us now, in which a party's substantial interests are determined and there are disputed issues of material fact....

...ficer shall complete and submit ... a recommended order consisting of his findings of fact, conclusions of law, interpretation of administrative rules ... and any other information required by law or agency rule to be contained in the final order. " Section 120.57(1)(b)8 (emphasis added)....

...inding the facts — have a predicate in the record, namely, the "short and plain statement of the matters asserted by the agency and by all parties," the evidence, the argument, the "proposed findings of facts and orders" and the exceptions thereto. Section 120.57(1)(b) 2 d, 4, 5....

...We recently approved, in another case, a hearing officer's order authorizing prehearing discovery of any Department nonrule criteria for determining statutory qualifications for authority to establish a savings and loan institution. Lewis v. Life Sav. and Loan Ass'n, 342 So.2d 1031 (Fla. 1st DCA 1977). Thus the APA infuses Section 120.57(1) proceedings with concern for agency policy as well as for facts and law....

...ng officer's duty to respond to the evidence in that way cannot fail to promote responsible agency policymaking. The hearing officer's function creates agency incentives for rulemaking, which as far as it goes displaces proof and debate of policy in 120.57 proceedings; [11] encourages an agency to fully and skillfully expound its nonrule policies by conventional proof methods; and, in appropriate cases, subjects agency policymakers to the sobering realization their policies lack convincing wisdom, and requires them to cope with the hearing officer's adverse commentary. Thus in Section 120.57(1) proceedings the hearing officer does not merely find the facts and supply the law, as would a court....

...ing and experience of the 1970's, rather than the 1940's when the last administrative procedure acts were conceived." Kennedy, A National Perspective of Administrative Law and the Florida Administrative Procedure Act, 3 Fla.St.U.L.Rev. 65 (1975). 3. Section 120.57 requires agency explanation of its discretionary action affecting a party's substantial interests, and Section 120.68 subjects that explanation to judicial review. Section 120.57 proceedings, in which the agency's nonrule policy is fair game for a party's challenge both in the public and in his private interest, concludes by a final agency order which explicates "policy within the agency's exercise of delegated...

...s any deviation from "an agency rule, an officially stated policy, or a prior agency practice," and, in a "licensing" proceeding such as this one, "state[s] with particularity the grounds or basis for the issuance or denial" of the license. Sections 120.57(1)(b)9, 120.57(2)(a) 1 and 2, 120.60(2), 120.68....

...It must address countervailing arguments developed in the record and urged by a hearing officer's recommended findings and conclusions or by a party's written challenge of agency rationale in informal proceedings, or by proposed findings submitted to the agency by a party. Sections 120.57(1)(b)4, .57(1)(b)9, .57(2)(a)2, .59(2), Stuckey's of Eastman, Ga....

...correct. The agency may appropriately control the number and frequency of amendments to licensing applications and may by rule prevent substantial amendment of the application in midproceeding. [14] But the hearing officer or agency head conducting Section 120.57 proceedings should freely consider relevant evidence of changing economic conditions and other current circumstances external to the application. Section 120.57 proceedings are intended to formulate final agency action, not to review action taken earlier and preliminarily. Public convenience and advantage. The Department did not contest, either before the Section 120.57 proceedings or in its final order, that the proposed First Bank of Port Richey would promote public convenience and advantage to the locale....

..."(d) The character, financial responsibility, banking experience, and business qualifications of the proposed officers. "(e) The character, financial responsibility, business experience, and standing of the proposed stockholders and directors." Sec. 659.03(1). [3] Sec. 120.57(1)(b)9: "The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order, but may not reject or modify the findings of fact unless the agency first determines from a...

...ll be handled to comply with the new Florida Administrative Procedure Act, Chapter 120, Florida Statutes." [5] The Department's rules concerning formal and informal proceedings do not prescribe the time and manner of requests for or waiver of formal § 120.57(1) proceedings. As in many other cases under the relatively new APA, the request here for § 120.57(1) formal proceedings came after the agency's informal decision-making process ran its course and a "final" decision was deliberated and announced by the Comptroller. As a result, the ensuing § 120.57(1) proceedings took on the misleading appearance of reviewing rather than formulating agency action. While the APA permits an agency so to plow the same ground twice, once before and again after § 120.57(1) proceedings, neither the APA nor the model rules requires it. We do not decide the point here, but no reason appears why agency rules could not require parties to request or waive formal § 120.57(1) proceedings before the agency has acted informally, when it becomes evident that substantial interests will be affected and there are factual issues....

...[15] "Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. This paragraph applies only to proceedings under s. 120.57."

...se held by appellant, Mel Heifetz, doing business as Key Wester Inn (Heifetz or appellant), on grounds that two employees working in the motel's lounge made drug sales to undercover agents on six occasions. The Division's charges [1] were tried in a section 120.57 formal proceeding [2] before a hearing officer of the Division of Administrative Hearings....

...ow Cause, as amended" (R.131-132). Based on these altered findings of fact, the Division ordered the license revoked. Appellant raises three points on appeal. First, he complains that in substituting findings of fact the Division did not comply with section 120.57(1)(b)9, Florida Statutes (1983), and that the Division's substituted findings of fact and conclusions of law are not supported by competent, substantial evidence and do not comport with the essential requirements of law....

...iffers from the hearing officer's view, even though the record contains competent, substantial evidence to support the hearing officer's findings. So once again we find it necessary to explain the respective roles of hearing officers and agencies in section 120.57 proceedings. Section 120.57(1)(b)9, Florida Statutes (1983), mandates that an agency accept the factual determinations of a hearing officer unless those findings of fact are not based upon "competent substantial evidence." A number of cases have defined the competent, substantial evidence standard....

...keeping, selling, and/or delivering controlled substances in violation of Chapter 893, F.S., the same being in violation of: a. Florida Statute 823.10 and Florida Statute 561.29(1)(c); b. Florida Statute 823.01 and Florida Statute 561.29(1)(a). [2] § 120.57, Fla....

...ted, because DER had already issued the water permit. DER reviewed the hearing officer's recommended order and determined that the legal issue to be resolved was whether Freeport and Sulphur Terminals had alleged grounds for standing as parties to a section 120.57 formal hearing....

...PARTIES' POSITIONS Agrico contends, among other things, that Freeport and Sulphur Terminals do not have standing to contest its air pollution permit application because competitive economic injury alone is insufficient to afford standing to request a section 120.57 formal hearing under the Florida Administrative Procedure Act....

...Agrico argues that there is no statutory authority for making competitive economic injury a concern in the issuance of permits under chapter 403. DER's position, as stated in its final order, is that, while competitive economic injury is not sufficient to confer standing to seek a section 120.57 hearing in a chapter 403 permitting procedure, the LRACT Rule makes competitive economic injury a matter of agency concern and confers standing on Freeport and Sulphur Terminals pursuant to section 120.52(10)(b), Florida Statutes....

...Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978). We believe that before one can be considered to have a substantial interest in the outcome of the proceeding he must show 1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of a type or nature which the proceeding is designed to protect....

...e protection of chapter 403. Chapter 403 simply was not meant to redress or prevent injuries to a competitor's profit and loss statement. Third-party protestants in a chapter 403 permitting procedure who seek standing must frame their petition for a section 120.57 formal hearing in terms which clearly show injury in fact to interests protected by chapter 403....

...[2] The hearing officer conducted what the parties refer to as a "mini-trial" on the standing issue before taking testimony on the substantive technical issues. [3] The fact that DER recognized the error of granting standing on two of the three grounds stated by the hearing officer did not rectify the situation. The § 120.57 hearing should have terminated when the hearing officer became aware that Freeport and Sulphur Terminals could put forth no evidence that they would be injured environmentally from Agrico's solid sulphur facility....

...s application for a permit under the environmental laws, Chapter 403, Florida Statutes. DOT relies for reversal upon its claims: First, that DER erred in accepting the order of the hearing officer [1] recommending denial of the permit after a formal Section 120.57(1) hearing, [2] without either granting DOT's request to present additional evidence in support of its application directly to the Secretary of DER, or in the alternative remanding the case to the hearing officer for the purpose of rec...

...We find no provision in the statutes or the rules of procedure (Chapter 28, Model Rules of Procedure) [9] authorizing or permitting an agency head to "reopen" a hearing as suggested by DOT. The authority of the agency, upon receipt of the hearing officer's recommended order, is set forth in Section 120.57(1)(b)9, Florida Statutes....

...the agency's order should be reversed. We note, furthermore, that DER's denial in this case was without prejudice to the right to submit a revised application to DER; and DER's order further stated that in the event of a new application and another Section 120.57(1) hearing, DER would request that the same DOAH hearing officer who conducted the proceeding below be assigned to hear the new application. Further, as to DOT's first point, we find without merit its contention that Section 120.60(2), Florida Statutes, compels DER to accept additional information tendered by DOT, even after a formal Section 120.57(1) hearing. An agency's free-form action is regarded as preliminary, irrespective of its tenor. Capeletti Brothers Inc. v. Department of Transportation, 362 So.2d 346 (Fla. 1st DCA 1978). [12] The petition for a formal 120.57(1) hearing, as in this case, commences a de novo proceeding. See General Development Corp. v. Division of State Planning, 353 So.2d 1199 (Fla. 1st DCA 1977); Couch Construction Company v. Department of Transportation, supra; McDonald v. Department of Banking and Finance, supra. Section 120.57 proceedings "are intended to formulate final agency action, not to review action taken earlier and preliminarily." McDonald v....

...nd received DER's notice of intent to issue the permit, its "burden of proof" to show "reasonable assurances" as required by the rule [15] was discharged, and it had no further duty to "prove its case" a second time before the hearing officer at the 120.57(1) hearing....

...the petitioners the burden of proof in this case. This contention, if accepted, would render the hearing a review of action already taken by DER. That is not the function of a hearing conducted in accordance with the provisions of Florida Statutes §§ 120.57(1), or 120.60....

...ommon sense dictates that the principle of "differentiation" applies also both as to the form, and substantiality, of proof needed to support those aspects of a permit application that are uncontroverted, as opposed to those that are contested, in a Section 120.57(1) proceeding....

...relieve the applicant of carrying the "ultimate burden of persuasion." See General Development Corporation v. Florida Land and Water Regulatory Commission, supra; and O'Neil v. Pallot, 257 So.2d 59 (Fla. 1st DCA 1972). Not every request for a formal Section 120.57(1) hearing may properly be granted, for it is clear that the petitioner must first demonstrate by appropriate pleading that there are disputed issues of fact requiring such a hearing....

...Company, Inc., and the other property owners had the burden of proof in the administrative proceedings below. [4] Rule 17-2.06, Florida Administrative Code. [5] Rule 17-4.07, Florida Administrative Code. [6] Rule 17-1.62, Florida Administrative Code. [7] Rule 17-1.62(2) makes reference to hearing under Section 120.57, Florida Statutes....

...mended model rules of procedure, Chapter 28, Florida Administrative Code, effective March 23, 1980, apply to agency investigations "preliminary to agency action." New Rule 28-5.101 makes Chapter 28 applicable, specifically, "to all proceedings under Section 120.57, as well as those initiated under 120.60 or 120.54(16) which are required to be conducted in accordance with Section 120.57, F.S., to the extent that an agency has not adopted its own specific rules of procedure..." New Rule 28-5.110(1) provides, however, that the model rules do not apply to "agency investigations or to determinations of probable cause prel...

...evidence to be adduced as a basis for the making thereof. " (Emphasis added) And so it has come to pass. The judicial-type hearing applicable to otherwise administrative, quasi-legislative or quasi-executive orders has become a reality by virtue of Section 120.57, Florida Statutes (1975) and its brethren, Section 120.54(3), Florida Statutes (1975) [13] and Section 120.56, Florida Statutes (1975)....

...s (1973, as amended *569 1974)." [17] Appellee, as a party whose interests were "substantially affected", [18] could have had that issue decided (as well as the numerous factual issues which appellee claims are pertinent) by hearing held pursuant to Section 120.57(1), Florida Statutes (1975)....

...g agency action. [12] Citing Jezek v. Vordemaier, 227 So.2d 69 (Fla. 4th DCA 1969). [13] Now renumbered as § 120.54(16), Fla. Stat. (1976 Supp.). [14] The hearings envisioned by §§ 120.54 and 120.56 are to be conducted in the manner prescribed in § 120.57 which provides for two types of hearings....

...ered more than ninety days after the recommended order was issued, in violation of Section 120.59, Florida Statuates (1987), and because the injunctive portion of the order is unduly vague. We agree that the Commission, contrary to the provisions of Section 120.57(1)(b)10, Florida Statutes (1987), improperly modified findings of fact made by the hearing officer that are supported by competent, substantial evidence (CSE) in the record....

...Kilpatrick, 501 So.2d 59, 61 (Fla. 1st DCA 1987); National Industries, Inc. v. Commission on Human Relations, 527 So.2d 894, 897 (Fla. 5th DCA 1988), it must be accepted by the reviewing agency unless that finding is not supported by CSE in the record. See Section 120.57(1)(b)10, Florida Statutes (1987)....

...Turlington, 480 So.2d 150 (Fla. 1st DCA 1985) (where hearing officer found no impropriety in teacher's conduct and concluded that such conduct did not violate disciplinary rules, reviewing agency implicitly substituted its own finding of improper conduct in violation of section 120.57(1)(b)10); School Bd....

...To conclude, because CSE supports the hearing officer's factual findings that the Department's actions were prompted by a legitimate, nondiscriminatory reason, the Commission erred by substituting its own judgment for that of the hearing officer in violation of section 120.57(1)(b)10....

...He also alleged he was substantially affected because the maximum penalty to which he could be exposed was disciplinary confinement for 60 days and 180 days loss of gain-time. The hearing examiner found Rule 33-3.08(2) invalid for failure to meet the procedural guidelines set forth in Section 120.57, Florida Statutes (Supp....

...e agencies of the state, there was no exemption to DOR from the requirements of the new APA as found in Chapter 120. [4] Consequently, the Department is an agency as defined by Section 120.52(1)(b). By juxtaposing certain provisions of the Rule with Section 120.57, [5] he found the Rule conflicted with pertinent portions of the statute and could not stand....

...as not met the threshold requirement of standing. Our efforts to determine what occurred at the hearing before the disciplinary team are thwarted because there is no record of those proceedings. It was not established Jerry ever made a request for a Section 120.57 hearing during the disciplinary proceedings....

...* * * * * * "... [I]t appears that petitioner's interest in loss of gain-time having real substance and being sufficiently embraced within the Fourteenth Amendment `liberty' to entitle him to due process, is a substantial interest as that term is used in Section 120.57, F.S....

...reight delivery company's application to transport delayed, misplaced and/or misrouted baggage from Jacksonville International Airport to specified points in northeast Florida had no standing as a substantially interested party within the meaning of Section 120.57, even assuming the competitor, A.S.I., would experience competition from the air freight delivery company's operation under its for hire permit....

...1st DCA 1977), we held that Gadsden State Bank, a competitor of Quincy State Bank which had filed an application with the Comptroller for authority to establish a branch bank near Gadsden's existing facility, had standing as a party substantially interested in a Section 120.57(1) hearing....

...e for drafting the 1974 APA, has opined that agency action extends to prison disciplinary matters. Levinson, The Florida Administrative Procedure Act: 1974 Revision and 1975 Amendments, 29 U.Miami L.Rev. 617, 628 (1975). [5] For example a party to a Section 120.57 hearing is entitled to not less than 14 days notice under subsection (1)(b)(2), therefore sub-paragraph eight of the Rule violates the statute's notice requirements since it permits only 24 hours' notice. Additionally Section 120.57(1)(b)4 allows parties to be represented by counsel before administrative tribunals whereas sub-paragraph 13(d) of the Rule allows a staff representative to represent the inmate only if he is illiterate or where the complexity of the issues makes it unlikely the inmate is able to represent himself....

...Finally, sub-paragraph (h) of the Rule gives the chairman of the disciplinary team the power to withhold the source of incriminating information from the inmate. Witnesses may not be called if doing so would create a risk of reprisal or would undermine authority. Section 120.57(1)(b)4, however, gives all parties the opportunity to respond, to present evidence and to conduct cross-examination....

...(2)(f), Fla. Stat.... [The] evidence may be received in written form and testimony must be under oath. Id. Cross-examination is also permitted. § 120.569(2)(j).[ [7] ] Additional procedures apply in cases involving disputed issues of material fact. § 120.57(1), Fla....

...ed in depth here. Pertinent to our review are the provisions of section 120.569, Florida Statutes (2005), which generally governs agency action and procedure to be followed in making decisions that determine the substantial interests of a party, and section 120.57, Florida Statutes (2005), which prescribes procedures for fact-finding hearings....

...State Dep't of Transp., 635 So.2d 58, 59 (Fla. 1st DCA 1994). In the event that there are disputed issues of material fact to be determined, and a hearing has been requested under section 120.569(2)(a), Florida Statutes (2005), an adversarial hearing must be provided under section 120.57, after reasonable notice is given not less than fourteen days before the hearing....

...ing the final decision. A final order entered under the APA is then immediately reviewable in the district court of appeal. § 120.68, Florida Statutes (2005). It is this general APA procedure for notice and hearing set forth in sections 120.569 and 120.57, Florida Statutes, that the Fourth District concluded must be followed by the School Board in immediately terminating a charter under section 1002.33(8)(d), Florida Statutes (2005)....

...edicated. We have only the letter of a unit supervisor to evidence HRS's official action in this matter. There is no agency order recognizable under Section 120.59, Florida Statutes (1979), and there have been no formal or informal proceedings under Section 120.57....

...*847 While it therefore may be debated whether the unit supervisor's letter of January 16, 1979, was "equivalent" to an agency order underlying the appeal, [3] no party has contested the matter. We treat such questions pragmatically, dismissing an appeal from free-form action if appellant neglected a clear point of entry to Section 120.57 proceedings, or if agency proceedings have been undertaken since the appeal, Krestview Nursing Home v....

...Bickel said so descriptively, "by denuding them of the dignity and burden of their own responsibility." [4] We therefore will remand the case to HRS and to the Division of Administrative Hearings, Department of Administration, for proceedings under Section 120.57(1), and for entry of the order required by Section 120.59....

...rulemaking to construe the statute, and as to these appellants that earlier order has no res judicata effect. See McDonald, supra ; State Dept. of Health and Rehab. Serv. v. Barr, 359 So.2d 503, 505 (Fla. 1st DCA 1978): ... Agency orders rendered in Section 120.57 proceedings may ... indirectly determine controversies and affect persons yet unborn. But the rule is stare decisis, not res judicata. If such a person's substantial interests are to be determined in the light of a prior agency order or declaratory statement, Section 120.57 proceedings will afford him the opportunity to attack the agency's position by appropriate means, and Section 120.68 will provide judicial review in due course....

...A district court's resolution of a constitutional or other legal question may occasionally be stymied by the absence of a complete record necessary for the decision, as the case now before us illustrates. But that may be remedied, as this case also illustrates, by remand to the agency or to the agency and DOAH. Sections 120.57, 120.68(6), (11), (13)....

...Moreover, that kind of process will produce the record this court may require for meaningful consideration of the constitutional question. Compare Laird v. State, 342 So.2d 962, 965 (Fla. 1977). [11] *851 Jurisdiction is relinquished to the Department of Health and Rehabilitative Services for Section 120.57(1) proceedings and for entry of a final order adequately founded upon a record as required by Section 120.59....

...istings of cases, and potential difficulties in identifying the agency and agency head within a Department who is responsible for final agency action. That may become critical in determining who, other than a DOAH hearing officer, may conduct formal Section 120.57(1) proceedings....

...Oertel of Truett & Oertel, P.A., Tallahassee, for appellant. Alan E. DeSerio, John J. Rimes, III, and H. Reynolds Sampson, Tallahassee, for appellee. SMITH, Acting Chief Judge. Again an agency of the state has entered an order purporting to affect the substantial rights of a party without complying with Section 120.57, Florida Statutes (1977)....

...On May 5, following a response by Capeletti, DOT sent a telegram and letter advising that Capeletti's certificate was suspended for delinquency. On June 16, following other correspondence from Capeletti, DOT wrote another letter refusing to lift the suspension and refusing to stay the effect of its action pending a Section 120.57(1) hearing on the disputed fact of delinquency....

...Any inconsistent DOT procedures under Sections 337.15-.16, or under rules implementing those statutes, are replaced by Section 120.60, providing in part: (1) Unless otherwise provided by statute enacted subsequent to the effective date of this act, licensing is subject to the provisions of s. 120.57. Section 120.57 and Section 120.59 contemplate entry of an order of certain characteristics upon completion of Section 120.57(1) or (2) proceedings....

...f its intended action and of its *348 decision to suspend Capeletti's certificate of qualification. DOT does not plausibly contend that its correspondence satisfied the procedural requirements of Chapter 120. DOT urges instead that, under its rules, Section 120.57 proceedings are in the nature of an appeal from its decision reached in the free-form proceedings characterized by its exchange of correspondence with Capeletti. More particularly, DOT urges that its decision to suspend Capeletti's certificate is immediately effective, although Section 120.57 proceedings are now in progress, unless Capeletti posts a $216,000 bond to pay delay damages on pending contract awards....

...In license revocation proceedings, as in other proceedings affecting a party's substantial interests, an adverse determination of a party's substantial interests is ineffective until an order has properly been entered pursuant to Section 120.59, after proceedings under Section 120.57....

...Section 120.60(6). DOT does not contend that such an emergency exists. DOT's Rule 14-23.01(4)(a), Fla. Admin. Code, provides that, following a preliminary and final notice of delinquency, the affected contractor may "appeal" and have a hearing under Section 120.57(1) or (2). That rule provides: (a) Appeals. Substantially affected parties have the right to request a hearing under 120.57 FS. DOT thus chooses to "plow the same ground twice," once in free-form proceedings here characterized by summary correspondence, and again by Section 120.57(1) or (2) proceedings....

...(1977). [1] Without summary letters, telephone calls, and other conventional communications, the wheels of government would surely grind to a halt. The vast majority of an agency's free-form decisions become conclusive because they are not challenged in Section 120.57(1) or (2) proceedings....

...Yet the agency's rules must clearly signal when the agency's free-form decisional process is completed or at a point when it is appropriate for an affected party to request formal proceedings, if authorized, or to accept his statutory opportunity for informally structured proceedings under Section 120.57(2). In other words, an agency must grant affected parties a clear point of entry, within a specified time after some recognizable event in investigatory or other free-form proceedings, to formal or informal proceedings under Section 120.57....

...Uncertainty in an agency's rules and practices on this point usually results, as is shown by our experience in the past several months, in a petition for review followed by an agency motion to dismiss on the alternative grounds that the agency has not yet taken final action or that, if it has done so, the request for Section 120.57 proceedings and the review petition are too late. We have usually resolved such confusion in favor of the affected party. Without agency rules of procedure which are decisive on the question of the timeliness of a request for Section 120.57 proceedings, we are left with the problematic task of ascertaining from the record whether the affected party clearly waived Section 120.57 benefits following free-form agency action....

...Absent waiver, we must regard an agency's free-form action as only preliminary irrespective of its tenor. E.g., Couch Construction Co. v. Department of Transportation, No. II-314, supra. We find *349 no such waiver on this record. Until proceedings are had satisfying Section 120.57, or an opportunity for them is clearly offered and waived, DOT is powerless to suspend Capeletti's certificate of qualification....

...Florida Real Est. Comm'n, 358 So.2d 1123, 1125 (Fla. 1st DCA 1978); J.A. Jones Constr. Co. v. Department of General Services, 356 So.2d 863 (Fla. 1st DCA 1978). DOT is likewise impotent to condition Capeletti's bidding privileges, pending completion of Section 120.57 proceedings, on posting of a bond. DOT's action is REVERSED. Because we consider that DOT had prior notice of Chapter 120 requirements, Capeletti's motion for costs and attorney's fees is GRANTED. Section 120.57(1)(b)9....

...y be overturned, the appellate court may not exercise its judgment as to the proper penalty to be imposed but must remand the cause for further consideration by the agency. Furthermore, we find no merit to Webb and Coronet's additional argument that Section 120.57(1)(b)9, Florida Statutes (1975), requires the Commission to explain its rationale for increasing the penalty recommended by the hearing officer....

...e it without a review of the complete record. In the event a court, in reversing an agency's order, finds that such agency action was done in bad faith or maliciously, the court may award attorney's fees and costs to the aggrieved prevailing party." Section 120.57(1)(b) requires the agency to explain its rejections or modifications of the hearing officer's findings of fact contained in the recommended order....

...Here, however, the Commission adopted the findings of fact set forth in the recommended order of the hearing officer, but after a review of the entire record, rejected the recommended penalty of written reprimand and imposed a sixty-day suspension. Section 120.57(1)(b)9 requires that the agency review the entire record before increasing the recommended penalty but does not require the agency to explain its rationale for increasing the penalty....

...Board of Trustees of the Internal Improvement Trust Fund, 427 So.2d 153 (Fla. 1982). Appellants applied for a dredge and fill permit pursuant to chapters 403 and 253, Florida Statutes. In April 1982, DER issued a notice of intent to deny the permit. Appellants did not petition for an administrative hearing under section 120.57, Florida Statutes (1981)....

...the land because of the permit denial. In Key Haven, upon which the trial court relied in dismissing appellants' complaint, the applicant received DER's notice of intent to deny a dredge and fill permit and requested an administrative hearing under section 120.57....

...branch; i.e., an appeal to TIIF was required before suit could be brought in the circuit court for inverse condemnation. The trial judge in the case at bar, extended Key Haven to find that the failure to request an administrative hearing pursuant to 120.57, prior to the final agency action denying the permit, constituted a failure to exhaust administrative remedies and, therefore, appellants' circuit court action was barred....

...First, does section 253.763(2), which was not effective at the time pertinent to the decision in Key Haven, remove the requirement of appeal to TIIF before a resort to circuit court action for inverse condemnation? Second, if appeal to TIIF is not necessary, is a section 120.57 administrative hearing prior to final agency action a prerequisite to bringing an inverse condemnation action in the circuit court? Appellants argue that Key Haven does not apply since it arose before section 253.763, which expressly authorizes the inverse condemnation action in the circuit court....

...with existing statutes or rules and based on competent substantial evidence shall proceed in accordance with chapter 120. We now reach DER's claim, and the trial court's finding that, based on Key Haven, a formal administrative hearing under chapter 120.57, Florida Statutes, is a prerequisite to the inverse condemnation suit in the circuit court. Here, appellants did not request a hearing under section 120.57, Florida Statutes following DER's notice of intent to deny the permit, but instead acquiesced in the proposed action of DER....

...Section 253.763(2) does not provide that the final agency action and, therefore, the resulting inverse condemnation suit, is conditioned on a prior administrative hearing. That section merely requires final agency action. Chapter 120 does not require a section 120.57 hearing before final agency action. That section provides that where there are no disputed issues of material fact, as is now the posture of this case, informal proceedings may be used. Section 120.57(3) allows for disposition of any proceeding by consent unless precluded by law....

...oing business, place certain proceeds of their business in an escrow account, and notify their customers that a state agency has ordered these sanctions against them — presents a proper case for our immediate review. Since the Division conducted no Section 120.57(1) or (2) proceedings before entering its order, we must review the order without benefit of a record establishing the facts underlying agency action and elucidating agency policies....

...ng the existence of a genuine emergency." Florida Home Builders v. Division of Labor, 355 So.2d 1245, 1246 (Fla. 1st DCA 1978). The Division's temporary cease and desist order is declared invalid. Appellant's petition for attorney's fees is granted. Section 120.57(1)(b)9....

...he exclusive forum for resident electricity customers, like AmeriSteel, to compel service from the municipal electric system— JEA. Only persons whose substantial interests may or will be affected by the Commission's action may file a petition for a 120.57 hearing. See § 120.57, Florida Statutes (1995); Fla. Admin. Code R. 25-22.029. To demonstrate standing to intervene under Agrico, a petitioner must demonstrate: 1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of a type or nature which the proceeding is designed to protect....

...eatening the continued viability of its Jacksonville plant—and the related claim that relocation of its plant would cause an economic detriment to the City of Jacksonville—is not an injury in fact of sufficient immediacy to entitle AmeriSteel to a 120.57 hearing....

...AmeriSteel maintains that the lack of notice of the proceedings violated the corporation's rights to due process as an affected customer because it was prohibited from participating in the proceeding until all issues of consequence had been settled by the utilities and preliminarily approved by the Commission. Section 120.57, Florida Statutes (1995), and Rule 25-22.029 of the Florida Administrative Code, entitled "Point of Entry into Proposed Agency Action Proceedings," require the Commission to give notice and an opportunity to be heard to persons affected by its actions....

...AmeriSteel was in no way precluded from exercising any of its procedural rights by the process followed by the Commission in approving the agreement. If AmeriSteel had demonstrated standing, it would have been able to obtain a hearing, conduct discovery and present evidence challenging any aspect of the agreement pursuant to section 120.57....

...That same day, January 15, 1982, attorneys for Watkins filed a letter with the staff protesting the rejection of its bid and alleging that Winchester's bid was defective. Ten days later, Watkins filed a petition for a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes....

...s bid was responsive and was the lowest and best bid for the project. BOR assigned its general counsel to be the hearing officer for this matter. Prior to the hearing on the merits, the hearing officer entered an order denying Watkins' request for a Section 120.57(1) hearing and granting Winchester's motion for a 120.57(2) hearing. The order also granted leave to either party to request a Section 120.57(1) hearing during the informal hearing should disputed issues of material fact arise....

...Additionally, as noted above, this statutory authorization is buttressed by the legislative history of the act. Watkins has also argued that BOR abused its discretion in appointing its general counsel to be the hearing officer and in failing to afford to Watkins a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes....

...While these legal issues, i.e., the materiality of the omissions to Watkins' bid and the propriety of BOR's rejection of it and the award of the contract to Winchester, may require evidence of agency policy and procedure, these issues are appropriate to a Section 120.57(2) hearing....

...A binding letter of interpretation issued by the Division under Section 380.06(4) is final agency action in the form of an order which determines substantial interests of the developer. The Division's proceedings on a request for a binding letter of interpretation must therefore conform to Section 120.57....

...[8] Formal proceedings are available to the developer if timely requested pursuant to the model rules of the Department of Administration, Fla. Admin. Code R. 28-5.15, or Rule 22F-1.16(10) governing Division proceedings under Section 380.06(4). [9] GDC preferred the benefits of informal proceedings and did not request a Section 120.57(1) hearing; therefore GDC is not entitled to a trial-type hearing even on disputed factual issues unless we exercise a reviewing court's prerogative to order such a hearing....

...1st DCA 1977); United Faculty of Florida, etc. v. Branson, 350 So.2d 489, 494 (Fla. 1st DCA 1977). Although the Division's proceedings leading to its binding letters of interpretation issued March 2 and April 15, 1976 need not have complied with the formalities of Section 120.57(1), they must have substantially complied with Section 120.57(2), which is applicable "[i]n cases to which subsection (1) does not apply." Informal proceedings require reasonable notice of the agency's action, whether proposed or already taken, "together with a summary of the factual, legal, and...

...eedings affecting substantial interests be in writing or stated in the record "and include findings of fact and conclusions of law separately stated." We held in McDonald, concerning orders after formal proceedings, that: The agency's final order in 120.57 proceedings must describe its "policy within the agency's exercise of delegated discretion" sufficiently for judicial review. Section 120.68(7). [346 So.2d at 582] The same requirement applies as well to orders entered after informal proceedings. Although an order in informal proceedings may explicate policy in a more "summary" way, Section 120.57(2)(a)1, the Division's emerging policy must be stated sufficiently to be recognized as a precedent in its own records [10] and to support meaningful judicial review: The reviewing court shall deal separately with disputed issues of age...

...residential development of regional impact. If the Division's binding letters contained substantive material justifying the determinations made, those letters might well be sustained notwithstanding that the Division did not specify, as required by Section 120.57(2)(a)2, that GDC would have "an opportunity, at a convenient time and place," to present countervailing evidence or argument....

...In fact, GDC did request reconsideration of the Division's March 2 binding letter and did present written legal and factual arguments. However, the April 15 binding letter went further than simply explaining the Division's "decision overruling objections." Section 120.57(2)(b)4....

...sion may do so. If the Division is of the opinion that a binding letter of interpretation conforming to this opinion will require consideration and recitation of facts not appearing in this record, further informal proceedings may be had pursuant to Section 120.57(2). We do not in these circumstances require the Division to honor any GDC request for formal proceedings under Section 120.57(1), although the Division may do so in its discretion....

...at discussion with our legal analysis. Standard Of Review Agency Review of Proceedings Before An Administrative Law Judge When substantial interests of a party are determined by an agency, the affected party is entitled to proceed in accordance with section 120.57(1), Florida Statutes, which allows for a hearing involving disputed issues of fact to be conducted by an administrative law judge, formerly referred to as a hearing officer. [3] § 120.569(1), Fla. Stat. (2001). After hearing all of the evidence, the administrative law judge shall render a recommended order consisting of findings of fact, conclusions of law, and a recommended disposition or penalty. § 120.57(1)(k), Fla. Stat. (2001). The agency may adopt the recommended order, or the agency may reject or modify the findings of fact. § 120.57(1)( l ), Fla....

...In City of Umatilla, for example, this court held in establishing the appropriate test to apply in this circumstance: It may be said that there is also competent substantial evidence to support the findings of the Commission, but that is not the test here. The controlling statute, section 120.57(1)(b)9, plainly proscribes the rejection of the hearing officer's findings of fact where those findings are supported by competent substantial evidence....

...Department of Prof'l Regulation, Bd. of Veterinary Med., 461 So.2d 134 (Fla. 1st DCA 1984); Johnston. The Board concedes that its order does not state with particularity that the ALJ's findings are not supported by substantial competent evidence as required by section 120.57(1)( l )....

...5th DCA 1987) ("Although an agency may reject or modify the conclusions of law and interpretation of administrative rules of the hearing officer, it may not reject or modify findings of fact where those findings of fact are based on competent substantial evidence.") (citing section 120.57(1)(b)(9), Florida Statutes (1985); Morris v....

...uant to such assessments. They appeal a summary judgment for appellees granted on the sole ground that the Comptroller's decision to deny a refund of the taxes in an administrative proceeding prosecuted by Florida Export pursuant to sections 215.26, 120.57, and 120.68, Florida Statutes (1979), is res judicata and bars this action in circuit court....

...should not be paid. DOR so advised the Comptroller, and on July 24, 1980, the Comptroller notified appellants of his intent to deny the refund in accordance with DOR's recommendation. This notice also advised appellants that they had a right, under section 120.57, Florida Statutes (1979), to request an administrative hearing regarding the Comptroller's proposed decision and that, if no request were timely made, "this denial shall become final" (R....

...ion could proceed. [6] In an apparent attempt to avoid waiver of administrative remedies and protect the rights of their clients, on August 6, 1980, counsel for appellants wrote a letter to the Comptroller indicating they did not intend to request a section 120.57 hearing unless failure to do so would be construed as failure to exhaust administrative remedies and prevent continued prosecution of the pending circuit court actions....

...DOR refused to agree that appellants need not completely exhaust all administrative remedies by applying for such hearing. Appellants, "out of an abundance of caution," requested an informal conference with the tax referee of DOR and filed a petition for a section 120.57 administrative hearing on behalf of themselves and "others in their class similarly situated" with the office of the Comptroller (R. 46). DOR was not made a party to that proceeding. The Comptroller referred the petition to the Department of Administrative Hearings for assignment to a hearing officer. Prior to the section 120.57 hearing, all parties other than Florida Export took a voluntary dismissal and did not proceed to hearing. Counsel for petitioners stated on the record that, by proceeding to a section 120.57 hearing on the denial of refund, petitioners did not intend to waive any rights they had to continue prosecution of their circuit court action....

...ould not be legally assessed on the profit participation charges. Their applications were referred by the Comptroller to DOR, and DOR determined to deny the claim. The Comptroller then advised appellants of this denial and that they had a right to a section 120.57 hearing....

...essential party. We find no statutory support for appellees' assumption that the Comptroller alone could adjudicate the legality of the disputed assessment or provide substantive review of the grounds of DOR's denial of the refund applications in a section 120.57 proceeding....

...urisdiction over tax assessment controversies. No provision in chapter 74-310 expressly granted agency jurisdiction over the legality of tax disputes in contravention of the otherwise explicit constitutional and statutory provisions discussed above. Section 120.57 merely provided in general language that any person substantially affected by agency action would be entitled to an administrative hearing in respect to the matter in dispute as part of the process leading to final agency action....

...OR in circuit court. After the filing of that action, at the somewhat ambiguous direction of the circuit court, they filed an administrative claim for refund with the Comptroller. [24] When the claim was denied, Florida Export pursued a petition for section 120.57 administrative review....

...ere extraordinary circumstances dictate, and, because the precise issue before the lower court involved the question of whether the elimination of appellee's position with the school board was a rule, the issue could and should have been raised in a 120.57 proceeding....

...In the present case there is nothing extraordinary regarding the simple issue of whether the tax which the department sought to collect and did collect was covered by the appropriate provisions of the taxing statute. Appellants argued at the hearing on their 120.57 petition that Section 212.031(1)(c), Florida Statutes (1979), imposing a tax in an amount equal to four percent of the total rent charged for the lease of real property, does not apply to that portion of their profit participation rental agree...

...Swan, Administrative Adjudication of Constitutional Questions: Confusion in Florida Law and a Dying Misconception in Federal Law, 33 U.Miami L.Rev. 527, 537 (1979). I also have no problem with the failure of the Department of Revenue to be named as a party to the 120.57 hearing....

...The Comptroller's authority to delegate is, by the express terms of Section 215.26(2), permissive. In the instant case the taxpayers' refund application was first referred to DOR, which, after having reviewed the application, determined that the refund should not be paid. Although DOR was not made a party to the subsequent 120.57 proceeding, it was, neither under the provisions of Section 215.26, nor under Chapter 120, a necessary and indispensable party to that proceeding — one whose joinder is so essential that a tribunal cannot proceed to a final determination. 39 Fla.Jur.2d, Parties § 7 (1982). An application for refund of taxes, filed pursuant to section 215.26, is made to the Comptroller — not the Department of Revenue. In the present case, once a request was made for a 120.57 hearing, the Comptroller, as the responsible agency head, had the authority to refer the request to a hearing officer. See Section 120.57(1)(b)3, Florida Statutes (1979). The appropriate agency head, pursuant to section 120.57(1)(b)9, has the additional authority to adopt the recommended order as the agency's final order, reject it, or otherwise modify it. In my judgment DOR cannot be considered a necessary and indispensable party to a proceeding conducted under section 120.57....

...Parenthetically I might add that the Comptroller is one of the members of the cabinet, and the cabinet and governor operate as the head of DOR. Section 20.21, Florida Statutes. Finally, as I stated in my original dissent, although the doctrine of res judicata is inapplicable to those taxpayers who voluntarily dismissed their 120.57 petitions before the entry of the final administrative order, they should nevertheless be barred from pursuing their judicial remedies as they have avoided a clear point of entry into the administrative process....

...ter 220, chapter 376, or chapter 624 by filing an action in circuit court; or, alternatively, the taxpayer may file a petition under the applicable provisions of chapter 120. However, once an action has been initiated under s. 120.56, s. 120.565, or s. 120.57, no action relating to the same subject matter may be filed by the taxpayer in circuit court, and judicial review shall be exclusively limited to appellate review pursuant to s....

...We interpret section 443.041(2)(a) as prohibiting charging claimants for the provision of a transcript or copy of the record of the agency hearing in their cases. However, even if the statute made such a distinction, there is a statutory requirement that the commission provide a transcript upon request of a party. Section 120.57(1)(b)(6), Florida Statutes (1985) (renumbered as section 120.57(1)(b)(7), Florida Statutes (1987)), provides in relevant part: "The agency shall accurately and completely preserve all testimony in the proceeding, and, on the request of any party, it shall make a full or partial transcript available at no more than actual cost." The commission cites Roberts v. Unemployment Appeals Commission, 512 So.2d 212 (Fla. 3d DCA 1987), and Smith v. Department of Health & Rehabilitative Services, 504 So.2d 801 (Fla. 2d DCA 1987), quashed, 573 So.2d 320 (Fla. 1991), for the proposition that section 120.57(1)(b) only requires that the agency preserve "testimony" and make it available at no more than actual cost. However, such an interpretation ignores the plain meaning of the statute. The wording of section 120.57(1)(b) distinguishes between "testimony," which is an oral statement under oath, and "transcript," which is a written or printed copy of everything that was said at a hearing or trial....

...The interpretation urged by the commission would read the word "transcript" out of the statute. Statutes should be construed to give each word effect. See Atlantic Coast Line R.R. v. Boyd, 102 So.2d 709, 712 (Fla. 1958) ("We are obligated to give meaning to all words chosen by the legislature."). Therefore, we construe section 120.57(1)(b) as requiring that upon request of a party, an agency must provide a transcript at no more than actual cost. However, the words "at no more than actual cost" do not authorize the charging of a fee for preparation of a transcript in all circumstances. Section 120.57(1)(b) is a general statute dealing with appeals from administrative proceedings....

...In this case, section 443.041, the specific statute that controls unemployment compensation appeals, states that "no fee" shall be charged. Because section 443.041 does not set a charge for preparation of a transcript that is above the ceiling set by section 120.57(1)(b), it controls, and the commission may not charge for preparation of a transcript....

...lling the claimant to depart, it must be concluded that the claimant voluntarily left her employment without good cause attributable to the employer within the meaning of the statute. (Emphasis added). Under the Florida Administrative Procedure Act, section 120.57(1)(b)10, Florida Statutes (1989): The [reviewing] agency may adopt the recommended order as the final order of the agency....

...y State Bank's application for authority to establish a branch bank near Gadsden's existing facility in Chattahoochee. Section 120.68, Florida Statutes (Supp. 1976). The Department and Quincy assert that Gadsden is not entitled to participation in a Section 120.57 hearing and that Gadsden seeks review of the wrong agency order or untimely seeks review of the right order....

...explaining the Department was bound to confidentiality by the Supreme Court's decision in Lewis v. Bank of Pasco County, 346 So.2d 53 (Fla. 1976), 346 So.2d 53 (Fla. 1977). On December 9, Gadsden as protestant requested a formal hearing pursuant to Section 120.57(1), Florida Statutes (Supp....

...1976), asserting it is a "substantially interested and substantially affected party in the matter." The Department replied it had taken "merely preliminary steps" concerning the proposed Quincy branch at Chattahoochee, that "no action which affects [Gadsden's] substantial interest has been determined by this agency," that a Section 120.57(1) hearing was accordingly denied, and: "If and when [Gadsden's] substantial interests are determined, [its] rights under Chapter 120, F.S., would then attach." By letter to Quincy dated January 3, 1977, but "issued" January 21, 1977, the Comptroller approved Quincy's branch banking application subject to FDIC approval, and so notified Gadsden and others. On January 13, Gadsden filed another written request for a Section 120.57(1) hearing on Quincy's application....

...The Department denied that application by order on March 3, stating that Gadsden's interests are only those of a competing bank, and "Gadsden has no standing and was not a proper party or a person whose substantial interests were determined by an agency. Section 120.57(1), Florida Statutes." On March 18 Gadsden petitioned this Court for review of the Department's order denying it an APA hearing. Section 120.57 provides: "The provisions of this section shall apply in all proceedings in which the substantial interests of a party are determined by an agency....

...ormal hearing, there was no occasion for Gadsden to properly "appear" and thus become a party protestant. Gadsden was and is a party. We disagree also, on two grounds, with the Department's argument that Gadsden is not entitled to participation in a Section 120.57(1) hearing because its "substantial interests" were not to be determined in proceedings on Quincy's application....

...sting banks or branches already established in such area." Fla. Admin. Code Rule 3C-13.07(1)(e). [5] Second, a protesting party's right of participation in an APA hearing does not depend on showing its own substantial interests are to be determined. Section 120.57 provides a hearing under one of its subsections "in all proceedings in which the substantial interests of a party are determined." Quincy assuredly was such a party. The APA does not permit the implication that one whose interests are substantial enough to induce recognition as a party may be excluded from the hearing. Indeed, Section 120.57 provides that, "unless waived by all parties," formal proceedings are necessary when there is a disputed issue of material fact. Every party is entitled to participation in a Section 120.57 hearing determining one's substantial interests, and any party may timely invoke the right to a hearing even if the agency and the party whose substantial interests are to be determined agree to omit compliance with Section 120.57. [6] Thus Gadsden is a party entitled to a Section 120.57 hearing because by agency *347 rule it was a person "entitled to participate in whole or in part in the proceeding, or whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party." Section 120.52(10)(b), Florida Statutes (Supp....

...cy order. Section 120.68(1); City of Plant City v. Mayo, 337 So.2d 966, 970 (Fla. 1976). Contrast ASI, Inc. v. Florida Pub. Serv. Comm'n, 334 So.2d 594, 596 (Fla. 1976), in which the Supreme Court held the Public Service Commission properly denied a Section 120.57 hearing to a competitor of an applicant for a public transportation permit, on grounds the competitor "has no legally recognized interest in being free from competition" and the permit was issuable as a matter of right....

...We likewise reject those arguments. Without the prior benefit of our McDonald decision, [7] the Department misconceived the APA's hearing provisions are applicable only after the agency acts. While that application of those provisions is a permissible one, Section 120.57(2)(a)1, public and private interest will frequently be better served by hearings before the agency decides....

...Ordinarily, without a more substantial showing of harm irremediable by review of final agency action on the pending issue, we would not favorably consider a petition for review of "preliminary, procedural, or intermediate agency action" such as the Department's order denying Gadsden a Section 120.57 hearing....

...The Department's final approval of Quincy's petition must be considered as subject to our disposition of the interlocutory petition. [8] Our disposition of Gadsden's interlocutory petition nullifies the Department's order approving Quincy's application. The Department's order denying Gadsden participation in a Section 120.57 hearing is REVERSED and the cause is REMANDED to the Department for further proceedings....

...1977) in which the Court approved agency departure, in a given case, from an agency rule of procedure. [3] See § 659.03(2), Fla. Stat. (1975), quoted and discussed in McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). [4] Subsection (1) of § 120.57 provides formal proceedings and subsection (2) provides informal proceedings leading to final agency action....

...al compensation and for extensions of the time of performance, and denying also Graham's request for a formal hearing on the question of whether the contractor's claims were submitted to the architect within the times prescribed by the contract. [1] Section 120.57(1), Florida Statutes (1977); Fla.R.App.P....

...We find that the Department's position is unfounded, that the court has jurisdiction and that the Department must accord Graham a hearing on the disputed issue of whether Graham's claims under the contract were timely. Urging the inapplicability of Section 120.57, which requires an agency hearing in proceedings determining a party's substantial interests, and Section 120.68, providing for judicial review of agency action, the Department does not dispute that it is an agency subject to the Admin...

...of a rule, whether affirmative, negative, injunctive, or declaratory in form. An agency decision shall be final when reduced to writing. In this case the Department's orders denying Graham's claims under the contract and denying Graham the requested Section 120.57(1) hearing on disputed factual issues are contained in letters. Though they do not meet the requirements for orders imposed by Sections 120.57 and 120.59, they are orders nonetheless, and final in the sense of being dispositive in the absence of judicial review....

...n referred, or in any Department rule. Graham may not thusly be denied a hearing. The Department begs the question by its claim that the uncontroverted record shows Graham's claims were tardy. Because there have been no proceedings satisfying either Section 120.57(1) or 120.57(2), we have no record; we have only a batch of correspondence by which Graham contends and the Department denies that there are disputed factual issues. These free-form proceedings may end the controversy if they are accepted as ending the controversy, but not *815 if a substantially affected party timely invokes Section 120.57(1) or (2) remedies. Capeletti Bros., Inc. v. State, Department of Transportation, supra. If the operable facts are agreed on, or if the factual dispute Graham relies on for entitlement to a Section 120.57(1) hearing is in the Department's judgment irrelevant, the Department may conduct Section 120.57(2) informal proceedings, make a record of Graham's proffer on asserted factual issues requiring formal proceedings, and enter an order satisfying Section 120.59....

...rt of the continuity and rationality such a resource would provide. See McDonald, supra, 346 So.2d at 582. The Department's action on Graham's claims is set aside and the cause is remanded to the Department for further proceedings in conformity with Section 120.57(1) or (2). Pursuant to Section 120.57(1)(b)9, costs of $50 and attorneys' fees of $1500 are assessed for Graham and against the Department....

...d since he "had vested" in FRS. He further asserts that, since the Department's 1978 letter did not provide him a clear point of entry to administrative proceedings, the hearing officer erred in his finding that appellant had waived his rights under Section 120.57, Florida Statutes....

...Further, that letter did not bear the hallmarks of finality required for final orders affecting substantial interests in that it failed to inform appellant of his right to request administrative review and failed to state the time within which he was required to request proceedings under Section 120.57....

...denied, 368 So.2d 1374 (Fla. 1979), this court held: [A]n agency must grant affected parties a clear point of entry, within a specified time after some recognizable event in investigatory or other free-form proceedings, to formal or informal proceedings under Section 120.57....

...Uncertainty in an agency's rules and practices on this point usually results, as is shown by our experience in the past several months, in a petition for review followed by an agency motion to dismiss on the alternative grounds that the agency has not yet taken final action or that, if it has done so, the request for Section 120.57 proceedings and the review petition are too late. We have usually resolved such confusion in favor of the affected party. (emphasis added) ... . Until proceedings are held satisfying Section 120.57, or an opportunity for them is clearly offered and waived, DOT is powerless to suspend Capeletti's certificate of qualification. Capeletti refers to the court's "problematical task" of ascertaining from the record whether the affected party clearly waived Section 120.57 benefits, in the absence of clear agency procedures in this regard....

...a final determination in the matter and, far from asserting waiver against appellant based on the 1978 letter, advised appellant that an administrative hearing would be afforded if requested within 21 days. Appellant did thereafter timely request a Section 120.57 hearing, a hearing was held, and the agency entered the order determining the merits of the controversy which is before us on this appeal....

...p in FRS or that his status was tentative, pending an investigation. He was forced to forgo other retirement alternatives [4] during the period in question. We reverse the agency's finding that appellant waived his right to a formal proceeding under Section 120.57, Florida Statutes, and remand this case to the agency for reinstatement of appellant in the Florida State Retirement System for the four and one-half year period in question, conditioned upon appropriate reimbursement by appellant of contributions returned him upon disenrollment....

...0 to controvert his retroactive disqualification. His failure to do so, together with acceptance of the refund warrant and retention of funds for a period *683 of years, supports the conclusion in the order appealed holding that appellant waived his § 120.57 remedies by a conscious decision not to pursue them and not because of any misunderstanding as to remedies available to him....

...shall be presumed to have become ineligible for continuation of employment and shall be deemed to have resigned from the Career Service without the right to appeal to the Career Service Commission. (b) [provides for agency or DOA review pursuant to Section 120.57 processes, detailed in Chapter 22A-13, of free-form agency or DOA denial of authorization for local candidacies]....

...4)(a) and Rule 22A-13.04, Nelson was deemed to have resigned on August 15 without right of appeal to the Career Service Commission because he qualified for office without the necessary prior approval. The letter pointed out that Nelson could request section 120.57 proceedings on the Department's decision not to approve Nelson's candidacy....

...We do not agree, however, that petitioner's due process rights were violated, and are of the opinion that the procedures followed herein, which were those established by the rules, provide adequate safeguards for one in his situation. Similarly, DOA's Rule 22A-7.10(4)(b) afforded Nelson a section 120.57 hearing to review either the agency's disapproval, or DOA's disapproval, of his request for authorization to become a candidate for the Wakulla County School Board....

...ilable to all affected personnel who make such request" a "definite set of rules and procedures." Knowing the rules and procedures, knowing the consequences of unauthorized candidacies, and knowing the risks of qualifying without first prevailing in section 120.57 proceedings to secure authorization, is of great value prospectively, less so retrospectively. Thus the rules provide prospectively affected employees their clear point of entry to section 120.57 procedures, supra note 4, even if, as is the case here, those proceedings cannot be completed by the candidate's qualifying deadline....

...l of the employees, it may not disturb the due process hearing ... (emphasis added) As the Supreme Court held in Hadley, due process may be afforded by means other than review by the Career Service Commission. Plainly, due process is afforded by the section 120.57 proceedings and judicial review offered by DOA's rules to determine, prospectively if possible, whether authorization should be given for an employee's desired candidacy....

...terms provide a forum for determining the potential issue of whether the employee having been denied authorization to become a candidate, nevertheless did so. If that is a disputed fact (it is not disputed by Nelson), we know of no reason why agency section 120.57 processes, subject to section 120.68 judicial review, cannot fairly determine the issue in determining the substantial interest of the employee....

...Again, the 1970 reference was to the Division of Personnel of the Department of Administration. See n. 2. [4] DOA's Rule 22A-13.032, Fla. Admin. Code, provides: (1) If the agency head denies an employee's request submitted in accordance with this chapter, the employee shall have the right to a Section 120.57, Florida Statutes, proceeding before the agency head or his/her designate....

...ives notice of the decision to deny approval of his/her request to campaign for or hold a local public office. (2) If the Department of Administration disapproves an employee's request pursuant to this chapter, the employee shall have the right to a Section 120.57, Florida Statutes, proceeding before the Secretary of Administration or his/her designate....

...Although G-W submitted the lowest bid, it was still 29% higher than DOT's prebid estimate. [1] DOT notified G-W that it intended to reject its bid as too high and readvertise the project. G-W filed a formal complaint and the matter was referred to a hearing officer pursuant to sections 120.53(5) and 120.57(1), Florida Statutes (1985)....

...(Emphasis added). At the same time, the public bidding process is governed by the Florida Administrative Procedure Act ("APA"), chapter 120, Florida Statutes (1985), which provides a mechanism by which aggrieved parties may challenge agency decisions. Under section 120.57(1)(b)9 of the APA, an agency must accept the factual determinations of a hearing officer unless those findings are not based upon competent substantial evidence....

...DOT's official estimate of the cost of the project. The invitation to submit bids on this project informed the bidders of this policy. [2] Section 120.53(5) establishes the procedure for resolving protests arising from the contract bidding process. Section 120.57 governs all proceedings in which the substantial interests of a party are determined by an agency....

...We also reject a belated claim that the licensee did not have adequate notice of the charges against her. But we agree that the Department failed, as a matter of law, to prove a violation of section 626.611(9), Florida Statutes (1989). For this and other reasons, we remand for reconsideration of the penalty. Facts Found At a section 120.57(1) hearing, the purchaser of an annuity testified that she had meant to invest ten thousand dollars for two years at eight per cent, and thought she had done so on February 15, 1991....

...An agency's imposition of the same penalty for less numerous (or less severe) offenses than those that underlay a hearing officer's recommended penalty is functionally equivalent to imposing a greater penalty than the hearing officer recommended for the same offenses. Both former section 120.57(1)(b)10 and section 120.57(1)(j), Florida Statutes (Supp.1996), provide: The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action....

...1989. The sanctions policies were first employed with regard to appellants Pembroke and Village. The appeals involving these two municipalities arise from the imposition of these sanctions, and the municipalities' unsuccessful attempts to receive a section 120.57, Florida Statutes, hearing on the sanctions issue....

...in the determination of the issue. It directed Pembroke to file a response to DCA's notice within 30 days, and provided for a meeting to be conducted by the Administration Commission within 15 days which "will operate as an informal proceeding under section 120.57(2), F.S., unless the local government files with its response a substantiated allegation that the 90-day period has not yet elapsed." The letter further provided that within 20 days of the meeting DCA would file a recommendation as to...

...ld be employed in the determination of the issue. It directed Village to file a response to DCA's notice within 30 days, and provided for a meeting to be conducted by the Commission within 15 days which, "will operate as an informal proceeding under section 120.57(2), F.S., unless the local government files with its response a substantiated allegation that the 90-day period has not yet elapsed." The letter further provided that within 20 days of the meeting DCA would file a recommendation as to...

...mmission impose on Village. The letter stated that the DCA recommendation would be taken up at a regularly scheduled meeting conducted by the Commission on September 14, 1989 "which will serve as the City's opportunity to be heard in accordance with Section 120.57, Florida Statutes." The letter also advised of the time and location of the September 6 Cabinet Aide's meeting, and advised that Village could appear and make presentations at either, or both, meetings....

...The sanctions policies cannot be considered to be incipient or emerging under the authority of McDonald v. Department of Bank and Finance because said policies are solidified and substantially-affected persons are not given a full opportunity to challenge the application of the policies pursuant to Sec. 120.57, Fla....

...licy. We disagree. The sanctions policy is not "solidified" to the point that it cannot be regarded as evolving as discussed above. Appellants also argue that the policy does not afford substantially affected parties a clear point of entry to pursue section 120.57 proceedings....

...Department of Community Affairs when the Department has issued a Notice of Noncompliance" does not alter the fact that the policy itself does not address adjudication. Whatever "disincentive" the statutorily created sanctions may pose to pursuit of section 120.57 proceedings, they arguably pose a greater disincentive to the filing of plans late or not in compliance....

...n is or is not in compliance. If the DCA finds the plan is not in compliance, section 163.3184(10) provides that the DCA issues a notice of intent to find the plan not in compliance which is forwarded to the Division of Administrative Hearings for a 120.57 hearing....

...e plan is out of compliance beginning with the date DCA issued its Notice of Intent ..." until the amended plan is found to be in compliance by the DCA. If the DCA initially finds a plan in compliance and issues its notice accordingly but, following 120.57 hearing, the Commission instead determines the plan is not in compliance, the sanctions policy provides that the Commission's final order will specify remedial measures to be incorporated by a specific date....

...The Administration Commission would be within its discretion in imposing sanctions for noncompliance as of the submittal date. The fact that the statute refers to the plan being presumed correct is a procedural, not a substantive directive. Section 163.3184(10)(a) merely sets forth the relative burdens of proof in the 120.57 hearing to be conducted upon the DCA's determination of noncompliance....

...In their fourth point addressed to the rule challenge, appellants argue the noncompliance policy is an invalid exercise of delegated legislative authority as the Commission acknowledges it poses a disincentive to the local governments to pursue their statutorily afforded right to a 120.57 hearing....

...substantial disincentive to a municipality's willingness to pursue a hearing and challenge the Department of Community Affairs when the Department has issued a Notice of Noncompliance." Any actual imposition of sanctions will not occur until after a 120.57 hearing has been held, and a final determination of noncompliance has been made by the Administration Commission....

...ight, unless, of course, he is guilty. The possibility of incarceration is intended as a substantial disincentive to the criminal behavior itself. Similarly, the imposition of sanctions is a disincentive to noncompliance, and not to the pursuit of a 120.57 hearing on the issue of noncompliance....

...v. Kwechin, 447 So.2d 1337 (Fla. 1983); Felts v. State . Applying this standard to sections 163.3167 and 163.3184, they are not an unlawful delegation of legislative authority. Of the four issues addressing the imposition of sanctions and denial of section 120.57 hearing raised by the municipalities the third issue alleging unlawful delegation of legislative authority has been discussed and rejected above....

...Commission never made any determination whether the plans were or were not in compliance. The statute clearly requires the Commission to specify remedial actions for plans determined to be "not in compliance with this act," upon the conclusion of a 120.57 hearing as provided in section 163.3184(9) or (10)....

...ative process because they were not provided adequate notice of their right to seek an administrative hearing because the notices contained in the January 3 and January 23, 1989 letters were inadequate, and because they never waived their right to a 120.57 hearing. The Commission agrees that substantial interests warranting the application of section 120.57 are involved, and the parties agree that the determination of the issues turns on the provisions of the January 3 and January 23, 1989 letters from Patricia Woodworth, Secretary of the Administration Commission to the mayors of the municipalities. Any substantially affected person must be provided with a clear point of entry, within a specified time period after some recognizable event in the investigatory or other free form proceedings, to formal or informal proceedings under section 120.57....

...Simply providing a point of entry, however, is not enough if the point of entry is so remote from the agency action as to be ineffectual as a vehicle for affording a party whose substantial interests are or will be affected by agency action a prompt opportunity to challenge disputed issues of material fact in a 120.57 hearing....

...and the time limits for doing so is inadequate to trigger the commencement of the administrative process. Henry v. State, Department of Administration, Div. of Retirement, 431 So.2d 677, 680 (Fla. 1st DCA 1983). Until proceedings are had satisfying section 120.57, or an opportunity for them is clearly offered and waived, there can be no agency action affecting the substantial interests of a person....

...The rule specifies that "whenever possible" the agency shall issue a notice of intent prior to the actual decision, to allow the affected person 21 days to request a hearing. The letters call for a "response" to be submitted within 30 days, and provides that an informal 120.57 proceeding will be held within 15 days "unless the local government files with its response a substantiated allegation that the 90-day period has not yet elapsed." Although this procedure was subsequently promulgated as a rule ( see FAC Rules...

...1st DCA 1986). Notice of final agency action is intended to create a clear point of entry, not a trap for the unwary. SWS Partnership v. Florida Dept. of Corrections, 567 So.2d 1048 (Fla. 5th DCA 1990). Under Capeletti, "Until proceedings are had satisfying section 120.57, or an opportunity for them is clearly offered and *415 waived," the agency is without power to act....

...e sought. The notice must contain a statement concerning a right to a hearing, set forth a time limit for requesting a hearing, and refer to the applicable procedural rules of the agency. We reverse the denial of Pembroke's and Village's request for section 120.57 hearings....

...ion because the proposed structure would be located over seagrass beds and the resultant shade would adversely affect the existing seagrasses and water quality. The letter concluded with a notice of the right to an administrative hearing pursuant to section 120.57, Florida Statutes (1983)....

...The reason recited by DER for the second application denial was that the resultant shading by the structure was expected to affect marine soils and eliminate the potential for seagrass growth in the area. The notice further indicated that the Thomsons could again seek an administrative hearing under section 120.57, Florida Statutes (1983), except that any petition for a hearing "should address the res judicata aspects of this denial." On March 12, 1984, the Thomsons petitioned DER for a formal administrative hearing pursuant to section 120.57, Florida Statutes (1983), alleging disputed issues of fact concerning the impact of the structure. On March 27, 1984, DER issued a Procedural Order denying the petition for a formal hearing, but granting an informal *991 hearing pursuant to section 120.57(2), Florida Statutes (1983)....

...We hold, for the reasons stated infra, that if there exist disputed issues of material facts as to whether the assessment procedure set forth under Section 231.29, Florida Statutes (1975) was not followed, petitioners are then entitled to an evidentiary hearing as provided by Section 120.57(1), Florida Statutes (Supp. 1976). [2] If petitioners, under the circumstances outlined, are entitled to an evidentiary hearing on the merits of their petitions pursuant to Section 120.57(1), then we must necessarily hold that the District School Board is an agency which is subject to the operation of the Administrative Procedure Act....

...riticism stated in such reports. 3. If there is a disputed issue of a material fact as to whether petitioners have been appropriately assessed in accordance with the statute, then the Board shall hold a hearing pursuant to the procedure set forth in Section 120.57(1), Florida Statutes (Supp....

...les, regulations, or policies now existing or hereinafter enacted." [2] All further references to the Administrative Procedure Act, if not dated, will refer to the amendments which went into effect January 1, 1975. [3] The statute (later replaced by § 120.57, Florida Statutes (Supp....

...competent or relevant evidence in a later proceeding for attorney's fees. Rather, the issue in Kibler was whether the reviewing agency acted correctly in rejecting a hearing officer's recommended findings of fact on an incomplete record following a Section 120.57(1), Florida Statutes, adversary proceeding relating to the prosecution of a disciplinary complaint. In reversing the agency's action, the Fourth District specifically noted the provisions of section 120.57(1)(b)10, regarding the requirement that the reviewing agency shall not reject or modify the recommended findings of a hearing officer, unless the agency first determines from a review of the complete record that the officer's findings were not based upon competent, substantial evidence. Kibler was simply a recognition of the rule, well established by Florida courts in their interpretation *719 of the Administrative Procedure Act, that a reviewing agency may not reject the recommended findings of a hearing officer following a section 120.57(1) adversary proceeding, unless the agency had the opportunity to review the entire record of the 120.57 proceeding....

...ts decision to file the administrative complaint against the licensees. From our examination of section 455.225, it appears that a panel's decision of whether to initiate a disciplinary action against a licensee is not subject to the requirements of section 120.57, in that a probable cause determination may be made without the licensee present....

...463.0055, Florida Statutes. [3] Appellants filed a petition with the Board challenging the validity of rule 21Q-10.001 and the validity of the application form the Board prescribed for use in certification proceedings. The petition also requested a section 120.57(1) hearing in respect to each and every optometrist's application for certification. Ruling on the petition, the Board entered a final order stating that petitioners lacked standing to initiate a section 120.57(1) formal hearing to challenge the validity of each such application....

...*1283 The petition incorporates these allegations in each of three counts. Two counts based on section 120.56 contend that both rule 21Q-10.001 and the application form as an unadopted rule are an invalid exercise of delegated legislative authority. The third count, which is the subject of this appeal, requests a 120.57(1) formal hearing in respect to the "entitlement to certification of each and every optometrist which the Board proposes to certify" pursuant to section 463.0055 and rule 21Q-10.001, noting that no testing of such optometrists has been made public....

...The principal purpose of the petition is to delay any certification of optometrists until the Board has heard and determined petitioners' rule challenges. Although the Board granted petitioners' request for a hearing in respect to the rule challenges in counts one and two, [6] it denied the 120.57(1) hearing requested in count three. The final order denying that hearing notes the enactment of chapter 86-289, Laws of Florida, and the implementation of section 463.0055 through the Board's adoption of rule 21Q-10.001, and concludes that petitioners "lack standing under Section 120.57, F.S., to contest applications for certification." The Board's order relies on Shared Services, Inc....

...that the Legislature intended to create a right for medical licensees to participate in the licensing of any other health care practitioner. II. Petitioners raise two points on this appeal. They contend, first, that they have standing to initiate a 120.57 hearing in each certification proceeding because they are "substantially affected by the action of the Board of Optometry in certifying optometrists to administer and prescribe drugs." Second, they contend that reversal of the Board's wrongful...

...Thus, it has been stated, the "purpose of the law of standing is to protect against improper plaintiffs." 59 Am.Jur.2d, Parties § 30 (1987). The Florida Administrative Procedure Act, chapter 120, contains several provisions defining who has standing to appear as a party and initiate a section 120.57 hearing....

...These statutory provisions represent legislative recognition of the concept of standing as an essential component of the administrative process. The certification of optometrists under section 463.0055 obviously is a licensing proceeding, and section 120.60 makes such proceedings subject to section 120.57....

...1982) and 415 So.2d 1361 (Fla. 1982): We believe that before one can be considered to have a substantial interest in the outcome of the proceeding he must show 1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of a type or nature which the proceeding is designed to protect....

...We are aware that Farmworker *1288 Rights Organization, Inc. v. Department of Health and Rehabilitative Services, 417 So.2d 753, 754 (Fla. 1st DCA 1982), stated, "For the purpose of standing, there is no significant difference between a section 120.56(1) and a section 120.57(1) proceeding." But that statement must be read in the context of the facts and rationale in that opinion. There can be, as this case illustrates, a difference between the concept of "substantially affected" under section 120.56(1) and "substantial interests" under section 120.57(1)....

...sons other than in the limited sense hereinafter discussed. [6] The propriety of that ruling is before this court in case number 88-142, so we intimate no view thereon in this opinion. [7] See, e.g., §§ 120.53(5), 120.54(4)(a), 120.56(1), 120.565, 120.57(1), Fla. Stat. (1987). [8] The statutes contain no definition of "substantial interest," and this court has said it would not attempt to fashion a comprehensive one; however, it does seem to be agreed that "the legislature intended by the passage of Section 120.57(1) to create a broad avenue of redress for many persons variously situated, and specifically that `substantial interests' contemplates rights not more restrictive but more expansive than those afforded by the predecessor statute which...

...The determinations have no prospective application to any other contract — only the specific project involved in the particular location. Nor do they set wage standards for affected persons extending some indefinite time into the future. The wage determinations may be considered informal "orders" which can be subjected to Section 120.57 proceedings....

...As we have repeatedly stated, all agency action is a recognizable rule or order or is incipiently a rule or order, State ex rel. Dept. of Gen. Serv. v. Willis, 344 So.2d 580, 584 (Fla. 1st DCA 1977); McDonald v. Dep't. of Banking and Fin., supra, 346 So.2d at 577. Adjudication, via Section 120.57, provides the appropriate method of relief to such parties....

...At such proceedings, to the extent agency policy is not incorporated in its regularly adopted rules, the agency may be required by a disappointed applicant to defend its policy, to present evidence and expose its reasons for discretionary action. Harvey, supra, at page 326. At the conclusion of a 120.57 hearing, a summary of the proceedings is finalized into a formal order, which must describe the agency's "policy within [its] exercise of delegated discretion" sufficiently for judicial review....

...Since prevailing wage determinations for a particular project are determinations affecting the substantial interests of contractors and contracting authorities who, in bidding and other contract procedures, must adhere to the prevailing wages thus determined, those determinations are subject to the provisions of Section 120.57. To the extent those determinations depend on disputed issues of material fact, Section 120.57(1) requires formal proceedings before the agency head or before a hearing officer of the Division of Administrative Hearings....

...The Department of Commerce or its Division of Labor must adopt and follow rules of practice for its formal and informal procedures, and in that connection should specify when and how formal proceedings leading to a prevailing wage determination may be invoked. Sections 120.53(1)(b), 120.57(1)(b)1....

...ially interested party, having notice and opportunity, timely requests formal proceedings, the Department or its Division must nevertheless afford those parties an opportunity for informal proceedings after notice and at a convenient time and place. Section 120.57(2)....

...Further, the agency file for 89 DS-1 gave no indication as to what action, if any, was to be taken on the petition at the May 5 meeting. On May 2, 1989, the optometrists filed a petition to intervene in the declaratory statement proceedings and requested a formal hearing under Section 120.57(1), Florida Statutes....

...At the meeting of the Board on May 5, 1989, counsel for the Board indicated that the Board would be conducting a hearing on the petition for declaratory statement. Counsel for the optometrists was present and made a brief argument in support of the petition to intervene and for a formal hearing under Section 120.57, Florida Statutes....

...eir intervention and [did] not have standing to participate." We agree with the optometrists' contentions. A two-part test is applied in evaluating whether a person has alleged a "substantial interest" sufficient to entitle such person to initiate a 120.57 proceeding or intervene in proceedings already pending. [5] The person must allege: (1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and (2) that his substantial injury is of a type or nature which the proceeding is designed to protect....

..., Florida Administrative Code. Rule 28-4.007, Florida Administrative Code, provides that an agency may, at its discretion, hold a hearing to dispose of a petition for declaratory statement and, if a hearing is held, it shall be conducted pursuant to Section 120.57, Florida Statutes. When the decision was made to hold a Section 120.57 formal hearing as part of the Board's May 5, 1989 meeting, the Board was required to give notice of the hearing only to the parties to the proceeding. See Section 120.57(1)(b)(2), Florida Statutes. Since the opticians were the only parties, only they were given written notice that a formal hearing would be held on May 5, 1989. [7] Finally, since a Section 120.57(1) hearing was being held, Rule 28-5.207, Florida Administrative Code, which provides that petitions to intervene must be filed at least five days prior to the final hearing, was applicable....

...The optometrists counter that neither the notices published in the April 14 and April 21, 1989 editions of the Florida Administrative Weekly, nor the agenda item for the May 5, 1989 meeting, nor the agency file, gave them any indication that the Board would be holding a 120.57(1) hearing at the May 5, 1989 meeting....

...The rule itself provides that different notice requirements may be prescribed by law or agency rule. Nevertheless, whether Rule 28-5.111 or some other statutory or rule notice requirement applies to a particular agency decision, the notice must be sufficient to give persons with standing to initiate 120.57 proceedings a clear point of entry to either initiate 120.57 proceedings or intervene in already existing proceedings directed to the same agency decision....

...," and Section 120.565 indicates that a declaratory statement is "final agency action." Consequently, the right of persons whose substantial interests may be affected by such agency decisions are not waived, unless they have failed to petition for a 120.57 hearing within the period specified following notice given under the applicable rule....

...Further, even if the published notice of the petition for declaratory statement had complied with Rule 28-5.111, the optometrists' petition would have been timely, because it was filed just eleven days following the April 21, 1989 publication. While it is true that a failure to timely petition to intervene in existing Section 120.57 proceedings has sometimes been held to constitute a waiver of the clear point of entry, the cases so holding are clearly distinguishable from the present case....

...right to a clear point of entry. Accordingly, we hold that the Board's failure to provide the optometrists notice of the declaratory statement proceedings, in the manner prescribed by Rule 28-5.111, and an opportunity to petition for a hearing under Section 120.57 within a twenty-one day period thereafter, deprived the optometrists of the clear point of entry due persons with standing to initiate proceedings under Section 120.57....

...1st DCA 1977), we said, Except when an agency acts by formal rulemaking (Section 120.54) or by declaratory statement concerning the applicability of a statute, rule or order (Section 120.565), all agency action, on appropriate challenge, will mature into an order impressed with characteristics of the APA's Section 120.57. McDonald, 346 So.2d at 577 (emphasis supplied). This language, which is followed by a discussion of the right of persons whose substantial interests are affected by agency action to a 120.57 hearing, means that Section 120.57 is generally not implicated in proceedings under Section 120.565....

...particular set of circumstances only," Section 120.565 (emphasis supplied), there will normally be no person, other than the petitioner, who will be affected by the declaratory statement. Since a person who submits such a petition has no right to a 120.57 hearing on his petition, and since no one other than the petitioner will normally be affected by the declaratory statement, Section 120.57 is simply not applicable....

...es may be implicated. In the present case, the question presented clearly had the potential for affecting the substantial interests of persons other than the petitioners, and those persons were entitled to a clear point of entry to proceedings under Section 120.57. Therefore, it was the expansive nature of the question presented in the petition for the declaratory statement under review which made Section 120.57 and Rule 28-5.111 applicable....

...[4] The final order denying the optometrists' petition did not assert an absence of disputed issues of fact, nor do the appellees so contend on appeal. See McDonald v. Department of Banking and Finance, 346 So.2d 569, 578 (Fla. 1st DCA 1977). [5] See Section 120.52(12)(b) and the first sentence of Section 120.57....

...(a), and transmit copies of each petition and its disposition to the committee. Agency disposition of petitions shall be final agency action. [7] Although the Board contends that it gave notice to the opticians in accordance with the requirements of Section 120.57(1)(b)(2), a copy of such notice was not placed in the agency file, nor is a copy of such notice included in the record on appeal. [8] Although it is not mentioned in the optometrists' brief, there was another reason why the optometrists would not have expected a 120.57(1) hearing on the petition for declaratory statement at the Board's meeting. Section 120.57(1)(a) requires formal hearings under 120.57 to be conducted by hearing officers of the Division of Administrative Hearings. Since the Board is part of the Department of Professional Regulation, the 120.57(1)(a) 1 exception to this requirement was not applicable....

...of an agency to respond to a petition for fees and costs. To the contrary, we consider that the division's power to permit a late-filed response is reasonably implied from the very statutes that rule 22I-6.035 referenced as authorizing its adoption: Section 120.57, Florida Statutes (1989), specifically subsection (1)(b)4, authorizing parties "to respond, to present evidence and argument on all issues," and sections 57.111(4)(c) and (d), allowing a state agency against which a small business part...

...The above case law is clear that an agency's authority to impose sanctions must be expressly delegated to the agency. Although the legislature has explicitly conferred such authority in different contexts, i.e., section 120.58(3), imposition of sanctions caused by the violation of discovery orders, and section 120.57(1)(b)5, imposition of "an appropriate sanction," including a reasonable attorney's fee, resulting from a party's failure to comply with the pleading requirements of the statute, we find no statutory authority delegated to the division...

...adequate opportunity to protect those interests. If the agency determines that the rule making proceeding is not adequate to protect his interests, it shall suspend the rule making proceeding and convene a separate proceeding under the provisions of section 120.57 ..." Rule 28-5.13 of the Model Rules of Procedure provide that the request for a drawout can be made "at any time prior to the conclusion of a public hearing conducted under the provisions of § 120.54." In the instant case, the hearin...

...ng. [6] However, since the hearing officer was apparently of the view that he could not permit formal presentation, on remand the request may be renewed for his consideration. Concerning the agency's denial of the requested evidentiary hearing under § 120.57, we note that neither of the bases stated by the hearing officer for that denial is sufficient. The request was timely and the fact that petitioners' counsel was present at the rule-making proceedings does not eliminate the need for a § 120.57 proceeding. In Bert Rogers Schools of Real Estate v. Florida Real Estate Commission, 339 So.2d 226 (Fla. 4th DCA 1976) petitioner attended the agency's rule-making hearing and requested a § 120.57 proceeding....

...The court ruled that the agency had failed *26 to expressly determine whether the § 120.54 proceeding was adequate to protect the interest asserted and, further, that there was nothing in the record which would support such a determination and therefore the denial of a § 120.57 proceeding was arbitrary. The court remanded the cause with directions that the petitioner be granted a hearing under § 120.57, and in so doing made the following statement concerning the basic problem of the § 120.54 hearing which is appropriate here: "[I]t seems apparent that everyone involved was somewhat in doubt as to the correct procedure to follow under the circumstances....

...The HRS may thereafter make changes in, or additions to, the definitions in Rule 10c-7.32, or not, as is its prerogative. In the proceeding below the hearing officer ruled (1) that only comments or statements could be received at the § 120.54 hearing and (2) that petitioners did not have a right to a § 120.57 draw-out....

...These rulings were made in a vacuum, without apparent basis in the record. The hearing officer failed to make inquiry, either as to the nature of testimony sought to be elicited or the substantial interest of petitioners in the rule modification which might require a § 120.57 draw-out....

...Petitioners, for their part, should have submitted either a verbal or written statement of their contentions, of the evidence sought to be elicited and the particular reasons why examination and cross-examination was essential to that presentation of a § 120.57 proceeding necessary....

...The Commission in its petition propounds the argument of the Third District found persuasive in Roberson. The substance of this is that because the legislature passed section 120.52(10) [4] prohibiting prisoners from being parties to proceedings under section 120.54(16) or 120.57, [5] the legislature intended to preclude all prisoner actions from the purview of any part of chapter 120....

...[10] *920 This Court's examination of the documents and materials in the archives supports the conclusion that section 120.52(10) does nothing more than what it says that it does: Prisoners cannot be parties to proceedings pursuant to section 120.54(16) and section 120.57....

...dministrative appeal to the district from that determination, pursuant to section 120.68, Florida Statutes (1979). Section 120.52(10)(d) expressly provides that prisoners defined by section 944.02(5) are not parties for purposes of proceedings under section 120.57. Section 120.57 encompasses the proceedings resulting in fixing presumptive parole release dates. If a prisoner cannot be a party for purposes of a section 120.57 proceeding, then it can only logically follow that he cannot subsequently become a party eligible to appeal under section 120.68 from the adverse ruling resulting from the proceeding setting the presumptive parole release date....

...gency decision would not provide an adequate remedy. [3] The pertinent part of section 120.52(10) reads as follows: Prisoners as defined in s. 944.02(5) shall not be considered parties for the purposes of obtaining proceedings under s. 120.54(16) or s. 120.57, nor shall parolees be considered parties for these purposes when the proceedings relate to the revocation of parole. [4] Ch. 78-28, Laws of Fla. [5] Section 120.54(16) offers a party a hearing if the party's substantial interests are not served in the normal rule-making process. Section 120.57 offers a full panoply of procedural rights, including a hearing, in matters determining a party's substantial interests....

...They were considerably broader in scope as to excluding prisoners from the purview of the APA, proposing: Prisoners as defined in s. 944.02(5) shall not be considered parties for the purposes of obtaining proceedings under s. 120.54(3)-(6) or (16), s. 120.56, or s. 120.57....

...aning of the regulation, is "a termination, suspension, or reduction of Medicaid eligibility or covered services." 42 C.F.R. § 431.201. A wavier-program beneficiary may also have a right to a hearing under Florida law. See Fla. Stat. §§ 120.569 & 120.57....

...alleges a factual dispute; indeed, the governing rule requires the petition to identify the applicable rules or statutes and to explain how those rules or statutes entitle the petitioner to relief in light of the factual allegations. See Fla. Stat. § 120.57(1) (providing for a hearing only when there is a disputed issue of material fact); Fla....

...AHCA, 869 So.2d 656 (4th DCA 2004) (upholding the denial of a hearing for failure to adequately allege a disputed issue of material fact). When these requirements are met, the person is entitled to a hearing with the full range of procedural rights available under the Administrative Procedure Act. See Fla. Stat. § 120.57(1)(b)-(n)....

...of Business Regulation, for appellees. *427 NIMMONS, Judge. This is an appeal from a final order of the Department of Business Regulation, Division of Land Sales, Condominiums and Mobile Homes ("Division"), denying appellants' "Petition to Initiate Formal Proceedings" pursuant to Section 120.57(1), Florida Statutes....

...The Division's final order denying appellants' petition found that neither the Act nor the rules promulgated thereunder contemplated participation by the home owners in the prospectus review process, that the petition was defective insofar as it requested a formal proceeding pursuant to Section 120.57(1) while failing to set forth any disputed issues of material fact, that appellants had not demonstrated that their substantial interests had been determined by the agency in the prospectus review process, that appellants had no standi...

...he agency from pursuing violations of the Act via administrative enforcement proceedings. The principal issue in this case is whether the appellants were entitled to participate in the prospectus review process. In denying appellants' petition for a Section 120.57 hearing, the Division concluded that the home owners were not so entitled....

...Department of Environmental Regulation, 406 So.2d 478 (Fla. 2nd DCA 1981): [B]efore one can be considered to have a substantial interest in the outcome of the proceeding he must show 1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of a type or nature which the proceeding is designed to protect....

...reduction of services remain subject to Section 723.037, Florida Statutes. No action by the Division in regard to prospectus approval is binding on the appellants and thus, as to the appellants, no finality has been demonstrated such as to warrant a Section 120.57 hearing....

...JOANOS and THOMPSON, JJ., concur. ON MOTION FOR REHEARING NIMMONS, Judge. Appellants have filed a Motion for Rehearing, essentially challenging this Court's ruling that appellants had failed to demonstrate any injury-in-fact of sufficient immediacy to entitle them to a Section 120.57 hearing....

...Department of Health & Rehabilitative Services, State of Florida, 396 So.2d 1194 (Fla. 1st DCA 1981). However, appellants have misinterpreted our opinion in the instant case. We trust that this opinion on the motion for rehearing will clarify the Court's position. Section 120.57 requires that a person petitioning for a formal hearing demonstrate that his substantial interests will be affected *432 by the challenged agency action....

...Agrico established that under such circumstances, before one can be considered to have a substantial interest in the outcome of a proceeding, he must show: (1) that he will suffer injury-in-fact which is of sufficient immediacy to entitle him to a Section 120.57 hearing, and; (2) that his substantial injury is of a type or nature which the proceeding is designed to protect....

...ns. Schneier v. Fla. Unemployment Appeals Comm'n, 595 So.2d 235, 236 (Fla. 4th DCA 1992). The UAC may reverse the referee's findings of fact, however, where there is no competent, substantial evidence in the record to support the referee's decision. § 120.57, Fla....

...ular positions, but may not use the prescribed minimum training and experience requirements as a rule of decision. [2] Since that decision will determine Harvey's substantial interests, the Division's proceedings must comply with the requirements of Section 120.57....

...den would be substantially greater if it does not adopt minimum requirements as rules. To the extent Division policy is not incorporated in regularly adopted rules, the Division may be required by any disappointed applicant to defend its policy in a Section 120.57 proceeding where the Division will be required to present evidence and argument and to "expose and elucidate its reasons for discretionary action." McDonald, supra, 346 So.2d at 584....

...the specifications to mean something different and apart from the rules and regulations. I would reverse. NOTES [1] Harvey did challenge the Division's factual conclusion that she was unqualified for the position by requesting a hearing pursuant to § 120.57(1), Fla....

...While those titles and descriptions may also be rules requiring adoption under § 120.54, Harvey has not challenged the job titles and descriptions in this proceeding. The Division may continue to register applicants under the class specifications until they are properly challenged in a § 120.56 or § 120.57 proceeding, if the Division has not by then adopted the class specifications as rules.

...Capeletti was the lowest bidder, but its bid was deemed nonresponsive because it failed to meet the WBE goal. DOT's Bureau of Contract Administration notified all bidders that Capeletti's bid had been rejected and that the next lowest bidder would be accepted. Capeletti requested a formal administrative hearing pursuant to section 120.57, Florida Statutes (1983), to protest DOT's action, and also instituted a proceeding under section 120.56, Florida Statutes (1983), challenging the validity of rule 14-78.03....

...should have been awarded the contract. This issue is also without merit. There was competent, substantial evidence to support the findings of fact of the hearing officer and DOT that Capeletti did not meet the good faith efforts test. When reviewing section 120.57 proceedings in which an independent hearing officer and the agency agree on a dispositive fact, the appellate court's only task is to "assure that the affected party was protected by adherence to Chapter 120 processes [and] that the di...

...Surgicare III submitted an application for a certificate of need to construct an ambulatory-surgical center in Volusia County, and HRS on April 2, 1984 preliminarily approved the application. Halifax Hospital on May 10, 1984 filed a petition for a section 120.57(1) formal hearing to challenge the action....

...HRS asserted that section 381.494(8)(e), Florida Statutes, is jurisdictional, and an intervenor has no right to a hearing unless the original petitioner continues its action. A party must comply with the requirements of section 381.494(8)(e) in order to be eligible for a section 120.57(1), Florida Statutes, hearing....

...Subsequently appellant's major professor signed the "Final Term Degree Clearance Form," but the department chairman refused to allow appellant to take the Ed.D. degree and revoked the options set out above. The order denying the petition correctly noted that the procedures were governed by § 120.57, Florida Statutes, § 120.54(10), Florida Statutes, and Fla....

...the petition was dismissed because it was not filed within the 21-day limit set out in the same rule. As indicated above, the order also found that appellant failed to allege a violation of a substantial interest which would afford him a right to a § 120.57 hearing....

...degree ..." and, relying on Board of Curators, University of Missouri v. Horowitz, 435 U.S. 78, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978), "a substantial interest in a decision based upon the assessment of a student's academic performance would not be a substantial interest within the scope of that term as used in § 120.57, Florida Statutes, with respect to invoking the procedural tool of formal or informal hearings." The first conclusion deals with the allegation that appellant was offered the Ed.D....

...es and costs along with their proposed recommended orders so that he could make the required findings of fact in his recommended order. On April 20, 1993, under protest, the School Board filed its motion seeking attorney's fees and costs pursuant to section 120.57(1)(b)5, Florida Statutes, and "as a discovery sanction based on [Schrimsher's] denials to numerous requests for admissions." Schrimsher filed his proposed recommended order which set forth his claimed bases for attorney's fees, but did not request a hearing based on the stipulation....

...ings in which the findings were based did not comply with the essential requirements of law from which the findings could reasonably be inferred. Greseth v. Department of Health and Rehabilitative Servs., 573 So.2d 1004 (Fla. 4th DCA 1991); see also § 120.57(1)(j), Fla....

..."The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action." § 120.57(1)(j), Fla....

...by adopting Universal Camera [Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951)]'s standard of judicial review. The Florida APA, like the federal, makes the hearing officer's recommended order part of the record in the reviewing court. Section 120.57(1)(b); 120.68(5)(a)....

...ngs in which the findings were based did not comply with the essential requirements of law from which the findings could reasonably be inferred. Citing Greseth v. Department of Health and Rehabilitative Servs., 573 So.2d 1004 (Fla. 4th DCA 1991) and § 120.57(1)(b)10, Fla....

...Bertoch, Tallahassee, for appellees. LARRY G. SMITH, Judge. The Suwannee River Area Council Boy Scouts of America appeal from final agency action of the Department of Community Affairs denying the Council's petition for a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes....

...rmination whether such construction must first be authorized pursuant to Section 380.06 in addition to other applicable local, state or federal permitting procedures. * * * * * * The Department further denies your Petition for Hearing because formal 120.57(1) hearings must be requested by a party....

...§ 380.06(4)(a) and that the Petition For Hearing was not timely filed. The Department concludes that your client has not sought or obtained status as an intervenor in the subject proceeding, and does not have standing as a party to require a formal hearing pursuant to Section 120.57(1)....

...y Section 380.06, Florida Statutes. The Department maintained that the only interests determined or affected by the binding letter are the interests of the developer. Accordingly, it is the Department's position that only the developer may request a Section 120.57(1) hearing....

...nistrative Code. Subsection (12) of that Rule provides that if an applicant (the developer) believes the binding letter determination involves a disputed issue of material fact, which requires a fully evidentiary hearing, the applicant may request a 120.57(1) hearing....

...ct themselves to the additional delay and expense entailed in securing a binding letter. Appellant's reliance upon Gadsden State Bank v. Lewis, 348 So.2d 343 (Fla. 1st DCA 1977), in support of its argument for "standing" giving the right to a formal Section 120.57(1) hearing, is misplaced....

...ail itself of Rule 28-5.25(3)(a), Florida Administrative Code, authorizing intervention upon motion. Under these circumstances I conclude that the Council has not shown an abuse of discretion in the Department's denial of the Council's request for a § 120.57(1) hearing as untimely and improper under the circumstances. NOTES [1] We further note that, even if an agency should grant a full party status to third persons, this does not necessarily entail a formal Section 120.57(1) hearing....

...Florida Department of Health and Rehabilitative Services, 383 So.2d 728 (Fla. 1st DCA 1980): "Not every dispute between an agency and an affected person requires formal proceedings for its resolution. Many disputes, ... can as readily be determined and made ready for judicial review under Section 120.57(2), which in proper application will afford full relief faster and more conveniently." [2] The Lake Padgett court ruled that Lake Padgett Pines, a partnership, had standing to maintain an action to enjoin a water supply project on near...

...AND for further proceedings. 1 Under School Board rules, defendants exercised no control over the hearing process from the time the hearing request was forwarded to the DOAH until the time of the hearing officer's recommended order. Florida Statutes § 120.57(1) governed the hearing process 2 Collins also sued defendants in their official capacities and charged them with violating Florida state laws 3 The Supreme Court first recognized a due process right to a "prompt postsuspension hearing" in Barry v....

...Francis received notice of HRS's policy before the CON application deadline, this occurred after the LOI was filed, and it was too late to change the LOI to conform with the more accurate project cost. When HRS rejected its application, St. Francis requested a formal administrative hearing pursuant to section 120.57, Florida Statutes (1987)....

...1st DCA 1989) (HRS 1989). In National Health Corp., L.P. v. HRS, the hearing officer found that this policy is a "rule", section 120.52(16), Florida Statutes, but that HRS's failure to promulgate this policy as a rule was not fatal to its application in an adjudicatory 120.57 proceeding on a case-by-case basis so long as HRS provided record support for application of the policy in each case....

...Department of Banking & Finance, 346 So.2d 569 (Fla. 1st DCA 1977). Compare Meridian, Inc. v. Department of Health and Rehabilitative Services, 548 So.2d 1169 (Fla. 1st DCA 1989) (policy recorded in discoverable precedents). The agency may apply incipient or developing policy in a section 120.57 administrative hearing, provided the agency explicates, supports and defends such policy with competent, substantial evidence on the record in such proceedings....

...The Commission relies heavily on McDonald v. Dept. of Banking & Finance, 346 So.2d 569 (Fla. 1st DCA 1977), claiming special insight into the facts and conclusions which determine the issues of motivation here. McDonald commented on the apparent conflict between section 120.57(1)(b)9 (the scope of review by the agency) and section 120.68(10) (the scope of review by the court of the agency's substituted findings of fact), and said: *908 In determining whether substantial evidence supports the agency's substit...

...to the hearing officer's findings in determining the substantiality of evidence supporting the agency's substituted findings. McDonald, 346 So.2d at 579. We need not decide whether we agree with McDonald's analysis of the interplay between sections 120.57(1)(b)9 and 120.68(10). McDonald adopts the standard of judicial review found in Universal Camera v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), without commenting on the obvious differences between the federal statute [4] and section 120.57(1)(b)9, the statute dealing with the scope of agency review of a hearing examiner's report....

...There is competent substantial evidence to support the findings of the hearing officer in this case. It may be said that there is also competent substantial evidence to support the findings of the Commission, but that is not the test here. The controlling statute, section 120.57(1)(b)9, plainly proscribes the rejection of the hearing officer's findings of fact where those findings are supported by competent substantial evidence....

...force or effect to, findings of the examiner. These cases are inapposite here. The statutes relied on have either been repealed or amended and the procedural parts of those sections are now embodied in Chapter 120, the Administrative Procedure Act. Section 120.57(1)(b)9 specifically prohibits the agency from rejecting or modifying the findings of fact of the examiners unless they are not based on substantial competent evidence....

...or coercing public employees in the exercise of any rights guaranteed them under this part. (b) Encouraging or discouraging membership in any employee organization by discrimination in regard to hiring, tenure, or other conditions of employment. [3] Section 120.57(1)(b)9, Fla....

...Dep't of Banking and Finance, 346 So.2d 569, 581 (Fla. 1st DCA 1977). We recognized in McDonald that APA rulemaking requirements are and must be to some extent self-enforcing. Affected agencies will be pressed toward rulemaking by the necessity otherwise to explicate and defend policy repeatedly in Section 120.57 proceedings for agency action affecting the substantial interests of parties....

...Inasmuch as requiring rulemaking will not automatically provide the transportation petitioners seek, even during the rulemaking proceeding itself, our duty in doubtful cases is to withhold judicial imperatives and leave affected parties to initiate rulemaking under Section 120.54(5) or to request proceedings under Section 120.57....

...Accordingly, the penalty imposed upon Plante which was based upon a finding of violations of both section 550.235(2) and rule 61D-1.002(18) must also be reversed and remanded. In remanding for a new penalty to be imposed, we remind the agency that it must comply with the provisions of section 120.57(1)(b)(10) if it wishes to depart from the recommendation of the hearing officer....

...SMITH, Judge. Couch Construction Company, Inc., petitions for review of a final order entered by the Department of Transportation in a proceeding determining the substantial interests of Couch and respondent White Construction Company, Inc. Sections 120.57(1), 68, Florida Statutes (1977)....

...*175 The Department's determination to reject all bids was communicated to those affected. Rightly considering that its substantial interests were affected by the determination, Couch regularly filed an administrative complaint [2] with the Department, requesting Section 120.57 proceedings on the issue of whether the Department should take final action rejecting all the December bids....

...The Administrative Procedure Act requires that the Department's decision be by a final order that takes account of countervailing evidence and argument. When as here there are no rules which define the circumstances in which the Department will reject all bids and readvertise, the Department's order in Section 120.57 proceedings must provide visible proof that the Department is proceeding rationally within the bounds of its discretion and not arbitrarily....

...Appeasement and expediency are rarely fruitful as government policies, and they were not in this case; the Department obviously and erroneously assumed that the bids could be rejected without accountability under Chapter 120. So, acting without affording Couch at least an immediate Section 120.57(2) hearing, and consequently without an order expounding the agency's exercise of discretion in the light of events as then understood by the agency, the Department created an opportunity for subsequent events to reveal the folly of rejecting all bids to avoid controversy and litigation....

...t knows at the time the order is entered. In this case the Department knew, on April 25, 1978, that in January the Department had discontinued all mandatory pre-bid conferences. The Department knew that its failure to provide Couch at least a prompt Section 120.57(2) hearing in December had resulted in the very litigation and delay which its preliminary decision sought to avoid....

...The rejection of all bids, however, on the grounds of failure of the low bidder to attend that conference was not re-evaluated in light of the same circumstances. The final order conspicuously fails to evaluate the Department's December rejection of bids in light of the facts shown at the Section 120.57 hearing. Both the hearing officer and the Department fell into the error of trying to justify the decision on the basis of what was known, thought, and believed by Department officials in December. Such an effort is not in accord with Section 120.57 procedures as we described them in McDonald, 346 So.2d at 584: "Section 120.57 proceedings are intended to formulate final agency action, not to review action taken earlier and preliminarily." We stop short of holding that the Department may not now rationally reject all December bids....

...On the recommendation of DOT's Awards Committee [1] it, acting through its secretary, decided to reject all bids and to readvertise for new bids to be received on January 12, 1978. Upon being so notified by telegram, Couch, on December 29, 1977, filed a complaint *177 with DOT requesting a hearing pursuant to F.S. 120.57....

...By that order we stayed the awarding of any contract based upon the bids received on January 12. [3] Over the objection of Couch, White was thereafter permitted to intervene. Following a hearing we, on February 24, 1978, relinquished jurisdiction for the conducting of a F.S. 120.57 hearing....

...Thereafter, the bidders were notified by telegram that all bids on the project had been rejected due to the failure of the low bidder to attend the prebid conference, and that the project would be readvertised. "12. On December 29, 1977, Couch filed a `complaint' with the D.O.T. requesting a hearing pursuant to F.S. § 120.57 on the issue of whether the D.O.T....

...ceeding. After numerous motions were filed and oral argument was had, the District Court, by Order dated February 24, 1978, relinquished jurisdiction for a period of sixty days and remanded the case to the D.O.T. for the purpose of providing Couch a § 120.57(1) hearing....

...Discretion implies the right to elect, depending upon the circumstances, a choice of several viable alternatives. DOT has had ample time and opportunity to recede and it has not elected to do so: That, too, is within its discretion. Not one requirement of F.S. 120.57 has been omitted by DOT nor by the hearing officer....

...(1977). It is so ordered. ADKINS, OVERTON, SUNDBERG and ALDERMAN, JJ., concur. BOYD, J., dissents. NOTES [1] Petitioners allege that their right to procedural due process was violated by the lack of adequate notice that a new condition would be imposed, § 120.57(1)(b)2, Fla. Stat. (1977), and by the denial of an opportunity to address the issue in an adjudicative proceeding, § 120.57(1)(b)4, Fla....

...Statutes (1977), or under any other statute by which the commission is assigned responsibility over water and sewer companies. In light of our decision on the first issue, we find it unnecessary to reach either of these issues. [2] §§ 120.68(10), 120.57(1)(b)7, Fla....

...30 a.m. on the 16th day of November, 1983 ... to determine if you desire a full and formal administrative hearing or if you wish to stipulate to the charges." The notice also advised each appellant of the right to a formal hearing in accordance with section 120.57, Florida Statutes, and that if appellants wished such a hearing they should file a written request containing the following information: (1) The name and address of the party making the request, (2) a statement that the party is making...

...Though the record is silent on the matter, it was represented during oral argument that a preliminary hearing was held as scheduled on November 16, without achieving any satisfactory resolution of the charges. As a result, appellants' counsel made written request for a formal hearing pursuant to section 120.57(1), Florida Statutes....

...re sold as charged. Instead, the matter appears to center on the legal issue of the validity of enforcing the statutory closing hours. Accordingly, the general counsel stated that the Division would set the matter for an informal hearing pursuant to section 120.57(2), Florida Statutes, unless "on or before December 27, 1983, a detailed statement of the disputed issues of material fact is submitted by you." The record is silent *282 as to why the December 27 hearing was not held as noticed....

...against them should be dismissed in view of the county court's ruling that the closing hours specified in section 562.14 were not applicable, and concluded that if the Department did not agree, appellants were again requesting a hearing pursuant to section 120.57, Florida Statutes, "for the purpose of providing you with further written and oral evidence." No formal or informal hearing under section 120.57 was ever held....

...ida constitutions, as well as chapter 120, Florida Statutes, and (3) that the final order is not supported by competent substantial evidence. We agree with appellants on all three points. Had the foregoing facts been properly proven at the requested section 120.57 hearing, it would have been perfectly clear that the town of Orange Park, under the exception in section 562.14(1), has been regulating the hours of alcoholic beverage sales for many years and was doing so on September 3, 1983....

...The division, bearing the burden of proving that appellants should be disciplined, should have offered some proof of the factual circumstances relied on to support this theory. It simply did not do so. Furthermore, it was clear error for the Division to refuse a section 120.57(1) formal hearing after appellants' repeated requests to have one for the expressed purpose of affording them an opportunity to present evidence....

...ooked or miscomprehended the law and the facts in several particulars in reaching our decision. Two points raised in the motion for rehearing merit some discussion. Primarily, the Division challenges our conclusion that appellants were entitled to a section 120.57(1) formal hearing, which was not afforded by the Division....

...The Division acknowledges that appellants initially requested a formal hearing. The Division refers to certain correspondence in the record indicating that appellants agreed to forego the formal hearing and submit the matter for decision pursuant to section 120.57(2) because it appeared that the principal disputed issue was one of law, i.e., whether the failure of the town's ordinance to regulate hours of sale during the week caused the state statute to be applicable on week days....

...question on the basis of the documents and information informally submitted to the Division. The Division states that is exactly what it did. Therefore, the Division contends that our opinion incorrectly criticizes it for not affording appellants a section 120.57(1) formal hearing because, in view of appellants' agreement to proceed under section 120.57(2), "neither F.S. 120.57 nor Rules 28-5.01 and 28-5.02, F.A.C., mandate that a `face to face' hearing be held but instead clearly contemplate that the informal proceeding may be effectuated pursuant to written submissions." Our decision that the Division erred in not affording appellants a section 120.57(1) formal hearing was predicated primarily upon our conclusion, based on arguments presented on appeal, that there remained disputed questions of fact, as well as law, between the parties. We did not, however, expressly discuss the impact of appellants' agreement to proceed informally under section 120.57(2) informal proceedings. Since the record unquestionably supports the Division's contention that appellants agreed to forego a formal hearing and proceed informally under section 120.57(2), to this extent the Division was authorized to consider the matter on an informal basis....

...on remained convinced that appellants had violated the law, then appellants still wanted "a hearing" at which they could present additional evidence and argument. Thus, even though the Division was authorized by agreement to proceed informally under section 120.57(2), its contention that informal proceedings under that section did not require that appellants be given a "face to face hearing" is erroneous for the following reasons. Fundamental to due process is the right to a fair hearing. The provisions of section 120.57 implement that right through the mechanism of formal proceedings or informal proceedings. Section 120.57(1) governs formal proceedings and necessarily requires the holding of a hearing. Informal proceedings under section 120.57(2), on the other hand, may proceed with or without a hearing....

...ng at *285 which to adduce additional evidence and argument, the Division is not at liberty to deny that party a hearing and proceed to decision on the basis of the informal submissions. While a party has the absolute right to a formal hearing under section 120.57(1) when material facts are in dispute, the absence of disputed issues of material fact, which authorizes informal proceedings under section 120.57(2), does not, ipso facto, eliminate the right to a hearing. Hearings, whether conducted under section 120.57(1) or (2), provide the essential mechanism whereby parties confront each other at a common time and situs and present evidence, legal authority, and argument in support of their respective positions....

...ision. When material facts are not in dispute, an agency is not required to grant a formal proceeding, even though requested by the party, and is free to insist that the matter be handled by informal proceeding. If, however, during the progress of a section 120.57(2) informal proceeding, it becomes apparent that material facts are in dispute, a formal hearing may be convened, and evidence adduced during the informal hearing may be made part of the record in the formal proceeding....

...ablished by county or municipal ordinance. (3) Any person violating this section shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. [1] Rule 28-5.501(3), Florida Administrative Code, implements section 120.57(2) informal proceedings and provides in part: If a hearing is held, the agency may: (a) Administer oaths and affirmations; (b) Rule upon offers of proof and receive relevant evidence; (c) Regulate the course of the hearing; (d) Enter a...

...school activities. Appellant raises three points on appeal to challenge the commission's final order. Since we have concluded that the commission improperly substituted its own ultimate finding of fact for that of the hearing officer in violation of section 120.57(1)(b)9, Florida Statutes (1983), for which error we *153 reverse, we need not reach the other issues raised challenging the constitutionality of section 231.28(1)(h), and alleging that it constitutes an unlawful delegation of legislative power....

...as finder of fact. Heifetz; McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). The commission could alter the hearing officer's ultimate finding of fact only if it was not supported by competent, substantial evidence. Section 120.57(1)(b)9....

...[3] Section 231.28(1)(h) allows imposition of those sanctions enumerated in section 231.28(1) where it can be shown that the person: (h) Has otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate. [4] Section 120.57(1)(b)9 provides in part: The agency may adopt the recommended order as the final order of the agency....

...for persons who are not eligible to become parties. (Emphasis added). In order to satisfy the substantial interests test, it must be shown that: (1) the petitioner will suffer injury in fact that is of sufficient immediacy to entitle him or her to a section 120.57 hearing and (2) that his or her substantial injury is of a type or nature that the proceeding is designed to protect....

...event injuries to a competitor's profit and loss statement. Id.; see also Dep't of Prof'l Regulation, Bd. of Dentistry v. Fla. Dental Hygienist Ass'n, 612 So.2d 646, 651 (Fla. 1st DCA 1993) (noting that standing in a licensure proceeding pursuant to section 120.57 may well have to be predicated on a somewhat different basis than standing in a rule challenge proceeding and that prior decisions in licensing or permitting cases have made it clear that a claim of standing by third parties based sole...

...rees with the asserting person that the procedures are not adequate to protect his substantial interests, the person may be permitted to "draw out" of the rulemaking proceeding and to have commenced a separate proceeding conducted in accordance with Section 120.57....

...to immediate judicial review. See Bert Rogers Schools of Real Estate v. Florida Real Estate Commission, 339 So.2d 226 (Fla. 4th DCA 1976). However, the denial by an agency of a request to suspend a Section 120.54(3) rulemaking hearing and convene a Section 120.57 proceeding, as provided in Section 120.54(17), is not final agency action....

...dversarial. These proceedings consist of the agency's informal rulemaking proceedings conducted pursuant to Section 120.54(3)(a) [14] . Proceedings conducted pursuant to Section 120.54(3)(a) are not the same type of proceedings as are provided under Section 120.57 when an agency determines the substantial interests of a party....

...ither Section 120.54(4) or 120.56 is quasi-judicial in nature and as such is subject to a competent substantial evidence standard of review. Hearings under Sections 120.54(4) and 120.56 are conducted in the same manner as adjudicatory hearings under Section 120.57....

...Because they are adjudicatory, the rule challenge proceedings are controlled by the standard set forth in Section 120.68(10), Florida Statutes: (10) If the agency's action depends on any fact found by the agency in a proceeding meeting the requirements of s. 120.57, the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact....

...e adequate opportunity to protect those interests. If the agency determines that the rulemaking proceeding is not adequate to protect his interests, it shall suspend the rulemaking proceeding and convene a separate proceeding under the provisions of s. 120.57....

...held on the rule, and a detailed written statement of the facts and circumstances justifying the rule. [13] Section 120.54(4)(d), Florida Statutes, provides: (d) Hearings held under this provision shall be conducted in the same manner as provided in s. 120.57 except that the hearing officer's order shall be final agency action......

...He can, for instance, through his "justification" statement, detail for the court the actual attention he gave to the factors, and explain his final disposition with respect to each of them. [20] Since the proceeding is conducted in the manner of a Section 120.57 adjudicatory proceeding, [a]ll parties shall have an opportunity to respond, to present evidence and argument on all issues involved, to conduct cross-examination and submit rebuttal evidence, to submit proposed findings of facts and o...

...When appropriate, the general public may be given an opportunity to present oral or written communications. If the agency proposes to consider such material, then all parties shall be given an opportunity to cross-examine or challenge or rebut it. § 120.57(1)(b)(4), Fla....

...Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. This paragraph applies only to proceedings under s. 120.57. [21] Section 120.54(4)(d) provides in pertinent part: Hearings held under this provision shall be conducted in the same manner as provided in s. 120.57 except that the hearing officer's order shall be final agency action....

...74-730, in Marion County, Florida, in violation of Florida Statutes 561.29 of the Beverage Laws". Harvey first argues that the Division's final order was devoid of the specific *1107 factual recitations required by statute when an agency has rejected the recommended order of a hearing officer. We agree. Section 120.57(1)(b)(9), Florida Statutes (1975), states that an agency in its final order: "......

...uch, is fatally defective. See also Edwards v. Division of Beverage, 278 So.2d 659 (Fla. 1st DCA 1973). Although remand with instructions requiring a more specific order is customary in cases in which an agency fails to comply with the provisions of Section 120.57(1)(b)(9), Florida Statutes, a review of the record in the instant case shows that the division's order was not supported by competent substantial evidence, and it is, therefore, quashed. Last, Harvey petitions for an award of attorney's fees and costs pursuant to Section 120.57(1)(b)(9), Florida Statutes, contending that the division's bad faith or malice has been demonstrated by its deliberate failure to comply with the 90-day statutory time limitation and its failure to state specific findings of fact and conclusions of law in the final order....

...McCrory Corp., 262 So.2d 207 (Fla. 4th DCA 1972); G.C. Murphy & Company v. Freshko, 293 So.2d 791 (Fla. 3d DCA 1974). Nonetheless, we find that the proceedings in the instant case did not reach that point, and that NPT's filing of a petition for a 120.57 hearing did not commence a quasi-judicial proceeding for purposes of satisfying the first element....

...Instead, the action it took in dismissing the petition for lack of standing was strictly preliminary since, under rule 25-22.036(9)(b) it has the option, where a petition on proposed agency action has been filed, either to deny the petition or to grant the petition and determine if a section 120.57(1) hearing or a section 120.57(2) hearing is required....

...The third allegation charged that Stueber reconnected his school computer to access the internet without authorization. Upon receipt of the administrative complaint, Stueber signed an election of rights form requesting a formal administrative hearing before an administrative law judge. See § 120.57(1), Fla....

...erees, hearsay evidence is admissible only for the purpose of explaining or supplementing other evidence. It is not sufficient, standing alone, to prove a material fact in issue unless it would be admissible over objection in a civil proceeding. See § 120.57(1)(c), Fla....

...e parties. SHIVERS, WENTWORTH and BARFIELD, JJ., concur. NOTES [1] No hearing was held prior to the entry of the immediate final order. Subsequent to the entry of the order, appellants filed a petition for a formal administrative hearing pursuant to section 120.57(1), Florida Statutes (1983), to determine whether in fact the trees were infected or infested prior to their destruction....

...factual record was necessary for meaningful review. Appellants requested, in the alternative, that we find the petition for administrative hearing acted to stay the effect of the immediate final order. We reject the proposition that a petition for a section 120.57(1) hearing stays the effect of an emergency order entered pursuant to section 120.59(3), Florida Statutes....

...ile written exceptions to the recommended order and requires, in cases such as this, that exceptions to the hearing officer's findings of fact be accompanied by a copy of the official transcript if it is not already on file with the agency. See also section 120.57(1)(b)8, Florida Statutes (1985), requiring agencies to allow each party at least 10 days in which to submit written exceptions to a recommended order....

...ure Act, chapter 120, Florida Statutes, and the Florida Rules of Appellate Procedure, in resolving this dispute. [1] Section 120.68(5)(a), Florida Statutes (1985), provides that "[t]he record for judicial review shall consist of ... the record under s. 120.57, if review of proceedings under that section is sought." In turn, section 120.57(1)(b)5.i....

...that "[t]he record shall consist of the original documents, exhibits, and transcript of proceedings, if any, filed in the lower tribunal... ." Appellee contends, and we agree, that where an agency acts on a recommended order pursuant to subsections 120.57(1)(b)8....

...The fact findings of a hearing officer become binding upon an agency unless it finds they are not supported by competent substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law. Section 120.57(1)(b)9., Florida Statutes (1985); Tuveson v....

...Nevertheless, this case involves consideration of a recommended order submitted by a hearing officer after a hearing conducted in accordance with chapter 120, see sections 447.503(5)(b), Florida Statutes (1985); 447.207(8) and 447.208(1), Florida Statutes (Supp. 1986), and the rule we announce would apply to section 120.57(1) proceedings conducted by DOAH....

...State, Department of Business Regulation, 391 So.2d 739 (Fla. 4th DCA 1980). [2] The agency is required, however, to "accurately and completely preserve all testimony in the proceedings, and, on the request of any party, it shall make a full or partial transcript available at no more than actual cost." Section 120.57(1)(b)6., Florida Statutes (1985)....

...In that case, the appellant objected to dismissal of its appeal for mootness, arguing that the court should decide the validity of the final order for the purpose of determining whether it was entitled to attorney's fees for a frivolous appeal under section 120.57(1)(b)(10), Florida Statutes....

...When issued on October 24, 2000, the Amended Final Order granted most of the filed exceptions, rejected a majority of the findings of fact and conclusions of law of the Recommended Order and confirmed Appellant's dismissal. This appeal followed. Rejections and Modifications to the Recommended Order Section 120.57(1)( l ), Florida Statutes (2000), provides that an "agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findin...

...ding of fact clearly within the realm of the hearing officer's fact-finding discretion). In addition, although hearsay is admissible in administrative proceedings, determinations of the Administrative Law Judge may not be based on hearsay alone. See § 120.57(1)(c); L.G.H....

...The Administrative Law Judge also declined to rely on the testimony of Gibson that included hearsay statements of Norton. In so doing, the Administrative Law Judge specifically concluded that the hearsay statements were inadmissible hearsay pursuant to section 120.57(1)(c), Florida Statutes....

...Thus, based on our review of the record in the instant proceeding, the findings of fact and conclusions of law contained in the Administrative Law Judge's Recommended Order were supported by competent substantial evidence. Appellee violated the provisions of section 120.57(1)( l ), Florida Statutes (2000), by rejecting the findings of fact and ultimate findings of fact set out in the conclusions of law of the Administrative Law Judge in the Recommended Order....

...We reject PERC's argument that attorney's fees and costs may be assessed only against the non-prevailing party to the proceeding. Section 447.504(4) does not impose the sanction of fees and costs only against the non-prevailing party. PERC, as any other agency, may be answerable for such awards. Section 120.57(1)(b)(9) permits an appellate court, in the event of reversal of an agency order, in its discretion to award fees and costs to the "aggrieved prevailing party." [4] The hospital, however, is hardly the prevailing party, as contemplated...

...Having so concluded, however, we think it appropriate to comment upon some general principles which may be of aid to a determination, once an agency order is reversed, whether to impose fees and costs against an agency when it is acting within the scope of its adjudicatory responsibilities. While § 120.57(1)(b)(9) does not at present impose any requirement of bad faith or maliciousness as a condition to an award, we would be reluctant to impose fees and costs against an agency if, for example, its order was reversed only because it had erron...

...rrying out their duties, fail to conform to pre-existing statutory and regulatory requirements. Griffin v. United States, supra, at 1069. The above standards have been implicitly followed by us. We have assessed attorney's fees and costs pursuant to § 120.57(1)(b)(9), Fla. Stat. (1977), against agencies which flagrantly violated the requirements of Chapter 120 by denying § 120.57 hearings and refusing to promulgate procedural rules as mandated by § 120.53....

...icy, assists in collective bargaining negotiations, and has a significant role in personal administration. PERC is mandated by the statute to "consider the historical relationship of the employee to the public employer..." [4] Formerly, the statute, § 120.57(1)(b)(10), Fla....

...SMITH and WENTWORTH, JJ., concur. ORDER ON MOTION FOR RECONSIDERATION McCORD, Judge. Appellant contends that this Court, in its original order on the motion to dismiss or quash appeal, overlooked or misapprehended the provisions of § 120.56(5) and § 120.57(1)(b)4. Section 120.56(5) provides: Hearings held under this provision shall be conducted in the same manner as provided in 120.57 except that the hearing officer's order shall be final agency action. (Emphasis supplied.) Section 120.57(1)(b)4 provides that: All parties shall have an opportunity to respond, to present evidence ......

...to file exceptions to any order or hearing officer's recommended order, ... Appellant asserts that, when read together, those statutory provisions provide the necessary authorization for the filing of a motion *691 for rehearing after the rendition of a § 120.56 order. We disagree. Section 120.57 orders are not final agency action but are recommended orders [§ 120.57(1)(b)8] or interlocutory orders to which, according to § 120.57(1)(b)4, exceptions may be filed. Although § 120.56(5) does provide that § 120.56 hearings shall be conducted in the same manner as provided in § 120.57, it also provides that a hearing officer's § 120.56, order is "final agency action." Final agency action is reviewable only by appeal....

...ds announced prospectively; and when the proceeding may result in the loss of a valuable business or professional license, the critical matters in issue must be shown by evidence which is indubitably as `substantial' as the consequences. Id. at 172. Section 120.57(1)(b)9, Florida Statutes, prohibits an agency from rejecting or modifying the hearing officer's findings of fact "unless the agency first determines from a review of the complete record, and states with particularity in the order, that...

...st appellant with prejudice. Johnston v. Department of Professional Regulation, supra ; Sneij v. Department of Professional Regulation, 454 So.2d 795 (Fla. 3d DCA 1984). Dr. Purvis has also moved for an award of attorney's fees and costs pursuant to section 120.57(1)(b)9, Florida Statutes....

...efusing to register the requested trade name of his company. The Commission's brief asserts that there has been no final agency action in the Harris case which is subject to review by this Court, and that Harris "should have demanded a hearing under § 120.57." In oral argument before this Court the Commission conceded that refusal to register Harris' trade name was a final agency action, and we agree....

...responsibility. An agency's failure to enter a proper order, or to afford a hearing, is an occasion for judicial review, not an impediment of it. In the instant case, there are no material issues of fact which would require a formal proceeding under § 120.57(1) and nothing to be gained by now requiring the agency to provide an informal proceeding under § 120.57(2)....

...� 120.68(5)(c): "The agency's written document expressing the action, and other written documents identified by the agency as having been considered by it before its action and used as a basis for its action . . if there has been no proceeding under § 120.57." The letter of Petitioner Harris requesting the name change registration and the agency's letter of July 8, 1977, constitute the record for judicial review and clearly express the action of the agency....

...nnel. General Dev. Corp. v. Div. of State, 353 So.2d 1199 (Fla. 1st DCA 1977), is hardly authority for the majority's position that the letter from Ms. Hedrick to Harris was final agency action. General Dev. Corp. requires, at the very minimum, when Section 120.57(1) proceedings do not apply, reasonable notice of the agency's action, together with a summary of the factual, legal and policy grounds, and an opportunity at a convenient time and place for affected parties to present written or oral evidence in opposition to the agency's action....

...0.59, requiring that orders resulting from formal or informal proceedings be in writing and include findings of fact and conclusions of law separately stated. Id. at 1210. Obviously the letter from Ms. Hedrick did not comply with the requirements of 120.57(2) or 120.59....

...othing more than Harris' letter requesting the name change and the registration section's response, that the question before us is simply one of law. On the contrary there may well be disputed issues of material facts which can only be resolved in a 120.57(1) proceeding....

...As far as appears from the record, the only time the Division ever granted retirement benefits for service academy attendance was to an individual who attended West Point during World War II. Those payments ("free form" agency action, not the result of a section 120.57 hearing) antedated the 1984 amendments which, in defining "military service," deleted a reference to a federal statute.

...s. The district court reversed the board's decision, finding that "lack of candor" was not an offense with which Bernal had been charged and that danger to patients from the unlicensed practice of medicine was not cited in the record, as required by section 120.57(1)(b)10, Florida Statutes (Supp....

...We find that it is a primary function of professional disciplinary boards to determine the appropriate punishment for the misconduct of the professionals it regulates. As long as the statute under which a professional agency operates provides guidelines for imposing penalties, the agency complies with section 120.57(1)(b)10, and the increased penalty falls within the guidelines established by its statute, a professional board or agency has the discretion to increase the recommended penalty....

...Department of Business Regulation, 561 So.2d 410 (Fla. 5th DCA 1990), essentially prohibit an administrative board from altering the recommended penalty unless the board also rejects one of the hearing officer's findings of fact or conclusions of law. Such a rule is not required by section 120.57(1)(b)(10), Florida Statutes (1987)......

...ed in the law but not necessarily in any specific profession. The various administrative boards have far greater expertise in their designated specialties and should be permitted to develop policy concerning penalties within their professions. ... . Section 120.57(1)(b)(10) merely requires that an agency which chooses to increase or decrease a recommended penalty must: 1) conduct a review of the complete record, and 2) state with particularity its reasons therefor in the order, by citing to the record in justifying the action....

...ct of misconduct led to the death of another person; and that, in its view, "these acts, when viewed individually or together, are most egregious." We find that the Criminal Justice Standards and Training Commission complied with the requirements of section 120.57(1)(b)10 and, in rejecting the recommended penalty, properly increased the penalty within its statutory authority under section 943.1395(5)-(6)....

...As we noted in Tedder, 842 So.2d at 1025: "It is a basic tenet of administrative law (subject to limited exceptions not pertinent here) that an agency may not reject a hearing officer's finding of fact that is supported by competent, substantial evidence." See § 120.57(1)( l ), Fla....

...on 23.167(1)(a) and ordered reinstatement with back pay and reasonable attorney's fees. *1237 The question before us is whether the Commission, in its order, actually substituted its findings of fact for those of the hearing officer, in violation of section 120.57(1)(b)9, Florida Statutes (1979)....

...finding that Brannon was discharged for, inter alia, inability to perform various aspects of his job due to his medical condition. Yet again the Commission has chosen either to ignore or reject this finding. We conclude that the Commission violated section 120.57(1)(b)9, Florida Statutes, and that a review of the record shows that its order is not supported by competent, substantial evidence....

...The letter also informed him that "the Executive Director of the Department has recommended to the Head of the Department denial of the application [and] requiring removal of the unauthorized construction... . Anyone objecting to the staff recommendation may exercise any rights they may have pursuant to Section 120.57 ......

...correctness of the action may have been impaired by a material *947 error in procedure or a failure to follow prescribed procedure. It is well settled that a party whose substantial interests are or will be affected by agency action is entitled to a Section 120.57 hearing....

...that he could attend the meeting, or not, as he chose. Holmberg was given no notice whatever that his interests were at stake, i.e. that the department was seeking to impose a statutory fine against him and on what charges, so that he could seek the 120.57 hearing to which he was entitled....

...Any complaint should also set forth the right to an administrative hearing and the pertinent time limits for seeking that hearing. In the event Holmberg seeks a hearing, it can be determined by the agency at that time whether there are disputed issues of material fact sufficient to warrant a formal hearing pursuant to Section 120.57(1), Florida Statutes....

...d in the record of the administrative hearing, it will be overturned. § 120.68(7) Fla. Stat. (2005). But an appellate court reviews the agency's conclusions of law de novo. Steward v. Dep't of Children & Families, 865 So.2d 528 (Fla. 1st DCA 2003). Section 120.57(1)( l ), Florida Statutes (2005), part of the Administrative Procedure Act, somewhat circumscribes the authority of the Division in reviewing an administrative law judge's determination: ( l ) The agency may adopt the recommended order as the final order of the agency....

...tion Company [White] which were challenged by Couch following White's apparent low bid at the second bidding on the contract in January of 1978. Complaint by Couch was filed February 21, 1978, against DOT requesting proceedings under Florida Statute § 120.57 and Chapter 14-6, Rules of the Department of Transportation, for the following relief: *186 "[T]hat Respondent [DOT] find, under section 337.16, Florida Statutes, and section 8-8 of the Standard Specifications that White Construction Compan...

...T]he right of a bidder for a public contract to a fair consideration of his bid and his right to an award of the contract if his is the lowest, responsible bid are matters of `substantial interest' to him, thus entitling him to a hearing pursuant to § 120.57 ..." The foregoing holding is correct and supported by this Court's decision in Greenhut Construction Co....

...elay by the prior contractor on the job, inclement weather, and difficulty in obtaining essential materials. The matter of White's responsibility to perform may ultimately be resolved favorably to White, but that is a factual determination requiring § 120.57 proceedings which afford Couch and White opportunity to be heard....

...n of the case" so that the taxpayers will not further suffer as inflation escalates costs and the traveling public will be less longer deprived of use of the badly needed highway, I yet question the purpose of ordering a factual determination by a F.S. 120.57 proceeding to determine "the matter of White's responsibility to perform" when, as already stated, no issue has been made and no evidence adduced nor allegations made touching upon responsibility except as to the alleged delinquency which is barred by the principle of White Construction Co....

...d the following opinion substituted therefor. In all other respects, appellee's motion for rehearing is denied. Appellant seeks review of a final administrative order entered by appellee (the Department) denying appellant's request, made pursuant to section 120.57, Florida Statutes (1991), for a formal hearing....

...337.11, Florida Statutes (1991), is controlling; and that section 337.11 is intended to protect only the interests of bidders and potential bidders for contracts, extending no protection to suppliers such as appellant. To establish entitlement to a section 120.57 formal hearing, one must show that its "substantial interests will be affected by proposed agency action." §§ 120.52(12), 120.57, Fla....

...ecause of the manifest overriding concern for the integrity of the competitive bidding process, bidders are entitled to some administrative review of the Department's decisions. Therefore, it concluded, further, that bidders are entitled to a formal section 120.57 hearing in certain circumstances....

...However, "the scope of the inquiry is limited to whether the purpose of competitive bidding has been subverted. In short, the hearing officer's sole responsibility is to ascertain whether the [Department] acted fraudulently, arbitrarily, illegally, or dishonestly." Id. at 914. Appellant's petition requesting a formal section 120.57 hearing includes allegations which, fairly read, clearly imply that the Department's decision is without any rational justification and was intended by the Department to preclude competition in the sale of weight scales, to the detriment of the public generally, as well as of appellant....

...t expressed in section 337.164, we believe that such allegations are sufficient to bring appellant within the zone of injury which the legislature meant to prevent by enactment of chapter 337. Accordingly, we conclude that appellant is entitled to a section 120.57 formal hearing....

...We affirmed the agency's holding that standing did not exist pursuant to section 120.53(5) because the facts of the case did not present "extraordinary circumstances." In contrast, this case does not involve a bid protest pursuant to section 120.53(5). Rather, it involves denial of a request for a formal hearing pursuant to section 120.57. As previously discussed, for purposes of section 120.57, standing is determined by application of the 2-pronged Agrico test. Moreover, it is clear from the Fort Howard opinion that the result in that case would have been the same even if the appellant had requested a formal hearing pursuant to section 120.57....

...Moreover, appellant has alleged that it will be substantially affected in the future because of the Department's intent "to construct many more weigh stations" using identical specifications. In summary, we conclude that, based upon the allegations contained in appellant's petition, it was entitled to the section 120.57 formal hearing requested....

...tive relief, which is the subject of this appeal. *1129 On September 16, 1996, the Department of Insurance entered an order denying Bankers' April 24, 1996, appeal. The order contains a notice of rights form advising Bankers of its right pursuant to section 120.57, Florida Statutes, to contest the Department's decision before the Division of Administrative Hearings....

...partment of Health and Rehabilitative Services. Petitioner raises as error the Commission's practice of rendering a final order at the conclusion of a hearing without allowing the parties to submit proposed findings of fact and orders. Pursuant to F.S. 120.57, a party has the right to raise pertinent factual issues for administrative determination, to submit proposed findings on those issues and to receive a ruling on each pertinent proposed finding....

...We agree with Stinson that the Commission improperly modified or rejected the judge's primary findings of fact. An agency must accept the administrative law judge's factual findings unless they are not supported by competent substantial evidence. See § 120.57(1)(l), Fla....

...rary corrections on the part of the appellants and ordered revocation of Mr. Pillsbury's child care license. An appeal to this court followed. In our previous opinion we noted that the Department's final order did not comply with the requirements of section 120.57(1)(b)(10), Florida Statutes (1995), because it did not reflect that the Department had conducted a complete review of the record, as required by statute....

...Following remand, the Department reviewed the transcript of proceedings and entered an amended final order. Like its predecessor, this order revoked the Pillsburys' license to operate a day care facility. This appeal followed. The Pillsburys argue that the Department violated section 120.57(1)(b)10, Florida Statutes (1995), by rejecting or modifying the findings of fact in the recommended order without finding that the findings of fact were not based upon competent substantial evidence or that the proceedings did not comply with the essential requirements of law. We agree that the Department erroneously rejected the hearing officer's findings of facts. On review of a recommended order, the Department is free to disregard a hearing officer's conclusions of law, but not his findings of fact. See § 120.57(j), Fla....

...The circuit court held that this section constitutes an unlawful delegation of power in that it allows a hearing officer from the Department of Administrative Hearings to decide whether to conduct an appeal on the record made below (the record of the local government proceeding) or to conduct a de novo hearing under section 120.57, Florida Statutes (1981)....

...shall encourage the submission of appeals on the record", it requires the Commission to hold a hearing pursuant to Chapter 120. Chapter 120 contains no particular provision which relates to an appellate review proceeding by an administrative agency. Section 120.57 sets forth the procedures *879 to be used in all proceedings in which the substantial interests of a party are determined, and these procedures should be followed in hearings on appeals to the Commission. The items which constitute the record in Section 120.57 proceedings are specified in subsections 120.57(1)(b)5, for formal proceedings, and 120.57(2)(b), for informal proceedings. Neither of these subsections specify hearings occurring prior to the commencement of 120.57 proceedings....

...Section 120.58(1)(f). In appropriate cases, where the testimony has been made under oath and the parties have had the right of cross-examination, the testimony and exhibits presented at the hearing before the local government should be admitted into evidence at the 120.57 hearing before the Commission....

...on than that possessed by any other agency conducting a Chapter 120 hearing. Under this construction, section 380.07(3) contains sufficient procedural guidelines and is not vague. We do not agree with appellees that "de novo" proceedings pursuant to section 120.57 would make a mockery of the local hearing and decision-making process....

...s so at his own risk. If the local government entity conducts its hearing with adequate procedural safeguards, such a hearing would presumably be considered full and complete by the Commission or its hearing officer and admitted into evidence at the section 120.57 hearing....

...As such, the record of the local government hearing could provide competent, substantial evidence to support findings of fact made by the Commission or its hearing officer notwithstanding other evidence which might be adduced by the applicant at the section 120.57 hearing....

...Friends contends that DER's decision that the driveway under consideration qualified for the agricultural exemption to the dredge and fill permitting process was final agency action, from which Friends could seek a formal administrative hearing under Section 120.57, Florida Statutes (1989). We agree and reverse and remand for further proceedings. On March 15, 1990, Friends filed a petition requesting a formal administrative hearing pursuant to Section 120.57, Florida Statutes (1989)....

...DER held that the agricultural exemption deprived it of jurisdiction over the driveway, therefore, no agency action could be taken. It concluded, as a matter of law, that Friends' petition for a formal administrative hearing was inappropriate, because there had been no agency action. Section 120.57(1), Florida Statutes (1989), provides for formal administrative proceedings to resolve disputed issues of material fact. To be entitled to a section 120.57 hearing, there must be final agency action affecting the petitioner's substantial interests, coupled with a disputed issue of material fact....

...visions of section 403.927(2). [2] Appellees contend that DER's letters of February 27 to Fischer and appellant, expressing its opinion that the access road is exempt, do not constitute final agency action for which appellant would have a right to a section 120.57 hearing....

...Except when an agency acts by formal rulemaking (Section 120.54) or by declaratory statement concerning the applicability of a statute, rule or order (Section 120.565), all agency action, on appropriate challenge, will mature into an order impressed with characteristics of the APA's Section 120.57. A party whose substantial interests are or will be affected by agency action is entitled to a Section 120.57 hearing....

...for a landowner to conduct certain landscaping activities on land within DNR's coastal construction jurisdiction. Appellants, the Town of Palm Beach and others who opposed the proposed activities, petitioned for a formal administrative hearing under section 120.57, which DNR denied on the grounds that appellants lacked standing and that the agency lacked jurisdiction over the proposed activities....

...as based upon a factual finding that the activities would not have a material effect on the coastal system. Id. 577 So.2d at 1384. Thus, DNR had implicitly found a jurisdictional fact without giving the appellants, who had standing, the benefit of a section 120.57 hearing....

...or the exemption. If DER declined to agree with appellant, appellant could then commence a suit pursuant to section 403.412 to compel DER to enforce its laws. The fact, however, that two forms of relief may be available to an affected party, i.e., a section 120.57 hearing or a section 403.412 enforcement proceeding, does not foreclose appellant from using either avenue. Alachua County v. Florida Dep't of Hwy. Safety & Motor Vehicles, 417 So.2d 1073 (Fla. 1st DCA 1982) (case remanded on the issue of entitlement to section 120.57 hearing even though another potential remedy was available via the comptroller's office). REVERSED and REMANDED with directions to grant appellant's petition for a formal 120.57 hearing....

...DER subsequently entered into consent orders with only Mobil and Conserv and denied Phibro's request for a hearing in connection with those consent orders. This court found that the issuance of the warning notices made Conserv a party to the action, and that Phibro was entitled to a section 120.57 hearing....

...et the statutory requirements. [6] We glean from the department's reliance on certain administrative orders issued by it, i.e., Saltiel, Downing, and Fowler, that the agency considers it lacks the resources to consider, pursuant to the provisions of section 120.57, every challenge to its decisions exempting particular activities from the dredge and fill permitting requirements....

...f placing standard five-foot bicycle lanes throughout parts of the project would not be excessively disproportionate to the need or probable use of such. Because the amended petition did not identify any disputed issues of material fact, pursuant to section 120.57(2), Florida Statutes, an informal hearing was set for December 11, 2006....

...whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party." Substantial interests are demonstrated if: 1) the party will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) the party's substantial injury is of a type or nature which the proceeding is designed to protect....

...interpretation of section 335.065, which specifically relates to bicycle lanes, it would be those seriously involved in bicycling. Under the first prong of the Agrico test, appellants will suffer an injury of sufficient immediacy entitling them to a 120.57 hearing....

...mpels this court to affirm the Department's decision. Waiver of Formal Hearing If an agency's action will determine the substantial interests of a party and there are disputed issues of material fact, a party is entitled to a formal proceeding under section 120.57(1), Florida Statutes....

...obe Assocs., Ltd. v. Dep't of Bus. Regulation, 504 So.2d 1301, 1305 (Fla. 1st DCA 1987). But, when material facts are in dispute, substantially affected parties are entitled to an evidentiary hearing conducted in conformity with sections 120.569 and 120.57(1), Florida Statutes (2007)....

...[a prior] written election for an informal hearing." Mixon v. Dep't of State, Div. of Licensing, 686 So.2d 755, 756 (Fla. 1st DCA 1997). In order to preserve the point for appeal, however, a party must "request that the informal hearing be terminated . . . or otherwise object to the continuation of the [section 120.57(2)] proceedings." Goodson v....

...On August 19, 1982, DGS gave written notice to all bidders of its intent to award the contract to Bergeron. Capeletti filed a notice of protest within 72 hours pursuant to Section 120.53(5), Florida Statutes, and within 10 days thereafter filed its Petition for Formal Hearing pursuant to Section 120.57(1), Florida Statutes....

...s rejecting all bids for the reason that the drawings erroneously showed a public street, N.W. 41st Street, adjoining the project site's northernmost boundary and that such was misleading. Bergeron then filed a notice of protest and a petition for a Section 120.57(1) hearing....

...d to Bergeron. On December 8, 1982, DGS entered its final order adopting the hearing officer's findings of fact and conclusions of law and awarding the contract to Bergeron. Capeletti, the fourth lowest bidder, does not now contend, as it did in its § 120.57 petition, that it should have been awarded the contract as the only bidder having access to the project site....

...Capeletti also contends that the hearing officer erred in not imposing upon Bergeron the burden at hearing to prove that DGS' previously announced intention to reject all bids was arbitrary, capricious and unreasonable. Capeletti misconceives the purpose of the § 120.57 hearing....

...As we have previously held, APA hearing requirements are designed to give affected parties an opportunity to change the agency's mind. Couch Const. *1364 Co. v. Department of Transp., 361 So.2d 172, 176 (Fla. 1st DCA 1978); McDonald v. Department of Banking & Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1979). Section 120.57 proceedings are intended to formulate final agency action, not to review action taken earlier and preliminarily. McDonald, supra at 584. Finally, Capeletti says that the hearing officer departed from the parties' stipulation announced at the commencement of the hearing that although both Capeletti and Bergeron had filed § 120.57 petitions, Bergeron "would occupy the position of petitioner" and would "bear the ultimate burden of persuasion." We do not agree that the hearing was conducted in such a way as to violate such stipulation....

...(Braman), challenges two final administrative orders from the Department of Highway Safety and Motor Vehicles (Department) dismissing its petitions for formal proceedings due to its lack of standing. Braman asserts that it is entitled to standing under Sections 320.642, 320.699, 320.6992 and 120.57, Florida Statutes....

...in Case No. 90-908. [1] We affirm. Appellant Braman Cadillac operates a General Motors franchise dealership in Dade County. It initially filed a petition seeking a formal hearing pursuant to Section 320.699(1)(a), Florida Statutes (Supp. 1988) and Section 120.57(1), Florida Statutes to protest WWW Enterprises' application for a new or additional Cadillac automobile dealership in Homestead, Florida....

...320.60-320.70, may seek a declaration and adjudication of its rights with respect to the alleged action or conduct of the applicant or licensee by: (a) Filing with the department a request for a proceeding and an administrative hearing which conforms substantially with the requirements of s. 120.57; or (b) Filing with the department a written objection or notice of protest pursuant to s....

...As its second point, Braman contends that it is entitled to standing under Section 320.699, Florida Statutes. This section addresses the types of administrative hearings which the Legislature contemplated under Sections 320.60 to 320.70. Parties seeking to redress grievances may petition for a hearing under Section 120.57(1)(a) or may pursue an action under Section 320.642, if they file a "written objection or notice of protest." Under the plain language of Section 320.699(1), a dealer, such as Braman, must be "a directly and adversely affected party af...

...Alleging general violations of legislative intent, without more, is an insufficient basis to gain standing. Similarly, Braman's argument that its contractual rights with GM are impaired here is an insufficient basis for entitlement to standing. We also reject Braman's argument that it qualifies under Section 120.57(1) Florida Statutes, for standing to protest in the present posture of the case....

...a manufacturer. [4] See Dore, Access to Florida Administrative Proceedings, 13 Fla.St.U.L.Rev. 967, 1111, which states that: While it is clear that no law external to chapter 120 must require a hearing to be held before a person can claim a right to section 120.57 proceedings, it is equally clear that external law may limit access to those proceedings.

...Department of Health & Rehabilitative Services, 361 So.2d 715 (Fla. 4th DCA 1978), the court was asked to determine whether indigent persons seeking judicial review of a final agency decision could obtain a free transcript under the same statute. In seeking to distinguish Bower, the indigent party pointed to section 120.57(1)(b)(6), Florida Statutes (1975), which required the agency to "preserve all testimony in the proceeding and, on the request of any party......

...on benefits. The commission contended that the statute only prohibited the charging of fees for services the commission was required to perform and that there was no requirement that the commission provide a transcript. However, this Court construed section 120.57(1)(b)(7), Florida Statutes (1989), [3] as requiring that upon request of a party an agency must provide a transcript at no more than actual cost. Having concluded that the Unemployment Appeals Commission was obligated to provide a transcript, the Court then held that the provisions of section 443.041(2)(a) precluded it from charging even its cost of preparation. If section 120.57(1)(b)(7) requires an agency to provide a transcript in unemployment compensation cases, it is obvious that the agencies involved in the instant cases have the same obligation....

...at they would be constitutionally entitled to be furnished with a free transcript to assist in the prosecution of their appeals. CONCLUSION We quash the decisions below and we disapprove of Harrell to the extent that it held that sections 57.081 and 120.57(1)(b) do not require the state to provide free transcripts *325 in appeals taken by indigent parties from adverse agency decisions....

...eduction of benefits under the Aid to Families with Dependent Children program for failure to cooperate in obtaining a child-support order; and the last is an inmate who seeks to invalidate the Lake Correctional Institution Orientation Handbook. [3] Section 120.57(1)(b)(7) reads, in relevant part, as follows: The agency shall accurately and completely preserve all testimony in the proceeding, and, on the request of any party, it shall make a full or partial transcript available at no more than a...

...nalty in this instance. Appellant argues that current law requires the School Board to specify with more particularity its reasons for rejecting the hearing officer's recommended penalty. We agree. Chapter 84-173, Section 2, Laws of Florida, amended Section 120.57(1)(b)9 in the following manner (only the relevant portion of the statute is included): The agency may accept or reduce the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete r...

...ulated by the School Board with the specificity contemplated in the amended language. We therefore remand this case to the School Board for the purpose of entering an amended order which complies with the requirements of the above quoted language of Section 120.57(1)(b)9, assuming that the Board, on remand, chooses not to accept the hearing officer's recommended penalty....

...We allowed the Division of Employment Security to waive filing a brief in this case, upon its motion. Teresa C. Menza has made no appearance. This appeal and the proceedings below are governed by the Administrative Procedure Act, Chapter 120, Florida Statutes (1977). Section 120.57(1)(a)2 specifically provides that the Board of Review and unemployment compensation appeals referees may conduct Section 120.57(1) proceedings, in place of a DOAH hearing officer, in unemployment compensation appeals....

...e, the division may order the physician to show cause why he should not be required to repay the amount which was paid for the rendering or ordering of such treatment or services and shall inform him of his right to a hearing under the provisions of s. 120.57....

...If the final order, including judicial review if the order is appealed, is adverse to the physician, the division shall provide the licensing board of the physician with full documentation of such determination. Clearly the statute contemplates action in such disputes by the division, with the possibility of a section 120.57 hearing if requested by the physician....

...Langston, including the probationary period and all other conditions imposed by the EPC. Nonetheless, we conclude that the actions of the agency were more a product of misunderstanding than a wanton disregard of Mr. Langston's rights. Accordingly, we decline to award Mr. Langston attorney's fees pursuant to section 120.57(1)(b)(10), Florida Statutes (1993) (authorizing an award of attorney's fees, in pertinent part, when "the agency action which precipitated the appeal was a gross abuse of the agency's discretion")....

...state if the property is delivered or shipped to a purchaser within this state, regardless of the f.o.b. point or other conditions of the sale. The Department of Revenue denied the claim and the taxpayer filed a petition for formal proceedings under § 120.57(1), Florida Statutes, challenging the Department's position....

...that the Department's policy, as set forth in the tax audit statement, constituted a rule not properly promulgated. The petitions were consolidated, and the hearing officer entered an order in the § 120.56 proceeding and a recommended order in the § 120.57(1) proceeding....

...[10] *601 Because the department's policy was not within its exercise of delegated discretion, I agree with the majority that the agency action must be set aside. NOTES [1] The taxpayer, a Delaware corporation, with its principal place of business in Florida, requested and received a Section 120.57(1) hearing and a Section 120.56 hearing, both of which were consolidated into one proceeding....

...She would therefore be entitled to a hearing under the Administrative Procedure Act if non-renewal of her "supplemented duties" as band director affected or determined "substantial interests" within the meaning of sections 120.52(12), 120.569, and 120.57(1), Florida Statutes (1997)....

...Whether she has any legally recognized interest in remaining band director is a question of substantive law. It is not enough to look only to the Administrative Procedure Act. See U.S. Sprint Communications Co. v. Nichols, 534 So.2d 698, 699 (Fla.1988) (affirming denial of hearing sought under section 120.57(1) on grounds the agency action at issue did not "represent a new Commission action affecting appellant's substantive rights"); ASI, Inc. v. Florida Public Serv. Comm'n, 334 So.2d 594, 596 (Fla.1976) (rejecting proposition that "procedural requirements established by the administrative procedure act" confer "substantial interests" in affirming denial of hearing sought under section 120.57(1) by a person without "a legally recognized interest")....

...[3] Caluwe asserts that his final letter of July 21st is nothing more than a display of frustration due to the Board's failure to respond to his earlier communications. II After a formal review hearing held at Mr. Caluwe's request pursuant to section *393 120.57(1), Florida Statutes (1983), a hearing officer decided that only 25 disciplinary points were validly assessed against Caluwe, and therefore recommended that he be reinstated with back pay....

...III We begin by noting that the District was without power to reject or modify the hearing officer's findings of fact unless it first determined that the findings were not based on competent, substantial evidence, or that the proceedings in which the findings were based did not comply with the essential requirements of law. § 120.57(1)(b)9, Fla....

...Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). In disregarding the hearing officer's finding about the March 17th incident, the District abandoned its duty to state with particularity the reasons for modification or rejection of findings of fact. See § 120.57(1)(b)9; Moore v....

...s that the Policy is valid because it falls within the internal memoranda exception of section 120.52(15)(a), [7] or alternatively, because the District has elected to defend the policy on an ad hoc basis in disciplinary proceedings held pursuant to section 120.57, citing Florida Cities Water Co....

...agency issuing the memorandum. [8] Even if the Policy is a "rule" for purposes of section 120.52, we would not strike it down as invalid under section 120.54 because we believe that the District is entitled to defend the Policy on an ad hoc basis in section 120.57 hearings....

...Florida Public Employees, 353 So.2d 1244 (Fla. 1st DCA 1978). Thus, the determinative question is whether there is competent substantial evidence to support the hearing officer's conclusion that she was, in fact, a member of the UFF-BOR bargaining unit. § 120.57(1)(b)9, Fla....

...As such, PERC had no power to reject or modify the hearing officer's findings of fact unless it first determined that the findings were not based on competent, substantial evidence or that the proceedings in which the findings were based did not comply with the essential requirements of law. § 120.57(1)(b)9, Fla....

...iew of the complete record, and states with particularity in the order, that the findings were not based on competent substantial evidence or that the proceeding on which the findings were based did not comply with the essential requirements of law. Section 120.57(1)(b)10, Florida Statutes (1989); Shackleton v....

...he complete record, and stating with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. Section 120.57(1)(b)9, Florida Statutes (1979)....

...on Signs. An inspection made sometime before August 3, 1978, and reinspection on May 2, 1979, revealed that several of appellant's signs located along Interstate 10 did not carry the required permits. Henderson Signs requested a formal hearing under Section 120.57(1), Florida Statutes, and a hearing officer from the Division of Administrative Hearings was assigned....

...sances and ordering their removal. Henderson Signs appealed, contending that the Secretary had no authority to hold the supplemental fact finding proceeding or to modify the hearing officer's findings of fact on grounds other than those set forth in Section 120.57 (1)(b)9, i.e., that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law....

...DOT responded that the holding of the supplemental proceeding was in furtherance of the Secretary's duty to enforce the outdoor advertising provisions of Chapter 479, and that rather than modifying a finding of fact, the Secretary had merely supplied a missing finding, thus the requirements of Section 120.57(1)(b)9 had not been violated....

...ted in J.W.C. Co. that no provision in the statutes or rules of procedure authorizes or permits an agency head to "reopen" a hearing. Upon receiving the recommended order of the hearing officer, the agency is limited to the alternatives set forth in Section 120.57(1)(b)9, Florida Statutes (1979)....

...nistrative action to the district courts. Section 120.52(10)(d), Florida Statutes (1981) exempted prisoners as parties for purposes of obtaining rule making administrative hearings section 120.54(16) or "substantial interest" administrative hearings section 120.57....

...ncy. [5] In Point II A, which we find appropriate to discuss first, Cenac argues that the Board erroneously rejected some of the hearing officer's findings of fact. We agree because there was competent substantial evidence to support those findings. § 120.57(1)(b)9., Fla....

...auditing standards, nor do they purport to express or disclaim an opinion as to the fairness of the presentation. The other employees of HCMC are not in violation of Chapter 473 because they are not certified. THE BOARD'S REJECTION OF CERTAIN FACTS Section 120.57(1)(b)9., Fla....

...Stephen Turner of Culpepper, Pelham, Turner & Mannheimer, Tallahassee, for appellant. Gerald B. Jaski, Gen. Counsel, Tallahassee, for appellee. MILLS, Judge. Tuckman appeals from a final administrative order denying his request for a formal hearing pursuant to Section 120.57(1), Florida Statutes (1985)....

...d argument in opposition to, or challenging the grounds upon which the University has taken [this action]." Tuckman declined this offer on 8 August, and requested "a due process hearing before an impartial hearing officer pursuant to Florida Statute § 120.57 so that I may have a fair opportunity to establish the impropriety of my removal from the position of Dean......

...had not been breached *135 and that he was not a "professional staff member" entitled to an annual recommendation of reappointment. More importantly, the order concluded that Tuckman was not entitled to a formal administrative proceeding pursuant to Section 120.57(1), Florida Statutes. Section 120.57 provides that it applies in all proceedings in which the substantial interests of a party are determined by an agency....

...FSU's basic position is that because, by virtue of the cited statute and rule, it needs no factual grounds to remove or reassign Tuckman, there can be no disputed facts requiring a formal hearing. Assuming arguendo that no factual grounds were needed for FSU's action, Section 120.57 requires only that the proceeding affecting substantial interests involve a disputed issue of material fact....

...on which he was permitted no input. While his request for a formal hearing might have been more artfully drawn, it adequately indicated the areas of factual dispute so as to entitle him to a hearing. In remanding for a formal proceeding pursuant to Section 120.57(1), we recognize that FSU specifically declined to rule on whether its actions determined Tuckman's substantial interests. However, it argues on appeal, and the record reflects, that it offered Tuckman an informal proceeding pursuant to Section 120.57(2). As noted above, Section 120.57 applies "in all proceedings in which the substantial interests of a party are determined by an agency." (emphasis supplied). A formal hearing pursuant to subsection (1) is required only if, in addition to these substantial interests, disputed issues of material fact are involved; it was this lack only on which FSU relied. Therefore, by its offer of a Section 120.57(2) hearing, the University has acknowledged that substantial interests were affected by its action and that question therefore need not be further addressed, either below or in this opinion....

...Choate, 456 So.2d 556, 558 (Fla. 4th DCA 1984) (citing Annot., Dismissal-Joinder Not Feasible, 21 A.L.R.Fed. 12, §§ 9[g], 12 (1974)). The Administrative Procedure Act The transcript at issue here is part of the record of proceedings in an administrative hearing conducted under section 120.57, Florida Statutes, to which both HRS and Southpointe were parties. Section 120.57(1)(b)7., Florida Statutes (1993), provides, in pertinent part: The agency shall accurately and completely preserve all testimony in the proceeding, and, on the request of any party, it shall make a full or partial transcript available at no more than actual cost....

...The Public Records Law Once the transcript of an administrative hearing conducted by or on behalf of an agency has been filed with the agency, the transcript becomes a public record, [6] without regard to who ordered the transcription or bore its expense. The agency can charge neither the parties, § 120.57(1)(b)7., Fla....

...The question before us differs significantly. Here the agency with whom the transcript was filed was under a statutory obligation to "preserve all testimony in the proceeding, and, on the request of any party, ... make a full or partial transcript available." § 120.57(1)(b)7., Fla....

...ified, sub-par, and medically contraindicated. It further alleged that the lower partial denture made for the complainant by Dr. Robinson was totally ill-fitting. The teeth were eventually extracted by another dentist. A hearing was held pursuant to section 120.57, Florida Statutes (1981)....

...Department of Insurance, supra, 394 So.2d at 172. It should be absolutely self-evident that suspending a professional license solely on the basis of the testimony of one interested witness [3] does not even begin to approach the level of "competent substantial evidence" as required by section 120.57....

...s to the issuance of the CON to Bennett only. HRS, relying upon Agrico Chemical Co. v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981), determined that the appellants were not substantially interested parties, as required by Section 120.57(1), Florida Statutes, and denied all appellants' petitions for hearings; hence these appeals....

...ing within a period up to five days before the final hearing. Although an agency's rule may not serve to restrict standing to one who would otherwise be determined to be a substantially interested party for purposes of being accorded a hearing under section 120.57(1), an agency's rule, such as these above, may, consistent with the regulatory statutory purpose, define or identify those persons who have the right to party status....

...Clearly such procedure is applicable to review of final administrative orders. The Florida Rules of Appellate Procedure apply to review of final orders from both courts and administrative agencies. See Fla.R.App.P. 9.110. Rule 9.350(a) fits like a glove with Section 120.57(3), Florida Statutes, permitting "informal disposition ......

...ME Hospitals, Inc. v. Department of Health and Rehabilitative Services, 10 FLW at 1978: "Under the circumstances in which the agency itself is a party to the stipulation entered into, and there are at that time no parties contesting the application, section 120.57 cannot be considered as authority for requiring the entry of a hearing officer's recommended order to be reviewed by the same agency that has previously consented to the terms of the agreement." We therefore see no impediment to a stip...

...Not only did the Board accept the hearing officer's findings of fact, but as a practical matter, the hearing officer's finding that Dr. Lavernia's violation of section 458.345, Florida Statutes, was unintentional was not capable of being overturned without complying with section 120.57(1)(b)10, Florida Statutes....

...Vey, are (1) that the hearing officer lacked authority to enter the order of September 3, 1980, dismissing BUGC, Inc., upon its motion for rehearing of the order of August 12, 1980, denying such dismissal; and (2) that the September 3 order erroneously found that BUGC, Inc., was not an agency under § 120.57(1), Florida Statutes....

...We found that "the Mental Health Board's election to act as a review board was unauthorized by its own rules and by the Administrative Procedure Act, Chapter 120, Florida Statutes. Appellant is entitled to a fair and impartial formal hearing conducted pursuant to the procedures provided by Section 120.57(1)(b), Florida Statutes, ..." Confusion has apparently resulted from the further direction that the proceeding should be conducted before a DOAH hearing officer *1138 as provided by § 120.57(1)(a)....

..."the Board has taken no action ... which will affect Dr. Vey's substantial interest," and: Had this case not come here via the District Court of Appeal, First District, I would grant the Motions to Dismiss Dr. Vey's Petition. I do not believe that a Section 120.57(1) hearing is the proper forum to resolve employment disputes between private employers and their employees....

...Seaboard Air Line Ry. Co., 111 So. 391, 93 Fla. 104. Appellant presents no authority or facts countering the application of this principle and we accordingly affirm. Appellant's second point urges error in the determination that BUGC was not an agency subject to § 120.57(1), Florida Statutes....

...The Board voted to accept Holcombe's recommendation to terminate Caldwell for cause. Holcombe provided written verification of the Board's termination for cause to Caldwell the next day. Caldwell filed a petition with the Board for a full administrative hearing pursuant to section 120.57, Florida Statutes (2002)....

...The rule provided that "no such employee may be dismissed during the college year without opportunity to be heard at a public hearing after at least fourteen (14) days notice of the charges against the employee and of the time and place of hearing." The rule specified that the public hearing would be in accordance with section 120.57, Florida Statutes....

...mercial and industrial use. The District Technical Staff Report recommended the permit be granted, provided the permit include a limitation on the amount of water consumed by Middlebrooks. Middlebrooks requested an administrative hearing pursuant to section 120.57(1), Florida Statutes....

...a jury. He is the fact-finder. The District Board is like a trial judge in a jury case. The Board makes conclusions of law, but cannot reject nor modify the hearing officer's findings of fact unless they are not supported by competent evidence. See § 120.57(1)(b)9, Fla....

...of Environmental Regulation, Tallahassee, for appellee. SHAW, Judge. General Development Utilities, Inc. (GDU) appeals from an order of the Department of Environmental Regulation (DER) entered May 19, 1981, denying GDU's petition for a hearing pursuant to chapter 120.57, Florida Statutes (1981)....

...GDU sought to present data to show that DER's method of determining the allocation is unreasonable and that a waste load allocation for oxygen-demanding effluents can be established that will not negatively impact upon the waters of the state. DER considered the petition without a hearing and entered its order denying a 120.57 hearing on the grounds that the letter was informational in nature and applicable to GDU only prospectively in relation to an application for a permit not now pending before the Department and that the letter has no legal or practical effect apart from prospective licensing....

...Clearly this is a final agency decision affecting the substantial interests of GDU. The fact that the petitioners can submit additional or contrary information on the disputed issues of material fact in hopes that DER will reconsider its position is not a substitute for a 120.57 hearing upon request....

...we are drawn to the conclusion that the Department's order dismissing its petition was error. We reject the notion that GDU has no redress until such time as it applies for new permits and has its application rejected. The essential ingredients of a 120.57 hearing are present, i.e., final agency action affecting the petitioner's substantial interests coupled with a disputed issue of material fact. If section 120.57 is to be "the Act's wider point of entry for those with varied or general complaints concerning agency action: those against whom the agency has instituted adjudicatory proceedings, those whose impending injury is not wholly and precis...

...State Department of Transportation, 362 So.2d 346, 348 (Fla. 1st DCA 1978) that "an agency must grant affected parties a clear point of entry, within a specified time after some recognizable event in investigatory or other free-form proceedings, to formal or informal proceedings under section 120.57." Now we find it necessary to add a postscript: simply providing a point of entry is not enough if the point of entry is so remote from the agency action as to be ineffectual as a vehicle for affording a party whose substantial interests are or will be affected by agency action a prompt opportunity to challenge disputed issues of material fact in a 120.57 hearing. The opportunity afforded GDU in this instance does not meet this standard. REVERSED and REMANDED for a 120.57 hearing....

...When BPR filed the two count complaint against Weiss for failure to complete the 60-hour course, Weiss responded with a general denial. Weiss did not specify which material facts were in dispute; rather, he simply denied counts I & II of the amended administrative complaint. Section 120.57, Florida Statutes (1993) allows a party the right to a formal hearing when material facts are in dispute....

...1st DCA 1984), the court wrote that "[w]hen material facts are not in dispute, an agency is not required to grant a formal proceeding, even though requested by the party, and is free to insist that the matter be handled by informal proceeding." See also, § 120.57, Fla....

...as paid for with school funds. The School Board's final order dismissed Pelham for misconduct in office. [1] Prior to the submission by the hearing officer of his recommended order to the School Board, counsel for Pelham, as was *953 his right under Section 120.57(1)(b)4, Florida Statutes, timely submitted to the hearing officer proposed findings of fact, some of which neither the hearing officer nor the School Board, respectively, addressed in the recommended order or the Board's final order....

...tice." This court has previously recognized that a school board is an agency and, therefore, subject to the operation of Chapter 120, Florida Statutes. Witgenstein v. School Board of Leon County, 347 So.2d 1069 (Fla. 1st DCA 1977). When a party to a Section 120.57 hearing submits proposed findings of fact, the agency must make an explicit ruling on each proposed finding unless such finding is subordinate, cumulative, immaterial or unnecessary....

...Dept. of Transp., 340 So.2d 119 (Fla. 1st DCA 1976); Forrester v. Career Service Commission of Florida, 361 So.2d 220 (Fla. 1st DCA 1978); McDonald v. Dept. of Banking and Finance, 346 So.2d 569, 583 (Fla. 1st DCA 1977). Otherwise, the requirement of Section 120.57(1)(b)4 that a party be allowed to submit proposed findings and to receive a ruling on each pertinent proposed finding would be no requirement at all and would be meaningless....

...icer ruling upon Pelham's above-referred proposed findings. Prior to the Board's entry of its amended final order, opportunity shall be afforded by the Board for submission of exceptions to the hearing officer's amended recommended order pursuant to Section 120.57(1)(b)4, Florida Statutes....

...RHPC, Inc., d/b/a Riverside Hospital, appeals a final order of the Department of Health and Rehabilitative Services (HRS), dismissing Riverside's attempt to reinstate its certificate of need (CON) application, which it had previously voluntarily dismissed. We affirm. Riverside sought a section 120.57 administrative hearing for the purpose of proving that HRS be estopped from refusing to reinstate Riverside's CON application....

...2d DCA 1968) (an administrative agency cannot enlarge its own jurisdiction, nor can it create jurisdiction by consent, estoppel or waiver, citing 2 Am.Jur.2d Administrative Law § 331). HRS has filed a motion for an award of attorney's fees and costs, pursuant to Section 120.57(1)(b)9, Florida Statutes (1985)....

...Finding that the attempt to reinstate appellant's application and its subsequent appeal in the instant case is meritless and frivolous, we grant the motion for attorney's fees and costs against the appellant, limiting the award of fees and costs to the defense of this appeal. See § 120.57(1)(b)9., Fla....

...ON MOTION FOR REHEARING OF ORDER GRANTING ATTORNEYS' FEES BENTON, Judge. A motion—appellant's motion for rehearing of court's order of September 23, 1996 awarding attorneys' fees and costs to the *605 State of Florida, Department of Health and Rehabilitative Services and BDC Deland, Ltd. pursuant to Section 120.57(1)(b)(10), Florida Statutes—asks that we vacate our order awarding fees and costs, [1] contending that the main "appeal raised ......

...the recommendation that Procacci's formal written protest be dismissed. The final order also purported [5] to adopt the administrative law judge's "order correcting order" entered on July 24, 1995, *606 which denied attorney's fees HRS sought under section 120.57(1)(b)5., Florida Statutes (1995)....

...Sanctions Sought Below Within two weeks of Procacci's formal written protest, see Stockman v. Downs, 573 So.2d 835 (Fla.1991), HRS filed a motion to dismiss/petition for attorney's fee, damages, and costs in which it alleged: The Department is entitled to attorneys fees, damages, and costs pursuant to Section 120.57(1)(b)(5), in that the protest is filed to harass the Department and cause unnecessary delay in removing to the new leased facility, requiring the Department to remain in facilities currently leased from Procacci at a cost to the Department in Excess of $4000. per month, and resulting in unjust enrichment to Procacci. Former section 120.57(1)(b)5....

...[9] Since HRS never appealed the administrative law judge's determination that Procacci did not file its formal written protest for improper purposes, the propriety of that ruling is not a question we have for decision on appeal. The "order correcting order" denying fees under former section 120.57(1)(b)5. must stand. But Procacci goes further and argues that the administrative law judge's determination under former section 120.57(1)(b)5. precludes the award of attorneys' fees under section 120.57(1)(b)10., Florida Statutes (1995)....

...They require separate consideration and discrete resolution. Frivolous Appeal Warrants Award of Fees An appellate court "may award reasonable attorney's fees and [reasonable] costs to the prevailing party if the court finds that the appeal was frivolous, meritless, or an abuse of the appellate process." § 120.57(1)(b)10., Fla.Stat....

...This language [10] authorizes an award in favor of an administrative agency. See RHPC, Inc. v. Dep't of Health and Rehabilitative Services, 509 So.2d 1267 (Fla. 1st DCA 1987). Because Procacci's bid protest raised "a disputed issue of material fact, [HRS] ... refer[red] the protest to the division for proceedings under s. 120.57(1)." § 120.53(5)(d)2., Fla.Stat....

..., Fla.Stat. (Supp.1996), see Titzel v. Department of Prof'l Regulation, Bd. of Prof'l Eng'rs, 599 So.2d 279 (Fla. 1st DCA 1992); Johnston v. Department of Prof'l Regulation, Bd. of Med. Exam'rs, 456 So.2d 939 (Fla. 1st *610 DCA 1984), neither former section 120.57(1)(b)10....

...ngs from which the appeal is taken. Appellant's motion for rehearing of court's order of September 23, 1996 awarding attorneys' fees and costs to the State of Florida, Department of Health and Rehabilitative Services and BDC Deland, Ltd. pursuant to section 120.57(1)(b)(10), Florida Statutes, is denied....

...96-403, § 26, at 2691, Laws of Fla. [4] The body of the order entered on September 23, 1996, reads: The State of Florida, Department of Health and Rehabilitative Services' and BDC Deland Ltd.'s motions for attorney's fees and costs, filed pursuant to section 120.57(1)(b)(10), Florida Statutes, are granted....

...1st DCA 1993), we held that, when a recommended order reserves jurisdiction to determine the amount of fees and costs to be assessed against the agency, the agency cannot employ its final order authority to overturn by fiat an award of attorneys' fees and costs entered against it under former section 120.57(1)(b)5....

...of Environmental Protection 1990). Here HRS had no jurisdiction to review the hearing officer's ruling refusing to award sanctions it sought against Procacci. Whether denominated interlocutory or final, an order awarding costs and fees under former section 120.57(1)(b)5....

...Neither HRS nor any other agency has authority to review fee and cost awards that administrative law judges make under the authority of section 120.569(2)(c), Florida Statutes (Supp.1996), or which hearing officers made under the predecessor provision, section 120.57(1)(b)5., Florida Statutes (1995)....

...1st DCA 1983). [9] The statutory examples of improper purpose are "to harass or to cause unnecessary delay or for frivolous purpose or needless increase in the cost of litigation." Federal Rule of Civil Procedure 11 was a model of sorts for former section 120.57(1)(b)5., but there are differences, as pointed out in Mercedes Lighting and Electrical Supply, Inc....

...The signature requirement under rule 11 is directed at three substantive prongs: the factual basis of the paper, the legal basis of the paper, and its legitimate purpose. Under the statute, the signature certifies only that the paper is not interposed for an improper purpose. But, unlike the rule, section 120.57(1)(b)5....

...Department of Transportation (No. 89-6926BID, DOAH, Jan. 25, 1990), the hearing officer found—rightly or wrongly—no improper purpose in a bid protest filed by a bidder who had earlier agreed with the department's determination that its bid was nonresponsive. Former section 120.57(1)(b)5....

...ting, 560 So.2d at 277 n. 4. [10] The same language now appears in section 120.595(5), Florida Statutes (Supp.1996). In the current version, the word "reasonable" precedes the word "costs." As to the award of appellate costs, see ante, n. 1. [11] In section 120.57 substantial interest proceedings, the referring agency enters the final order and has no right (nor any need) to appeal its own order....

...private parties, as in the present case. Where a third party is aligned with the agency whose order is appealed, fee awards may be entered in favor both of the agency and of the party aligned with the agency—here BDC. [12] We recognize that former section 120.57(1)(b)10....

...Dep't of Ins., 771 So.2d 1222 (Fla. 1st DCA 2000). Punishment for past behavior is properly the subject of an administrative complaint pursuant to section 120.60(5) wherein the licensee is afforded the opportunity to challenge the factual basis of the complaint through a section 120.57(1) hearing....

...ly found errors of law in the hearing officer's proposal and that the District's final order is supported by competent, substantial evidence. The District has broad powers to reject conclusions of law which have been proposed by the hearing officer. § 120.57(1)(b)(10), Fla....

...Dep't of Health and Rehabilitative Servs., 468 So.2d 478 (Fla. 2d DCA 1985); MacPherson; Alles v. Dep't of Prof. Reg., 423 So.2d 624 (Fla. 5th DCA 1982). We recognize that if an agency rejects a proposed penalty, it must adequately explain its reasons with "particularity." § 120.57(1)(b)(10), Fla....

...been expelled until such time as a written order is properly rendered. Except in formal rulemaking or declaratory statement proceedings, an agency decision which determines the substantial interests of a party must be made through the provisions of section 120.57, Florida Statutes, and culminate in a final order....

...The complaint made the same allegations as contained in the emergency order and advised her that she may be subject to sanctions including suspension or revocation of her registration and advised her of her right to request a hearing in accordance with section 120.57, Florida Statutes, and Rule 3-7.002, Florida Administrative Code. On January 11, 1991, Stock filed with the Department her petition for a formal hearing pursuant to section 120.57(1), Florida Statutes, and Rule 28-6.009(4), Florida Administrative Code....

...Florida Administrative Code Rule 28-6.009(1) provides that an administrative complaint must be served upon the licensee pursuant to section 120.60(6), Florida Statutes (now section 120.60(7)). Rule 28-6.009(2)(c) provides that the licensee then has a right to request a hearing pursuant to section 120.57, Florida Statutes....

...an aggrieved party. (3) Unless otherwise provided by law, within twenty (20) days after emergency action taken pursuant to subsection (1), the Agency shall initiate a formal suspension or revocation proceeding in compliance with Sections 120.60 and 120.57, F.S......

...Once the action was instituted, it was incumbent upon Stock as the aggrieved person to request, pursuant to rule 28-6.011(2), that *115 DOAH set a hearing at the earliest time practicable. Instead of requesting an expedited hearing, Stock's answer simply requested that a formal hearing be scheduled by DOAH pursuant to section 120.57(1)....

...for a period of ninety days from service on Stock, provided that, if the Department also began non-emergency cease and desist proceedings, the emergency order continued in effect until conclusion of the nonemergency proceedings to be conducted under section 120.57....

...and that the judge had exceeded the scope of his authority in the de novo proceeding by substituting his interpretation of the rule for the agency's interpretation. A bid protest before a state agency is governed by the Administrative Procedure Act. Section 120.57(3), Florida Statutes, (Supp.1996) provides that if a bid protest involves a disputed issue of material fact, the agency shall refer the matter to the Division of Administrative Hearings. [1] The administrative law judge must then conduct a de novo hearing on the protest. See § 120.57(3)(f), Fla.Stat. (Supp.1996). In this context, the phrase "de novo hearing" is used to describe a form of intra-agency review. The judge may receive evidence, as with any formal hearing under section 120.57(1), but the object of the proceeding is to evaluate the action taken by the agency....

...If the agency has rejected a competitive bid, as it did in the present case, the administrative law judge must determine "[w]hether the agency's proposed action is contrary to the agency's governing statutes, the agency's rules or polices, or the bid or proposal specifications." § 120.57(3)(f), Fla....

...As explained in the statute, the "standard of proof for such proceedings shall be whether the proposed agency action was clearly erroneous, contrary to competition, arbitrary, or capricious." Final agency action on a recommended order in a bid protest proceeding is subject to section 120.57(j), Florida Statutes, (Supp.1996)....

...Jamerson, 653 So.2d 489 (Fla. 1st DCA 1995); Heifetz v. Department of Business Regulation, Division of Alcoholic Beverages & Tobacco, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). In contrast, the agency is not required to defer to the administrative law judge on issues of law. Section 120.57(j), Florida Statutes (Supp.1996), states in material part that "[t]he agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules over which it has substantive jurisdiction." See Florida Public Employees Council 79, AFSCME v....

...part of the DBE goal, but the rule does not suggest that these requirements must be met at the time the bid is submitted to the agency. As the Department interprets the rule, these requirements are enforced at the time the subcontracts are reviewed. Section 120.57(1)(j), Florida Statutes (Supp.1996), expressly authorizes the Department to reject the administrative law judge's "interpretation of rules over which [the agency] has substantive jurisdiction." The courts must also defer to the expertise of an agency in interpreting its rules....

...(emphasis in original) (citations omitted). See also Humana, Inc. v. Department of Health and Rehabilitative Services, 492 So.2d 388, 392 (Fla. 4th DCA 1986) (an agency's interpretation of its own rule is entitled to great weight and persuasive force in the appellate court). Section 120.57(1)(j), illustrates that this policy of deference to an agency's expertise in interpreting its rules applies not only to the courts but also to administrative law judges....

...Our inquiry is limited to a determination whether the Department's action is correct as a matter of law. See § 120.68(7)(d), Florida Statutes (Supp.1996). We find nothing in the text of rule 14-78 to show that the Department's interpretation is incorrect, much less to suggest that it is clearly erroneous, as required by section 120.57(3)(f), Florida Statutes (Supp.1996). Therefore, we conclude that the Department properly approved the initial award of the bid. Affirmed. BENTON and VAN NORTWICK, JJ., concur. NOTES [1] The 1996 revision of section 120.57, Florida Statutes, became effective on October 1, 1996, before the filing of the formal bid protest in this case.

...The City first argues the Commission failed to provide a hearing as required by Chapter 120 of the Administrative Procedure Act. We agree that a ruling upon a proper party's objections to an election is one "in which the substantial interests of a party are determined by an agency" so that the hearing provisions of Section 120.57, Florida Statutes (Supp....

...We do not interpret Chapter 120 as requiring an agency to convene an unrequested formal hearing whenever it perceives the possibility of a disputed issue of material fact. Just as a litigant must request trial by jury, so must a substantially affected person affirmatively seek a 120.57(1) hearing. The question then is whether the Commission complied with Section 120.57(2), pertaining to informal proceedings and applicable when 120.57(1) has not been utilized. As we held in General Development Corp. v. Division of State Planning, 353 So.2d 1199, 1209-1210 (Fla. 1st DCA 1977), Section 120.57(2) requires notice, opportunity and a final order complying with 120.59. The Chairman's report, later reviewed by the full Commission, was notice of agency action, and fully complied with the requirements of 120.57(2)(a)1....

...The report however, dismissing the objections was not final agency action, which occurred only when the Commission reviewed it and entered its final order. United Faculty of Fla. v. Branson, 350 So.2d 489, 493 (Fla. 1st DCA 1977). The City had opportunity to be heard, though no hearing was held. Section *83 120.57(2) contemplates that a proceeding be held — not necessarily a hearing. The opportunity requirement of 120.57(2)(a)2 is satisfied by a written statement challenging the grounds for agency action....

...The City was furnished such opportunity by filing its request for review before the full Commission. The request completely challenged the Chairman's report, and was duly considered by the Commission. As a result there was no departure by the Commission from the requirements of 120.57(2)....

...Eric James Brown appeals the Department of Financial Services' final order denying a motion to set aside a default revocation of his insurance license. Because factual issues were raised in the motion and accompanying affidavit, which should have been resolved via an administrative hearing, we reverse and remand. See § 120.57(1), Fla....

...Environmental Regulation (DER) relating to a road widening project in Pinellas County. After DER's district office issued a "letter of intent" to issue the permit, property owners objected to the proposed permit and requested a hearing. Following a section 120.57(1) hearing, DER entered a final order denying the permit....

...Section 380.07(3) provides in relevant part: Prior to issuing an order, the Florida Land and Water Adjudicatory Commission shall hold a hearing pursuant to the provisions of chapter 120. (Emphasis supplied.) Florida caselaw generally has interpreted section 120.57, which relates to adjudicatory hearings, as requiring de novo proceedings....

...Because section 380.07(3) refers to chapter 120, the majority concludes that the hearing in section 380.07 appeals must be de novo. Majority op. at 833. This approach reads out any meaning of the legislatively delineated differences between this proceeding and every other section 120.57 proceeding, as well as the plain language of section 380.07(2), which provides: Whenever any local government issues any development order in any area of critical state concern, or in regard to any development of regional impact, copie...

...Had the Legislature intended to require the normal chapter 120-type hearing, it would not have used words of art in section 380.07(2) so clearly contemplating an "appeal." Moreover, chapter 120 itself, when it refers to section 380.07 proceedings, also uses the word "appeal." Section 120.57(1)(b)3., Fla....

...380.07, the commission shall notify the division within 60 days of receipt of the notice of appeal if the commission elects to request the assignment of a hearing officer.") (Emphasis supplied). Thus, by specifically discussing section 380.07 "appeals," section 120.57 suggests that those hearings are not the same as the ones generally conducted under the section. *837 Chapter 120 was designed to deal with state agencies, not local governments. In a typical adjudicatory hearing pursuant to section 120.57, a state agency has taken some action affecting the substantial interests of a party. Section 120.57(1), Fla....

...Board of County Commr's, 438 So.2d 876, 879 (Fla. 1st DCA 1983) ("If the local government entity conducts its hearing with adequate procedural safeguards, such a hearing would presumably be considered full and complete by the Commission or its hearing officer and admitted into evidence at the section 120.57 hearing."), review denied, 449 So.2d 264 (Fla....

...It simply shifts the review of those decisions from the circuit court to the Land and Water Adjudicatory Commission."), review denied, 412 So.2d 468 (Fla. 1982). Thus, because local governments are not "agencies" but consist of independent elected officials, I believe the Legislature in sections 380.07(3) and 120.57(1)(b)(3) outlined a different type of proceeding than is usual under section 120.57....

...1978) (discussing the creation of the areas of critical state concern program). Therefore, I agree with the majority that this statutory framework is relevant. Majority op. at 834-835. However, I also believe that the plain language of sections 380.07 and 120.57 has meaning, is relevant, and can be harmonized in accordance with the requirements of Singleton. I would harmonize the various statutes as follows: By using the word "appeal" in both sections 380.07(2) and 120.57(1)(b)(3), the Legislature indicated that the appellant has the ultimate burden of persuasion and that the decision by the local government is entitled to a presumption of validity....

...s were based on competent, substantial evidence. This being so, the Board had no authority, in any event, to reject summarily the hearing examiner's findings and to substitute its own findings therefor. Kimball v. Hawkins, 364 So.2d 463 (Fla. 1978); § 120.57(1)(b)(9), Fla....

...I would base the conclusion to reverse solely on the ground that since the findings of the hearing officer, *797 whose function it is to make these determinations, are supported by substantial competent evidence, the agency improperly set them aside. Section 120.57(1)(b)(9), Florida Statutes (1981); Kimball v....

...es set forth in chapter 120. Initially, Heburn appeared before a committee formed by the Department of Children and Families to consider his request for exemption. The committee denied his request. Heburn then contested the denial in a hearing under section 120.57(1)....

...d's permit on many of the same grounds it relies upon for the issuance of the ESO. This complaint provides Bio-Med the opportunity to challenge the Department's intended action by requesting an administrative hearing pursuant to sections 120.569 and 120.57, Florida Statutes (2004). Establishing the basis for an emergency suspension without a hearing, however, places a greater burden on the Department than a proceeding under sections 120.569 and 120.57....

...eral court and the disposition of that charge is pending during the application review or renewal review period." Although proof of the violation of section 499.012(5)(i) may satisfy the Department's burden in a proceeding under sections 120.569 and 120.57, an issue we do not reach, an allegation of such a violation does not, by itself, satisfy the requirements of sections 120.60(6) and 499.066(5)....

...that would support an inference of such continuing conduct."). As we stated in Daube, Punishment for past behavior is properly the subject of an administrative complaint pursuant to section 120.60(5) wherein the licensee is afforded the opportunity to challenge the factual basis of the complaint through a section 120.57(1) hearing....

...d copies of the complaints, *885 and requested either an admission or a denial of the claims or satisfaction of the matters complained of within twenty-five days. Appellants were also given the opportunity to request a hearing on the complaint under Section 120.57, Florida Statutes (1989)....

...Neither Southeast nor Florida Farm Bureau responded to the notice. Thereafter, the department entered a consolidated nonfinal order against Southeast for the full amount each appellee claimed: $39,167.58 to Alston, $5,560.08 to McKiness, and $999.40 to Fox. [3] Southeast then requested hearings pursuant to section 120.57(1)....

....06 to Fox. In the final orders entered in each of the three cases, the department concluded that "the proceedings on which the Hearing Officer's findings were based do not comply with essential requirements of law within the meaning of Subparagraph 120.57(1)(b)10, Florida Statutes," and thus rejected the hearing officer's findings....

...period thereafter. The evidence amply supports the penalty recommended by the hearing officer, to six months suspension and a fine and two years probation. In order for the appellee to increase the penalty, as it did, it is necessary to comply with Section 120.57(1)(b)(10), Florida Statutes (1987)....

...Frevola, Jr. of McDermott, Will & Emery, Miami, for appellee Martin Memorial Hosp. Assn., Inc. PER CURIAM. North Ridge Medical Center has appealed from two final administrative orders dismissing for lack of standing its petitions for formal proceedings under section 120.57, Florida Statutes (1989)....

...are: 1) whether an ALJ has jurisdiction to award attorney's fees under section 120.595, Florida Statutes (2000), when a notice of dismissal is filed before a formal hearing on the merits; and 2) whether an agency has "substantive jurisdiction" under section 120.57(1)( l ), Florida Statutes (2000), to correct an erroneous legal ruling made by an ALJ regarding a party's entitlement to attorney's fees....

...In its final order of dismissal, DEP stated that in its opinion, the ALJ was wrong as a matter of law in ruling that a full evidentiary hearing on the merits was a jurisdictional prerequisite to an award of fees under section 120.595. Nevertheless, DEP held that it was powerless to correct the error because, pursuant to section 120.57(1)( l ), Florida Statutes (2000), the issue of attorney's fees did not fall within its substantive jurisdiction....

...n deprived him of jurisdiction, and he could proceed no further. This conclusion is premised on the provisions of sections 120.595(1)(b) and (c), Florida Statutes (2000), which state in pertinent part: (b) The final order in a proceeding pursuant to s. 120.57(1) shall award reasonable costs and a reasonable attorney's fee to the prevailing party only where the non-prevailing adverse party has been determined by the administrative law judge to have participated in the proceeding for an improper purpose. (c) In proceedings pursuant to s. 120.57(1), and upon motion, the administrative law judge shall determine whether any party participated in the proceeding for an improper purpose.... The pertinent language in the above-quoted paragraphs is that which refers to proceedings under section 120.57(1). Section 120.57(1) provides in pertinent part that "an administrative law judge ... shall conduct all hearings under this subsection." § 120.57(1)(a), Fla. Stat. (2000). Reading the provisions of sections 120.595 and 120.57 together, the ALJ came to the conclusion that a full evidentiary hearing adjudicating the merits of the underlying issues is a jurisdictional prerequisite to an award of fees under section 120.595. Orange City, advocating in favor of its interests as the potential payor of any award of fees, asserts the correctness of this ruling. While it agrees that sections 120.57(1) and 120.595(1)(b) should be considered together, GEL contends that a final order in a "proceeding" may refer to an order of dismissal and should not be restricted to an order rendered after a hearing on the merits of Orange City's petition....

...This scenario could result in an increase in permit challenges initiated for the primary purpose of causing delays and increase the costs of the permit application review process. We cannot conceive that the Legislature intended such absurd and ridiculous results when it enacted sections 120.595(1) and 120.57(1)....

...e City as not being in accord with legislative intent. Moreover, we note that under the rules of statutory construction, section 120.595(1), which contains the term "proceeding" and concerns the specific subject of attorney's fees, was enacted after section 120.57(1), which contains the term "hearing" and concerns the more generalized subject of contested agency actions. Therefore, the term "proceeding" utilized in section 120.595, as the latter-enacted, more specific statutory provision, prevails over the more general provision of section 120.57, which contains the *1262 term "hearing." Thus, the filing of a petition and subsequent order of dismissal prior to a hearing on the merits is a proceeding and is sufficient to trigger application of the attorney's fees provisions of section 120.595(1)....

...J erred in ruling he did not have jurisdiction to hear the petition for attorney's fees. However, DEP held that it was powerless to correct that decision because it did not have substantive jurisdiction to do so. DEP came to this conclusion based on section 120.57(1)( l ), Florida Statutes (2000), which provides in pertinent part: The agency may adopt the recommended order as the final order of the agency....

...ination. The Board issued its final order rejecting the ALJ's conclusion of law. The applicant argued, and the First District Court agreed, that the Board, as the reviewing agency of the ALJ's recommended order, had no substantive jurisdiction under section 120.57(1)( l ), Florida Statutes (1999), to displace the ALJ's conclusion of law regarding the hearsay issue. The court in Barfield examined in detail the legislative history of the provisions of section 120.57(1)( l )....

...We agree with the rationale of Barfield and Deep Lagoon. We are especially persuaded after review of the legislative history in Barfield, which clearly reveals the legislative intent to restrict agency review of conclusions of law in a recommended order in the manner prescribed by section 120.57(1)( l )....

...to parties and agencies aggrieved by an ALJ's erroneous legal ruling that is not within the agency's substantive jurisdiction to correct. However, it is not for us to say whether we agree with the wisdom of the limited scope of review prescribed by section 120.57(1)( l ) or whether we wish that it were more expansive....

...ered on the administrative appeal constituted "final agency action." *1114 In Steele the court appeared to be concerned that if the state board action were deemed final agency action, then that body would be subject to the procedural requirements of section 120.57, Florida Statutes (Supp....

...The result, the court said, would be unnecessary duplicative fact finding on the part of the state board. The Administrative Procedure Act affords a formal administrative hearing for teachers such as Noble whom a superintendent would seek to dismiss. § 120.57, Fla....

...a security officer and security agency manager. We reverse. The Department, pursuant to section 493.6121, Florida Statutes (Supp.1996), filed a complaint dated January 31, 1997, against Appel. The complaint contained a "Notice of Rights" pursuant to section 120.57, Florida Statutes (Supp.1996), which stated that to assert his right to a hearing on the merits of the complaint Appel was required to complete the attached "Election of Rights" form and return the form to the Department within twenty-one days of receipt of the notice....

...n subject to continuing medical education and semi-annual appearances in addition to the recommended reprimand. The issue presented on appeal is whether the board failed to state with particularity its reasons for increasing the recommended penalty. Section 120.57(1)(b)9, Florida Statutes (1985) provides, in relevant part: The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with partic...

...ion. Van Ore contends that the board improperly increased the hearing officer's recommended reprimand by imposing a two year probation with conditions. At the hearing before the board, the board's attorney reminded the members of the requirements of section 120.57(1)(b)9 and stated: You found the doctor guilty of only leaving blank ....

...tion 1009.42, Florida Statutes (2003), should be construed as supplanting the Administrative Procedure Act, albeit by implication. Rejecting this interpretation of the applicable statutes, we reverse DOE's order denying eligibility, and remand for a section 120.57 hearing....

...See generally Graham Contracting, Inc. v. Dep't of Gen. Servs., 363 So.2d 810, 814-15 (Fla. 1st DCA 1978) ("These free-form proceedings may end the controversy if they are accepted as ending the controversy, but not if a substantially affected party timely invokes Section 120.57(1) or (2) remedies.")....

...high school; and interpret certain statutory provisions involving, inter alia, the eligibility requirements for Bright Futures Scholarships and, in particular, Florida Academic Scholars awards. He also requested a formal administrative hearing under section 120.57(1), Florida Statutes, alleging numerous issues of disputed material fact, and arguing that DOE had failed to state adequately or to apply properly its non-rule policy regarding the eligibility requirements for a Bright Futures Scholarship. The appeals committee ruled that he was not entitled to a hearing under the Administrative Procedure Act (while acknowledging its own inability to hear testimony under oath). In denying a section 120.57 hearing, neither the committee nor DOE relied on section 120.81(1)(g), Florida Statutes (2003). By its own terms, section 120.81(1)(g) is inapposite because it applies to "substantial interests of a student ... determined by a state university or a community college," not to decisions made by DOE itself. On the merits, after denying the section 120.57 hearing request, the appeals committee, then DOE, upheld the determination of ineligibility....

...Gopman's petition for declaratory statement on grounds that the Department's determination of ineligibility rendered his petition for declaratory statement moot. Separate appeals taken from DOE's order denying eligibility for a Bright Futures Scholarship, without a 120.57 hearing, and from DOE's order denying a declaratory statement were consolidated here....

...Like "free form" procedures that do not have express statutory sanction, the preliminary procedures to which DOE and Mr. Gopman turned in the present case may well obviate the need for resort to the Administrative Procedure Act in the run of cases. But this does not extinguish the right to a hearing under section 120.57, nor diminish the importance of the right. Like DOT, DOE may be bound to "plow the same ground twice," once in free-form proceedings . . ., and again by Section 120.57(1) or (2) proceedings.......

...ncy transacts its day-to-day business. See H. Levinson, Elements of the Administrative Process, 26 Amer.L.Rev. 872, 880, 926 et seq. (1977).... The vast majority of an agency's free-form decisions become conclusive because they are not challenged in Section 120.57(1) or (2) proceedings....

...Yet the agency's rules must clearly signal when the agency's free-form decisional process is completed or at a point when it is *1122 appropriate for an affected party to request formal proceedings, if authorized, or to accept his statutory opportunity for informally structured proceedings under Section 120.57(2). In other words, an agency must grant affected parties a clear point of entry, within a specified time after some recognizable event in investigatory or other free-form proceedings, to formal or informal proceedings under Section 120.57....

...Dept. of Banking & Finance, 346 So.2d 569, 583 (Fla. 1st DCA 1977)."). On remand, DOE should refer this matter to the Division of Administrative Hearings unless the Florida Board of Education (or a member of the Board) decides to hear the case, see § 120.57(1)(a), Fla....

...under this subsection, except for hearings before agency heads or a member thereof."), given the disputes of material fact that have been alleged. A formal administrative hearing will also afford a full opportunity to test the agency's policies. In section 120.57(1) proceedings, the hearing officer can "independently serve[] the public interest by providing a forum to expose, inform and challenge agency policy and discretion." State ex rel....

...Co., 832 So.2d 916, 919-20 (Fla. 1st DCA 2002). Accordingly, the denial of the request for declaratory statement is affirmed, but the determination that appellant is ineligible for an award as a Florida Academic Scholar is reversed, and the case is remanded for a section 120.57 hearing....

...In January, 1975, this conditional approval was revoked by Dickinson's successor, respondent *1117 Lewis, who found local conditions did not ensure reasonable promise of successful operation for the proposed bank and for the bank already established in the community. Petitioners then requested and were given a Section 120.57(1) evidentiary hearing....

...Its discretion is conditioned upon the criteria provided by Section 659.03(2). Cf. National Bank of Tampa v. Green, 175 So.2d 545 (Fla. 1st DCA 1965); Bay National Bank and Trust Co. v. Dickinson, 229 So.2d 302 (Fla. 1st DCA 1969). It is also subject to the procedure afforded substantially interested parties by Section 120.57 of the Administrative Procedure Act....

...ent's substituted findings." McDonald at 584. Nevertheless, even when policy considerations are involved, and the agency has displaced the hearing officer's recommended conclusions because of such considerations, it is the agency's duty, mandated by Section 120.57, to explicate its policy and address countervailing arguments developed in the record as well as those urged by the hearing officer's recommended order....

...In the final order HRS concluded, among other things that the basic thrust of Shared Services' petition was that approval of Shands' application would result in economic injury to it, but competitive economic injury alone is insufficient to afford standing to request a formal hearing under Section 120.57, Florida Statutes, as there is no statutory authority for making competitive economic injury a concern in the issuance of licenses and certifications under Chapter 401, citing Agrico Chemical Co. v. Department of Environmental Regulation, 406 So.2d 478 *58 (Fla. 2d DCA 1981), and ASI, Inc. v. Public Service Commission, 334 So.2d 594 (Fla. 1976). Shared Services argues that it has standing to request a Section 120.57 formal hearing on Shands' application, because it has a substantial interest that is within the ambit of Chapter 401....

...HRS stated that even though issuance of a license under Chapter 401 is not conditioned on Shands obtaining a certificate of need, if the certificate were revoked in the separate proceedings, HRS could halt operation of Shands' service. Under the test set forth in Agrico, Shared Services lacked standing to obtain a Section 120.57 hearing on Shands' application for licensure and certification....

...is no statutory language to the contrary. Absent clear authority for the insertion of competitive economic consideration into the licensing and certification procedures involved here, the final order determining Shared Services is not entitled to a Section 120.57 hearing regarding Shands' licensure and certification is AFFIRMED....

...As this court has stated in a number of decisions, see, e.g., Henderson Siqns v. Florida Dep't of Transp., 397 So.2d 769 (Fla. 1st DCA 1981); Florida Dep't of Transp. v. J.W.C. Co., 396 So.2d 778 (Fla. 1st DCA 1981), the agency is conferred no such authority to act. Specifically, we observed in J.W.C. Co., that section 120.57(1)(b)9, Florida Statutes (now renumbered section 120.57(1)(b)10), [3] forbids, among other things, an agency from rejecting or modifying recommended findings of fact unless it first determines from a review of the complete record that the findings were not based on competent, substantial ev...

...initial order upholding the dismissal had been entered. In Provin, although the Commission permitted the proceeding to be reopened and additional evidence presented, the initial hearing had been held before the agency itself; hence the provisions of section 120.57, relating to an agency's responsibilities when reviewing a hearing officer's recommended order, were not applicable. In the case at bar, the hearing of course was conducted before a DOAH officer, therefore the provisions of section 120.57(1)(b)10 apply....

...That same day, he submitted the recommended order to the Board. In a final order dated May 13, 1981, the Board rejected the hearing officer's findings of fact, conclusions of law and recommendation, and suspended Lewis' license for six months. Lewis asserts that the Board failed to comply with section 120.57(1)(b)(9), Florida Statutes (1979), which provides in pertinent part: The agency in its final order ......

...In the case at bar, Lewis has not demonstrated that the time violation resulted in severe prejudice. Thus, we choose not to reverse the final order on this ground. [1] Accordingly, pursuant to section 120.68(13)(a)(1), we vacate the final order for violation of the particularity requirement of section 120.57(1)(b)(9), and remand with instructions to the Department to conduct such further proceedings necessary to produce a final order consistent with this opinion....

...(FOE) appeals a final order of the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund (board of trustees) and the Department of Natural Resources (DNR), which dismissed FOE's petition for a hearing pursuant to section 120.57, Florida Statutes....

...standing. See Florida Home Builders Ass'n v. Department of Labor, 412 So.2d 351 (Fla. 1982). A party seeking to show a substantial injury must demonstrate 1) that he will suffer an injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of the type or nature which the proceeding is designed to protect....

...We, therefore, find that FOE has alleged sufficient facts, if determined to be true, to constitute injury of the type which the CARL statute is designed to protect. We, therefore, reverse the order of dismissal, and remand to the agency for a formal administrative hearing pursuant to section 120.57, Florida Statutes (1989)....

...The board, in an order which made no finding as to Moore's guilt or innocence or discussed the hearing examiner's findings, suspended his license for one year. The law requires that an agency in its final order either accept or reject the findings of fact of the hearing officer. Section 120.57(1)(b)(9), Florida Statutes (1975)....

...ial evidence. Boyette v. State Professional Practices Council, 346 So.2d 598 (Fla. 1st DCA 1977). Moore has also asserted on appeal that the respondent board has acted with malice or bad faith thereby entitling him to attorney's fees and costs under Section 120.57(1)(b)(9), Florida Statutes (1975)....

...order of the hearing officer, departed from statutory requirements by failing to include individually stated findings of fact and conclusions of law, and failing to explicitly rule on each proposed finding of fact submitted by appellant pursuant to section 120.57(1)(b)4, Florida Statutes (1979)....

...be separately stated. The Board's order specifically adopted the findings of fact and conclusions of law of the hearing officer who submitted a detailed report and recommended order separately stating his findings, conclusions, and recommendations. Section 120.57(1)(b)9, Florida Statutes, clearly permits an agency to adopt the recommended order as the agency's final order or to reject or modify the conclusions of law....

...Code Rule 14-10.004(8)(a)3 (e.s.). While the department's notice did not use the term, "final agency action," the agency's memorandum of returned application clearly informed appellant that the application had been denied and that appellant had the right to request a § 120.57 hearing within 30 days of the date of the notice....

...allmarks of finality required for final orders affecting substantial interests in that it failed to inform appellant of his right to request administrative review and failed to state the time within which he was required to request proceedings under Section 120.57." We therefore conclude that Lamar was provided a clear point of entry to the administrative process, and that DOT was under the circumstances correct in dismissing the appeal....

...Prior to announcing its penalty, a member of the Board asked Dr. Hodge to make a statement. He denied the charges and sought to mitigate them. He had not testified at the hearing before the hearing examiner. We find no merit in the Department's cross-appeal. Section 120.57(1)(b)(5), Florida Statutes (1981), clearly defines what the record is in an administrative proceeding of this nature. It would indeed be improper for the Board to consider new evidence or testimony regarding its acceptance or rejection of the hearing officer's findings of fact. [7] But in this case, the Board fully adopted those findings. Section 120.57(1)(b)(9), Florida Statutes (1981), allows the Board, based on the special knowledge of the members of the profession involved, to accept or reduce the recommended penalty....

...1976). The penalty imposed in this case was within the limits of the applicable statute. [8] We see nothing amiss in the Board's allowing Dr. Hodge to make a statement prior to announcing its determination of the appropriate penalty to be imposed. Section 120.57, Florida Statutes (1981), does not expressly *119 forbid this practice, and it strikes us as basically fair and just....

...Hodge an attorney fee for defending the cross-appeal pursuant to section 57.105, Florida Statutes (1981), and we direct the Board to set an appropriate fee. AFFIRMED AND REMANDED. ORFINGER, C.J., and COWART, J., concur. NOTES [1] §§ 458.301-458.349, Fla. Stat. (1981). [2] §§ 893.01-893.15, Fla. Stat. (1981). [3] § 120.57(1)(b)(9), Fla....

...Marpan intervened in the administrative proceeding. The Department did not move to dismiss or strike Mercedes' petition on the grounds that it was baseless or filed for an improper purpose. Instead, the cause proceeded to a full formal hearing under section 120.57(1), Florida Statutes....

...See Saxon Business Products, Inc. v. Department of General Services, 4 FALR 1102-A (1982), wherein this issue was previously resolved adverse to the position advocated by Mercedes. By separate order, the hearing officer awarded fees to the Department and Marpan, pursuant to section 120.57(1)(b)5., Florida Statutes, which provides: 5....

...received an advantage by delaying the award of the contract. The hearing officer entered a final order granting the Department $24,312.00 in fees plus costs, and Marpan $20,281.00 plus costs. We begin our review of the applicable law by noting that section 120.57(1)(b)5. is similar to rule 11, Federal Rules of Civil Procedure. [2] There are indications that this was not unintentional, and that it was expected that the case law construing rule 11 would be useful in applying section 120.57(1)(b)5....

...sanctions; but a decision whether a pleading or motion is legally sufficient involves a question of law subject to de novo review by the appellate court. Donaldson v. Clark, 819 F.2d 1551, 1556 (11th Cir.1987). Turning to a comparison of rule 11 and section 120.57(1)(b)5., it is immediately apparent that there is at least one significant difference between the two....

...: the factual basis of the paper, the legal basis of the paper, and its legitimate purpose. Schwarzer, 104 F.R.D. at 186. Under the statute, the signature certifies only that the paper is not interposed for an improper purpose. But, unlike the rule, section 120.57(1)(b)5. includes "frivolous purpose" as an example of "improper purpose." The question arises whether the Legislature intended, by the inclusion of the phrase "frivolous purpose," to incorporate into the proscriptions of section 120.57(1)(b)5....

...the other two prongs of rule 11, viz., that the signature certifies the belief (1) that the paper is well grounded in fact, and (2) is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law. We conclude after much study that section 120.57(1)(b)5....

...y appropriate means, subject to judicial review under section 120.68, Florida Statutes. State Department of Health and Rehabilitative Services v. Barr, 359 So.2d 503 (Fla. 1st DCA 1978). As this court has often said, one of the proper purposes for a section 120.57 proceeding is to allow persons affected by intended decisions of state agencies to change the agency's mind....

...Groves Watkins Constructors v. State, Department of Transportation, 511 So.2d 323, 329 (Fla. 1st DCA 1987), rev. on other grounds, 530 So.2d 912 (Fla. 1988). Following this line of reasoning Mercedes contends, and we agree, that a frivolous purpose, within the meaning of section 120.57(1)(b)5....

...That this rule — permitting motions in opposition to a petition — does not, as the Department informs us, empower the hearing officer to issue a final order disposing of the case, is of little consequence here. Whatever may be the force and effect of rule 22I-6.004(5), section 120.57(1)(b)5....

...gives the hearing officer authority to impose an "appropriate sanction" for a pleading filed in violation of the statute. Although in most instances a monetary sanction in the form of reasonable fees and costs would be an appropriate sanction, we think that section 120.57(1)(b)5....

...take the same construction in Florida courts as its prototype has been given in federal courts, insofar as such construction is harmonious with the spirit and policy of Florida legislation on the subject. [4] Other differences include the fact that 120.57(1)(b)5....

...includes the parties' qualified representative in the requirement that the pleading, motion or other paper be signed but does not address the consequences for failure to sign, whereas rule 11 provides for striking an unsigned pleading. [5] Examples of improper purpose which were mentioned during the legislative debate of section 120.57(1)(b)5....

...do not involve excavation or removal and destruction of native salt resistant vegetation, therefore no permit will be required through this agency." In response, the appellants herein filed petitions requesting a formal administrative hearing under section 120.57, Florida Statutes (1989), to challenge the determinations made by the Department....

...However, appellees argue that the parties lack standing because DNR lacks jurisdiction over 2000's landscape plan. Therefore, since its determination of no jurisdiction is a question of law not fact, the appellants have no right to initiate a formal administrative proceeding questioning that determination pursuant to section 120.57, Florida Statutes....

...ction over the activities of appellee 2000 was the finding of a jurisdictional fact that those activities would not damage the beach/dune system. However, this determination was made without giving the appellants the benefit of a hearing pursuant to section 120.57, Florida Statutes....

...hes a specific size. In Agrico Chem. Co. v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981), rev. denied, 415 So.2d 1359 (1982), the court developed a two prong test to determine the standing of a party in a proceeding under 120.57. The party must show (1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and (2) that his substantial injury is of a type or nature which the proceeding is designed to protect....

...Sullivan v. Northwest Florida Water Management District, 490 So.2d 140 (Fla. 1st DCA 1986). Based on the foregoing we reverse the Final order of the Department of Natural Resources with directions to provide a hearing to appellants in accordance with section 120.57, Florida Statutes, and consistent with this opinion....

...Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). Section 120.53(1)(c), Florida Statutes (1985), requires, independently of Section 120.54 rulemaking provisions, agency procedures for argument of policy issues before the agency. In Section 120.57 administrative proceedings affecting a party's substantial interests, the agency is required to state and entertain challenges to the "policy grounds" for its intended action. Section 120.57(2)(a)1 and 2. The agency's final order in Section 120.57 proceedings must describe its "policy within the agency's exercise of delegated discretion" sufficiently for judicial review. Section 120.68(7). See McDonald, supra, at 582. Moreover, because the agency's final order in such proceedings must explicate non-rule policy, the hearing officer's recommended order must do the same. McDonald, supra at 582; Section 120.57(1)(b)8. In Section 120.57(1) proceedings, the hearing officer "independently serves the public interest by providing a forum to expose, inform and challenge agency policy and discretion." State ex rel. Department of General Services v. Willis, 344 So.2d 580, 591-592 (Fla. 1st DCA 1977). Section 120.57 proceedings, in which the agency's non-rule policy is fair game for a party's challenge, conclude by a final agency order which explicates policy within the agency's exercise of delegated discretion....

...HRS' revised formula for determining "need" is at its present stage "incipient policy" of the Department, and it is this "incipient policy" which Gulf Coast is essentially challenging. As mentioned above, an agency may apply incipient or developing policy in Section 120.57 administrative hearings, provided the agency explicates, supports and defends such policy with competent substantial evidence on the record in such proceedings. McDonald, supra . Moreover, it is in these Section 120.57 administrative proceedings where Gulf Coast's administrative remedies lie. Under Section 120.57(1), once a formal administrative proceeding has been initiated, other persons who fear that their substantial interests may be affected by that proceeding are given a means of protecting their interests by timely intervening therein. See Fla. Admin. Code Rule 22I-6.10 and Rules 28-5.101 through 28-5.405. Upon its intervention in the Section 120.57 proceeding, Gulf Coast may challenge the agency's policy. Thereafter, the final agency order will be subject to review by the District Court of Appeal under Section 120.68, Florida Statutes. Gulf Coast, as alleged in its complaint, has already petitioned for hearings under Section 120.57 challenging HRS' non-rule policy....

...Gulf Coast has interpreted HRS' revised need methodology as being essentially identical in substance, though not in form, to the invalidated proposed Rule 10-5.11(14). This is a matter of interpretation, and the proper forum for testing this argument is in a properly initiated Section 120.57 administrative proceeding, before a DOAH hearing officer, and on a record in which HRS seeks to apply and defend the disputed policy, such proceeding being subject to Section 120.68 judicial review....

...same time frame are comparatively reviewed through the vehicle of consolidation both by HRS in its preliminary determinations under the provisions of Sections 120.60 and 381.494(6), Florida Statutes, and by the Division of Administrative Hearings in Section 120.57 proceedings....

...SWFWMD issued a notice of proposed agency action and a staff report that recommended issuance of the permit. Wiregrass, as an affected party, received notice of the proposed agency action and requested a formal administrative hearing on its objections to the permit under section 120.57, Florida Statutes (1989)....

...a jury. He is the fact-finder. The District Board is like a trial judge in a jury case. The Board makes conclusions of law, but cannot reject nor modify the hearing officer's findings of fact unless they are not supported by competent evidence. See § 120.57(1)(b)9, Fla....

...An administrative agency such as the School Board may not modify an administrative law judge's factual findings "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence ...." § 120.57(1)( l ), Fla....

...tes. We do not regard section 120.633 as authority for the Division to enact substantive rules governing the conduct of racing. That section is part of the Administrative Procedures Act. It provides an exemption to hearing and notice requirements of section 120.57(1)(a) for stewards, judges and boards of judges for hearings to impose fines or suspensions provided for by rules of the Division of Pari-mutuel Wagering....

...permitting her to remain absent through May 1, 1989. Appellee did not return to work May 1, and on May 17, 1989, DLES sent appellee a letter informing her that she had abandoned her position. Pursuant to appellee's request, a hearing was held under Section 120.57, Florida Statutes, and resulted in the entry of a recommended order, in pertinent part as follows: *282 The petitioner was clearly informed ......

...after that date was unauthorized. DOA also found that DLES was estopped to assert that appellee had abandoned her career service position. The final order clearly stated that DOA did not review the complete record. We turn, then, to the first issue. Section 120.57(1)(b)10, Florida Statutes, provides in pertinent part: The agency may adopt the recommended order as the final order of the agency....

...The hearing officer's findings of fact do not support the application of estoppel, and in the absence of a review of the complete record, DOA erred in applying estoppel. The final order of DOA is therefore reversed, and this cause is remanded for proceedings consistent herewith in accordance with Section 120.57(1)(b)10, Florida Statutes....

...m the face of the order that Secretary Shutes had not been presented with a transcript of the proceedings before the hearing officer. Review of the entire record is a statutory prerequisite to modifying any findings of fact in the recommended order. § 120.57(1)(b)10, Fla....

...vessel ASPEN from the sea to a berth in the Port of Tampa; since the ASPEN was entering port from Korea, a state pilot was required. The charge involving the ASPEN was resolved, and is not relevant to the shifting issue presently before the court. Appellant requested a formal hearing under section 120.57(1), Florida Statutes....

...The BPC simply states in conclusory fashion that the facilities are ports. We find this conclusion to be unsupported by the record. On cross-appeal, DPR urges that the BPC erred in dismissing the charges against Rabren simply because there was no transcript available. Initially, DPR argues that section 120.57(1)(b)(10), Florida Statutes (1987), [2] which prohibits an agency from deviating from the recommended penalty without reviewing the "complete record," was inapplicable because no penalty was recommended or imposed....

...We also note that the provision was applied under similar circumstances in Martin v. Department of Professional Regulation, 485 So.2d 39 (Fla. 2d DCA 1986). Another argument posed by DPR is based upon the definition of "complete record." According to DPR, section 120.57(1)(b)(6), Florida Statutes (1987), which defines the term, is phrased as a limitation on what may be included in the record and does not require that all the listed items be included....

...Thus, the complete record may consist of whatever items are provided by the parties. By this reasoning, the BPC was only required to review those items that were presented to it. *1290 We are not persuaded by this argument. DPR correctly points out that section 120.57(1)(b)(6) limits what can be included in the record. The reason for this limitation is evident in section 120.57(1)(b)(8), where it is stated that findings of fact must be based exclusively on record evidence; the record must be limited to certain items to preserve the integrity of the fact-finding process in formal proceedings. It is unclear, however, how section 120.57(1)(b)(6) relieves the agency of its obligation to review the complete record under section 120.57(1)(b)(10)....

...With regard to the cross-appeal, the BPC was correct in refusing to change the recommended disposition and that determination is herewith affirmed. NIMMONS and BARFIELD, JJ., concur. NOTES [1] The record does not contain a transcript of the hearing. [2] Section 120.57(1)(b)(10) provides in pertinent part as follows: The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its...

...II of the administrative complaint. We agree and reverse the final order of the Board insofar as violations of counts I and III are found. An agency may adopt the recommended order of the ALJ, or the agency may reject or modify the findings of fact. § 120.57(1)( l ), Fla....

...The School Board, on the other hand, maintains that French's intrasystem transfer which does not change his salary and economic benefits does not affect any substantial interest in his employment that would necessitate a hearing on the transfer decision. Section 120.57, Florida Statutes (1989) sets forth the prerequisite for entitlement to an administrative hearing of agency action, which is that the substantial interests of a party are determined by an agency. If there is a disputed issue of material fact, a party so affected is entitled to a formal hearing in which he can present evidence, cross-examine witnesses, and be represented by counsel. §§ 120.57(1) and 120.57(1)(b)4, Fla. Stat. (1989). A section 120.57(1) hearing is precisely the type of hearing which French requested in his petition, and which the School Board denied....

...were affected by the School Board's transfer and, if so, whether material questions of fact remain to be resolved. We answer both questions in the affirmative and hold that French should have been afforded a full-fledged administrative hearing under section 120.57(1)....

...Because French's job title and rank, his salary schedule, and his ability to obtain a multi-year contract have been unfavorably impacted as a result of the School Board's transfer, we hold that his substantial interests have been affected, thereby entitling him to a hearing on the propriety of the transfer. See § 120.57, Fla....

...earing is factually inapplicable to the case before us, wherein we conclude that French's substantial interests have been impacted by his transfer. The sole inquiry remaining, therefore, concerns the type of hearing which French should receive under section 120.57....

...We reverse the final order of the School Board denying French's petition for an administrative hearing and remand the matter to the School Board with directions to appoint a hearing examiner to conduct a formal hearing in accordance with the requirements set forth in section 120.57....

...We therefore reverse the final order as to Home America and remand to the Board with instruction to dismiss the administrative complaint against Home America. In regard to the appeal of Bekiempis, we hold that the Board's final order is inadequate to withstand Section 120.57(1)(b)(9), Florida Statutes (1975), which provides: The agency in its final order ......

...It merely substituted its own findings by adopting the exceptions, in effect taking another view of the evidence reargued by the Department. Accordingly, pursuant to section 120.68(13)(a)(1), we vacate the final order for violation of the particularity requirement of section 120.57(1)(b)(9) and remand with instructions to the Department to conduct such further proceedings necessary to produce a final order consistent with this opinion....

...nd conclusions of law within ninety days of its oral order of conditional approval; claiming that such constitutes a material error in procedure which impaired the fairness of the proceeding. PERC contends that its order sufficiently complies with F.S. 120.57(2)(a)(1) and (2), that although the final order is not a model of perfection, nevertheless it is not violative of F.S....

...Accordingly, while substantially agreeing with PERC on the merits, we nevertheless, for the reasons above given, reverse the order here reviewed and remand with directions that the City's local option ordinance, ordinance number 933, be approved. The City has requested attorney fees in accordance with F.S. 120.57(1)(b)(9)....

...Waas, Tallahassee, for respondent. ROBERT P. SMITH, Jr., Judge. This petition for emergency review of nonfinal administrative action, Rule 9.100, Fla.R.App.P., asserts that the Department of Health and Rehabilitative Services has wrongfully denied petitioner a formal Section 120.57(1) hearing in that the Department has or is about to determine petitioner's substantial interests by awarding a contract for janitorial services to another bidder, although petitioner's bid was lower....

...See Solar Energy Control, Inc. v. State Dep't of Health and Rehab. Services, 377 So.2d 746 (Fla. 1st DCA 1979). Upon consideration of the petition and the Department's response, we find that petitioner has not demonstrated, either to the Department by its request for a Section 120.57(1) hearing, or to this Court by its petition for relief, that the proceeding "involves a disputed issue of material fact." Section 120.57, Florida Statutes (1979). For aught that appears, the significance of the omitted information depends on policies, opinions, or circumstances which may be appropriately heard and evaluated in a Section 120.57(2) informal hearing, which the *729 Department has not refused petitioner and petitioner has not requested. Not every dispute between an agency and an affected person requires formal proceedings for its resolution. Many disputes, of which this seems to be one, can as readily be determined and made ready for judicial review under Section 120.57(2), which in proper application will afford full relief faster and more conveniently....

...In its order of dismissal, the department ruled that Phibro, a former owner and operator of the facility, which was not given the opportunity to participate in either of the two consent orders, lacked the requisite standing as a substantially interested party to be allowed a section 120.57 [1] hearing regarding any effect the orders may have had on Phibro's interests....

...As an additional reason for dismissal, the department stated that Salomon's petition was untimely, because it was not filed within the required twenty-one days from Salomon's receipt of notice of the consent orders. We reverse and remand with directions to accord both Phibro and its corporate parent Salomon a section 120.57 hearing....

...v. Agrico Chem. Co., 415 So.2d 1359 (Fla. 1982), and review denied sub nom. Sulphur Terminals Co. v. Agrico Chem. Co., 415 So.2d 1361 (Fla. 1982), stated that Phibro had failed to show a substantial interest sufficient to warrant the initiation of a section 120.57 proceeding in that it had neither demonstrated injury in fact of sufficient immediacy to warrant a hearing, nor had it shown that its affected interest was of the type or nature that chapter 403 was designed to protect....

...Our conclusion in this regard requires that we examine carefully the pertinent provisions of the 1974 Administrative Procedure Act (APA), furnishing adjudicatory proceedings to parties or persons whose substantial interests are affected or may be affected by an agency's actions. Section 120.57 provides that "[t]he provisions of this section apply in all proceedings [formal or informal] in which the substantial interests of a party are determined by *121 an agency[.]" (Emphasis added.) As pointed out by a knowledgeable commentator, in order for one to apply the appropriate access standard to administrative proceedings recognized under section 120.57, it is necessary to make "a separate examination of the provision's three essential elements: `substantial interests,' `party,' and `are determined by an agency.'" Dore, Access to Florida Administrative Proceedings, 13 Fla.St.U.L.Rev....

...f a quasi-executive or quasi-legislative function in which legal rights, duties, privileges, or immunities are not the subject of adjudication." Bay Nat'l, 229 So.2d at 306. Thus, in order for one now to gain access to the procedures furnished under section 120.57 of the 1974 APA, such person need not necessarily show that his or her legal rights or duties were litigated or determined in formal or informal proceedings. Turning next to the second and third of the three essential elements of section 120.57, "party" and "determined by an agency," Professor Dore explains that one's access to an adjudicatory proceeding does not require demonstration of any impact on that particular person's personal interests, rather it is the determination of the substantial interests of a party under section 120.57 that makes the process available....

...rocedure delineated under Section 403.121(2)(c), Florida Statutes (1985). Moreover, both section 403.121(2)(c) and Florida Administrative Code Rule 17-103.110(1)(b) provide that a person served with a notice of violation (NOV) shall be entitled to a section 120.57 administrative hearing within twenty days following service of notice; otherwise the person's right to an administrative hearing shall be deemed waived....

...[6] Consequently Phibro was made a party pursuant to the above statutory and regulatory provisions once it was served with the notice. Entry of the consent orders with Conserv and Mobil did nothing to change Phibro's party status. Furthermore, Phibro's right of access to a section 120.57 hearing was not dependent upon the department's discretionary act in deciding not to include it as a party to the consent-order proceeding....

...Additionally, in answer to the agency's argument that Gadsden's substantial interests would not be determined in the competitor's application proceeding, this court replied that "a protesting party's right of participation in an APA hearing does not depend on showing its own substantial interests are to be determined. Section 120.57 provides a hearing under one of its subsections `in all proceedings in which the substantial interests of a party are determined.' Quincy assuredly was such a party." Id....

...g (the execution of the two consent orders), so long as the interests of a specific party or parties were there determined. Thus, because both Conserv and Mobil's interests were determined in the proceeding, Phibro had party status entitling it to a section 120.57 hearing regarding the effect of the consent orders....

...terests were affected by such service. As previously indicated, it is not the execution of a consent order which is determinative of one's access to an administrative proceeding, in that a consent order is but one of several remedies available under section 120.57 to persons who have already demonstrated that their substantial interests have been or will be affected by an agency's actions....

...The request for withdrawal of this court's opinion is therefore denied. BOOTH, J., concurs. BARFIELD, J., dissents with written opinion. BARFIELD, Judge, dissenting. I respectfully dissent. The majority reaches its conclusion that Phibro and Salomon are entitled to a section 120.57 hearing on the consent orders on its conclusion, apparently as a matter of law, that the warning notice sent by DER constituted a notice of violation because it referenced what could be the appellants' potential exposure should action be initiated by DER....

...All rights and defenses of *127 nonsettling parties are preserved to them in the event of future action by DER. DER's remedies may be barred, limited or not affected by its settlements. Those matters are to be determined in a subsequent proceeding. In my judgment this appeal should be dismissed as moot. NOTES [1] § 120.57, Fla....

...n the proceeding, or whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party. * * * [6] Although nothing appears in the record below showing whether Phibro or indeed Mobil or Conserv requested a section 120.57 administrative hearing within twenty days following service of notice, this fact does not militate against the party status Phibro achieved after having been served with the NOV....

...d by competent, substantial evidence; (3) the Board exceeded its statutory authority set forth in chapters 230 and 231 by imposing a fine; and (4) she is entitled to an award of attorney's fees and costs for all proceedings in this cause pursuant to section 120.57(1)(b)10, Florida Statutes (1989), because the Board's gross abuse of discretion precipitated this appeal....

...rincipal Jerry Kelley." The standard of appellate review applicable to this point is set forth in section 120.68(10), Florida Statutes (1989): If the agency's action depends on any fact found by the agency in a proceeding meeting the requirements of s. 120.57, the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact....

...We discuss this point only to provide guidance upon remand in the event the Board concludes that Forehand should be disciplined further. IV. Finally, Forehand contends that she is entitled to an award of attorney's fees and costs incurred in the entire course of these proceedings pursuant to section 120.57(1)(b)10 based on the Board's conduct of these proceedings, arguing that the following specific conduct amounted to gross abuse of discretion: (1) the use of the same attorney as prosecutor and legal advisor to the Board; (2) finding Fo...

...f confusion and misunderstanding than evidencing a reckless or wanton disregard of Forehand's legal rights. We hold that none of the specified conduct amounted to a gross abuse of discretion and decline to award attorney's fees and costs pursuant to section 120.57(1)(b)10....

...er 14, 1999 meeting of the School Board, and that the superintendent would recommend McIntyre's termination at the *641 January 11, 2000 meeting to take effect January 12, 2000. The Board also advised McIntyre that he was entitled to a hearing under section 120.57, Florida Statutes, and that if a hearing was desired he must make a written demand within twenty-one (21) days of receipt of the letter....

...e had no drugs in his system. On December 15, 1999, McIntyre received written notice that the School Board suspended him without pay effective December 15, 1999. On January 11, 2000, McIntyre filed a request for an administrative hearing pursuant to section 120.57....

...City of Chinook, 652 F.Supp. 1300 (D.Mont. 1987)). Moreover, under Florida law, a school board's decision to terminate an employee is one affecting the employee's substantial interests; therefore, the employee is entitled to a formal hearing under section 120.57(1) if material issues of fact are in dispute....

...However, the person who is substantially affected must affirmatively request a formal hearing; otherwise, he has waived that right. See City of Punta Gorda v. Public Emp. Relations Com'n, 358 So.2d 81, 82-83 (Fla. 1st DCA 1978); see also Fla. Stat. § 120.57 (1999)....

...for Orlando Urban Area, 765 So.2d 797, 798 (Fla. 1st DCA 2000). Furthermore, section 120.54(5)(b)4, Florida Statutes (1999), requires an agency to pass uniform rules of procedure for the filing of petitions for administrative hearings under either sections 120.569 or 120.57....

...Marian Dunham appeals a final order of the Highlands County School Board terminating her continuing contract of employment as a teacher. Dunham contends that the school board erred by rejecting the recommended order issued by a hearing officer pursuant to section 120.57, Florida Statutes (1993)....

...estions that are infused with policy considerations requiring the school board's expertise. Rather, they are simply questions of fact determinable by ordinary methods of proof through weighing evidence and judging the credibility of witnesses. Thus, section 120.57(1)(b)(10), [3] does not permit the school board to reject the hearing officer's findings if there is competent, substantial evidence from which the findings could reasonably be inferred....

...Further, the only reason stated with particularity to support the rejection of the hearing officer's recommended penalty is that it was "not in keeping with the findings of fact and conclusions of law." This conclusory statement does not meet the requirement of section 120.57(1)(b)10 that in order to increase a recommended penalty an agency must state "with particularity its reasons therefor in the order, by citing to the record in justifying the action." Reversed and remanded for entry of a final order consistent with that recommended by the hearing officer....

...Appellant associate professor was employed on annual contract by appellee Miami-Dade Community College. Miami-Dade advised her that her contract would not be renewed. Miami-Dade also refused her request to be issued a continuing contract. Appellant requested an administrative hearing pursuant to section 120.57, Florida Statutes (1993)....

...and no legal cause shall be required of the Board in the event that the Faculty Member is not re-employed by the Board after June 20, 1994. According to South Florida Water Management District v. City of St. Cloud, 550 So.2d 551 (Fla. 5th DCA 1989): Section 120.57(1) provides that a party is entitled to a formal administrative hearing when substantial interests of the party are determined by an agency....

...We conclude that the factually explicit emergency order is persuasive and is sufficient to show an immediate danger to the public health, safety or welfare. Accordingly, the petition for review is denied. This decision does not, however, affect any subsequent administrative proceedings under section 120.57(1), Florida Statutes (1989), at which proceedings petitioner may introduce evidence to contradict the findings in the emergency order....

...flect the danger and seriousness of petitioner's violations, and suspended petitioner's license for fifteen months, to be followed by twenty-one months probation. The instant petition for review followed timely. The proceedings below are governed by Section 120.57(1), Florida Statutes (1978 Supp.), the Administrative Procedure Act. Section 120.57(1)(b)9, provides: 9....

...The sentence in question, although placed in the section of the order captioned "FINDINGS OF FACT," is by its terms a legal conclusion. If it was intended to be such, the Board correctly rejected it, since there was competent, substantial testimony to the contrary. § 120.57(1)(b)9....

...filed with the Division of Administrative Hearings, Department of Administration (DOAH), 21 days before the intended action; [2] and that the Board erred in failing to afford Dr. Mitchell, as one whose substantial interests were to be determined, a Section 120.57(1) hearing....

...correctness of the action." [4] It is not shown the Board acted without adequate notice to affected persons, Section 120.54(1). Dr. Mitchell was present and her protest was heard when the Board acted. Dr. Mitchell made no request to the Board for a Section 120.57(1) trial of factual issues....

...Even now, urging that we exercise a reviewing court's prerogative to order a hearing when "the validity of the action depends upon disputed facts," [5] Dr. Mitchell has made no substantial showing that there are material disputed facts. One whose substantial interests are to be affected by agency action, and who conceives a Section 120.57(1) hearing is necessary to protect those interests, must in rulemaking proceedings "affirmatively [demonstrate] to the agency that the proceeding does not provide adequate opportunity to protect those interests," [6] make at least a colorable showing that "the proceeding involves *808 a disputed issue of material fact" [7] and, when agency rules so provide, request a hearing. Section 120.57(1)(b)1, Florida Statutes (Supp....

...ss of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure." Sec. 120.68(8), Fla. Stat. (Supp. 1976). [5] Sec. 120.68(6), Fla. Stat. (Supp. 1976). [6] Secs. 120.57, Fla. Stat. (Supp. 1974), 120.54(16), Fla. Stat. (Supp. 1976). [7] Sec. 120.57 (Supp....

...Section 120.55(1)(b) provides that "Rules general in form but applicable to only one school district ... shall not be published in the Florida Administrative Code." The model rules adopted by the Department of Administration require a request for a Section 120.57(1) hearing....

...Stat.; see also AmeriSteel Corp. v. Clark, 691 So.2d 473, 477 (Fla.1997). Chapter 120's "substantial interests" test for standing requires the petitioner demonstrate "1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of a type or nature which the proceeding is designed to protect." Agrico Chem....

...It just requires that every commercially marketed generic drug be "A" rated as therapeutically equivalent to a reference listed drug in the Orange Book. [The underlined " a "] is singular, meaning one. The parties filed separate motions for summary final order asserting that there were no genuine issues of material fact. See § 120.57(1)(h), Fla....

...Florida Society of Ophthalmology v. State Board of Optometry provides that "party status will be accorded only to those persons who will suffer an injury to their substantial interests in a manner sought to be prevented by the statutory scheme," 532 So.2d at 1284, for purposes of a section 120.57(1) hearing....

...Florida Dental Hygienist Association, Inc., 612 So.2d 646, 651 (Fla. 1st DCA 1993): Moreover, it should be noted that unlike Florida Society of Ophthalmology v. State Board of Optometry, 532 So.2d 1279, 1284 (Fla. 1st DCA 1988), the present case is a rule challenge proceeding, not an attempt to gain access to a 120.57(1) licensing proceeding....

...ing may well have to be predicated on a somewhat different basis than standing in a rule challenge proceeding, because there can be a difference between the concept of "substantially affected" under section 120.56(1) and "substantial interest" under section 120.57(1)....

...hose issues is also de novo. Fla. Hosp. Waterman, Inc. v. Buster, 984 So.2d 478, 485 (Fla.2008). Below, the parties agreed that there were no disputed issues of material fact and that the ALJ could resolve the case by summary final order pursuant to section 120.57(1)(h)....

...een (14) days of actual receipt of this Notice of Proposed Agency Action. Failure to file a petition within this time period shall constitute a waiver of any rights such person may have to request an administrative determination (hearing) *663 under section 120.57, Florida Statutes, concerning the subject permit application....

...ements of law. See Schrimsher v. School Bd. of Palm Beach County, 694 So.2d 856, 861 (Fla. 4th DCA), rev. denied, 703 So.2d 477 (Fla.1997); Greseth v. Department of Health And Rehabilitative Servs., 573 So.2d 1004, 1006 (Fla. 4th DCA 1991); see also § 120.57(1)(j), Fla....

...1st DCA 1985). Additionally, the agency may accept the recommended penalty in a hearing officer's order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order. See § 120.57(1)(j)....

...the Administrative Law Judge's Recommended Order of Dismissal. For example, in its Final Order at pages three and five, the District correctly noted the following: Petitioner's Exceptions do nothing more than re-argue the facts. As a matter of law, Section 120.57(1)(j), Fla....

...on a different date than she testified to and that Stern delivered a copy of a petition to the Clerk of the District who refused to accept it, when no petition ever existed.... (emphases added). The determination of whether a party participated in a section 120.57 hearing for an improper purpose is a pure question of fact, not of law....

...Ironically, the allegations of wrongdoing were based primarily on DPR's belief that appellant was over-prescribing highly abusable schedule II drugs such as Dilaudid, Demerol, Percodan, and Quaaludes. Appellant denied the charges and demanded a formal hearing pursuant to § 120.57, Fla....

...f a party are determined by an agency and where the proceedings involve a disputed issue of material fact. The findings of fact and conclusions of law made by a hearing officer as a result of a formal hearing cannot be rejected without valid reason. Section 120.57(1)(b)9 provides that an agency may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based...

...A review of the record reveals that there is ample competent substantial evidence to support the findings of fact rejected by the Board and that there was no valid basis for the rejection of these findings. The Board was merely substituting its judgment for that of the hearing officer contrary to § 120.57(1)(b)9....

...lower bid, but *1148 HRS refused to consider it because certain information demonstrating that petitioner was a "responsible" bidder was not included within the bid. Petitioner protested the award as improper and requested an immediate hearing under 120.57(1), Fla....

...Petitioner sought this Court's aid, requesting an order preventing HRS from contracting with Oxford Services, Inc., or requiring HRS to open the contract for rebidding. We responded in our opinion filed May 9, 1980, [1] finding that in cases such as this, while petitioner was entitled to a hearing, a § 120.57(1) hearing was not the proper remedy to seek, there being no disputed issue of material fact....

...Recognizing that competing interests must be balanced, [i.e., while a party substantially affected by agency action is entitled to review of that action, so, too, are the citizens of the state entitled to continuity and prevention of undue delay in government contract work], we indicated that § 120.57(2) appeared more appropriate, as only through such an informal proceeding could rapid review be afforded petitioner without putting in motion the slower wheels of a § 120.57(1) formal hearing. Believing that an informal proceeding under § 120.57(2) could be afforded by HRS to petitioner in a matter of days, we denied the petition, inferring that petitioner should seek relief under § 120.57(2), "which in proper application will afford full relief faster and more conveniently." Following our opinion, apparently petitioner continued to seek rapid review from HRS and, when review was not forthcoming and it became clear that Oxfor...

...between the parties. Since HRS has failed to afford petitioner a rapid hearing in this cause prior to taking what otherwise would be considered final agency action, we explicitly direct HRS to immediately afford petitioner an informal hearing under § 120.57(2). We have previously held that in agency proceedings affecting a party's substantial interest an adverse determination of a party's substantial interest is ineffective until an order has properly been entered after proceedings under § 120.57. See Capeletti Bros. v. State of Florida, Department of Transportation, 362 So.2d 346 (Fla. 1st DCA 1978). While review generally will be sought pursuant to § 120.57(1), the value of a § 120.57(2) proceeding is evidenced in a case such as the instant one. In bidding procedures, we find there can be no final agency action until the agency has afforded a requesting petitioner a § 120.57(2) hearing. HRS proceeds at its peril if it awards a contract prior to final agency action. Absent a violation of the terms of a clear point of entry for § 120.57(2) proceedings (as established by rules, regulations, or particular terms of a contract or offer to bid), should HRS continue with a contract despite application for administrative review by a disappointed bidder, such action by HRS would be considered "free-form" action until a hearing was held. We addressed this problem in Capeletti Bros., Inc., supra: The vast majority of an agency's free-form decisions become conclusive because *1149 they are not challenged in sections 120.57(1) or (2) proceedings....

...Yet the agency's rules must clearly signal when the agency's free-form decisional process is completed or at a point when it is appropriate for an affected party to request formal proceedings, if authorized, or to accept his statutory opportunity for informally structured proceedings under § 120.57(2). In other words, an agency must grant affected parties a clear point of entry, within a specified time after some recognizable event in investigatory or other free-form proceedings, to formal or informal proceedings under § 120.57....

...Uncertainty in an agency's rules and practices on this point usually results, as is shown by our experience in the past several months, in a petition for review followed by an agency motion to dismiss on the alternative grounds that the agency has not yet taken final action or that, if it has done so, the request for § 120.57 proceedings and the review petition are too late....

...We have usually resolved such confusion in favor of the affected party. (Emphasis added.) See also Graham Contracting, Inc. v. Dept. of General Services, 363 So.2d 810, 814-815 (Fla. 1st DCA 1978). In situations involving bidding for contracts where § 120.57(1) hearing would encompass procedures likely to forestall prompt execution of government contracts, where there are no "genuine" issues as to any material fact and any spurious factual issues can be readily identified and eliminated by the parties, it is apparent that speedy resolution under § 120.57(2) is most appropriate so that disputes can be resolved or crystalized for rapid appeal prior to execution of the contract involved....

...(1) A decision affecting substantial interests shall be communicated in writing to the person or persons directly affected thereby, setting out the basis for the decision and shall advise as to the opportunity for formal or informal hearing pursuant to § 120.57, F.S....

...If a request for hearing is made, the request or petition shall be in compliance with Rule § 28-5.15, F.A.C., and shall be filed with and received by the Department within thirty (30) days of receipt of the decision. Failure to timely request a hearing shall be deemed a waiver of any right to a § 120.57, F.A.C....

...until January 1979, when Saltiel and Clean Water notified DER of their belief that Fallschase was advertising for bids to clear and fill upon Lake Lafayette. Subsequently, on May 2, 1979, appellants filed, with the DER, a petition for an administrative hearing under Florida Statute § 120.57....

...Accordingly, the order below granting appellees' motion to dismiss is REVERSED and this cause is REMANDED for a determination as to whether the written stipulation *459 entered into by DER and Fallschase constituted "final agency action" which will be subject to the hearing requirements of § 120.57(1) and (2), Florida Statutes....

...We have for our consideration the parties' "Joint Motion for Relinquishment of Jurisdiction and to Abate Appellate Proceedings." Therein the parties agree that the agency's order was entered in error and that appellant is entitled to a formal hearing pursuant to section 120.57(1), Florida Statutes....

...and (2) the hearing officer serving also as a member of the Board. At the outset we note that the hearing officer recused himself from any of the proceedings at the final hearing which culminated in the revocation of petitioner's license. Moreover, Section 120.57(1)(b)(11), Florida Statutes (1975), allows a hearing officer to participate in the formulation of the agency's final order if he has completed all his duties as hearing officer....

...judging a particular controversy fairly on the basis of its own circumstances.' United States v. Morgan, 313 U.S. 409, 421, 61 S.Ct. 999, 85 L.Ed. 1429 (1941)." Additionally the record shows that petitioner consented to an informal proceeding under Section 120.57(2)....

...[2] Based upon the finding of probable cause, an administrative complaint was filed charging Walker with violating section 475.25(1)(m). In response, Walker filed an election of rights form indicating that she did not dispute the facts alleged in the complaint and requesting an informal administrative hearing pursuant to section 120.57(2), Florida Statutes (1995)....

...earing. We disagree. As noted above, Walker specifically requested an informal hearing. Also, review of the instant record reveals *654 that Walker did not at any time request that the informal hearing be terminated in lieu of a formal hearing under section 120.57(1) of the Florida Statutes (1995)....

...s of, the United States Environmental Protection Agency in developing effluent limitations guidelines for the phosphate rock mining industry under regulations similar to those of the Department. Neither do we find that the hearing officer violated F.S. 120.57(1)(b)(4) nor F.S. 120.59(2) nor the principles announced in Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976). As we stated in Forrester v. Career Service Commission, 361 So.2d 220 (Fla. 1st DCA 1978): "Pursuant to F.S. 120.57, a party has the right to raise pertinent factual issues for administrative determination, to submit proposed findings on those issues and to receive a ruling on each pertinent proposed finding....

...ion on Human Relations pursuant to sections 23.161-.167, Florida Statutes (1981), after she was fired from her job as a waitress for the Howard Johnson Company. She alleged that Howard Johnson's fired her because of her age and her race. Pursuant to section 120.57, Florida Statutes (1983), the Commission assigned the case to the Department of Administrative Hearings (DOAH) for an evidentiary hearing....

...The Commission then stated that Howard Johnson's had not presented sufficient evidence of a legitimate reason for firing Kilpatrick to rebut her prima facie case. The Commission awarded Kilpatrick reinstatement, back pay, and attorney's fees. We reverse. Section 120.57(1)(b)9, Florida Statutes (1983), permits an agency to reject a hearing officer's findings of fact only in certain specified circumstances: The agency in its final order may reject or modify the conclusions of law and interpretation of...

...(Carruthers is now incarcerated for his actions in similar cases relating to other persons.) The Department assessed a tax against Silver Sand for all of the fuel purchased by Handy Haul-It, although Silver Sand only received 882,264 gallons of that fuel. Silver Sand requested and was given a hearing pursuant to F.S. 120.57....

...must furnish a resale certificate to the Department covering all purchases and must then remit the special fuel tax to the Department on special fuel used for nonexempt purposes. The first error alleged by Silver Sand is that in a proceeding under F.S. 120.57, the Department may not change the findings of fact rendered by the hearing officer and call the change a deletion of legal conclusions....

...dings of fact therefor without stating that the hearing officer's findings were "not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law" as required by Section 120.57(1)(b)(9), Florida Statutes 1975....

...purchaser has paid the tax. Since Silver Sand proved that it paid the tax, we hold that the tax cannot be imposed upon it again even though the tax was not separately stated on the invoice. Petitioner filed a motion for attorney's fees pursuant to F.S. 120.57(1)(b)(9)....

..."If there is competent substantial evidence in the record to support the ALJ's findings of fact, the agency may not reject them, modify them, substitute its findings, or make new findings." Rogers v. Dep't of Health, 920 So.2d 27, 30 (Fla. 1st DCA 2005). See also § 120.57(1)( l ), Fla....

...estoppel or res judicata to the scope of Ms. Sheridan's objections to the permit based on secondary impacts? We also find that the Secretary correctly determined that he did not have that authority in this case in light of the 1999 amendment [1] to section 120.57(1)( l ), Florida Statutes, that circumscribed *1142 an agency head's authority to review only those legal rulings that are within the agency's "substantive jurisdiction." [2] That legal determination was not one that involved the Depar...

...conclusions of the ALJ by concluding that res judicata and/or collateral estoppel are applicable to this case to limit the scope of the "secondary impacts" review of Applicant's proposed [stormwater management system]. Prior to the 1999 amendment to § 120.57(1)( l ), F.S., the case law of Florida uniformly held that reviewing agencies were free to reject conclusions of law set forth in DOAH recommended orders....

...Sheridan's objections and review of the secondary impacts of the proposed stormwater management system. The Department, although denominated an appellee before us, is substantively aligned with Deep Lagoon, and argues that the Secretary's reading of his authority in light of amended section 120.57(1)( l ), Florida Statutes (1999), is too restrictive....

...That is the general basis for the affirmance in this case as in the traditional administrative appeal. We write only to point out the limits of the Secretary's substantive jurisdiction vis-a-vis the legal principle of collateral estoppel in light of amended section 120.57(1)( l ), Florida Statutes (1999)....

...As the Secretary affirmed the ALJ, we affirm the Secretary. Affirmed. PATTERSON, C.J., and ALTENBERND, J., concur. NOTES [1] Chapter 99-379, section 6, at 3793-94, Laws of Florida, provides as follows (new language underscored): Section 6. Paragraph ( l ) of subsection (1) of section 120.57, Florida Statutes, 1998 Supplement, is amended to read: 120.57....

...The phrase "administrative authority" or "substantive expertise" may provide a better definition of an administrative department's now more limited scope of review. We continue to use the phrase "substantive jurisdiction" because that is how the statute, section 120.57(1)( l ), Florida Statutes (1999), currently reads....

...n 90.803(8), regarding "matters observed pursuant to duty imposed by law as to matters which there was a duty to report." The powers and responsibilities of the hearing officers of the Division of Administrative Hearings are set forth under Sections 120.57 and 120.65, Florida Statutes (1983 & Supp. 1984). Particularly applicable to the instant case is the power of the hearing officer to conduct a section 120.57(1) formal hearing, and to complete and submit to the agencies and all parties a recommended order, which consists of its findings of fact, conclusions of law and recommended penalty. Thus, the Division, in carrying out its responsibilities under section 120.57, acts primarily as a quasi-judicial body, but without the policy-making functions normally ascribed to an administrative agency....

...In 1975 the right to a post-revocation administrative hearing before the Department was eliminated and Chapter 75-191, section 5, Laws of Florida, was enacted providing a formal post-revocation administrative hearing regarding driver's licensing pursuant to Chapter 322. That statute still exists as present section 120.57(1)(a)3., of the Administrative Procedure Act, Chapter 120, Florida Statutes. However, the right to a post-revocation administrative hearing under section 120.57(1)(a)3., Florida Statutes, was eliminated by a 1978 amendment to section 322.31 (Ch....

...the revocation of driver's licenses was limited by section 322.31, Florida Statutes, drivers had the right to present a case to an original fact-finder, as Mr. Corbin did. Between 1975 and 1978, a driver had the right to an evidentiary hearing under section 120.57(1)(a)3.; but since the 1978 amendment to section 322.31 that right is no longer provided by any statute....

...Appellant Fox challenges an order of the appellee Board dated August 31, 1979, and amended on October 15, 1979, denying a petition for declaratory statement because: 1... . The issues concerned in the Petition are now before the Division of Administrative Hearings pursuant to Section 120.57, Florida Statutes, involving the Board and Petitioner....

...Not noted in the order, but reflected by the record, is the filing of injunctive proceedings in the circuit court on September 5, 1979, on the same subject matter. Since all questions posed in the petition for declaratory statement related to matters connected with the pending § 120.57 proceeding, the Board argues mootness as a result of a Department of Administrative Hearings order of September 19, 1979, dismissing those proceedings. Fox contends even the demise of those proceedings left a live controversy because the subject matter of his petition for declaratory statement "could not properly be resolved at a full fledged § 120.57 hearing by the Division of Administrative Hearings inasmuch as it was the power or jurisdiction of DOAH itself which was at issue in terms of `default' of Dr. Fox [by the Board] into the DOAH." That power and jurisdiction, however, was expressly treated in the DOAH orders in the § 120.57 proceeding, from which no appeal was taken (logically, since jurisdiction was ultimately exercised in Fox's favor)....

...The rule, strictly construed, requires, as a precondition to discipline, that the licensee's medical records show an apparently indicated course was not followed. Such showing has not been made in the instant case. In displacing an ALJ's recommended conclusion, a reviewing agency is required by section 120.57(1)( l ) to state with particularity its reasons for rejection, and why its substituted conclusion "is as or more reasonable than that which was rejected." The reason given by DOH, i.e., its reliance on the language of its rule, clearly did not comply with the above statutory standard....

...Mullis, Jr., of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill, P.A., Tampa, for appellant. Eric J. Haugdahl, Asst. Gen. Counsel, HRS, Tallahassee, for appellee. ROBERT P. SMITH, Jr., Judge. Bio-Medical appeals from a Department order denying Bio-Medical a Section 120.57 hearing on the application of competitor Shands Teaching Hospital for a certificate of need authorizing a ten-station chronic renal dialysis facility in Ocala....

...The Department simultaneously granted Shands' application and denied Bio-Medical's finding that Shands' was a "less costly and more appropriate alternative." Section 381.494(5)(e) 1, (6), Florida Statutes (1977). The Department has offered Bio-Medical a Section 120.57 hearing on Bio-Medical's own application but considers that Bio-Medical lacks standing, or did not timely assert standing, to contest the Shands application....

...Department of Health and Rehabilitative Services, 370 So.2d 19 (Fla. 2d DCA 1979). Because Bio-Medical had standing as a potential party to the Shands proceedings, Bio-Medical was entitled to request a hearing in those proceedings by which Shands' substantial interests were to be determined. Section 120.57, Florida Statutes (1978 Supp.); Gadsden State Bank v....

...t has no such rule. Because Department rules did not provide Bio-Medical an earlier "clear point of entry, within a specified time after some recognizable event in investigatory or other free-form proceedings, to formal or informal proceedings under Section 120.57," the Department was obliged to grant Bio-Medical's application for request for a hearing filed soon after the Department issued Shands' certificate....

...e mining activities on property known as the Manson Jenkins tract. DEP announced its intention to issue the permit, and Charlotte County and others opposed to the mining petitioned for a formal administrative hearing pursuant to sections 120.569 and 120.57, Florida Statutes....

...See § 120.569(2)(a), Fla. Stat. (2001) (explaining that when an agency requests an ALJ from the Division of Administrative Hearings, the Division assigns an ALJ and "[t]he referring agency shall take no further action with respect to a proceeding under s. 120.57(1), except as a party litigant, as long as the division has jurisdiction over the proceeding under s. 120.57(1).") That responsibility falls, in adjudicatory matters, to administrative law judges employed by the Division of Administrative Hearings. See § 120.57(1)(k), Fla....

...or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified." § 120.57(1)( l ), Fla....

...The following opinion is substituted in place of the original opinion filed May 14, *1062 1987. Except for the changes appearing in this opinion, the appellees' motions for rehearing and clarification are denied. Appellants sought to obtain a formal hearing pursuant to Section 120.57(1), Florida Statutes, in order to protest the issuance of a license entitling appellee/Memorial Park of Boca Raton, Inc., [hereinafter "Memorial Park"] to operate a cemetery....

...be protected by the regulatory statutes and rules, having failed to allege any injury in fact ... it is, therefore, ORDERED that [Memorial Park's] Motion to Dismiss is .. . hereby granted... . Appellants assert on appeal that they are entitled to a 120.57 hearing because they have a substantial interest in the outcome of the proceeding and because they are entitled to participate based upon the Department's own rules....

...n appearance as a party. * * * * * * We believe that before one can be considered to have a substantial interest in the outcome of the proceeding he must show 1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of a type *1063 or nature which the proceeding is designed to protect....

...1st DCA 1986), we clarified the limits of an agency's power to determine a right of participation of a class of persons by rule: Although an agency's rule may not serve to restrict standing to one who would otherwise be determined to be a substantially interested party for purposes of being accorded a hearing under section 120.57(1), an agency's rule, such as these above, may, consistent with the regulatory statutory purpose, define or identify those persons who have a right to party status....

...COBB, Judge. Frankie Glover appeals from an order of the Unemployment Appeals Commission reversing the referee's decision. We vacate the order because the Commission has substituted its findings of fact for those of the appeals referee, in violation of section 120.57(1)(b)9, Florida Statutes (1981)....

...re, the referee. He believed Glover, and the Commission cannot say that his findings are not supported by competent, substantial evidence. Accordingly, we vacate the Commission's order. VACATED and REMANDED. DAUKSCH and SHARP, JJ., concur. NOTES [1] Section 120.57(1)(b)9, Florida Statutes, provides in pertinent part: The agency may adopt the recommended order as the agency's final order....

...tting scheme; 3) the Palm Beach hospice was a sham; 4) a CON review was required because Vitas intended to establish a new hospice in Palm Beach County; and 5) judicial estoppel barred AHCA from denying a hearing. HPBC sought relief in the form of a section 120.57(1) hearing before an ALJ and the entry of a final order denying Vitas' application for licensure....

...EN J. BOROVINA. It is therefore, "ORDERED that the certification of respondent STEPHEN J. BOROVINA, Number CG C007016, be and is hereby revoked." On appeal it is contended that the agency's final order is fatally defective for failure to comply with Section 120.57(1)(b)(9) of the Florida Administrative Procedure Act....

...The agency may accept or reduce the recommended penalty in a recommended order, but may not increase it without a review of the complete record. In the event a court reverses an agency's order, the court in its discretion may award attorney's fees and costs to the aggrieved prevailing party." Section 120.57(1)(b)(9), Florida Statutes (1977)....

...Florida Construction Industry Licensing Board, 356 So.2d 19 (Fla.4th DCA 1978); Harvey v. Nuzum, 345 So.2d 1106 (Fla. 1st DCA 1977); Campbell v. State Department of Transportation, 326 So.2d 66 (Fla. 4th DCA 1976). In view of the agency's failure to follow the mandate of Section 120.57(1)(b)(9), Florida Statutes (1977), the order appealed from is reversed and the cause is remanded with directions to the Florida Construction Industry Licensing Board to further consider the matter and enter such order as it may be advised in conformity with said section....

...violation of the "no intervention" Rule 67-48.005(1) Florida Administrative Code, which states in part: "No Applicant or other person or entity will be allowed to intervene in the appeal of another Applicant." Appellant, in response, alleged that a section 120.57 petition is not an intervention, but is its own proceeding to challenge the scoring of Windsong II's application, and, as such, Appellant is a "substantially affected person" *346 entitled to a hearing....

...Co., 406 So.2d at 478, in which the court set out a two-pronged test: We believe that before one can be considered to have a substantial interest in the outcome of the proceeding he must show 1) that he will suffer injury in fact which is of significant immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of a type or nature which the proceeding is designed to protect....

...We conclude that Appellant meets the first prong of the test requiring that it show a "substantial interest." Appellee, by granting Windsong II's application, excluded Appellant from that cycle of the funding process; such exclusion provides a sufficient interest to support a section 120.57 hearing for Appellant....

...g the entire record and then concluding the findings of fact were not supported by competent, substantial evidence or they did not comply with the essential requirements of law. An agency's only authority to enhance a recommended penalty is found in Section 120.57(1)(j), Florida Statutes (Supp. 1974): [2] It may increase a penalty in a recommended order after it has reviewed the entire record. The recommended order, however, may only be that of a hearing officer. See Section 120.57(1)(j). While Section 231.57 permits the PPC to make recommendations to the school boards, there is no comparable provision to that of Section 120.57 in the School Code allowing the school board to aggravate the PPC's recommendation by merely reviewing the record. The provisions of Section 120.57(1)(j) are clear: A county school board is authorized to inflict sanctions harsher than those proposed when the recommendation is made only by a hearing officer — not by some other person or body....

...As a result, the state board was free to accept the recommendation of the PPC rather than the substituted penalty of the county board. AFFIRMED. MILLS, C.J., and LARRY G. SMITH, J., concur. NOTES [1] The board's order stated it had authority under Section 120.75(1)(j) (the order should have stated 120.57(1)(j)) to reject or modify the conclusions of law in the recommended order after determining from a review of the complete record that the PPC's findings were not supported by competent and substantial evidence or did not comply with the essential requirements of the law. [2] Now Section 120.57(1)(b)9, Florida Statutes (1979).

...denied, 368 So.2d 1374 (Fla. 1979), in the following terms: [A]n agency must grant affected parties a clear point of entry, within a specified time after some recognizable event in investigatory or other free-form proceedings, to formal or informal proceedings under Section 120.57....

...Uncertainty in an agency's rules and practices on this point usually results, as is shown by our experience in the past several months, in a petition for review followed by an agency motion to dismiss on the alternative grounds that the agency has not yet taken final action or that, if it has done so, the request for Section 120.57 proceedings and the review petition are too late....

...1st DCA *332 1988), wherein this court held that although the agency's notice denying a sign permit did not track the precise language in the department's rule concerning such denials, the notice "clearly informed appellant that the application had been denied and that appellant had the right to request a § 120.57 hearing within 30 days of the date of the notice." Id....

...receive the matter required no later than the date stated. Cf. Bank of Port St. Joe v. Department of Banking & Fin., 362 So.2d 96 (Fla. 1st DCA 1978). Finally, the language used in the notice also reasonably conformed with the provisions of Sections 120.57(1)(b)(2) and (2)(a)(2), Florida Statutes (1991), requiring the agency, in both formal and informal proceedings, to give affected parties reasonable notice of their right to seek administrative review of the agency's action....

...(OGH) appeals. We reverse. After HRS refused payment for six patients based upon HRS's conclusion that treatment was not medically necessary, a formal hearing was held upon a petition for a formal administrative proceeding filed by OGH, pursuant to section 120.57(1), Florida Statutes....

...earing officer unless it states with particularity in its order that the officer's findings of fact were not based on competent substantial evidence. B.B. v. Department of Health & Rehabilitative Services, 542 So.2d 1362 (Fla. 3d DCA 1989); see also § 120.57(1)(b)(10), Fla....

...n the record, and HRS was not free to substitute its findings nor make new findings. B.B. v. Department of Health & Rehabilitative Services, 542 So.2d 1362 (Fla. 3d DCA 1989); South Fla. Water Mgt. Dist. v. Caluwe, 459 So.2d 390 (Fla. 4th DCA 1984); § 120.57(1)(b)(10), Fla....

...When the school board, acting pursuant to Section 231.36(6), Florida Statutes, suspends a member of the instructional staff without pay, the school board must with reasonable dispatch initiate and diligently prosecute proceedings under the appropriate subsection of Section 120.57, Florida Statutes, to the end that the risk of wrongful suspension be minimized....

...on 231.36(6), Florida Statutes, suspends a tenured member of the instructional staff without pay pending a trial-type termination hearing to be held with reasonable diligence and dispatch after the suspension and in accordance with the provisions of Section 120.57, Florida Statutes, since the employee is entitled to immediate reinstatement with back pay in the event the charges are not sustained, the suspension without pay is not a sufficient property interest as to require a pre-suspension evidentiary hearing....

...Scott, the court, while exercising the doctrine of abstention, indicated the view that Section 231.36(6), Florida Statutes, was unconstitutional due to its failure to provide for pre-suspension notice and hearing. While the court noted that the procedural due process void would be filled if either Section 120.57(1) or Section 120.57(2) proceedings were provided prior to suspension, it expressed an uncertainty as to whether a school board's suspension of an employee without pay pending a full evidentiary hearing would constitute a determination of "the substantial interests of a party", as that term is used in Section 120.57, Florida statutes. While the termination of an employee would be a proceeding affecting the substantial interest of a party, [9] requiring the agency action to be in accordance with Section 120.57, Florida Statutes (as we have, indeed, indicated earlier), we conclude that suspension without pay pending a full evidentiary termination hearing is not such a proceeding. Thus, compliance with Section 120.57, Florida Statutes, is not a prerequisite to Board suspension of an employee without pay pursuant to Section 231.36(6), Florida Statutes....

...This is an appeal from a final order by the Florida Governor's Council on Indian Affairs (FGCIA) which found Tuveson had not been discriminated against on the basis of her race. Tuveson asserts the following errors were committed in the agency's order: (1) the FGCIA violated Section 120.57(1)(b)9, Florida Statutes (1983), by rejecting the hearing officer's findings of facts and by failing to state with particularity the evidence on which it relied to reject those findings; (2) the FGCIA misinterpreted the law as it relat...

...victim of race discrimination by the Council and recommending that she be reinstated and granted back pay. On 24 October 1985, the Board of Directors met and a final order was issued rejecting this finding, among others. This timely appeal followed. Section 120.57(1)(b)9, Florida Statutes (1983), provides that an agency may reject the hearing officer's conclusions of law....

...ring, and affirm. Appellants submitted applications for certificates of need to construct 120-bed nursing homes in Pinellas County during the July 1985 nursing home batching cycle. HRS preliminarily denied the applications and appellants requested a section 120.57(1) formal hearing....

...2708, aff'd without opinion, 520 So.2d 588 (Fla. 1st DCA 1988). Appellants argue that this result is contrary to the principle explicated in McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), that a hearing officer conducting a section 120.57 proceeding should freely consider relevant evidence of changing economic conditions and other current circumstances external to the application in passing upon the propriety of an application for a banking license....

...Although labeled a "Conclusion of Law" the Division's finding that appellant failed to operate primarily as a bona fide restaurant is, in reality, a finding of fact. [4] As such, it is an improper rejection of the hearing officer's finding of fact since the officer's finding is supported by the record. § 120.57(1)(b)9, Florida Statutes....

...r of an existing license may be revoked by the division. [4] Agencies are not, of course, permitted to characterize a hearing officer's factual findings as legal conclusions in order to avoid the statutory restrictions on rejecting findings of fact. § 120.57(1)(b)9; Silver Sand Co....

...ey's first violation of Chapter 464 after almost seven years of practice in Florida, and that this violation involved one patient on a single day. The ability of the Board to deviate from the penalty recommended by the hearing officer is governed by section 120.57(1)(b)(10), Florida Statutes (1987) which provides: The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity i...

...Patterson of Patterson & Traynham, Tallahassee, for appellant. Sonja P. Mathews, Tallahassee, for appellee. MILLS, Judge. Pacharee K. Hasper appeals a final order of the Department of Labor and Employment Security denying her a formal hearing pursuant to Section 120.57(1), Florida Statutes....

...inated. Hasper had achieved an "outstanding" performance evaluation while serving in her Senior Management Service Position. The issue before the court is whether one who is a Senior Management Service appointee is entitled to a formal hearing under Section 120.57(1) upon termination without cause. Section 120.57(1) provides that a formal hearing be afforded whenever the "substantial interests of a party are determined by an agency." DLES contends that Hasper's substantial interests, within the meaning of the statute, were not affected by her termination....

...DLES equates substantial interests under the statute with the due process rights of life, liberty, and property which arise under the Fifth and Fourteenth Amendments to the United States Constitution. DLES argues that when one asserts a substantial interest under 120.57(1), one must also assert a loss of life, liberty, or property....

...There is no definition of substantial interest in the statute. Nor has this Court or any Florida District Court of Appeal attempted a comprehensive definition. We decline to do so now. *402 However, we do believe that the legislature intended by the passage of Section 120.57(1) to create a broad avenue of redress for many persons variously situated, and specifically that "substantial interests" contemplates rights not more restrictive but more expansive than those afforded by the predecessor statute which...

...ts in her Senior Management Service position. Notwithstanding that, Hasper is entitled to a fair and impartial hearing conducted by a hearing officer provided by the Division of Administrative Hearings of the Department of Administration pursuant to Section 120.57(1)....

...ld be granted. In defending its denial, DER relies heavily upon this court's recent opinion in Greene v. Department of Natural Resources, 414 So.2d 251 (Fla. 1st DCA 1982). According to DER, appellants are attempting to use Chapter 403 to initiate a § 120.57 proceeding which is prohibited by Greene....

...In the event that the Department does propose to issue the permits to Gardinier, § 403.412(5) would appear to be a statutory provision entitling appellants to participate as a party in the proceedings under § 120.52(10)(b), including initiationof a § 120.57 hearing. Greene holds only that a citizen may not in reliance on § 403.412(5) initiate a § 120.57 hearing when there is no licensing or permitting proceeding involved, or when there is an absence of the statutorily required allegations with respect to injury to the environment. It does not follow that a citizen is precluded from initiating § 120.57 proceedings when the department does propose to proceed with the granting of licenses or permits....

...Howard Hadley, Winter Park, for respondent. PER CURIAM. Certiorari denied. CROSS and MAGER, JJ., concur. WALDEN, C.J., dissents, with opinion. WALDEN, Chief Judge (dissenting): I respectfully dissent. It is my view that Petitioner was entitled to a hearing under Fla. Stat. 120.57 and that this is the clear intendment of the Administrative Procedures Act....

...In accordance with Section 120.54(2), petitioner requested an opportunity to be heard concerning said proposed amendments. In addition, petitioner asserted that its substantial interests would be affected in the proceedings and requested that it be afforded a hearing pursuant to Section 120.57, Florida Statutes (1975). On December 22, 1975, the respondent held the hearing required by Section 120.54 (2). Petitioner appeared and again requested that it be afforded a full hearing as authorized by Section 120.57. The pertinent portion of the transcript of the December 22nd hearing demonstrates that the respondent never exercised the discretion which Section 120.57 affords it to determine whether the Section 120.54 hearing was adequate to protect petitioner's interests....

...Respondent represents that the purpose of the December 22nd hearing was to allow "affected persons" to give "input" to the commission relative to the proposed amendment to the rules. As such it was evident that there was neither time nor opportunity for an extended evidentiary hearing as contemplated by Section 120.57....

...e Commission exercise its discretion and make an express determination as to whether the input hearing was adequate to protect the interests asserted. If it can be argued that respondent did exercise its discretion and implicitly denied petitioner a Section 120.57 hearing, then we think such a denial was a clear abuse of discretion....

...Those letters set forth the interests petitioner asserted were substantial. The letters also contained assertions that petitioner's "substantial interests" would not be adequately protected by a Section 120.54(2) hearing and specifically requested a Section 120.57 hearing, setting forth the issues petitioner wished to present at such a hearing....

...and is thus arbitrary. Accordingly, having granted petition for rehearing, we now grant the petition for writ of certiorari, and upon authority of Section 120.68(13), we remand the cause with directions to grant petitioner a hearing as authorized by Section 120.57, Florida Statutes (1975)....

...When two of those reports were late, an administrative complaint was filed against her. Through counsel she executed an "election of rights" form and disputed the allegations of fact and sought a formal hearing before a Division of Administrative Hearings (DOAH) hearing officer in accordance with section 120.57(1), Florida Statutes....

...lier motion to relinquish jurisdiction in alleging that no material issues of fact were in dispute, and sought dismissal without prejudice to the department's right to proceed before the Board of Opticianry (board) in an informal hearing pursuant to section 120.57(2), Florida Statutes....

...court for a writ of prohibition and we issued an order to show cause. We have considered the petition, the responses of the department and the board, and petitioner's reply, and we grant relief. When a party seeks a formal hearing in accordance with section 120.57(1), *94 an agency may conclude that no dispute of material fact has been demonstrated, refuse to refer the matter to DOAH, and proceed informally....

...appeal from final order. Tuckman v. Florida State University, 489 So.2d 133 (Fla. 1st DCA 1986). Once a referral to DOAH is made, however, "the referring agency shall take no action with respect to the formal proceeding except as a party litigant." § 120.57(1)(b)(3), Fla....

...Upon entrance into the proceeding, however, the board is subject to the same constraints as the department once it becomes a party and may only pursue prosecution by way of the formal administrative proceeding, absent an agreement from the respondent. § 120.57(1)(b)(3), Fla....

...McVoy of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for appellant. John W. Williams, St. Petersburgh, for appellees. SHIVERS, Judge. This is an appeal from a Department of Natural Resources order denying appellant's petition for an administrative hearing pursuant to Section 120.57(1), Florida Statutes (1979). We affirm. On February 5, 1981, appellant, as a State citizen, filed a "Verified Petition and Complaint Pursuant to Section 403.412(5), Fla. Stat., For Formal Administrative Hearing Pursuant to Section 120.57(1), Fla....

...However, the Board approved the proposed purchase. After considering appellant's petition for a formal hearing and injunctive relief, DNR entered the appealed order on February 26, 1981, denying the petition on the following grounds: A petition for a formal administrative hearing pursuant to Section 120.57(1) was premature in that the acceptance of the final report by the Governor and Cabinet resulted in no action which affected the substantial interest of any citizen or class of citizens in this determination....

...Also, on the face of the pleadings the petitioner states no substantial interest whatsoever which would be affected by the action taken by the Governor and Cabinet in accepting and approving the C.A.R.L. Selection Final Report. In summary the Department denies your petition for a 120.57(1), F.S., hearing and denies the complaint and petition for injunctive relief on the grounds that there is no license or permit involved which would properly serve as final agency action for a 403.412 verified complaint challenge and there is no action, either already taken or pending which affects the petitioner's substantial interests. DNR correctly denied the petition for a Section 120.57 formal hearing because appellant alleged no special injury or substantial interest which would be affected by the Board's acceptance of the CARL Committee's proposed acquisition of Westlake. Section 120.57(1) applies only to Agency decisions which affect the substantial interests of a party....

...nor the owner of any land on the CARL Committee's acquisition list with lower priority than Westlake, or the owner of land not on the list but which allegedly should be on the list. Appellant's attempt to use Section 403.412 as a springboard into a Section 120.57 proceeding is misplaced....

...ain an action for injunctive relief in circuit court. Florida Wildlife Federation v. State Department of Environmental Regulation, 390 So.2d 64 (Fla. 1980). There is no provision in Section 403.412(2) authorizing a citizen to initiate and maintain a Section 120.57 proceeding without meeting the substantial interest test. Contrary to appellant's argument, Section 403.412(5) also does not authorize or allow a citizen to initiate a Section 120.57 proceeding without first meeting the substantial interest standing test....

...Turning now to the Department's rejection of the ALJ's finding that the Department failed to prove a violation of section 626.611, we conclude that the Department improperly substituted its judgment for that of the fact-finder. In rejecting the ALJ's finding, the Department noted that, under section 120.57(1)( l ), Florida Statutes (2006), there are only two circumstances under which an agency may reject or modify an ALJ's factual finding: where the finding is not supported by competent, substantial evidence or where "the proceedings on...

...id not comply with the essential requirements of the law." The Department's order reflects an understanding of the competent, substantial evidence standard, but it reflects a misunderstanding of the second basis for rejecting factual findings. Under section 120.57(1)( l ), an agency may reject a factual finding only if it is not supported by competent, substantial evidence or if there was a procedural irregularity in the proceedings before the ALJ....

...competent, substantial evidence. Instead, it ruled that the ALJ had failed to comply with the essential requirements of the law. Because there has been no suggestion of a procedural irregularity, the Department's ruling on this point was erroneous. Section 120.57(1)( l ) places agencies in a peculiar position when they are called upon to review an ALJ's finding that a statutory provision has been violated....

...Taylor Cos., Inc. v. Dep't of Bus. & Professional Regulation, Div. of Alcoholic Beverages & Tobacco, 724 So.2d 192, 193 n. 2 (Fla. 1st DCA 1999). However, the legitimacy of such a finding necessarily depends on a proper interpretation of the statute. Section 120.57(1)( l ) permits agencies to reject or modify conclusions of law, but it further provides that "[r]ejections or modification of conclusions of law may not form the basis for rejection or modification of findings of fact." The Legislature has not placed the same restriction on reviewing courts....

...he entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.” § 120.57(1)l), Fla....

...ifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as *849 or more reasonable than that which was rejected or modified.” § 120.57(1)(l), Fla....

...Ramey, but without including reference to the hearing officer's follow-up questions concerning the source of the "guidelines" or the responses he received. The final order continued as follows: Moreover, upon a consideration of the transcript, as required by section 120.57(9), Florida Statutes, all of the surrounding facts and circumstances of the case, as well as the need to protect the underaged citizens of this state from the evils of alcohol abuse, it is the opinion of the Director that a three day s...

...commended penalty of the hearing officer. The court's conclusion was grounded in the language of section 120.68(12), Florida Statutes (1975). The Webb court rejected the notion that the discretion of the agency was somehow limited by the language of section 120.57(1)(b)(9), Florida Statutes (1975)....

...That statute, which is the predecessor to the statute governing the case at bar, required the agency to review *413 the entire record before increasing a recommended penalty, but contained no requirement that the agency explain its rationale for any increase. 367 So.2d at 204. Section 120.57(1)(b)(9) was amended in 1984 in a very significant way....

...l acts of immorality and misconduct in office. Such actions are, by statute, grounds for dismissal and such is the appropriate penalty in this instance. Holding that the foregoing rationale was insufficient to satisfy the requirements of the amended section 120.57(1)(b)(9) [1] , the First District remanded the case to the school board to either comply with the requirements of the statute or accept the hearing officer's recommended penalty....

...Accordingly, the final order is vacated with instructions to implement the recommended penalty of the hearing officer. DANIEL, C.J., and DAUKSCH, J., concur. NOTES [1] Amendments to this section have caused the relevant provision to be renumbered as section 120.57(1)(b)(10)....

...t; (3) The record created at the hearing would be the sole record; (4) The hearing would begin by GDC's presentation of its entire case for approval of the Units 5, 6 and 7 ADA. GDC contends that there is no need for a full evidentiary hearing under Section 120.57 since the four-day hearing before the City was neither inadequate nor incomplete....

...shall encourage the submission of appeals on the record", it requires the Commission to hold a hearing pursuant to Chapter 120. Chapter 120 contains no particular provision which relates to an appellate review proceeding by an administrative agency. Section 120.57 sets forth the procedures to be used in all proceedings in which the substantial interests of a party are determined, and these procedures should be followed in hearings on appeals to the Commission. The items which constitute the record in Section 120.57 proceedings are specified in subsections 120.57(1)(b)5, for formal proceedings, and 120.57(2)(b), for informal proceedings. Neither of these subsections specify hearings occurring prior to the commencement of 120.57 proceedings....

...In appropriate cases, where the testimony has been made under oath and the parties have had the right of cross-examination, *1326 the testimony and exhibits presented at the hearing before the local government should be admitted into evidence at the 120.57 hearing before the Commission....

...y section 381.494(6)(c)2, Florida Statutes (1983), in determining need for the proposed project; rather, the report indicates that primary reliance was placed on the numerical bed-need formula provided in the rule. Appellants petitioned for a formal 120.57 administrative hearing to review denial of their application....

...r's findings *1346 of fact regarding the number of short-term psychiatric and substance abuse beds in Broward County are supported by competent, substantial evidence and the rejection of these findings by HRS does not comply with the requirements of section 120.57(1)(b)(9), Florida Statutes (1983), that an agency "may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of...

...nly if shown to be clearly erroneous. The other appellees support the contentions made by HRS. III. We agree that HRS has the authority to "reject or modify the conclusions of law and interpretation of administrative rules in the recommended order," section 120.57(1)(b)(9), Florida Statutes (1983), and that its construction of its administrative rules should not be overturned on appeal unless "clearly erroneous." Pan American World Airways v....

...cy. Therefore, HRS may not reject the hearing officer's findings of fact by treating the issue as solely one of policy. Its function is to apply its policy to the facts as found so long as such facts are supported by competent, substantial evidence. § 120.57(1)(b)9, Fla....

...e reinstated. Reversed with directions. JORGENSON Judge, dissenting. I respectfully dissent. The Commission is entitled to draw legal conclusions from the facts found by the referee, and its legal conclusions may vary from the referee's conclusions. § 120.57(1)(b)(9), Fla....

...s in Florida without obtaining a Florida license; and 4) whether the secretary of the department erred in rejecting the hearing officer's recommended order, and in making new findings of fact and conclusions of law *1347 alleged to be improper under section 120.57(1)(b)9, Florida Statutes....

...Although the department determined that appellant satisfied certain standards for licensure as set forth in its rules, Rule 10C-15.53, F.A.C., infra, it found that appellant had been operating in Florida without a license since 1982 and denied licensure on that basis. Appellant then requested a section 120.57(1), Florida Statutes, hearing....

...hereby rendered necessary. Because we find the final order to be defective in this respect, we do not reach the merits of appellant's third point on appeal, supra. Appellant's remaining contention that the final order fails to recite compliance with section 120.57(1)(b)(9), Florida Statutes, appears to be mooted by our reversal and remand above. We would not in any event assume that such error, if any, will recur. Appellant seeks attorney's fees under Florida Rule of Appellate Procedure 9.400 and section 120.57(1)(b)9, Florida Statutes, alleging that the department's actions in this licensing proceeding were a gross abuse of discretion....

...emove the fill material and restore the area to its "preproject contours." Appellee then filed an application for an after-the-fact permit, and DER expressed an intent to issue the permit. Appellants, as substantially interested persons, requested a § 120.57 administrative hearing....

...ying its position in this regard; the circumstances would appear to constitute free-form final agency action. To the extent that appellants are dissatisfied with this agency decision, the proper procedure for a challenge thereto would appear to be a § 120.57 hearing request....

...As for petitioner's second contention, we agree that since it was not permitted to introduce the bulk of its evidence, it could not say that the findings of fact of the hearing officer were not based on competent substantial evidence (at least not without being reversed by this court). While an agency is permitted under section 120.57(1)(b)9 to reject a hearing officer's conclusion of law, petitioner points out that there is nothing in the Administrative Procedure Act (APA) authorizing it to remand the case to the hearing officer and directing him or her to admit the evidence in question....

...Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. This paragraph applies only to proceedings under s. 120.57. The proceeding in question was under section 120.57....

...proposed action. Id. at 1354. *1282 After carefully reviewing the record and evidence before us we conclude that the matters raised by appellant below did not affect his substantial interests and thus did not entitle him to the full procedures of a section 120.57 hearing. [3] Martin v. School Bd. of Gadsden County, 432 So.2d 588 (Fla. 1st DCA 1983) (a substantial interest must be affected to trigger formal hearing under the Administrative Procedure Act, § 120.57)....

...agency action is entitled to judicial review." Section 120.52(11) defines "party" in relevant part as follows: "(a) Specifically named persons whose substantial interests are being determined in the proceeding." [3] In his brief, appellant cites to section 120.57, which is entitled "Decisions which affect substantial interests," and which specifically states that "[t]he provisions of this section apply in all proceedings in which the substantial interests of a party are determined by an agency... ." Appellant contends that "the spirit, if not the letter of section 120.57 should apply here." However, the record is devoid of any indication that appellant requested that the grievance proceedings be conducted pursuant to section 120.57. Moreover, section 120.57(4) explicitly states that section 120.57 "does not apply to agency investigations preliminary to agency action." The State contends that in the instant case the grievance committee inquiry, to determine whether any agency action was warranted in response to the grievances, was therefore not subject to section 120.57 hearing requirements....

...the request for attorney's fees. Krueger's right to attorney's fees, approximating $42,000, is clearly a disputed issue of material fact, thereby entitling her to a formal evidentiary hearing pursuant to Florida's Administrative Procedure Act, *332 § 120.57 Florida Statutes (1987)....

...Ruzakawski, 336 So.2d 399, 401 (Fla. 3d DCA 1976). It therefore follows that it was error not to grant appellant's motion to remand. The appellee is directed to remand appellant's request for attorney's fees to the hearing officer for a formal evidentiary hearing in accordance with § 120.57, Florida Statutes (1987)....

...rbed, but that a "full and immediate" hearing must be made available "before one is finally deprived of his property." The administrative law judge advised Riopelle by order that she had the right to request an expedited, summary hearing pursuant to section 120.574, Florida Statutes (2001). She instead sought relief under section 120.57(1), Florida Statutes (2001), and never informed the judge or the Department that she was being harmed by the less expeditious proceeding....

...Dep’t of Banking and Fin., 346 So.2d 569, 584 (Fla. 1st DCA 1977); see also Couch Const. Co. v. Dep't of Transp., 361 So.2d 172, 176 (Fla. 1st DCA 1978) (explaining that chapter 120 hearings “are designed to give affected parties an opportunity to change the agency’s mind”); § 120.57(l)(k), Fla....

...f the first sentence of the statute referring to “the hearing procedures set forth in chapter 120” would be rendered meaningless because those procedures contemplate the presentation and consideration of new evidence. See generally §§ 120.569, 120.57(1), Fla....

...intended action was an “abuse of discretion,” the ALJ is to evaluate that question based on the facts determined from the evidence presented at a de novo chapter 120 hearing. This is akin to the role of the ALJ in a bid protest proceeding under section 120.57(3) where the ALJ is charged with reviewing the agency’s proposed action against appellate-like “standard[s] of proof.” See § 120.57(3)(f), Fla....

...pplicant met his or her burden to show rehabilitation. The agency is not bound by the ALJ’s legal conclusion as to whether the intended action was an abuse of discretion, but the agency’s review of that issue is circumscribed by the standards in section 120.57(1)(£)....

...as the final order “states with particularity its reasons for rejecting or modifying such conclusion of law ... and make[s] a finding that its substituted conclusion of law ... is as or more reasonable than that which was rejected or modified.” § 120.57(1)(l), Fla....

...Accordingly, DCF did not have the authority to reject these findings “unless [it] first determine[d] from a review of the entire record, and state[d] with particularity in the order, that the findings of fact were not based on competent substantial evidence.” § 120.57(1)(Z), Fla....

...d, thus, an abuse of discretion under the Canakaris standard) for DCF to deny J.D.’s exemption request. Indeed, as explained above, the agency was free to reject that conclusion as long as it explained its rationale for doing so in accordance with section 120.57(1)(()....

...The Board concluded by altering the hearing officer's findings of facts and conclusions of law, and denied Dr. Nest's application. This appeal followed. The findings of fact and conclusions of law made by a hearing officer as a result of a formal hearing cannot be rejected without valid reason. Section 120.57(1)(b)9, Florida Statutes (1983), provides in part: The agency may adopt the recommended order as the final order of the agency....

...ing acceptable is an issue of fact, susceptible to ordinary methods of proof). As there was competent substantial evidence in the record to support the hearing officer, the *990 Board was not entitled to disregard her finding and substitute its own. Section 120.57(1)(b)9, Florida Statutes (1983)....

...The Board then imposed a penalty by reinstating her employment in the transportation department without back pay but disallowing her to operate a Board vehicle without additional monitoring and supervision. On appeal, Goss raises the issue whether the Board violated section 120.57(1)(b)10, Florida Statutes (1989), by modifying the hearing officer's findings of fact. She also contends that the Board's conclusion of law that she is guilty of misconduct is actually a question of fact. Section 120.57(1)(b)10 of the Administrative Procedures Act allows the Board to reject or modify conclusions of law, but it may not reject or modify the findings of fact unless it first determines from a review of the complete record and states with...

...ould not support the charge of misconduct and the Board's determination that it did. The additional finding that Goss intentionally and recklessly steered the bus toward the student is a finding of fact by the Board that violates the requirements of section 120.57(1)(b)10 because the hearing officer's contrary finding was supported by substantial competent evidence....

...llowing the receipt of DER's notice of intent to issue a permit to *141 Northwest Florida for the destruction of the dam, the appellants, owners of property adjacent to or near the lake, unsuccessfully petitioned DER to conduct a hearing pursuant to section 120.57(1)....

...he standing test. This court, adopting the principles expressed in the Second District's opinion in Agrico Chemical Co. v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981), has said that a petitioner enjoys standing to seek a section 120.57 hearing (1) if confronted with injury in fact of sufficient immediacy and (2) the injury is of the type or nature that the particular proceeding is designed to protect....

...made under oath contrasts with the Board's assumption that Dr. McCarthy turned the head and shoulders as one. In the Final Order, the Board did not focus on whether the hearing officer's findings were supported by competent substantial evidence. See § 120.57(1)(b)10, Fla....

..." (e.s.) "The agency may not reject or modify the findings of fact ... unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence... ." § 120.57(1)(b)10, Fla....

...[3] "The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action." § 120.57(1)(b)10, Fla....

...Petition for Formal Administrative Hearing" from the petitioner/appellee, Wiregrass Ranch, Inc. (Wiregrass). In "closing the file" rather than entering a final order on the hearing officer's recommendations made after formal proceedings pursuant to section 120.57, Florida Statutes (1989), were concluded, SWFWMD found, in reliance on the decision in John A....

...SWFWMD filed a notice of proposed agency action and a staff report which recommended issuance of the permit. Wiregrass, as an affected party, received notice of the proposed agency action and thereafter filed a petition for formal administrative hearing pursuant to section 120.57, Florida Statutes (1989) and the Florida Administrative Code....

...Jurisdiction and process are not synonymous. "Licensing" (permitting) is the subject of a separate section (§ 120.60) of the Administrative Procedure Act. Section 120.60(1) specifically provides that licensing (the process) "is subject to the provisions of s. 120.57." Section 120.57 is the provision of the Administrative Procedure Act which governs the agency process when the agency is determining substantial interests of parties. Section 120.57 provides for two types of process in determining those interests. Section 120.57(1) applies to "Formal Proceedings" and section 120.57(2) applies to "Informal Proceedings." Again, the agency permitting jurisdiction is invoked when a party seeks a permit; the process of exercising that jurisdiction is governed by either the "formal" or "informal" method provided by section 120.57. Section 120.57 also provides that "[u]nless waived by all parties, subsection (1) applies whenever the proceeding involves a disputed issue of *1126 material fact." The Administrative Procedure Act also provides for the adoption by each administrativ...

...(1) This part V shall apply in all proceedings in which substantial interests of a party are determined by the District and shall be construed to secure the just, speedy, and inexpensive determination of every proceeding. Specifically, this part applies to all proceedings under Section 120.57, Florida Statutes, as well as those initiated under Section 120.60.......

...(Emphasis supplied.) Therefore, the intent of that rule clearly is that any party, including the permit applicant, may request that the agency exercise its jurisdiction through the process of a formal proceeding. Moreover, when there is a disputed issue of fact to be determined, section 120.57 requires a formal proceeding unless waived by all parties to the proceeding....

...That rule provides in pertinent part as follows: (1) Formal proceedings shall be initiated by petition to the District. The term petition as used herein includes any application or other document which expresses a request for formal proceedings. ... . (5) Petitioners entitled to a hearing pursuant to Subsection 120.57(1), Florida Statutes, may waive their right to a formal hearing and request an informal hearing before the Board pursuant to Subsection 120.57(2), Florida Statutes, which may be granted at the option of the District." (Emphasis supplied.) Therefore, it is evident from SWFWMD's own rules that those persons who have petitioned for formal proceedings (Wiregrass) may waive their...

...ad apparently been attended by public counsel. Unfortunately the commission operated under the presumption that it could not consider that evidence nor base an interim order on it since it was obtained through an informal proceeding held pursuant to section 120.57(2), Florida Statutes (1978 Supp.). The commission erroneously concluded that it could only issue an interim order after holding a formal proceeding under section 120.57(1)....

...rties in either type of proceeding as will best facilitate the action of the agency and support its decision. On rehearing in Village Saloon, the court observed as follows: Fundamental to due process is the right to a fair hearing. The provisions of section 120.57 implement that right through the mechanism of formal proceedings or informal proceedings. Section 120.57(1) governs formal proceedings and necessarily requires the holding of a hearing. Informal proceedings under section 120.57(2), on the other hand, may proceed with or without a hearing....

...hearing at which to adduce additional evidence and argument, the Division is not at liberty to deny that party a hearing and proceed to decision on the basis of the informal submissions. While a party has the absolute right to a formal hearing under section 120.57(1) when material facts are in dispute, the absence of disputed issues of material fact, which authorizes informal proceedings under section 120.57(2), does not, ipso facto, eliminate the right to a hearing. Hearings, whether conducted under section 120.57(1) or (2), provide the essential mechanism whereby parties confront each other at a common time and situs and present evidence, legal authority, and argument in support of their respective positions....

...ision. When material facts are not in dispute, an agency is not required to grant a formal proceeding, even though requested by the party, and is free to insist that the matter be handled by informal proceeding. If, however, during the progress of a section 120.57(2) informal proceeding, it becomes apparent that material facts are in dispute, a formal hearing may be convened, and evidence adduced during the informal hearing may be made part of the record in the formal proceeding....

...Medicaid for laboratory services not directly performed by Unimed and that Medicaid does not reimburse a lab provider for services not directly performed by the provider. This letter also informed Unimed of its right to request a hearing pursuant to section 120.57, Florida Statutes (1996), within twenty-one days of Unimed's receipt of the letter....

...g exclusionary, specifically referring to the spiral transition requirements. MATRA filed a motion to dismiss the notice of protest. JTA determined that MATRA and Westinghouse were entitled to an informal hearing on the motion to dismiss pursuant to Section 120.57(2), Florida Statutes and not a formal hearing pursuant to Section 120.57(1), Florida Statutes....

...It was unable to do so. In fact, in oral argument before this court, counsel for Westinghouse was unable to point to any material fact in dispute which required a formal hearing. If there are material issues of fact to be resolved, a formal hearing is required. Section 120.57(1), Florida statutes (1983). If there are none, than an informal hearing is appropriate. Section 120.57(2), Florida Statutes (1983)....

..., Florida Statutes (2007). Alternatively, if the Division's interpretation of the statute was correct, appellants assert that the statute violates substantive due process and equal protection. Finally, appellants claim that the final orders violated section 120.57, Florida Statutes (2007), in several respects....

...re disqualifying convictions under section 551.107(6)(a); and (2) appellant Jacques, as president of appellant Sign Spec, had the ability to control the actions of the corporation. By agreement of the parties, informal hearings were held pursuant to section 120.57(2), Florida Statutes....

...Housing Corp., 737 So.2d 494, 503 (Fla.1999); DaimlerChrysler Corp. v. Hurst, 949 So.2d 279 (Fla. 3d DCA 2007); Lakeland Regional Med. Ctr., Inc. v. State, Agency for Healthcare Admin., 917 So.2d 1024 (Fla. 1st DCA 2006). Finally, appellants claim that the final orders violated section 120.57, Florida Statutes (2007), because (1) the factual findings were not supported by competent substantial evidence in the record; (2) the factual findings were made by the division director rather than the hearing officer; and (3) the ultimate determination that appellants were disqualified from licensure was incorrectly characterized as a finding of fact rather than a conclusion of law. Because there were no disputed issues of material fact, the proceedings below were pursuant to section 120.57(2). Contrary to appellants' assertion, there is nothing in section 120.57(2) precluding the division director from making factual findings....

...rsity Pavilion as located on separate premises throughout the course of prior litigation, and that the other hospitals UH referred to in its letter had at all times had separate facilities on the same premises. In response, UH filed a petition for a section 120.57(1) hearing, the subsequent dismissal of which is the subject of this appeal, alleging that during the pendency of the above earlier appeals, AHCA had issued single, Class I licenses to other similarly situated hospitals whose facilitie...

...judgment, precludes a determination of any issue that was fully, fairly *912 and actually adjudicated in previous litigation. See Gordon v. Gordon, 59 So.2d 40 (Fla.1952). Nevertheless, the issue of whether collateral estoppel bars a petition for a section 120.57(1) hearing is ordinarily a factual decision which cannot be appropriately resolved by a motion to dismiss....

...Department of Envtl. Reg., 511 So.2d 989, 991 (Fla.1987). Accordingly, any determination of whether UH was collaterally estopped by reason of its adoption of inconsistent positions is premature, and such issue cannot be correctly decided until after UH is accorded a section 120.57(1) hearing....

...port was thereafter widely disseminated in accordance with Florida law. Because Menorah Manor alleges facts in its petition that would establish only that its reputation has been injured, which by itself is insufficient to establish entitlement to a section 120.57(1), Florida Statutes (2003) hearing, we affirm the dismissal of the petition....

...ah nor amounted to a charging document. At the outset, we reject the position taken by AHCA on appeal that a Form 2567, even though it may contain erroneous findings and can result in demonstrated harm to the recipient, can never be the subject of a 120.57 proceeding....

...Instead, we believe a resolution of this issue depends upon the two-prong test which has been developed for determining whether a party's substantial interests have been affected by administrative *1104 action. Pursuant to this two-prong test, a party seeking a 120.57 hearing must show: (1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and (2) that his substantial injury is of a type or nature which the proceeding is designed to protect....

...67 (May 1993). Moreover, although AHCA suggests that Menorah Manor must establish a legal right to prepare food in the manner asserted, as this court recognized in Hasper v. Dep't of Labor and Employment Sec., 459 So.2d 400, 402 (Fla. 1st DCA 1984), section 120.57(1) was intended "to create a broad avenue of redress" for affected persons and "`substantial interests' contemplates rights not more restrictive but more expansive that those afforded by the predecessor statute [section 120.22, Florida...

...Herold adopts the federal standard which requires that there must be a stigma "plus" to establish injury in fact and that the "plus" must constitute a violation of some tangible interest or alteration of legal status for an affected person to be entitled to a section 120.57 hearing....

...Further, Menorah Manor fails to identify statutes, rules and/or policies pursuant to which it was entitled to act in preparing and serving its food. Although the allegations in Menorah Manor's petition are not sufficient to entitle the nursing home to a hearing under section 120.57(1), it does not appear to us *1105 that Menorah will be unable to cure these pleading defects....

...ts necessary to be found in a given case in order that determination of right of the parties *903 shall become pure question of law). [1] An ultimate fact is still a fact the finding of which is solely within the province of the appeals referee. See § 120.57(1)(b), Fla....

...the appointment of Dr. Fowler. Detailing the reasons relied upon by the School Board in reaching its judgment is not essential to our decision. As a result of the School Board's action, Spurlin requested and was accorded a formal hearing pursuant to section 120.57(2), Florida Statutes (1986)....

...Our observation is not, we emphasize, to gainsay that a school board may not lawfully seize upon a pretextually sound but actually invidious reason for rejecting a recommendation. The degree of due process contemplated by Von Stephens and accorded by section 120.57(2) provides both a deterrent to and, if found to exist, a remedy for such conduct....

...Stephens and Clare E. Gray, Tallahassee, for Dept. of Environmental Regulation. MILLS, Judge. Manasota-88, Inc. (M-88) appeals final administrative orders of the Department of Environmental Regulation (DER) denying its petitions for a hearing pursuant to Section 120.57, Florida Statutes (1983), and for a declaratory statement pursuant to Section 120.565, Florida Statutes (1983)....

...without an appropriate and currently valid permit." DER provided M-88 with informal, telephonic notice that Gardinier would not be required to obtain an air pollution permit pursuant to these statutes. M-88 thereupon filed a petition to intervene in Gardinier's permit proceeding, and requested a Section 120.57 hearing on the air pollution issue....

...required from any company with similar phosphate operations. The final order adopted the recommended order, rejecting the exception on the ground that no agency action implementing the alleged nonrule policy had occurred. During the pendency of the Section 120.57 request, M-88 sought a declaratory statement from DER pursuant to Section 120.565 as to the applicability of the air pollution permit statutes to the phosphate industry in general; M-88, with Lyons, then sought a second declaratory statement as to their applicability to Gardinier in particular....

...as it applies to the petitioner in his particular set of circumstances only." Lyons and M-88 sought DER's opinion as to the applicability of statutory provisions to Gardinier, contrary to unambiguous *950 statutory language. We affirm on this issue. We reverse, however, as to the agency's denial of M-88's request for a Section 120.57 hearing....

...by DER's communication, both to Gardinier and to Manasota-88, of its decision not to require an air pollution permit. In deciding the issue on this basis, I believe the majority has perhaps unintentionally enlarged the concept of "agency action" for Section 120.57 hearing purposes beyond the parameters of our prior decisions....

...g information, and to the owner or operator of a potential source of pollution in furnishing it. I would also hold that preliminary, "probable cause" type determinations cannot ordinarily be regarded as agency action triggering the right to a formal Section 120.57 hearing, [2] unless the right to a hearing is supported by the statutory framework guiding the particular agency action in question, or governing the rights of the party requesting the hearing. See, Commission on Human Relations v. Bentley, 422 So.2d 964 (Fla. 1st DCA 1982) (petition to redetermine executive director's finding of no reasonable cause to believe unlawful employment practices occurred does not authorize invocation of Section 120.57 hearing rights); Cf., Publix Supermarkets, Inc. v. Florida Commission on Human Relations, 470 So.2d 754 (Fla. 1st DCA 1985) (Commission's amendment of rule, following decision in Bentley, supra, to allow filing of petitions and securing Section *952 120.57 hearing on determinations or redeterminations of probable cause, etc., held valid); and see, Mikos v....

...disagree. Appellant clearly invoked this statute in the proceedings below. Further, the crux of the controversy is not "standing" — since DER did not deny standing generally — but the "scope" of the proceeding in which Manasota-88 intervened. [2] Section 120.57(40 provides: "This section does not apply to agency investigations preliminary to agency action." [3] It can hardly be argued that a "no permit required" decision confers any right to construct or operate a source of pollution, since t...

...An intended effect of the rule is to insulate agency decisions "on the selection of an [ ] adoptive home" from the scrutiny otherwise available in substantial interest proceedings under provisions of the Administrative Procedure Act, specifically sections 120.569 and 120.57, Florida Statutes (2003). [2] At the time DCFS denied their application to adopt T.T., a DCFS rule required that I.B. and D.B. "be told of that decision in writing and be advised of ... their right to a hearing pursuant to s. 120.57, F.S." Fla....

...cement of this child. See, e.g., Fla. Admin. Code. R. § 65C-16.002(2), .005, .008 (providing for an Adoptive Applicant Review Committee for dispute resolution and further administrative review)."). Once I.B. and D.B. requested a hearing pursuant to section 120.57, Florida Statutes, DCFS referred the substantial interest proceeding to the Division of Administrative Hearings (DOAH)....

...Day Cruise Ass'n, Inc., 794 So.2d 696, 704 (Fla. 1st DCA 2001) ("[T]he test is whether a ... rule gives effect to a `specific law to be implemented,' and whether the ... rule implements or interprets `specific powers and duties.'"). As "specific authority," Rule 65C-16.008(2) cites sections 120.57, 120.68, 409.026(8), and 409.145. As "law implemented," Rule 65C-16.008(2) cites sections 120.68 and 409.145. Section 120.57 pertains to substantial interest hearings of the kind which the amended rule would forbid, not facilitate; and section 120.68 has to do with judicial review of agency action once an agency has made a decision — ordinarily after a hearing, except where hearing has been waived....

...ency's original decision, the applicant or parent must be told of that decision in writing and advised of their judicial option as described in the Administrative Procedures [sic] Act, Section 120.68, F.S. and of their right to a hearing pursuant to Section 120.57, F.S....

...of Stenstrom, McIntosh, Julian, Colbert, Whigham & Simmons, P.A., Sanford, for appellee. DANIEL, Judge. Appellant, Phyllis Taylor, has taken this appeal from the order entered by the School Board of Seminole County which dismissed Taylor's petition for a formal administrative hearing under section 120.57(1), Florida Statutes (1987)....

...On October 23, 1987, Taylor received a notice of termination from employment. Taylor filed a petition requesting that the School Board conduct a formal administrative hearing concerning this decision. The School Board denied Taylor's request and dismissed her petition. Section 120.57(1) of the Administrative Procedure Act provides that a petitioning party is entitled to a formal administrative hearing whenever an agency has made a determination which concerns the substantial interest of the party and issues of material fact are in dispute....

...eviewed in 1981, and HRS determined that Health Care was best qualified and awarded it a certificate for a 78-bed nursing home on a 120-bed frame. Provincial's and Beverly's applications were simultaneously denied by HRS, and both sought review in a section 120.57 formal hearing....

...nd Beverly's applications. On March 30, 1982, Gulf Court's application was denied by HRS on the sole ground that the projected need for additional beds had been satisfied by the granting of certificates to Provincial and Beverly. Gulf Court sought a section 120.57 hearing on both the denial of its CON application and the granting of certificates to Provincial and Beverly....

...Provincial and Beverly argue, essentially, that the court's opinion in Biomedical does not require batching or comparative review of applications separated in time by nine months and at least one batching cycle. They also point out that according to McDonald, section 120.57 hearings are de novo and therefore HRS was obligated to consider their previously denied applications in light of the expanded bed need projected in the newly issued 1982 plan....

...In addition, the agency, through its adopted policy and procedure, must provide a "clear point of entry, within a specified time after some recognizable event in investigatory or other free *706 form proceedings, to formal or informal proceedings under Section 120.57" so as to assure the right of comparative review of applications competing for the same fixed pool....

...uant to its rules, encourages the filing of applications in every batching cycle, regardless of consistency with the existing health plans, on the chance that new information or developments coming to light between the denial of an application and a section 120.57 formal hearing thereon may breathe new life into the project and afford unwarranted priority over a subsequent, timely filed application based on the new plan....

...rate a bank. Their application was objected to on various grounds by six different banks in the immediate vicinity of the proposed bank. Petitioners' application progressed through various agency reviews, was denied, and eventually was reviewed in a section 120.57 formal proceeding....

...was correct. The agency may appropriately control the number and frequency of amendments to licensing applications and may by rule prevent substantial amendment of the application in mid-proceeding. But the hearing officer or agency head conducting section 120.57 proceedings should freely consider relevant evidence of changing economic conditions and other current circumstances external to the application. Section 120.57 proceedings are intended to formulate final agency action, not to review action taken earlier and preliminarily....

...r the CON application under consideration has been completed and denied unless that application has been appropriately amended or updated. The key to McDonald's holding that evidence of changed conditions or circumstances should be considered in the 120.57 hearing is its requirement that such evidence be "relevant" to the application....

...The court in McDonald was careful to point out that an "agency may appropriately control the number and frequency of amendments to licensing applications and may by rule prevent substantial amendment of the application in mid-proceeding." 346 So.2d at 384. Certainly, the hearing officer in a section 120.57 proceeding is not limited to consideration of the record made by HRS during its preliminary investigation of the CON application and may freely consider any and all additional evidence presented by the parties, including evidence of ch...

...Whether or to what extent changed facts, circumstances, and statutes may affect the rights of these parties to receive the applied-for CONs remains to be determined in further proceedings before the hearing officer and the agency. MILLS and ERVIN, JJ., concur. NOTES [1] § 120.57(1), Fla....

...rida Statutes, and that an award should be granted pursuant to the Florida Rules of Civil Procedure. While an agency may not overturn findings of fact made by a hearing officer unless they are unsupported by competent *816 substantial evidence ( see section 120.57(1)(b)10, Florida Statutes), no such requirement exists as to conclusions of law....

...l. In our view, this result is required by the clear terms of that portion of Section 120.52(10)(d) which states that Prisoners as defined in s.944.02(5) shall not be considered parties for the purposes of obtaining proceedings under s.120.54(16) or s.120.57... [2] The definition contained in Section 120.57 itself, in turn, plainly encompasses the proceeding which results in the fixing of a presumptive parole date — about which the appellant complains but from which he is excluded by Section 120.52(10)(d). Section 120.57 is entitled "Decisions which affect substantial interests," and specifically states that "[t]he provisions of this section shall apply in all [e.s.] proceedings in which the substantial interests of a party are determined by an agency." It cannot be gainsaid that this exactly fits the parole date determination. And, since Roberson is not a party to the Section 120.57 proceeding, by an application of the most basic rules of logic and law he cannot be a party entitled to appeal under Section 120.68 from an adverse order in that proceeding....

...e pertinent statutes. It seems to be based upon the conclusion that, although the parole-date-fixing process is one which culminates in agency action adversely affecting a prisoner's rights for *1046 120.68 appellate purposes, it does not fall under 120.57, which specifically and directly includes it. Instead, it is classified by the first district so as to avoid the effect of 120.52(10)(d) as another, unnamed, penumbral action subject to the APA but not to 120.57....

...the agency maintains its headquarters or where a party resides. Review proceedings shall be conducted in accordance with the Florida Appellate Rules. [2] Sec. 120.54(16) involves the so-called "draw out" rulemaking process to be conducted under Sec. 120.57. As the first district noted in Daniels v. Florida Parole & Probation Commission, 401 So.2d 1351, 1355, n. 6 (Fla. 1st DCA 1981), prisoners remain unexcluded from several types of proceedings provided by the APA, e.g., Sec. 120.54(3)-(6), 120.57. They may therefore also secure appellate review of adverse determinations in those proceedings — but obviously not one under Sec. 120.57 — pursuant to Sec....

...[5] We recognize that, in this as in so many instances, the delineation of the remedy largely determines the right. Our holding that there is no appellate review of Roberson's complaint that the commission considered false evidence which he was not permitted to cross-examine under Chapter 947 procedure, as he would under 120.57, means that no such privilege exists....

...3d DCA 1990). The instant case does not involve the loss of a license [1] and, therefore, Allen's losses are adequately protected by the preponderance of the evidence standard. Allen also contends that the School Board did not comply with the requirements of Section 120.57(1)(b)(10), Florida Statutes (1987) [2] when it increased the hearing officer's recommended penalty without stating with particularity the reasons for its departure....

...We find that the School Board acted within its power in increasing the recommended penalty. The School Board is allowed to increase the penalty recommended by the hearing officer provided that it reviews the complete record and states with particularity its reasons for increasing the penalty. § 120.57(1)(b)(10), Fla....

...In doing so, the School Board took into consideration its inability to comply with the hearing officer's recommendation that Allen not come into daily contact with students. Therefore, we find that the School Board followed the requirements set forth by Section 120.57(1)(b)(10)....

...ivalent to the loss of his license to teach. The School Board hired Allen as a technician, not as a teacher. His subsequent licensing had no bearing on the hearings and, in fact, was not even presented to the hearing officer or the School Board. [2] Section 120.57(1)(b)(10) states in pertinent part: "The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons the...

...ntial interests of a party are determined by the agency"). See also Bishop Assocs. Ltd. P'ship v. Belkin, 521 So.2d 158, 159-60 (Fla. 1st DCA 1988). But Mr. Padilla did not seek relief under section 120.569 or ask for an administrative hearing under section 120.57(1)....

...Ass'n, 504 So.2d at 1345; Couch, 377 So.2d at 33-34. DOI correctly dismissed the petition for declaratory statement on this basis. Even if his petition for declaratory statement could somehow be construed as seeking a substantial interest proceeding under sections 120.569 and 120.57(1), moreover, dismissal would have been proper, because DOI does not have statutory authority to adjudicate simple contractual disputes about the amounts of benefits payable under personal injury protection policies....

...in a newspaper of general circulation in the area affected, notice of proposed agency action on any permit application submitted under this chapter... . Within 14 days after publication of notice of proposed agency action, any person whose substantial interests are affected may request a hearing in accordance with s. 120.57. The failure to request a hearing within 14 days after publication of notice of proposed agency action shall constitute a waiver of any right to a hearing on the application under s. 120.57....

...DER's response has been simply to refer to the applicant's compliance with the rule providing for publication of notice in a newspaper in the county where the activity is proposed. In the final order of July 3, 1986, DER expressly rejected the request for a Section 120.57 hearing as being more than 14 days after the notice published in The Perry News-Herald....

...of bay bottom to be placed on a 20-acre, diked site on Cedar Island. DER failed to deal with this issue. After the permit issued, there were changes made in the conditions surrounding the project. No new notice was given. Appellants' petition for a Section 120.57 hearing was denied....

...Although Withers pointed out that participation in the RNP was not contained in the recommended order, she did not argue that the EPC was prohibited from including that condition due to the commissioner's failure to file written exceptions to the recommended order within fifteen days, as required by section 120.57(1)(k), Florida Statutes (2008)....

...An administrative agency may increase or reduce a proposed penalty in a recommended order, but it may only do so where it "review[s] ... the complete record and [states] with particularity its reasons therefor in the order, by citing to the record in justifying the action." § 120.57(1)( l )....

...1st DCA 2008) (considering merits of appellant's due process claim that it was denied the right to have the case considered by an impartial tribunal despite the fact that argument was not made below). The record in this case reveals that the EPC failed to abide by the procedural requirements of section 120.57(1)( l ) and, as a result, violated Withers' procedural due process rights. We therefore reverse the EPC's final order and remand this case to the EPC for the purpose of reviewing the complete record and entering an order which comports with the requirements of section 120.57(1)( l )....

...petition did not specifically explain how the Accardis have standing to challenge the Department's permitting decision and (2) the amended petition states that there are no disputed issues of material fact, and thus, an administrative hearing under section 120.57(1), Florida Statutes, is not appropriate....

...The second issue raised on appeal is whether the Accardis properly alleged standing in their amended petition. To demonstrate standing to intervene, a petitioner must demonstrate: "1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of a type or nature which the proceeding is designed to protect." Ameristeel Corp....

...ool system. McNeill was suspended following his arrest for criminal battery when he allegedly touched an undercover law enforcement officer in a sexually suggestive manner. [1] Following his suspension, an administrative hearing was held pursuant to section 120.57(1), Florida Statutes (1995), to determine whether his conduct formed sufficient grounds for dismissal....

...Where competent substantial evidence exists in support of a hearing officer's findings of fact, a School Board may not reject or modify the officer's findings unless it determines that the administrative hearing did not comply with essential requirements of law. § 120.57(1)(b)(10), Fla.Stat....

...Suffice it to say that Burgess was employed by the Department as an Administrator of Tourism Development, a position she occupied in 1979 when the Department sought, pursuant to section 110.205(2)(h), to exempt that position from the career service system. Burgess objected and eventually sought a section 120.57(1) hearing before the Department. Contending that Burgess was not entitled to such a hearing, the Department denied her petition and Burgess appealed the denial to this court. After deciding that Burgess was entitled to a 120.57 hearing, we reversed the Department's order and remanded "for further proceedings addressing the sole issue of whether Burgess' position is lawfully exempted as a policy-making position." Burgess I, 400 So.2d at 1260....

...s in fact a policy-making position eligible for career service exemption. As we have repeatedly recognized, our review of final administrative orders accepting the recommended orders of hearing officers is limited by the following standards: When in Section 120.57 proceedings to construe and apply a nonpenal regulatory statute an independent hearing officer and the agency agree on a dispositive finding, there is little cause for a district court of appeal to debate whether the matter in issue is...

...1st DCA 1981) (e.s.). The issue before us in Burgess I was, of course, whether Burgess was entitled to the protections afforded by Chapter 120. We found that she was entitled to such protection and remanded for purposes of a formal hearing pursuant to section 120.57....

...act as conclusions of law; and (3) imposing penalty (although the ALJ did not recommend—penalty) without stating its reasons with particularity. The Department argues its rejection of the contested findings of fact complied with the requirements of section 120.57(1)( l ), Florida Statutes; and because the ALJ did not recommend a penalty, the Department's imposition of a penalty did not "increase" the recommended penalty, so that the Department was not required to comply with section 120.57(1)( l )....

...When an agency rejects conclusions of law contained in a recommended order, it must state with particularity its reasons for so doing and make a finding that its substituted conclusion of law is as, or more, reasonable than that which was rejected or modified. § 120.57(1)( l ), Fla....

...f the entire record, and states with particularity in the order, that the findings of fact were not based upon competent, substantial evidence or the proceedings on which the findings were based did not comply with the essential requirements of law. § 120.57(1)( l ), Fla....

...Dep't of Profl Reg., 418 *826 So.2d 1081, 1082 (Fla. 4th DCA 1982). While an agency may accept a recommended penalty in a recommended order, it may not reduce or increase it without a review of the complete record, stating its reasons with particularity, and citing to the record. § 120.57(1)( l ), Fla....

...Reversal is required when an agency increases a recommended penalty without stating its reasons with particularity. Shah v. Dep't of Health, 804 So.2d 615 (Fla. 1st DCA 2002). Here, the Department's Final Order fails to comply with the statutory requirements of section 120.57(1)( l ), because it fails to "state with particularity" its reasons for rejecting the ALJ's findings of fact and conclusion of law; fails to state the ALJ's findings were not supported by competent, substantial evidence or that the pro...

...istrative complaint because the commission concluded that the hearing officer's findings of fact were not supported by clear and convincing evidence. The authority of an agency to reject or modify a hearing officer's findings of fact is specified in section 120.57(1)(b)10, Florida Statutes, which provides that an agency may not reject or modify the findings of fact, including findings of fact that form the basis for an agency statement, unless the agency first determines from a review of the com...

...Department of Prof. Reg., 622 So.2d 607, 609 (Fla. 1st DCA 1993). The commission also relied upon In re Davey, 645 So.2d 398, 404 (Fla.1994), as authority for the action it took herein. But that case did not involve administrative proceedings, and section 120.57(1)(b)10 was not involved....

...This is the appeal of a summary Final Judgment entered against appellant, James M. Sublett ("Sublett") and in favor of appellee, District School Board of Sumter County ("School Board"). The principal issue on appeal is whether Sublett was entitled to a section 120.57, Florida Statutes (1989) hearing to challenge his termination as a school board employee or whether he was limited to the procedure provided in the collective bargaining agreement which covered his position....

...Ultimately, the proceeding was scheduled for October 17, 1989, but Sublett failed to attend and the School Board voted to terminate him, effective immediately. On the same day as this scheduled termination, however, Sublett, through counsel, requested a formal administrative hearing under section 120.57, Florida Statutes, by letter addressed to the School Board's counsel....

...is civil rights under *377 42 U.S.C. Section 1983. Both parties moved for summary judgment. After argument, the trial court entered summary judgment for the School Board concluding that the collective bargaining agreement waived Sublett's right to a section 120.57 hearing and that Sublett's failure to take advantage of his rights under the collective bargaining agreement was fatal to his claim....

...aws are waived by becoming a party to the agreement. Moreover, the only procedure contained in the agreement is an employee's right to "appeal" to the Superintendent and the Board "when terminated". Sublett did not waive his right to a hearing under section 120.57 by failing to reject the "appeal" procedure or by not seeking a Chapter 120 formal hearing prior to October 17, 1989....

...E.g., McCracken v. City of Chinook, 652 F. Supp. 1300 (D. Montana 1987). Under Florida law, a school board's decision to terminate an employee is one affecting the employee's substantial interests; therefore, the employee is entitled to a formal hearing under section 120.57(1) if material issues of fact are in dispute....

...HARRIS, Judge, concurring specially: Although I would be willing to hold that by tacitly agreeing to the pretermination hearing (by not objecting and by twice requesting and receiving continuance in order to prepare for said hearing), Sublett waived the alternative (and duplicative) fact determining hearing provided by section 120.57, I find that the termination procedure employed by the Sumter County School Board not only is a denial of basic due process but also seems to fall short of meeting its contract obligations....

...The School Board also concluded that Abrams' conduct was far more serious than conduct by other teachers who had only been suspended. The School Board finally determined that the ALJ's findings of fact as supplemented by the School *292 Board established a basis to terminate Abrams' employment. Section 120.57(1)( l ), Florida Statutes (2009), provides that an agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and the interpretation of administrative rules over which it has substa...

...An administrative agency such as the School Board may not modify an administrative *295 law judge's factual findings "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence. . . . ." § 120.57(1)( l ), Fla....

...Appellant, a regulated utility, having applied unsuccessfully to the Public Service Commission (PSC) for a rate increase, seeks judicial review of the agency's final order denying the application after formal proceedings were conducted by a hearing officer pursuant to Section 120.57, Florida Statutes (1981)....

...[3] The Agency concluded that a return of 16 percent on equity was fair and just. If the quoted portion of the Hearing Officer's recommended order is, indeed, a "conclusion of law" as denominated in the recommended order, then the Agency clearly had the authority, under Section 120.57(1)(b)9., Florida Statutes (1981), to reject or to modify the conclusions of law in the recommended order....

...If, however, the hearing officer's reference to a 19.63% return is essentially a finding of fact (both parties to this appeal have treated it as though it were), [4] the PSC properly rejected it and substituted its own findings for the reasons set out below. Appellant contends that (1) Section 120.57(1)(b)9., Florida Statutes (1981), does not permit an administrative agency the luxury of reversing the findings of fact of the hearing officer unless it "determines from a review of the complete record, and states with particularity in...

...The agency's substituted findings being supported by competent substantial evidence measured by McDonald standards, the agency's order is entitled to be and is, affirmed. AFFIRMED. MILLS and WENTWORTH, JJ., concur. NOTES [1] While not in the precise language of Section 120.57(1)(b)9., Florida Statutes, we take this to be agency determination that the hearing officer's findings were not based upon competent substantial evidence....

...of Florida Administrative Code Rule 68D-23.105(1)(b). On May 5, 2005, the FWCC issued a notice of intent to issue that permit. The following entities and individuals filed timely petitions for administrative hearing pursuant to sections 120.569 and 120.57, Florida Statutes (2004), to challenge *71 whether the City's permit application met the requirements of rule 68D-23.105(1)(b): (1) Marine Industries; (2) Collier County; (3) Eric Alexander, Jack Hail, Dave Sirkos, James Pergola, and Allen Walburn; and (4) Douglas Finlay....

...With respect to the agency's review of the ALJ's recommended order, the agency "may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction." § 120.57(1)( l ), Fla....

...Thus, Marine Industries contends that this court must set aside the agency action because the FWCC's exercise of discretion to delegate its decision-making authority violated a statutory provision. See § 120.68(7)(e)(4). The City and the FWCC assert that because section 120.57(1)( l ) only refers to the "agency" entering the final order and not the "agency head," delegation to the executive director was proper. For example, section 120.57(1)( l ) states, "The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction." In addition,...

...r part of a rule or order, or the equivalent, or the denial of a petition to adopt a rule or issue an order." Section 120.52(7) defines a final order as a written final decision which results from a proceeding under s. 120.56, s. 120.565, s.120.569, s. 120.57, s. 120.573, or s. 120.574 which is not a rule, and which is not excepted from the definition of a rule, and which has been filed with the agency clerk, and includes final agency actions which are affirmative, negative, injunctive, or declaratory in form....

...NIMMONS, Judge. This is an administrative appeal from a final order of the Department of Health and Rehabilitative Services (HRS), denying Gulf Coast's Petition to Intervene or, Alternatively, Petition for a Formal Administrative Hearing, pursuant to Section 120.57, Florida Statutes and Fla....

...On June 20, 1986, before HRS issued its final order on Beverly's CON application, Gulf Coast filed with HRS its Petition to Intervene or, Alternatively, Petition for Formal Administrative Hearing to challenge HRS's reversal of position on Beverly's CON application. HRS denied Gulf Coast's petition for a Section 120.57 hearing on the basis that it was untimely....

...State, Department of Transportation, 362 So.2d 346, 348 (Fla. 1st DCA 1978), the substantially affected person must be provided with a "clear point of entry, within a specified time period after some recognizable event in investigatory or other freeform proceedings, to formal or informal proceedings under Section 120.57." Moreover, that point of entry must not be so remote from the agency action as to be ineffectual as a vehicle for affording a party whose substantial interests are or will be affected by agency action a prompt opportunity to challenge disputed issues of material fact in a Section 120.57 hearing....

...process as long as it satisfies the standards articulated in Capeletti and General Development Utilities Inc., supra . The notice in the present case satisfied these standards. It provided Gulf Coast with a clear point of entry to proceedings under Section 120.57 after HRS's preliminary free-form action in denying Beverly's CON application....

...for a period of 30 days from the date of publication. Moreover, such notice is not "so remote from the agency action as to be ineffectual as a vehicle for affording" appellant "a prompt opportunity to challenge disputed issues of material fact in a Section 120.57 hearing." General Development Utilities, Inc., supra at 1070. If Gulf Coast had availed itself of its clear point of entry in a timely fashion, it could have presented its challenge to HRS's policy. But Gulf Coast failed to do so. Gulf Coast neither petitioned for a Section 120.57 hearing nor sought to intervene pursuant to Fla....

...der as a Final Order suspending Boundy for thirty days without pay. Boundy appeals from the Final Order of the School Board. We reverse the Final Order of the School Board and remand for the School Board to enter an order in compliance with sections 120.57(k) [1] and 120.57( l ), [2] Florida Statutes (2006). Boundy argues on appeal, and we agree, that the School Board failed to include in its order an explicit ruling on each of his exceptions. Although the School Board "may adopt the recommended order as the final order of the [School Board]," see § 120.57( l ), and need only state with particularity reasons for rejecting or modifying conclusions of law or interpretation of an administrative rule, the School Board is *435 nevertheless required to rule explicitly on each exception which identifies the disputed portion of the Recommended Order by page number or paragraph. See § 120.57(k), Fla....

...We find that Boundy's exceptions, which disputed and, accordingly, cited to specific portions of the Recommended Order, identified with sufficient clarity the disputed portions of the Recommended Order to require the School Board to rule specifically on each one in accordance with subsection (k) of section 120.57....

...Therefore, we reverse the Final Order of the Miami-Dade County School Board entered on July 11, 2007, and remand for the purpose of ruling with particularity on each of Boundy's Exceptions to the Recommended Order. Reversed and remanded with directions. NOTES [1] 120.57....

...Woodson thereby enabling Woodson to construct water wells on various sites located in Osceola County. When St. Cloud received notice that the construction permits had been issued, St. Cloud petitioned the District to conduct a formal administrative proceeding pursuant to section 120.57(1), Florida Statutes (1987)....

...Cloud also filed with the circuit court a motion for injunctive relief requesting, among other things, that the trial court issue a temporary injunction enjoining the District from authorizing continued construction of these water wells pending resolution of the section 120.57(1) petition. The District subsequently entered a final order dismissing St. Cloud's section 120.57(1) petition, stating that dismissal was required because St. Cloud lacked standing to challenge the issuance of the well construction permits. The trial court meanwhile granted St. Cloud's motion for injunctive relief and directed that the injunction remain in effect until final disposition of the section 120.57(1) petition. On appeal St. Cloud contends that it was error for the District to deny its petition for a formal section 120.57(1) proceeding, asserting that its petition demonstrates that the City has standing to intervene in this matter. We agree. Section 120.57(1) provides that a party is entitled to a formal administrative hearing when substantial interests of the party are determined by an agency....

...Cloud indicates that the city has a substantial interest in the quality and availability of its water supply and that this interest will be adversely affected by the construction of the instant water wells. Accordingly, the final order entered by the District denying St. Cloud's section 120.57(1) petition must be reversed and this matter remanded to the District with instructions to conduct a formal section 120.57(1) proceeding....

...ed upon by reasonably prudent persons in the conduct of their affairs." Dr. Waldman's deposition falls under this broad heading and would, indeed, be admissible in civil judicial proceedings. Mr. Miller raised no hearsay objection here or below. See § 120.57(1)(c), Fla....

...re Act, sections 120.50 et seq., Florida Statutes. As the "agency head," the school board had the option to conduct the hearing itself. Instead, it elected to request a hearing officer from the Division of Administrative Hearings, in accordance with section 120.57(1)(b)3., Florida Statutes. Section 120.57(1), Florida Statutes, applied, since material facts were in dispute: Mr....

...And inasmuch as I am legally, by statute, the one that actually makes recommendations to the board, then I did not make that recommendation. If I do not make a recommendation to the board, then the board has nothing to act on. So therefore there is no recommendation made for the employment for the ensuing year. Section 120.57(b)10, Florida Statutes (1991), provides that all findings of fact by the hearing officer must be supported by competent substantial evidence in the record....

...ommendation because Davis' guilt or innocence had not yet been established. The Board's remedy, if it concluded that a finding of fact in the recommended order lacked substantial support in the evidence, was to reject the finding in its final order. § 120.57(1)(b)10, Fla....

...Dep't of Highway Safety and Motor Vehicles, 616 So.2d 1061, 1063 (Fla. 1st DCA 1993). A reviewing agency like the Florida Elections Commission cannot evade statutory restrictions on its ability to reject an ALJ's findings of fact by denominating such findings conclusions of law. See § 120.57(1)( l ), Fla....

...e project for which the funds were intended and Count XI related to Kinast's conviction for passing a worthless check to purchase building materials, i.e., conviction of a crime directly relating to the practice of contracting. A hearing pursuant to § 120.57(1), Florida Statutes (1983), was requested by Kinast and granted....

...For that reason, the final order is vacated and the cause is remanded for the entry of an amended final order after submission of an amended recommended order by the hearing officer ruling on Kinast's proposed findings. The Board shall have the opportunity to submit exceptions to the amended recommended order pursuant to § 120.57(1)(b)(4), Florida Statutes (1983)....

...Jurisdiction is vested in this court pursuant to Rule 9.100(a), Florida Rules of Appellate Procedure. We issued an order to show cause, pursuant to which respondent has timely filed its response. The petition seeks an order of this court requiring an administrative hearing under Section 120.57, Florida Statutes, concerning its claim of bid irregularities concerning Bid No....

...Our review of the petition, the attachments, and the response, in the light of the arguments made and authorities cited, leads us to the conclusion that the petition sets forth a set of facts which are sufficient, in our view, to require that petitioner be afforded a hearing, under Section 120.57, on its claim to be awarded the contract pursuant to its bid, and to further warrant an order of this court affording the rather drastic remedy of halting all further rebidding procedures pending the outcome of that hearing....

...In our opinion petitioner has demonstrated its entitlement to such a remedy at this stage of the dispute between the parties. This cause is remanded for further proceedings with directions that petitioner be afforded a prompt administrative hearing under Section 120.57(1), Florida Statutes; and respondent is ordered to suspend all further bidding or bid opening procedures pertaining to the subject contract pending the outcome of that hearing, and until further authorized by the assigned hearing officer or this court....

...It is petitioner's contention that by rejecting the hearing examiner's findings without specifically stating that those findings were unsupported by competent, substantial evidence, the PSC departed from the essential requirements of law. In support of his position, petitioner relies on Section 120.57(1)(b)(9), Florida Statutes (1975), which provides in pertinent part as follows: The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order [of the heari...

...ubstantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. Respondent argues and we agree, that this section of the Administrative Procedure Act is inapplicable to this proceeding. Section 120.57(1)(b)(9) states that an agency may not reject or modify the findings of fact contained in the "recommended order" of the hearing examiner without expressly stating that those findings are unsupported by competent substantial evidence. Section 120.52(13) defines "recommended order" as follows: "Recommended order" means the official recommendation of a hearing officer assigned by the division to an agency for the final disposition of a proceeding under s. 120.57....

...officer are entitled to great weight. They may not be rejected or modified unless they are unsupported by the evidence. The factual findings of an examiner for the Public Service Commission, however, are not entitled to the same presumptive weight. Section 120.57(1)(a)(3) specifically provides: A hearing officer assigned by the division shall conduct all hearings under this subsection, except for: 3. Hearings before ... the Public Service Commission or its examiners. Since Section 120.52(13) defines a recommended order as that of a hearing officer assigned by the Division for a proceeding under Section 120.57, the recommended order of an examiner employed by the PSC is not a recommended order contemplated by Section 120.52(13) and is therefore outside the requirements of Section 120.57(1)(b)(9). Under that section, an agency is bound by the examiner's findings only when the examiner is assigned by the DOA. Our reading of the general provisions of Section 120.57 are consistent with the more specific provisions of Section 323.07, Florida Statutes (1975): The Commission may prescribe qualifications for the appointment of hearing examiners and the procedure before hearing examiners, provided, how...

...0.68. The reference to the APA is nonetheless important because it reveals that during the evolution of the alternative-dispute-resolution process, the legislature initially considered an agency review mechanism somewhat similar to that contained in section 120.57(1), Florida Statutes, which gives discretionary authority to an agency to reject or modify recommended conclusions of law and/or findings under the conditions therein stated....

...together relevant consideration in divining the legislative intent. In Wiregrass Ranch v. Saddlebrook Resorts, Inc., 645 So.2d 374 (Fla.1994), the issue before the supreme court was whether a party to an administrative hearing, conducted pursuant to section 120.57, could file a voluntary dismissal of its exceptions to a hearing officer's recommended adverse factual finding before the reviewing agency took action on the recommendation....

...0, we find it highly persuasive that the legislature, presumed to be cognizant of APA procedures and aware of the judicial interpretations placed on them, initially considered and thereafter rejected modeling an agency's review powers after those in section 120.57, with the result that a recommendation of the resolution organization must be accepted, under the provisions *854 of section 408.7057(4), as the agency's final order....

...tates with particularity in its order that the findings of fact of the appeals referee were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law. § 120.57(1)(b)10, Fla....

...Co., 124 F.2d 965, 967 (9th Cir. 1942)). In order to reject the ALJ’s conclusion of law, “the agency . . . must make a finding that its substituted conclusion of law . . . is as or more reasonable than that which was rejected or modified.” § 120.57(1)(l), Fla. Stat....

...There is no indication in the Secretary’s decision that he considered these factors or what specific factors or rationale he relied upon, other than “the nature” of Appellant’s underlying offense. As such, the DCF decision is not in conformity with section 120.57(1)(l)....

...Appellants, however, received no retroactive reimbursement for the period in question. Appellants initially filed their challenges to the amendment to the Medicaid plan in February 1990 and, after a hearing and an appeal, consolidated their rate challenges for monetary relief under Section 120.57, Florida Statutes (1989), and their rule challenges under Section 120.56, Florida Statutes (1989), into one proceeding in December 1991 before a Department of Administrative Hearings hearing officer (HO). In lieu of testimony, the parties filed a stipulation of facts and joint exhibits. The HO issued final orders denying appellants' section 120.56 rule challenges and section 120.57 rate challenges, both of which are the subjects of this appeal....

...grounds identical to the stay requested of this Court. The agency entered a written order denying the motion for stay as to both letters on February 4, 1981. In opposing the requested stay, DOT urges that Dickerson waived a clear point of entry into Section 120.57(1) proceedings by filing its petition and motion to stay after the 15-day period had expired. We agree that Dickerson did waive a clear point of entry to Section 120.57(1) proceedings to contest the agency action expressed in the January 5th letter....

...he undisputed facts, as stipulated at oral argument and reviewed in a light most favorable to Dickerson, fail to invalidate the effect of the January 5th letter granting Dickerson a clear point of entry, within a specified time, to proceedings under Section 120.57. In contrast to Capeletti Brothers, Inc. v. Dept. of Transportation, 362 So.2d 346 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1374 (Fla. 1979), we find that here an opportunity for proceedings satisfying Section 120.57 were clearly offered by DOT and waived by Dickerson....

...s grounds for denying Dickerson a stay. No contrary letter or order has ever been issued. Under these circumstances DOT is entitled to rely upon the conclusiveness and finality of the letter. Accordingly, Dickerson waived a clear point of entry into Section 120.57 proceedings concerning the suspension of its Certificate of Qualification to bid for the period January 1, 1981 to December 31, 1981 and therefore, cannot be entitled to a stay in this regard....

...of Transportation, supra , quoting with approval: "[T]he right of a bidder for a public contract to a fair consideration of his bid and his right to an award of the contract if his is the lowest, responsible bid are matters of `substantial interest' to him, thus entitling him to a hearing pursuant to § 120.57 ..." 361 So.2d at 186....

...of Health and Rehabilitative Services, supra, n. 4 (recognizing the substantial interests involved by a low bidder whose bid has been rejected). Accordingly, after carefully examining the sequence of events in this case, we conclude that DOT cannot claim that the request for Section 120.57(1) proceedings on the rejection of Dickerson's bids came too late under the terms of the January 5th letter and base its denial of a stay on this reason....

..., its actions would be considered "free-form" action until a hearing was held. Id. 385 So.2d at 1148. In United States Service Industries, the petitioner, the apparent low bidder, protested an award by HRS to another bidder as improper, requesting a Section 120.57(1) hearing. HRS proceeded to execute the contract and petitioner sought a stay of that action in this Court. Believing that rapid review would occur under Section 120.57(2) proceedings, *926 this Court denied the petition and vacated its temporary stay order....

...s Court's aid. We explicitly ordered HRS to immediately conduct an informal hearing. We characterized HRS' actions as follows: In bidding procedures, we find there can be no final agency action until the agency has afforded a requesting petitioner a § 120.57(2) hearing. HRS proceeds at its peril if it awards a contract prior to final agency action. Absent a violation of the terms of a clear point of entry for § 120.57(2) proceedings (as established by rules, regulations, or particular terms of a contract or offer to bid), should HRS continue with a contract despite application for administrative review by a disappointed bidder, such action by HRS would be considered "free-form" action until a hearing was held....

...Jones Construction Co. v. Dept. of General Services, 356 So.2d 863 (Fla. 1st DCA 1978), where, upon considering a stay of agency action pending review, this Court stated: The petition does not exhibit an agency order or otherwise indicate that proceedings under Section 120.57(1) or (2) have been had by the agency leading to such an order, or that such proceedings have been denied. Proceedings complying with Section 120.57 and an order complying with Section 120.59 being essential to any lawful action by the agency, it appears that the petition is premature....

...proceedings consistent with this opinion, noting that we do not intend by this opinion to express a view on the merits of the action taken in the December letter or to foreclose a showing by DOT that Dickerson has waived a clear point of entry into Section 120.57 proceedings concerning the December letter based upon factual or legal matters not addressed in this opinion. SHIVERS, SHAW and THOMPSON, JJ., concur. NOTES [1] 15 U.S.C.A. § 1 (West Supp. 1981). [2] Section 120.57(1), Fla....

...Dep't of Professional Regulation, 603 So.2d 519 (Fla. 1st DCA 1992). We reject Nicks' argument. When a party waives the right to challenge the factual allegations of an administrative complaint, either by requesting an informal hearing pursuant to section 120.57(2), Florida Statutes, or by failing to respond to the complaint at all, the facts of the complaint are deemed to be admitted....

...UCH is a 404 bed hospital located in Tampa, Florida. It applied to HRS for a CON pursuant to section 381.494, Florida Statutes, and Rule 10-5, Florida Administrative Code. HRS denied the CON and UCH requested that a formal hearing be conducted in accordance with section 120.57(3), Florida Statutes....

...Thus, THI was empowered to develop three catheterization laboratories and to initiate an open heart surgery program. In response to the approval granted THI, however, Tampa General Hospital (TGH) and St. Joseph's, two other hospitals geographically within THI's service area, petitioned HRS for a hearing under section 120.57 as parties whose substantial interests would be affected by a CON awarded to THI....

...rea because THI's certificate had not been "approved" at the time of the UCH hearing. The thrust of UCH's argument is that THI will not have received approval for the proposed cardiac facilities and programs until the entry of an order following the section 120.57 proceedings initiated by TGH and St....

...1st DCA 1979). HRS and TGH attempt to undercut the essentiality of final agency action as an antecedent to approval of a CON by pointing out that the authorities relied upon by UCH merely stand for non-dispositive propositions, i.e. that the purpose of section 120.57 hearings is to formulate, not review, agency action, McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), and that judicial review is unavailable until the agency action becomes final after a 120.57 hearing....

...ment of Health and Rehabilitative Services (HRS). The first order (April 10, 1984) is a final order holding Tampa General in default and denying Tampa General the right to further participate as a party in the formal administrative proceedings under section 120.57, Florida Statutes (1983)....

...theterization and open heart surgery services to patients of Hillsborough County. HRS denied the application November 30, 1982, and requested the Division of Administrative Hearings (DOAH) to assign a hearing officer for a formal hearing pursuant to section 120.57, Florida Statutes (1982)....

...roposed Tampa Heart facility. Apparently, concluding that the proposed new facility would bring about duplication of existing facilities which ultimately would affect health care, Tampa General applied for a formal administrative hearing pursuant to section 120.57 to contest the proposed grant for Tampa Heart....

...immediately dismiss the litigation while details of the settlement were worked out. Bentley's perception that Tampa General failed, in good faith, to comply with his oral order resulted in the ultimate default of Tampa General and a dismissal of the section 120.57 proceeding pursuant to the presumed authority of Florida Administrative Code rule 28-5.211....

...o dismiss a proceeding and default a party for failure to comply with procedural orders of an agency or hearing officer. Appellees argue that that rule is a valid exercise of power authorized by construing together sections 120.53(1)(c), 120.54(10), 120.57(1) and 120.65(2) and (7)....

...ments. Secondly, we do not believe the order, as construed by appellees and the hearing officer, was reasonable. Regardless of our holding on points I and II, we doubt any authority in an agency or hearing officer to order parties in the middle of a section 120.57 hearing to negotiate settlement in good faith or subject themselves to sanctions....

...We conclude that Florida Rule of Appellate Procedure 9.310(b)(2) automatically stayed further action by appellee HRS and the proceedings taking place after this appeal are invalid. However, in view of our reversal on other grounds, those proceedings are now moot and we decline to award attorney's fees pursuant to section 120.57(1)(b)9, Florida Statutes (1983)....

...ng anew and, based upon their earlier motion to intervene, UCH shall be allowed to participate as an intervening party in such renewed hearings. Pursuant to section 120.68(8) and (12), Florida Statutes (1983), we remand to the agency (HRS) for a new section 120.57 hearing on Tampa General's and St....

...M. Rhodes and James C. Hauser of Messer, Rhodes & Vickers, Tallahassee, for The Florida School Boards Association, Inc., for amici curiae. MILLS, Judge. The appellant, a teacher in the Gadsden County School System, challenges an order denying her a Section 120.57, Florida Statutes (1981), hearing concerning her intrasystem transfer. We affirm. The teacher's petition for a Section 120.57 hearing wholly fails to identify what substantial interest is affected....

...ss them. The dissent characterizes this opinion as a "sweeping" holding that personnel decisions are immune from Chapter 120 processes. Untrue. We have merely adhered to the unquestioned premise that substantial interests must be affected to trigger Section 120.57 hearings....

...APPENDIX BEFORE THE SCHOOL BOARD OF GADSDEN COUNTY Filed Nov. 9, 1982 WILLIE RUTH WILLIAMS, MARY B. MARTIN : and GLADYS ROWE, : Petitioners, : - v - : SCHOOL BOARD OF GADSDEN COUNTY, : Respondents. : ______________________________________ PETITION FOR FORMAL HEARING Pursuant to § 120.57(1), Florida Statutes and Rule 28-5.201, F.A.C., the Petitioners in the above-styled matter hereby request a formal hearing to determine the validity of the School Board action taken on July 28, 1981....

...1st DCA 1977), we held that if there exists a disputed issue of material fact as to whether certain teachers on annual contract had been appropriately assessed in accordance with the provisions of section 231.29, Florida Statutes, the board was required to hold a section 120.57(1) hearing to resolve the disagreement....

...transfer was influenced by impermissible considerations, considerations which did not properly take into account the assessment criteria mandated by section 231.29. Noncompliance with established procedure is a frequently cited basis for requiring a section 120.57 hearing....

...Department of Health and Rehabilitative Services, 472 So.2d 756 (Fla. 2d DCA 1985). The essential bases for our decision were that HRS had arbitrarily denied UCH a CON and that substantial competent evidence supported its grant. Pending before us at that time was a motion filed by UCH pursuant to section 120.57(1)(b)(9), Florida Statutes (1983), seeking the award of an attorney's fee in the event it prevailed in our review of HRS's determination to deny the CON. Upon consideration of that motion, we directed UCH and HRS to furnish us with, inter alia, their respective positions explicating the question of whether section 120.57(1)(b)(9) was applicable in its pre- or post-October 1, 1984, form....

...the state, acting through the Attorney General, sought and was accorded belated status as an amicus to urge its position bearing upon a threshold question to which we now turn. HRS and the Attorney General have urged that we adopt a construction of section 120.57(1)(b)(9) limiting UCH's fees and costs to those expended only at the appellate stage and foreclosing an award of fees and costs incurred at the hearing stage....

...The faithful execution of that charge requires a higher degree of attentiveness and fairmindedness than we were able to identify when this matter was first before us for review; we condemned HRS's denial to UCH of the CON it sought as a "gross abuse" of agency discretion. § 120.57(1)(b)(9), Fla. Stat. (1985). Having concluded that HRS' conduct met the test of a "gross abuse" of its power, we shall follow section 120.57(1)(b)(9) in its most recent version without deciding whether it or the predecessor language is to govern this matter; we perceive the statute in either form to produce the same result. Stated differently, HRS and the amicus, if not expressly, certainly implicitly, concede that UCH would be entitled to fees and costs as an "aggrieved prevailing party" under section 120.57(1)(b)(9) as it existed prior to amendment. HRS and the amicus contend, however, that the 1984 language modification controls thus limiting the fee and cost recovery to the appellate stage. We disagree. A dissection and analysis of section 120.57(1)(b)(9) discloses that it was refashioned in 1984 to govern two distinct circumstances....

...1985). Accordingly, we adopt the Hearing Officer's findings, conclusions and recommendation that UCH recover attorney's fees in the total sum of $94,665.00 and costs in the total amount of $3,930.20. RYDER, C.J., and SANDERLIN, J., concur. NOTES [1] Section 120.57(1)(b)(9), prior to October 1, 1984, provided, in pertinent part, as follows: In the event a court reverses the order of an agency, the court in its discretion may award attorney's fees and costs to the aggrieved prevailing party. The 1984 legislature amended section 120.57(1)(b)(9) to provide, in relevant part, that: When there is an appeal, the court in its discretion may award reasonable attorney's fees and costs to the prevailing party if the court finds that the appeal was frivolous, meritless, or an...

...However, Krueger does not hold that the Administrative Procedure Act [2] provides an absolute right to attorney's fees in wrongful termination cases. In Krueger, the school board conceded that the teacher had a right to seek discretionary attorney's fees. At least a portion of the fees in Krueger were sought under section 120.57(1)(b)(5), which provides for fees as a sanction for the failure to comply with discovery orders....

...Failure to dismiss personnel found in noncompliance with requirement for good moral character. Because N.W. applied for a foster home license, she had the burden of proving by a preponderance of the evidence that she satisfied all the requirements for licensure and was entitled to receive the license. See § 120.57(1)(j), Fla....

...hit the child on the hand with an extension cord. Similarly, the evidence presented by the Department failed to establish that the child's health or safety was put at risk as a result of N.M.'s surrendering her parental rights with respect to this child. Paragraph 120.57(1)(l), Florida Statutes (2005), provides that after an administrative hearing, an "agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the...

...rs. Florida Home Builders Ass'n v. Department of Labor & Employment Sec., 412 So.2d 351 (Fla. 1982). First, the Association has not alleged below that its members will suffer an injury in fact of sufficient immediacy to entitle it to a hearing under Section 120.57, Florida Statutes (1987)....

...denied, 542 So.2d 1333 (Fla. 1989). Second, the Association has not alleged below that the injury which it asserts its members will suffer is the type of injury which the subject proceeding before the Commission was designed to protect, so as to entitle it to a hearing under Section 120.57, Florida Statutes (1987)....

...e Agrico standing test. Agrico; Florida Soc'y of Ophthalmology; Shared Servs., Inc. v. State, Dept. of Health & Rehabilitative Servs., 426 So.2d 56 (Fla. 1st DCA 1983). Affirmed. SCHWARTZ, C.J., and HUBBART, J., concur. FERGUSON, Judge (dissenting). Section 120.57, Florida Statutes (1987), provides: "The provisions of this section apply in all proceedings in which the substantial interests of a party are determined by an agency ..." [Emphasis added]....

...og racing. [2] One commentator notes that while the Agrico court did not call its standing test a "zone of interest" test, and did not cite to United States Supreme Court decisions, it is precisely that federal test that was grafted erroneously onto section 120.57. One of the distinctive features of section 120.57, it is further noted, is that the right to invoke the section's procedural protections is conferred by its own terms without reference to any other law....

...Code, effective April 21, 1977). On March 21, 1977, DOT sent White by certified mail a form notice advising that unless it complied with the provisions of Chapter 479 within 30 days from receipt of the notice, or in the alternative, it requested a § 120.57 hearing within 15 days from receipt, White would be required to show cause why its license should not be revoked. On April 5, 1977, DOT responded to White's request for renewal of its permit by declining the application and stating it would request a § 120.57 hearing....

...The only written notice which the record shows was forwarded to White was that dated March 21, 1977, after White's permit had expired. The Department, and the hearing examiner, apparently interpreted the notice as allowing White only the right to a § 120.57 hearing to show cause why the sign should not be removed....

...2)(b), requiring remand if the exercise of discretion by the agency is "[i]nconsistent with ... a prior agency practice." Reading further, however, we find that remand is mandated only "if deviation therefrom is not explained by the agency; ... ." A § 120.57 hearing was provided White and an order complying with § 120.59 was regularly entered following the hearing. The hearing provided by § 120.57 "serves the public interest by providing a forum to expose, inform and challenge agency policy and discretion." State ex rel....

...rwise. Id. While 120.54 proceedings are helpful in fostering a dialogue between the agency and the public as to the wisdom of the proposed action, it is questionable whether the dialogue in such proceedings has the same intensity as that provided by § 120.57 to identifiable parties. [7] When a party's substantial interests are protected by a 120.57 hearing, and the agency's action is sufficiently explained for judicial review, I see little justification for a party's complaint that the action was not first subjected to rulemaking....

...n 90 days after the recommended order is submitted to the agency for approval, G. & B. of Jacksonville, Inc. v. Dept. of Business Reg., 362 So.2d 951 (Fla. 1st DCA 1978), and when determining whether to assess fees against an agency, as permitted by § 120.57(1)(b)9, and in favor of the prevailing party....

...Pellett of Barr, Murman, Tonelli, Slother & Sleet, Tampa, for Appellant. Pamela H. Page, Senior Attorney, Department of Health, Tallahassee, for Appellee. NORTHCUTT, Judge. The Department of Health revoked Dr. Michael Spuza's license to practice medicine after an informal proceeding. See § 120.57(2), Fla....

...The order noted that Spuza had requested a formal hearing, but the Board did not find any dispute in the material facts. The Department took the position that Spuza's conviction, in itself, was sufficient to prove a violation of section 458.331(1)(c), that there were no disputes of fact, and that a formal hearing under section 120.57(1) was not required....

...& Prof'l Regulation, 625 So.2d 1237, 1238-39 (Fla. 2d DCA 1993); see also Mixon v. Dep't of State, Div. of Licensing, 686 So.2d 755, 756 (Fla. 1st DCA 1997). We reverse the order revoking Spuza's license to practice medicine, and we remand with directions to grant him a formal hearing under section 120.57(1)....

...Please note that pursuant to Florida Statutes 409.175, [DCF] may deny, suspend, or revoke a license for noncompliance with the requirements for licensure. Any party whose substantial interests are affected by the determination to revoke has a right to request an administrative proceeding pursuant to Section 120.57, Florida Statutes, and rules promulgated pursuant thereto....

...from urging negligence as an alternative ground for denying the renewal of the license at the administrative proceeding. [1] C. The Administrative Proceeding The Foster Parents exercised their right to an administrative proceeding under section *758 120.57, Florida Statutes (2005), and challenged DCF's finding "that the injury required significant pulling force and could not be considered accidental." At the hearing, the Foster Parents presented the testimony of Dr....

...2d DCA 2004). It follows that an appellate court reviews the agency's conclusions of law de novo. Wise, 930 So.2d at 871 (citing Steward v. Dep't of Children & Families, 865 So.2d 528, 530 (Fla. 1st DCA 2003)). III. THE STANDARD OF PROOF APPLICABLE UNDER SECTION 120.57 A....

...). M.H., 29 F.A.L.R. at 1659. However, neither Osborne Stern & Co. II nor Mayes stand for the proposition that the so-called "competent substantial evidence" standard is applicable as an evidentiary standard in a hearing conducted in accordance with section 120.57....

...City of Miami Beach, 328 So.2d 578, 579 (Fla. 3d DCA 1976); Fla. Dep't of Health & Rehabilitative Servs., 289 So.2d at 415. In fact, the APA requires that "findings of fact shall be based upon a preponderance of the evidence . . . except as otherwise provided by statute. " § 120.57(1)(j) (emphasis added)....

...GDU's petition was denied on grounds that the letter was informational only. This court held that the letter was final agency action constituting a final order. Therefore, GDU was entitled to a prompt opportunity to challenge the disputed material issues of fact in a § 120.57 hearing....

...Also, contrary to appellant's argument, a declaratory statement from the Division would have been a direct final agency action entitling Hobe to the hearing he was seeking, so would not be a "point of entry so remote from final agency action as to be ineffectual". 417 So.2d at 1070. Further, section 120.57 Florida Statutes (1985) states that "unless waived by all parties subsection (1) [Formal Proceedings] applies whenever the proceeding involves a disputed issue of material fact." The hearing officer states and the record reveals, that...

...We find that such evidence exists in the record before us. Also the Division persuasively argues that after receiving the November 20th letter, Hobe could have disregarded the Division's advice and implemented the rental increase, then contested the agency's action in an appropriate § 120.57 hearing if the Division did act to enforce its position....

...etitioner's substantial interests in the interest-bearing certificates of deposit referred to in the petition, and for a stay of agency action pending review. The petition does not exhibit an agency order or otherwise indicate that proceedings under Section 120.57(1) or (2) have been had by the agency leading to such an order, or that such proceedings have been denied. Proceedings complying with Section 120.57 and an order complying with Section 120.59 being essential to any lawful action by the agency, it appears that the petition is premature....

...contravene the provisions of a statute." State, Dep't of Bus. Reg. v. Salvation Ltd., 452 So.2d 65, 66 (Fla. 1st DCA *884 1984); Willette v. Air Prods., 700 So.2d 397, 401 (Fla. 1st DCA 1997) ("A statute takes precedence over a rule."). While an administrative law judge presiding in a section 120.57 proceeding will deem controlling duly promulgated administrative rules never challenged under section 120.56, it is open to a reviewing court to adjudicate an administrative rule at odds with the statute it purports to implement, even when there has been no administrative rule challenge proceeding below....

...See State ex rel. Dep't of Gen. Servs. v. Willis, 344 So.2d 580, 592 (Fla. 1st DCA 1977) ("[P]rovisions [now codified at section 120.56(1)(e)] are addressed ... to district courts of appeal, which might otherwise rebuff rule challenges by petitions to review 120.57 proceedings because petitioner did not `exhaust' the rule-challenge remedies of 120.54 and .56."); Rudloe v....

...Graders are expected to react based on first impressions, giving the examinee the benefit of any doubt. Scores of 1, 2 and 3 were given to Harac's solution — one passing and two failing. He was thereupon given an overall failing grade which he sought to have reviewed in an administrative hearing pursuant to section 120.57, Florida Statutes (1985)....

...The final order which rejects the hearing officer's findings and conclusions is based upon a "special expertise" exception to the rule that a reviewing agency may not reject or modify the hearing officer's findings unless the agency determines that the findings are not based upon competent substantial evidence. See § 120.57(1)(b)9, Fla....

...Department of Banking and Finance , the court vacated an order of the Department which denied an application to organize and operate a bank. It held that the Department's final order did not justify its rejection of the hearing officer's findings and conclusions, as was required by the Administrative Procedure Act, section 120.57, Florida Statutes (Supp....

...matter perceived as affecting the public safety or health. See supra note 1. The Board's conclusory statement to the contrary is inadequate as a justification for overriding the examiner's detailed finding that Harac's design solution was safe. See § 120.57(1)(b)9, Fla....

...se of narcotics or as a result of his mental or physical condition. Finally, the complaint alleged that Dr. Maskaron had falsified his application for a Florida medical license by denying that he had ever been treated for mental illness. Pursuant to section 120.57, Florida Statutes (1981), Dr....

...rmal proceeding. The motion recited in pertinent part: 2. By telephone conversations, counsels for the parties have concluded that there are no disputed issues of fact and the parties wish to resolve this matter in an informal proceeding pursuant to Section 120.57(2), Florida Statutes, wherein the Respondent would be offering mitigating circumstances....

...Maskaron's attorney makes a number of due process arguments. Suffice it to say, we find it necessary to reverse the order of suspension because the action taken at the informal proceeding was more severe than the action proposed in the motion to relinquish jurisdiction. Section 120.57, Florida Statutes (1981), provides that unless waived by the parties, formal proceedings shall be conducted before a hearing officer whenever a matter involves a disputed issue of material fact. Unless otherwise agreed, all other cases are to be conducted as informal proceedings. Section 120.57(2)(a) provides: (2) INFORMAL PROCEEDINGS....

...commended order. If Shaker's allegations of excusable neglect are true, it obviously could not have raised them before the Commission by taking exception to anything in the hearing officer's findings, but could have advanced them only by motion. [1] Section 120.57(1)(b), Florida Statutes *1042 (Supp.1996), guarantees all parties the opportunity to present evidence and conduct cross-examination in a full evidentiary hearing....

...for consideration. Except with regard to the legal merits of possible defenses, the question whether to reopen or redo the formal administrative hearing does not depend on legal conclusions "over which [the Commission] has substantive jurisdiction." § 120.57(1)(j), Fla....

...Hauser of Messer, Rhodes & Vickers, Tallahassee, for appellees in No. BC-323. ERVIN, Judge. Appellants in these consolidated cases appeal from a final order of the Department of Health and Rehabilitative Services (HRS), denying their petitions for section 120.57(1) hearings....

...their right to timely request a hearing on the application. Fla. Admin. Code Rule 10-5.10. HRS denied Humana's application and published notice of the denial in the March 11, 1983 issue of the Florida Administrative Weekly. [1] Humana next sought a section 120.57(1) hearing to challenge the denial....

...After the hearing, but before the hearing officer issued a recommended order, HRS and Humana entered into a stipulation and agreement whereby HRS agreed to issue Humana a CON to construct a 120-bed women's hospital in Palm Beach County. The stipulation and agreement, entered pursuant to Section 120.57(3), Florida Statutes, states that the "extensive factual record" from the June 1983 hearing "in part, provides the predicate for this Stipulation", and continues that "[n]o person or entity which may be substantially affected by the ap...

...by Section 381.494(8)(e), Florida Statutes, and Rule 10-5.10(8)". The stipulation and agreement also states: DHRS agrees that the Final Order resulting from this Stipulation constitutes final agency action which is not subject to review pursuant to Section 120.57, Florida Statutes....

...[3] We must first decide whether HRS provided appellants with the required "clear point of entry, within a specified time period after some recognizable event in investigatory or other free-form proceedings, to formal or informal proceedings under Section 120.57." Capeletti Brothers, Inc....

...State, Department of Transportation, 362 So.2d 346, 348 (Fla. 1st DCA 1978). HRS argues that appellants had a clear point of entry upon notice of the initial denial of Humana's CON application and before the June 1983 administrative hearing. HRS concludes that because appellants neither petitioned for a 120.57(1) hearing, nor sought to intervene, pursuant to Rule 28-5.207, in the formal administrative review requested by Humana, appellants have waived their right to administrative review....

...[4] Second, *382 as a practical matter, we do not consider the notice of preliminary denial "so remote from the agency action as to be ineffectual as a vehicle for affording" appellants "a prompt opportunity to challenge disputed issues of material fact in a 120.57 hearing." General Development Utilities, Inc....

...In fact, the record discloses that in other cases some of the instant appellants had previously filed timely petitions to intervene in opposition to requested CON applications, wherein HRS had initially denied said applications and the applicants had then sought 120.57 hearings....

...a substantial interest in the proceeding," must file a petition to intervene at least five days before the final hearing. We next decide whether appellants' failure to utilize the point of entry afforded them constitutes a waiver of their right to a 120.57 hearing....

...In Doheny v. Grove Isle, Ltd., 442 So.2d 966, 976 (Fla. 1st DCA 1983), this court observed that under similar circumstances, a party "could not be expected to have filed a request for a Chapter 120 hearing". In Doheny, however, the party did not waive his section 120.57 rights since he had timely intervened pursuant to Rule 28-5.207 before the final hearing. Id. at 977. In the case at bar, appellants' failure to intervene in Humana's requested review reflects a waiver of their 120.57 rights. Since appellants must be considered to have waived their rights, even if the stipulation and agreement entered into by HRS was merely free-form action, we agree that action is not subject to the 120.57 review process. Capeletti Brothers, 362 So.2d at 348-49. Though the hearing officer never entered a recommended order, there is no authority requiring the entry of such order for final agency action. Section 120.57(3) authorizes "informal disposition ... of any proceeding by stipulation, agreed settlement, or consent order." Under the circumstances in which the agency itself is a party to the stipulation entered into, and there are at that time no parties contesting the application, section 120.57 cannot be considered as authority for requiring the entry of a hearing officer's recommended order to be reviewed by the same agency that has previously consented to the terms of the agreement....

...Department of Health and Rehabilitative Services, 445 So.2d 631 (Fla. 1st DCA 1984), from the *383 case at bar. In Florida Convalescent, two CON applications in the same batching cycle were denied. After both applicants had requested formal proceedings on their respective applications under section 120.57(1), appellant sought to intervene in the formal proceeding that had been requested by the other applicant. Thereafter, the second applicant entered into a stipulation with HRS, stating that if the second applicant would agree to abandon its request for a 120.57 hearing, HRS in turn would grant its request for a CON. Appellant then filed a petition for hearing under section 120.57(1), asking that the CON not be granted until HRS first conducted a comprehensive review of all competing applications. This court found that the stipulation in question was "the equivalent of the free-form action involved in Capeletti ", and concluded that appellant "has not waived the benefits of Section 120.57 but has properly requested them." 445 So.2d at 633....

...non-existent health systems agency, stating that a need did not exist for any additional beds in the particular service area, because an excess number of acute care beds existed through 1987. Humana, contesting the denial, thereupon petitioned for a section 120.57(1) hearing, which commenced on June 22, 1983, following the effective date of Rule 10-5.11(23)....

...1st DCA 1982): [S]imply providing a point of entry is not enough if the point of entry is so remote from the agency action as to be ineffectual as a vehicle for affording a party whose substantial interests are or will be affected by agency action a prompt opportunity to challenge disputed issues of material fact in a 120.57 hearing....

...t hearing officers enjoy rather broad discretion in connection with some aspects of their responsibilities, and little or none with respect to others. Essentially, the duties of a hearing officer assigned by D.O.A.H. following a proper request under section 120.57(1)(b)3 are twofold. First, the officer shall make findings of fact, based exclusively upon a record compiled at a full evidentiary hearing at which all parties shall have the opportunity to present evidence and conduct cross-examination. See §§ 120.57(1)(b)4, 8, and 9, Fla....

...See, e.g., Friends of Children v. Department of Health and Rehabilitative Services, 504 So.2d 1345 (Fla. 1st DCA 1987). Second, the officer shall state his or her conclusions of law regarding the ultimate action to be taken by the agency on the disputed matter. § 120.57(1)(b)9, Fla....

...consistent with this opinion. CAMPBELL, C.J., and SCHEB and THREADGILL, JJ., concur. NOTES [1] D.E.R., while not the party initiating these mandamus proceedings, has submitted a response in which it concurs in the position taken by Manasota. [2] See § 120.57, Fla. Stat. (1987). [3] See § 120.57(1)(b)3, Fla. Stat. (1987). D.E.R. appears to accept Manasota's claim of standing, based on the provisions of the Environmental Protection Act, § 403.412(5), Fla. Stat. (1987). [4] See § 120.57(1)(b)9, Fla. Stat. (1987). [5] See § 120.57(1)(b)10, Fla....

...�s rule that ordinarily, contractual disputes between agencies and private entities must be determined in court, the Diaz appellants argue that they have a substantial interest in continued operation under the Provider Agreement. Again, we disagree. Section 120.57(1) provides for a full evidentiary hearing before an administrative law judge when an agency’s determinations affect a party’s substantial interests....

...d providers are not entitled to continued program participation, the Diaz appellants have failed to establish the second prong of the Fairbanks test. Accordingly, no valid entitlement or substantial interest could be protected or saved by allowing a section 120.57(1) administrative hearing....

...rd in any alternative forum; and (4) the Diaz appellants’ substantial interests were not implicated by the termination of the Provider Agreement. Accordingly, the AHCA and the APD properly determined that the Diaz appellants were not entitled to a section 120.57(1) administrative hearing....

...FRANK, Chief Judge. Royal Palm Square Associates (Royal Palm) seeks review of the South Florida Water Management District's (District) final agency action dismissing with prejudice its first amended petition requesting an administrative hearing contemplated by section 120.57, Florida Statutes (1989)....

...ill issue an authorization to commence construction. See Rule 40E-4.381(2)(h), Fla. Admin. Code. Royal Palm filed an amended petition with the District challenging the modification and requesting a formal administrative hearing within the meaning of section 120.57, Florida Statutes (1991)....

...Agrico, 406 So.2d at 482; see § 120.52(2), (11) and (12), Fla. Stat. (1989). Pursuant to our decision in Agrico, Royal Palm needed to demonstrate (1) a substantial interest that would be immediately injured by the permit modification and (2) injury of the type or nature that a section 120.57 hearing is designed to protect....

...aimed. It is evident that further administrative proceedings are necessary properly to resolve this matter. Accordingly, we reverse and remand to the District with direction to initiate appropriate steps toward the conduct of a hearing prescribed by section 120.57....

...When reviewing the ruling of an appeals referee, the Commission cannot reject a finding that the claimant was not guilty of misconduct if it is supported by competent, *551 substantial evidence, unless it is shown the proceedings before the referee did not comply with the essential requirements of law. § 120.57(1)(b)(10), Fla....

...On the other hand approval of Martin Memorial would foster additional competition...." Chapter 120, Florida Statutes, directs an agency to review a recommended order based on the record that was before the hearing officer. An agency is not authorized by section 120.57(1)(b)10 to reopen the record, receive additional evidence and make additional findings....

...See Florida Dep't of Transp. v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). While AHCA could have rejected or modified any finding not supported by competent substantial evidence, the agency identified no such findings, and, accordingly, violated section 120.57(1)(b)10 by making its own findings in order to change or supplement the hearing officer's findings....

...AHCA in essence argues that the award of a certificate of need is always a policy determination that should be made by the agency with expertise, that being, of course, AHCA. Although we have certainly not ignored or overlooked this argument, we must follow the law. A petition for a section 120.57 hearing commences a de novo proceeding at which the applicant will carry the burden of proving that it meets the statutory criteria and is entitled to a certificate of *426 need....

...1st DCA 1985) ("To allow an applicant to operate a health care facility based solely on the preliminary determination of the agency is tantamount to presuming that the preliminary decision of the agency is correct. Such policy also fails to recognize the proper role of Section 120.57 hearings in the administrative process, i.e., such hearings are to aid in the formulation of final agency action and are not intended solely for review of action taken earlier and preliminarily."); see also, Beverly Enters.-Florida v....

...Brown's treatment of R.B.'s children; and that there was no merit to Dr. Brown's allegation that Dr. Wilmoth, a member of the panel, was biased and should have been disqualified. Appealing this order, Dr. Brown first argues that he is entitled to a section 120.57(1) hearing to dispute the probable cause determination upon which the letter of guidance is premised....

...Furthermore, he argues, the letter of guidance constitutes an order determining guilt and can be used as such against him in the future. Because these actions affect his substantial interests, Dr. Brown argues, he is entitled to an evidentiary hearing pursuant to section 120.57(1)....

...upon the filing of a formal complaint. According to the Department, letters of guidance are neither formal complaints nor decisions affecting a licensee's substantial interests; thus, a licensee who receives a letter of guidance is not entitled to a section 120.57 hearing....

...As we characterize it, the issue in this case is whether, once a probable cause panel has determined that probable cause exists to find that the licensee has committed a statutory violation and has directed the Department to issue a letter of guidance rather than file a formal complaint, the licensee is entitled to a section 120.57 evidentiary hearing to accord him an opportunity to prove that probable cause was improvidently found....

...ble cause exists to issue a formal complaint. The court further stated: From our examination of section 455.225, it appears that a panel's decision of whether to initiate a disciplinary action against a licensee is not subject to the requirements of section 120.57, in that a probable cause determination may be made without the licensee present....

...the prosecution was substantially justified, such review was not essential to resolution of that issue. 549 So.2d at 719. Toledo Realty is not dispositive of the issue now before us for at least two reasons. First, the scope of the applicability of section 120.57 to disciplinary proceedings instituted under section 455.225 was not an issue squarely before the court. *1340 Hence, our discussion of the application of section 120.57 to proceedings pursuant to section 455.225 in circumstances not then before the court was nonbinding dicta....

...Co., 574 So.2d 1142, 1150-1154 (Fla. 1st DCA), rev. dismissed, 581 So.2d 1307 (Fla. 1991). More importantly, we did not expressly interpret section 455.225(3), Florida Statutes (1987) (renumbered § 455.225(4) in 1989), to mean that a licensee is not entitled to a section 120.57 hearing after a panel determination of probable cause and issuance of a letter of guidance rather than a formal complaint....

...The hearing officer shall issue a recommended order pursuant to chapter 120. If any party raises an issue of disputed fact during an informal hearing, the hearing shall be terminated and a formal hearing pursuant to chapter 120 shall be held. Similarly, section 120.57, Florida Statutes (1989), states in part: The provisions of this section apply in all proceedings in which the substantial interests of a party are determined by an agency......

...the public as well as the Board and can be used against Dr. Brown in the event of future proceedings. We hold, therefore, that the probable cause determination and letter of guidance do affect Dr. Brown's substantial interests within the meaning of section 120.57, that Dr. Brown adequately and timely advised the Board and the Department that this probable cause proceeding involved disputed issues of fact, and that Dr. Brown was thus entitled to a section 120.57 hearing as requested....

...In this consolidated appeal, International Medical Centers, HMO, (IMC), and Asociacion Cubana, Inc., HMO, d/b/a C.A.C. Health Plan (CAC), challenge the Department of Health and Rehabilitative Services' (HRS) denial of their requests for an administrative hearing pursuant to Section 120.57(1), Florida Statutes (1979)....

...This decision does not preclude future efforts by the Department to promote the HMO concept in Florida." HRS announced that it would not, therefore, enter into a contract with an HMO but would pay on a fee-for-service basis to individual providers. Both IMC and CAC requested an administrative hearing pursuant to Section 120.57 concerning HRS' decision to reject all bids and to withdraw the request for proposal....

...As stated in State, Department of Administration, Division of Personnel v. Harvey, 356 So.2d 323, 326 (Fla. 1st DCA 1978): To the extent Division policy is not incorporated in regularly adopted rules, the Division may be required by any disappointed applicant to defend its policy in a Section 120.57 proceeding where the Division will be required to present evidence and argument and to "expose and elucidate its reasons for discretionary action." HRS's contention that since it cannot be compelled to contract with a private bidder wh...

...Wilson of Van Den Berg, Gay & Burke, P.A., Orlando, for appellant. Spiro T. Kypreos, Tallahassee, for appellee. *810 ON MOTION TO DISMISS APPEAL SMITH, Acting Chief Judge. Appellee's motion to dismiss this appeal is denied. Jurisdiction is relinquished to the Department, however, for appropriate procedures under Section 120.57, Florida Statutes (1977). The Department's letter dated April 14, 1978, appears to determine appellant's substantial interests. Yet it does not advise appellant of its opportunity for a hearing under Section 120.57(2), which is appropriate if the controlling facts are not disputed. Nor have we been referred to Department rules which provide notice of an opportunity to be heard as provided in Section 120.57(2)....

...See General Development Corporation v. Division of State Planning, 353 So.2d 1199 (Fla. 1st DCA 1978). We have not been referred to any Department rule limiting the time within which, after April 14, 1978, appellant may appropriately have requested a Section 120.57(1) hearing on disputed factual matters, if any there are....

...8(c), Florida Statutes (1995). Therefore, the administrative law judge recommended that the Commissioner *1239 of Education enter a final order dismissing the administrative complaint. The recommended order was then forwarded to the EPC, pursuant to section 120.57(1)(i), Florida Statutes (Supp.1996)....

...e proceedings in which the findings were based did not comply with the essential requirements of law from which the findings could be reasonably inferred. See Schrimsher v. School Bd. of Palm Beach County, 694 So.2d 856 (Fla. 4th DCA 1997); see also § 120.57(1)(j), Fla....

...The EPC concluded that Holmes violated the statute based on the same facts the hearing officer set out. Id. The First District stated that the EPC improperly substituted its own ultimate finding of fact for that of the hearing officer in violation of section 120.57(1)(b)9., Florida Statutes (1983), and reversed the EPC....

...An administrative agency may not reject a hearing officer's findings of fact, unless it first determines that they were not based on competent, substantial evidence, or that the proceedings before the hearing officer did not comply with the essential requirements of law. See § 120.57(1)( l ), Fla....

...cies. Finally, we find no merit in Declet's contention that PERC abused its discretion by upholding his termination instead of demoting him as recommended by the hearing officer. PERC's actions are consistent with its statutory authority pursuant to Section 120.57(1)( l ), Florida Statutes (2000)....

...[to indigents taking administrative appeals] without charge.' Smith v. Department of Health and Rehabilitative Services, 573 So.2d 320 (Fla.1991)." State, Dep't of Health and Rehabilitative Servs. v. Southpointe Pharmacy, 636 So.2d 1377, 1382 (Fla. 1st DCA 1994) (brackets in original). Our supreme court reasoned: If section 120.57(1)(b)(7) requires an agency to provide a transcript in unemployment compensation cases, it is obvious that the agencies involved in the instant cases have the same obligation....

...concerned. Smith, 573 So.2d at 323. Unlike ordinary "appeals from trial court judgments," appeals from denial of judicial waivers under section 390.01115(4), Florida Statutes (1999), require that the circuit court—like administrative agencies under section 120.57(1)(g), Florida Statutes (1999)—"provide for a written transcript of all testimony." § 390.01115(4)(e), Fla.Stat....

...r performing the abortion. See generally, e.g., Ghani v. Department of Health, 714 So.2d 1113, 1115 (Fla. 1st DCA 1998). Because disciplinary action is penal in nature, grounds for discipline must be established by clear and convincing evidence. See § 120.57(1)(j), Fla.Stat....

...nistrative hearing to contest the preliminary decision of the department to issue the requested permit and certification. The appellant, Environmental Confederation of Southwest Florida, was granted leave to intervene in the proceedings. Following a Section 120.57(1), Florida Statutes, hearing, the hearing officer recommended that the department grant the requested permit, but, reasoning that she lacked authority to adjudicate the certification question, she declined to address the appellants' a...

...legated under the provisions of Section 403.918(2)(b). However, we disagree with the determination of the hearing officer and the department that the department's certification of compliance with the federal Clean Water Act cannot be challenged in a Section 120.57 proceeding initiated by a substantially affected person....

...With certain rather limited exceptions, the section indicates that the state-adopted standards, when submitted, will become the standards used for federal permitting. Persons whose substantial interests may be affected by agency action are entitled to a Section 120.57, Florida Statutes, hearing to determine the validity of their challenge to the agency action....

...r. We believe the appellants were entitled to an adjudication of their challenge upon its merits. The fact that the proposed agency action was based in part upon the application of federal statutes, does not detract from the appellants' rights under Section 120.57....

...Accordingly, that portion of the final order finding the department authorized to issue a Chapter 403, Florida Statutes, dredge and fill permit is affirmed; that portion of the final order finding that the appellants' challenge to the department's proposed Clean Water Act certification could not be adjudicated in a Section 120.57 proceeding is set aside; and this cause is remanded to the department for further proceedings in accordance with this opinion....

...cedures Act ("APA"), Fla.Stat. § 120.50 (1991) et seq., which affords affected parties the opportunity to challenge proposed agency action. Under the APA, a party whose substantial interests are or will be affected by agency action is entitled to a Section 120.57 trial-type hearing if there is a disputed issue of material fact and, ultimately, an appeal to the appropriate Florida District Court of Appeal. Fla.Stat. §§ 120.57, 120.68. The Section 120.57 hearing, presided over by an impartial hearing officer, is infused with most, if not all, of the procedural attributes of a bench trial....

...The parties are permitted an opportunity to respond, to present evidence and argument on the issues involved, to conduct cross-examination and submit rebuttal evidence, to file exceptions to the hearing officer's recommended order, and to be represented *1571 by counsel. § 120.57(1)(b)4. The parties may also submit pleadings and are afforded discovery prior to the hearing in accordance with the Florida Rules of Civil Procedure. §§ 120.57(1)(b)5, 120.58(1)(b). As the Section 120.57 hearing serves the dual purpose of adjudicating disputed facts and enabling parties adversely affected by the proposed action to change the agency's mind, the role of the hearing officer is to make findings of fact and determine if the evidence supports, or warrants a conclusion at odds with, the proposed action....

...ing officer's findings of fact if they are supported by competent substantial evidence and may not reweigh evidence, rejudge the credibility of witnesses, or use conclusions of law to overturn those findings of fact in order to fit a desired result. § 120.57(1)(b)10; See Heifetz, 475 So.2d at 1281; South Florida Water Management Dist....

...Dep't of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). If the agency determines that the officer's findings of fact are not supported by the record, the reasons underlying this conclusion must be stated with particularity in its final order. § 120.57(1)(b)10....

...Their primary concern is that to the extent that the Agreement binds the agencies to a particular course of regulatory action, their administrative rights are rendered meaningless because the Agreement will have predetermined the final agency action. See Capeletti Bros., 432 So.2d at 1364 ("Section 120.57 proceedings are intended to formulate final agency action, not to review action undertaken earlier and preliminarily.")....

...First, the agencies must propose those measures set forth in the Agreement which are subject to the APA. They are not, however, required to adopt these measures as final action in the face of conflicting findings of fact or if persuaded that such action goes against the weight of the evidence established in the Section 120.57 hearing....

...After affirmatively indicating that he did not dispute the allegations of fact set forth by the Department to support these charges, Appellant elected to appear, pro se, at an informal hearing before the Florida Real Estate Commission, pursuant to section 120.57(2), Florida Statutes....

...of Health and Rehabilitative Services, Pensacola, for appellant. William Eddins, Pensacola, for appellee. WIGGINTON, Judge. These consolidated appeals are brought from separate orders entered by the hearing officer awarding attorney's fees pursuant to sections 120.57(1)(b)5., and 57.111, Florida Statutes. For the following reasons, we approve the award under section 57.111, but reverse the award under section 120.57....

...This recommendation was approved and adopted by *1383 the agency's final order, from which no appeal was taken by either party. Also contained in the recommended order, and pertinent to the issues raised in these consolidated appeals, the hearing officer awarded appellee attorney's fees and costs pursuant to section 120.57(1)(b)5., specifically finding that the "gravamen of the bill of particulars [filed by HRS prior to the final administrative hearing] evinced a `frivolous purpose' within the meaning of the statute." Additionally, the hearing officer fo...

...ony against the department. Failure to satisfy the burden of proof does not equate to a frivolous prosecution. No appeal was taken by either party from the agency's final order. Later, a hearing was held on appellee's motion seeking fees filed under section 120.57, and an order was filed on February 7, 1992....

...law with the exception of the conclusion that the prosecution was frivolous. The hearing officer specifically stated in that regard that "no agency has the authority to overturn by fiat an award of attorney's fees and costs entered against it under section 120.57(1)(b)5., Florida Statutes" (citation omitted). The hearing officer went on to conclude that after the filing of the bill of particulars by HRS, which subsequently was found to violate section 120.57(1)(b)5., appellee incurred attorney's fees during the period beginning February 20, 1991, and continuing through April 18, 1991, in the amount of $5400....

...more than $15,000 for fees and costs she incurred before February 20, 1991, and after September 26, 1991. It is from these foregoing orders awarding fees that HRS brings these appeals. For purposes of this opinion, the appeals shall be addressed and analyzed under separate headings. *1384 CASE NO. 92-661: SECTION 120.57(1)(b)5. In this case, HRS raises three issues challenging the award of fees under section 120.57(1)(b)5....

...on, or other paper, including a reasonable attorney's fee. As noted above, in the hearing officer's recommended order, he made a specific finding that "[t]he gravamen of the bill of particulars evince[d] a `frivolous purpose,' within the meaning of [120.57(1)(b)5.]." It should also be recalled, that in its final order adopting the hearing officer's findings of fact and conclusions of law, the agency specifically rejected the hearing officer's conclusion that "the prosecution of this case was fri...

...aring officer's award of fees under this section. We must disagree with HRS' position. In Mercedes Lighting & Electrical Supply, Inc. v. State, Department of General Services, 560 So.2d 272 (Fla. 1st DCA 1990), this court was called upon to construe section 120.57(1)(b)5., and held that this statutory section proscribes the filing of papers for an improper purpose, including filing for a frivolous purpose....

...is "designed to discover dilatory or abusive tactics and to streamline the litigation process. The rule is aimed at deterrence, not fee shifting or compensating the prevailing party." Id. at 276. It is also clear that it is the hearing officer under section 120.57(1)(b)5....

...who has the authority to administer the sanctions prescribed by this section. However, if the hearing officer, possessing this immediate responsibility for the procedural conduct of the administrative proceedings, is deprived of the right to impose 120.57(1)(b)5....

...Rather, review in this court, or another district court of appeal, provides sufficient protection for the agency under such circumstances. [1] Accordingly, we answer HRS' first question in the negative and hold that in issuing a *1385 final order in a section 120.57(1) administrative proceeding, the agency does not have the authority to reject the hearing officer's conclusion of law regarding "frivolous purpose" for purposes of a subsequent award of attorney's fees pursuant to section 120.57(1)(b)5., where those fees are awarded as a sanction against the reviewing agency....

...On this point, we must agree that as the section has been construed, HRS' filing of the bill of particulars in this case did not evince a frivolous purpose under the meaning of the statute. In its recommended order finding appellee to be entitled to fees under section 120.57(1)(b)5., the hearing officer expressly relied on this court's decision in Mercedes Lighting & Electrical Supply, Inc....

...he bill of particulars. [2] That the hearing officer chose to adopt appellee's position over that of HRS should not be the basis "for harsh punitive action." Id. at 278-79. Accordingly, we are compelled to reverse the order awarding fees pursuant to section 120.57(1)(b)5....

...Ann & Jan Retirement Villa, Inc. v. Department of Health and Rehabilitative Services, 580 So.2d 278 (Fla. 4th DCA 1991). Accordingly, we affirm the fees awarded under section 57.111. However, in light of the fact that we have reversed the fees awarded under section 120.57(1)(b)5., and because section 57.111, being more pervasive than 120.57(1)(b)5., authorizes an award of fees for the entire cost of the proceedings, we remand the cause to the hearing officer to consider appellee's right to seek additional fees under section 57.111, since he expressly did not award duplicative fees....

...mply an award as a sanction for opposing a particular pleading, we believe the legislative grant of authority to the hearing officer in section 57.111 proceedings is persuasive authority that the hearing officer possesses a similar prerogative under section 120.57(1)(b)5....

...approve the hearing officer's recommendations. The court also advised that reviewing courts cannot substitute their judgment for the board's determination *540 if valid reasons for the board's order exist in the record and reference is made thereto. Section 120.57(1)(b)(10), Florida Statutes (1986), provides that an administrative agency "may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with p...

...(2001). At least in some proceedings, direct testimony is presented before the Commission in writing, not live, with only a summary presented orally. Hearsay evidence ordinarily is admissible, although generally it cannot alone sustain a finding. See § 120.57(c), Fla....

...materials exceeded 50 percent of the value of the sign and that, therefore, the sign had been "destroyed" under its rule. The DOT issued a notice of intent to revoke the permit for the sign and Salter requested an administrative hearing pursuant to section 120.57(1), Florida Statutes (2005)....

...Appellant asserts that the case was “primarily one of the weight or credibility” given to the testimony of herself and Ms. Wallace, and that determination of credibility is a matter that “lies with the [ALJ] ” and “is not within the authority of the [C]ommission to reject or modify.” We agree. Section 120.57(1)0), Florida Statutes (2010), provides that the agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record that the findings of fact were not based upon competent, substa...

...The hearing officer, in a commendably thorough order, filed December 14, 1987 and reported at 10 F.A.L.R. 394, determined that all appellees had standing and held the rule and the form invalid. In our recent Florida Society of Ophthalmology decision, we held that the petitioners did not have standing to initiate section 120.57 hearings to contest the certification of each optometrist under section 463.0055; however, we noted that the rule challenge issues now before us, including petitioners' standing to maintain such challenge, were not before the court on that appeal....

...provisions of chapter 120 to maintain this proceeding. In Florida Society of Ophthalmology we held that petitioners failed to allege facts demonstrating that their substantial interests were sufficiently affected to afford them standing to initiate section 120.57 hearings to attack the certification of each applying optometrist....

...We expressly observed, however, "that standing in a licensing proceeding may well have to be predicated on a somewhat different basis than standing in a rule challenge proceeding" because "there can be ... a difference between the concept of `substantially affected' under section 120.56(1) and `substantial interests' under section 120.57(1)." 532 So.2d at 1288....

...y and reality under the criteria set forth in Jerry is purely a matter of speculation and conjecture. Under the facts found by the hearing officer, there is no significant difference between the concepts of petitioners' "substantial interests" under section 120.57, as adjudicated in Florida Society of Ophthalmology, and petitioners' being "substantially affected" persons under section 120.56....

...on the ground that he had failed the clinical portion of the Florida Dental License Examination. Barfield argues that the Board, as the reviewing agency of the administrative law judge's (ALJ) recommended order, had no substantive jurisdiction under section 120.57(1)( l ), Florida Statutes (1999), to displace the ALJ's conclusion of law that certain grading sheets, which the Board had relied on in deciding that Barfield had failed the examination, were inadmissible hearsay....

...d, making notations thereon, which resulted in a failing grade for Barfield. When appellee denied Barfield's application for licensure after the final examination, Barfield challenged that decision and requested a formal administrative hearing under section 120.57(1), Florida Statutes (1999)....

...der section 90.803(6) or (8), Florida Statutes (1999). Barfield contends on appeal that the Board has substantive jurisdiction over matters pertaining to dentistry alone, and that it was thus barred from rejecting an evidentiary conclusion of law by section 120.57(1)( l ), which provides in pertinent part: The agency may adopt the recommended order as the final order of the agency....

...In discussing the effect of the amendments to chapter 120, the committee expressly noted: "The revision itself made no substantive changes to the provisions of the Administrative Procedure Act." Id. at 21. As part of the 1996 revisions, the legislature amended section 120.57(1)(b)(10), renumbered as section 120.57(1)(j), as follows: The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order over which it has substantive jurisdiction....

...In his dissenting opinion in Morman, Judge Benton interpreted the 1996 amendment as "outlaw[ing] a referring agency's rejecting or modifying the administrative law judge's conclusions of law unless the referring agency has `substantive' jurisdiction.'" Morman, 715 So.2d at 1077. Thereafter, in 1999, the legislature amended section 120.57(1)(j), renumbered as section 120.57(1)( l ), so that it now provides: The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction....

...e the respondent had not objected on such ground and the transcript showed that the respondent was fully aware of the nature of the allegations against her. Id. at 4. The committee's analysis continued that the concurrence read the 1996 amendment in section 120.57(1)(j) to mean that an agency "may reject or modify any conclusion of law" in an ALJ's recommended order. The amendment to section 120.57(1)( l ), Florida Statutes (1999), adding the provision "over which it has substantive jurisdiction" immediately after the language forbidding agencies from rejecting or modifying conclusions of law, now appears to be a direct legislati...

...review is available if it considers itself aggrieved by an ALJ's conclusions of law that are beyond the agency's substantive jurisdiction. Nevertheless, we cannot conceive that it was the legislature's intention, by reason of the 1999 amendments to section 120.57(1)( l ), to make such conclusions immune from further review....

...itness of applicants for licensure, despite an agency's otherwise broad powers of regulation; in this particular case, the authority of the Board of Dentistry to license the practice of dentistry. See § 466.011, Fla. Stat. (1999). The amendments to section 120.57(1)( l ), however, do not restrict our review powers over administrative action; indeed, we are authorized, among other things, to set aside such action if the "fairness of the proceedings or the correctness of the action may have been...

...We are of course not called upon in this opinion to decide what is the preferred appellate course to be followed by agencies affected by ALJs' conclusions that are by law removed from the agencies' own review. Due to the uncertainty, however, that attends the 1999 amendments to section 120.57, we respectfully commend to the legislature the adoption of a specific appellate remedy available to an agency that considers itself aggrieved by an ALJ's conclusions of law over which it does not have "substantive jurisdiction." AFFIRMED in part, and REVERSED in part....

...substantive jurisdiction, I would set aside the appealed order and remand this case to the Board for further proceedings. I *1014 would not address the other issues discussed by the majority. NOTES [1] The ALJ excluded the grading sheets pursuant to section 120.57(1)(c), which provides that "[h]earsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civ...

...The School Board of Broward County obviously lacks substantive jurisdiction over the Florida Insurance Code, and especially over those provisions of the code relating to surplus line coverage. Thus, argue the appellants, the School Board acted contrary to section 120.57(1)(j), Florida Statutes (Supp.1996), when it rejected paragraphs 48 and 50 of the recommended order, which address the Florida surplus lines law. Based upon our controlling case *1197 law, we cannot agree with appellants' reading of section 120.57(1)(j). Section 120.57(1)(j), Florida Statutes (Supp.1996), provides: The agency may adopt the recommended order as the final order of the agency....

...In Morman, on an appeal by the Department of Children and Families, we vacated an order of an administrative law judge which had dismissed the Department's complaint based on an issue of law outside of the Department's substantive jurisdiction. Although the majority opinion in Morman did not expressly discuss section 120.57(1)(j), an interpretation of that statute was required to reach the holding in Morman, as is clear from the concurring and dissenting opinions in that case. In his concurring opinion, Judge Ervin discussed the interpretation of section 120.57(1)(j) underlying the majority opinion. As he explained, in amending section 120.57(1)(j) the legislature did not intend a "substantial and profound change to a statute that had remained unchanged for more than 20 years...." 715 So.2d at 1076 (Ervin, J., concurring)....

...which it has substantive jurisdiction, but its power otherwise in respect to an ALJ's conclusions in a recommended order remains unaffected by the statutory change. Id. We are not unmindful of the fact that the legislature has again recently amended section 120.57(1) to provide: The agency may adopt the recommended order as the final order of the agency....

...tion. Ch. 99-379, § 6, Laws of Fla. (Emphasis added). Thus, the legislature has stated its preference for a departure from the long-standing law of this state, effective June 18, 1999. Because the majority view in Morman controls the application of section 120.57(1)(j) in this case, however, we affirm the result reached below....

...Anthony Cleveland, Tallahassee, for appellant. Michael Pearce Dodson, of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellee. ROBERT P. SMITH, Jr., Judge. Blanchette appeals from a School Board order denying her request for a Section 120.57(1) formal hearing on her claim of entitlement to an unpaid leave of absence from her teaching position in school year 1978-79....

...nce procedure until such remedy is exhausted. Step III of the grievance procedure contracted for was "final and binding" arbitration. It is questionable whether Blanchette's complaint involves a disputed issue of material fact, which is essential to Section 120.57(1) proceedings. The hearing afforded Blanchette may well have satisfied Section 120.57(2), although no order satisfying Section 120.59 was entered on the merits....

...This is a consolidated appeal from two orders of the School Board of Palm Beach County. The first closed South Grade Elementary School in Lake Worth, changing the boundaries for the children who had been attending it. The second denied appellants a formal hearing pursuant to section 120.57(1), Florida Statutes (1981)....

...e adequate opportunity to protect those interests. If the agency determines that the rulemaking proceeding is not adequate to protect his interests, it shall suspend the rulemaking proceeding and convene a separate proceeding under the provisions of s. 120.57....

...h "substantial interests" can, upon appropriate showing that those substantial interests are not being adequately protected in the informal forum of rulemaking, "draw out" of the informal proceeding and trigger a formal adjudicatory proceeding under § 120.57 to find facts about the rule in question....

...ts will be affected in the proceedings, and shall affirmatively demonstrate that the rulemaking proceedings do not provide an adequate opportunity to protect his substantial interests and request that the hearing be conducted under the provisions of Section 120.57 to the extent necessary to provide that opportunity and to protect his substantial interests....

...Accordingly, although the petition raised several considered legal grounds, counsel then representing petitioners may have considered the statutory ground to be moot. [7] The board's order was not summary in nature and discussed various sections of chapter 120, Florida Statutes (1981). Nevertheless, as to section 120.57(1), it simply turned on the Blackford decision and held that petitioners lacked standing for such a hearing....

...ll be subject to the full chapter 120 process... . In compliance with the Act, Charlotte County prepared its local comprehensive plan, but the DCA rejected the plan based largely on its failure to deal with urban sprawl. Charlotte County requested a Section 120.57 hearing to determine if its plan was in compliance. The hearing was held and the issue of urban sprawl was litigated. Similarly, the Brevard County comprehensive plan was rejected by the DCA in part because of its failure to discourage urban sprawl. A Section 120.57 proceeding concerning the Brevard County comprehensive plan was scheduled for December 1989....

...Ultimately, DCA's rejection of the Charlotte County plan was adopted by the Administration *967 Commission. Department of Community Affairs v. Charlotte County and City of Punta Gorda, 12 FALR 2760 (March 15, 1990). The DCA and Brevard County settled their dispute. After the Charlotte County 120.57 hearing, but before the Brevard County 120.57 hearing was scheduled, Charlotte County and Home Builders filed the present rule challenges....

...pplicability of Section 163.3177(10)(k) to Home Builders' petition. [4] In sum, we agree with the hearing officer that at present, the proper forum for affected persons to challenge any alleged nonrule policies concerning the urban sprawl rules is a Section 120.57 hearing, at which DCA will have to prove and justify its policies....

...g officer, and denied the award. We reverse. Appellant, Groves-Watkins Constructors (G-W), contends that the Department of Transportation (DOT) erred in two respects in dismissing its administrative bid protest. First, G-W contends that DOT violated section 120.57(1)(b)9, Florida Statutes (1985), by reweighing the evidence, rejecting the hearing officer's findings of fact, and substituting its own findings of fact even though the hearing officer's findings are supported by competent, substantial evidence in the record....

...d to G-W), never became final agency action until after completion of the administrative hearing and entry of a final order by DOT. Here again, as we pointed out in Capeletti, 432 So.2d 1359, a party (this time DOT) has misconceived the purpose of a section 120.57 hearing....

...must be one ministerial in character, not one requiring the exercise of discretion. City of Miami Beach v. Mr. Samuels, Inc., 351 So.2d 719 (Fla. 1977). To adopt DOT's argument in this case would make DOT virtually immune from Chapter 120 processes. Section 120.57(1)(b)9, Florida Statutes (1985), mandates that an agency accept the factual determinations of a hearing officer unless those findings of fact are not based upon competent, substantial evidence....

...Accordingly, we agree with G-W's contention that DOT's reliance on this untimely asserted reason for rejecting G-W's bid violates procedural due process and Chapter 120, Florida Statutes, and must be disregarded. Thorn v. Florida Real Estate Commission, 146 So.2d 907 (Fla. 2d DCA 1962); see also §§ 120.57(1), 120.57(1)(b)2.d., and 120.57(1)(b)4., Florida Statutes....

...England and L. Levinson, Florida Administrative Practice Manual at 3 (1979), observing that the APA is intended to provide "due process minima for the operation of Florida Administrative agencies... ." The fact that a party under the APA can request a section 120.57 hearing, as opposed to challenging the actions of local government in circuit court, should not change the standard of review in determining the correctness of the action taken....

...he department the right to do its own cost estimate, based on independent data, and directs the public agency to accept the data provided by the low bidder. By taking this additional step, the DOAH officer has departed from his traditional role in a 120.57(1) proceeding as fact-finder and has become a policy-maker....

...in accordance with its low bid previously received. Upon DOT's failure to enter its order as directed, the recommended order of the hearing officer in this cause dated November 5, 1986, shall be deemed adopted in its entirety by the department (see section 120.57(1)(b)9), and said recommended order shall be deemed the order of DOT entered pursuant to the section 120.57(1) bid protest proceeding held in this cause, and shall constitute the final agency action of DOT for all further proceedings in connection with this controversy....

...A Division of Unemployment Compensation claims examiner determined that claimant was not entitled to unemployment compensation because the discharge was for misconduct connected with work. Claimant filed a notice of appeal and a hearing was conducted pursuant to Section 120.57, Florida Statutes....

...Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. This paragraph applies only to proceedings under s. 120.57....

...rth in chapter 366; the Commission’s authority to fix fair, just, and reasonable rates pursuant to section 366.06(1), Florida Statutes, is not conditioned on the OPC’s approval or absence of the OPC’s objections.4 Second, pursuant to section 120.57(4), Florida Statutes (2012), informal disposition of the rate proceeding may be made by stipulation, agreed settlement, or consent order “[u]nless precluded by law.” Chapters 350 and 366, pertaining to the Commission and public...

...provided in chapter 366, Florida Statutes, and the Florida Administrative Code. The provisions of section 120.569, Florida Statutes (2012), which provide the procedure to be followed in determining the substantial interests of a party, and section 120.57, Florida Statutes (2012), which prescribes procedures for fact- finding hearings, are pertinent to this Court’s review....

...Pursuant to section 120.569(1), the provisions of section 120.569 “apply in all proceedings in which the substantial interests of a party are determined by an agency. . . .” In the event that there are disputed issues of material fact to be determined, an adversarial hearing must be provided under section 120.57, after reasonable notice is given not less than fourteen days before the hearing....

...3d 1220, 1231 (Fla. 2009) (quoting Machules v. Dep’t of Admin., 523 So. 2d 1132, 1136-37 (Fla. 1988)). - 20 -  Further, section 120.569(1) provides that additional procedural requirements listed in section 120.57(1) apply whenever the proceeding involves a disputed issue of material fact. Section 120.57(1)(b) provides: All parties shall have an opportunity to respond, to present evidence and argument on all issues involved, to conduct cross- examination and submit rebuttal evidence, to submit proposed f...

...When appropriate, the general public may be given an opportunity to present oral or written communications. If the agency proposes to consider such material, then all parties shall be given an opportunity to cross-examine or challenge or rebut the material. Section 120.57(4) also provides that “informal disposition may be made of any proceeding by stipulation, agreed settlement, or consent order” unless precluded by law....

...ion in approving the agreement.” Id. Further, this Court stated, “If AmeriSteel had demonstrated standing, it would have been able to obtain a hearing, conduct discovery and present evidence challenging any aspect of the agreement pursuant to section 120.57.” Id....

...5th DCA 1983) in which this court expressed the view that there was nothing improper in the Board's allowing the licensee to make a statement to the Board prior to announcing its determination of the appropriate penalty to be imposed. The Hodge court observed that section 120.57, Florida Statutes (1981), does not expressly forbid this practice and that it seems a fair and just procedure akin to the right of a convicted criminal to speak on his own behalf before sentencing. Id. at 118-119. Hodge, however, was decided prior to the 1984 amendment of section 120.57(1)(b)(9), Florida Statutes, which now requires an agency to state with particularity any reasons for departure from the hearing officer's recommended penalty and to cite to the record in justifying such action....

...ing a recommended penalty. Additionally, because, under the statutory scheme, the hearing officer is the one charged with devising the recommended penalty, it is logical that the time to present any mitigating facts is at the administrative hearing. § 120.57(1)(b)(9), Fla....

...g pursuant to the provisions of §§ 320.60-320.70, the hearing shall be conducted pursuant to chapter 120, the administrative procedure act, and the department shall have the power to conduct hearings pursuant to that act... ." (Emphasis supplied.) Section 120.57(1)(a), Florida Statutes (1975), — the Administrative Procedure Act — provides in part as follows: "(a) A hearing officer assigned by the division shall conduct all hearings under this subsection, except for: 1....

...nits and through such assistants and deputies as shall be designated by the head of the department from time to time, unless the head of the department is explicitly required by law to perform the same without delegation. * * *" (Emphasis supplied.) § 120.57, Florida Statutes, sets forth the procedure which must be followed when an agency determines the substantial interest of a party....

...and provided that the Director of the Division of Motor Vehicles of the Department of Highway Safety and Motor Vehicles shall have the power to conduct any hearing pursuant to the provisions of §§ 320.27-320.274, notwithstanding the provisions of § 120.57(1)(a) and providing that the Director shall thereupon make his rulings and orders which shall constitute final agency action....

...ear point of entry to a rule challenge pursuant to Section 120.56. As pointed out in the opinion on motion for rehearing and clarification in Bowling the result in both cases was dictated by the fact that neither Bowling nor Douglas was a party to a Section 120.57 proceeding in which the invalidity of a rule was asserted, although, as Bowling further makes clear, if either had been such parties, then they would have had standing to appeal notwithstanding neglect of a clear point of entry under Section 120.56....

...Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981), holding that proceedings for the establishment of a presumptive parole release date were governed by Chapter 120, Administrative Procedures Act, notwithstanding denial of inmate access to the Section 120.57 hearing process....

...KAHN, Judge. Appellant Dr. George Martuccio has sought licensure as a Florida optometrist. When he received a lower than passing grade on the clinical portion of the required licensing examination, Dr. Martuccio petitioned for a formal hearing pursuant to section 120.57, Florida Statutes....

...odify the findings of fact contained in such recommended order unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings were not based upon competent substantial evidence. § 120.57(1)(b)10, Fla....

...The Board relies upon Robinson v. Florida Board of Dentistry, Department of Professional Regulation, 447 So.2d 930 (Fla. 3d DCA 1984), for the proposition that the testimony of one interested witness does not reach the level of competent substantial evidence as required by section 120.57....

...O'Connor's air conditioning license and a fine of $1,000. We reverse the Board's final order and direct the Board to impose the hearing officer's recommended penalty because the Board did not state "with particularity its reasons" for increasing the recommended penalty. § 120.57(1)(b)(10), Fla....

...O'Connor's penalty. The Administrative Procedure Act authorizes the Board to increase the recommended penalty, but only if it reviews the complete record and states with particularity its reasons for the increase in penalty by citing to the record in its order. § 120.57(1)(b)(10), Fla....

...IM-15 would carry liability insurance. To suggest otherwise is disingenuous. To the extent that the ALJ's findings regarding the HIM-15 involve factual matters, AHCA erred by rejecting the facts that were supported by competent substantial evidence. § 120.57(1)( l ), Fla. Stat. (2001). To the extent the ALJ's ruling construing the HIM-15 and its effects invokes a matter of law, AHCA erred in rejecting it without satisfying the requirements of section 120.57(1)( l ), which states: The agency may adopt the recommended order as the final order of the agency....

...error since the information was provided on other bid documents and DOT had previously failed to adhere to the strict requirements of rules and statutes governing the submission of bid documents. The matter went to an evidentiary hearing pursuant to section 120.57(1), Florida Statutes (1989)....

...llusion, favoritism, and fraud in the award of public contracts." 530 So.2d at 913. The court reaffirmed that the public bidding process is governed by the Florida Administrative Procedure Act, chapter 120, Florida Statutes. It emphasized that under section 120.57(1)(b)10 [formerly section 120.57(1)(b)9] the agency must accept the factual determinations of a hearing officer *561 unless those findings are not based upon competent, substantial evidence....

...In view of this holding, we decline to reach the other arguments advanced by appellant. REVERSED AND REMANDED. MINER and WEBSTER, JJ., concur. NOTES [1] It was determined that after omitting the H.S. Thompson subcontract amount, the DBE goal achieved by Asphalt's bid was only 8.86%. [2] Section 120.57(b)10, Florida Statutes (1989), provides in pertinent part: ......

...wer level of office visit than the one for which he billed and received payment; and (2) some of the services for which he billed and received payments were not properly documented. Respondent requested a formal administrative proceeding pursuant to section 120.57(1), Florida Statutes....

...ANALYSIS AHCA argues the ALJ departed from the essential requirements of the law by failing to make factual findings on all of the contested Medicaid claims, and those factual findings are necessary before AHCA can issue a final order. We agree. ALJs are required by statute and rule to make findings of fact. See 120.57 (1)(k), Fla....

...McCarty, Gainesville, for appellant. Karen J. Stone, Associate General Counsel, University of Florida, Gainesville, for appellee. SMITH, Judge. Dr. Yunker, a nontenured research scientist working for the University of Florida on an overseas project, petitioned for a hearing under section 120.57(1), Florida Statutes (1989), after the University notified him of its intention not to renew his annual contract....

...Donnelly of Franklin, Donnelly & Gross, Gainesville, for Appellant. Barbara C. Wingo of University of Florida, Gainesville, for Appellee. ALLEN, Judge. The appellant challenges a final order of the University of Florida denying his petition for an administrative hearing pursuant to section 120.57, Florida Statutes, with regard to his termination from employment with the University....

...In March 1984, when MacPherson's attendance record showed no sign of improving, the Board's superintendent recommended to the Board that MacPherson's contract status be adjusted from continuing to annual. MacPherson contested the recommendation and requested a hearing before a hearing officer pursuant to section 120.57, Florida Statutes (1985)....

...The section gives no indication of what constitutes "good and sufficient reasons." Chapter 120, Florida Statutes (1985) sets out the standards to be used by both the Board in its treatment of the hearing officer's recommended order and by this court in its review of the Board's final order. Under section 120.57(1)(b)(9), unless a hearing officer arrives at factual findings by means of a procedurally flawed hearing, an agency must accept the factual findings of the hearing officer if supported by competent substantial evidence....

...e agency is free to reject in whole or in part. Siess v. Department of Health & Rehabilitative Servs., 468 So.2d 478 (Fla. 2d DCA 1985); Alles v. Department of Professional Regulation, Constr. Indus. Licensing Bd., 423 So.2d 624 (Fla. 5th DCA 1982); § 120.57(1)(b)(9), Fla....

...law and deciding that "good and sufficient reason" existed to return MacPherson to annual contract status. [4] See Arline, 408 So.2d at 706; Marion County School Bd. v. Clark, 384 So.2d 1307 (Fla. 5th DCA), review denied, 392 So.2d 1377 (Fla. 1980); § 120.57(1)(b)(9), Fla....

...Routa, Tallahassee, for appellee Charles River Laboratories, Inc. SMITH, Judge. Appellant appeals a final order of the Board of Trustees of the Internal Improvement Trust Fund (Board) denying his petition for administrative hearing. We affirm. Appellant alleged, in his petition for a hearing pursuant to section 120.57(1), Florida Statutes, that he is a recreational fisherman and a licensed fishing guide and boat captain, who earns a portion of his living from guiding....

...§§ 403.93-403.938, Florida Statutes (1991). Upon consideration of the record, and the briefs and argument of counsel, we are of the view that the Board's denial of an administrative hearing based upon appellant's lack of standing should be affirmed. Section 120.57 applies in all proceedings in which the substantial interests of a party are determined by an agency....

...by the court. (2) Review of Final Action Pursuant to the Administrative Procedure Act. (A) In an appeal from any proceeding conducted pursuant to section 120.56 (rule challenges) or sections 120.569 (decisions which affect substantial interests) and 120.57(1), Florida Statutes, (decisions which affect substantial interests involving disputed material facts), the record shall consist of all notices, pleadings, motions, and intermediate rulings; evidence admitted; those matters officially recogniz...

...ch communications are public records; all matters placed on the record after an ex parte communication; and the official transcript. (B) In an appeal from any proceeding pursuant to sections 120.569 (decisions which affect substantial interests) and 120.57(2), Florida Statutes, (decisions which affect substantial interests involving no disputed issue of material fact), the record shall consist of the notice and summary of grounds; evidence received; all written statements submitted; any decision...

...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) In an appeal from any proceeding pursuant to section 120.574, Florida Statutes, (summary proceeding), the record shall consist of all notices, pleadings, motions, and intermediate rulings; evidence received; a statement of matters officially recognized; proffers of proof and objections and ruli...

...unal 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....

...ing 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....

...before and found by the appeals referee). The Commission may not substitute its findings of fact for those of the appeals referee. See Peace River Distrib., Inc. v. Fla. Unemployment Appeals Comm’n, 80 So.3d 461, 463 (Fla. 1st DCA 2012) (citing to section 120.57(1)(Z), Florida Statutes in holding that an administrative agency such as the Commission may not reweigh the evidence or substitute the referee’s findings of fact when those findings are based on competent, substantial evidence); 2 His Kids Daycare v....

...(e)A violation of an employer’s rule, unless the claimant can demonstrate that: 1.He or she did not know, and could not reasonably know, of the rule’s requirements; 2.The rule is not lawful or not reasonably related to the job environment and performance; or 3.The rule is not fairly or consistently enforced. . Section 120.57(1)(Z), Florida Statutes (2011) provides in relevant part: The agency may not reject or modify the findings of fact unless die agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidenced] ....

...The board unanimously voted to place both the sponsor and appellant on annual contracts and to require each of them to repay portions of the fund deficit. Appellant agreed to be transferred to the district office and to repay his part of the deficit. On August 31, 1987, appellant petitioned the board for a section 120.57 hearing....

...In his petition appellant challenged the validity of the August 11, 1987, school board meeting on procedural grounds. The board granted appellant's petition and discovery commenced. On May 11, 1988, the school board answered appellant's petition, asserting that: 1) because appellant asked for a 120.57 hearing, the action taken on August 11, 1987, was thus rendered proposed agency action; 2) the school board and superintendent concurred in the decision to demote appellant to annual contract status based on good and sufficient reasons prior t...

...The statute requires that a written recommendation to return an individual to annual contract status must be filed with the school board by April 1 of any school year. Here, the school board undertook to demote appellant at its August 11, 1987, meeting, but appellant requested a 120.57 hearing and the school board's decision to demote appellant was not accomplished until August 24, 1988 (although effective July 1, 1988)....

...rges and recommendation. While section 231.36(4), Florida Statutes, sets the procedures required before the school board can act to dismiss or demote a school board employee, in this case appellant also received a formal administrative hearing under section 120.57....

...He received timely notice of specific allegations of misconduct through the written minutes of the August 11, 1987, meeting created in his presence, containing full charges and recommendation, as well as the school board's ultimate response to appellant's 120.57 petition....

...An agency reviewing a recommended order may not reject or modify the findings of fact of an ALJ "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence." § 120.57(1)( l ), Fla....

...2d DCA 1981), the Second District stated the test for standing: We believe that before one can be considered to have a substantial interest in the outcome of the proceeding he must show 1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of a type or nature which the proceeding is designed to protect....

...2d DCA 1981), the Second District Court of Appeal succinctly explained standing in environmental cases. [B]efore one can be considered to have a substantial interest in the outcome of the proceeding he must show 1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of a type or nature which the proceeding is designed to protect....

...0.569(2)(g), Fla. Stat. (2002). An administrative action will be reversed on appeal if the "action depends on any finding of fact that is not supported by competent, substantial evidence in the record" of the administrative hearing. § 120.68(7)(b). Section 120.57(1)(c) specifically provides that in administrative hearings "[h]earsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions." See CF Chems., Inc....

...Dep't of Labor & Employment Sec., 400 So.2d 846, 848 (Fla. 2d DCA 1981). [1] Florida Administrative Code Rule 60BB-5.024(3)(d) sets forth provisions governing the receipt of evidence in hearings before unemployment compensation appeals referees. The rule tracks the provisions of section 120.57(1)(c) regarding hearsay evidence....

...ts submitted by *951 Sunshine might well have qualified as records of regularly conducted business activity under section 90.803(6), which would have been "admissible over objection in civil actions" and thus "sufficient in [themselves]" pursuant to section 120.57(1)(c) to support a finding with respect to misconduct by Roy....

...In April, 1989, Metsch received a letter from the University informing him that he had not been admitted. The following month, Metsch wrote to the law school and requested a statement of the reasons for the denial of his application, reconsideration of his application, and a hearing pursuant to section 120.57(1), Florida Statutes (1987)....

...admission to the spring 1990 semester. On May 10, 1989, the University's Interim President denied Metsch's request for an administrative hearing. Metsch appeals that denial. The formal hearing provisions of the Florida Administrative Procedure Act, section 120.57(1), Florida Statutes (1987), "apply in all proceedings in which the substantial interests of a party are determined by an agency, unless such proceedings are exempt pursuant to subsection (5)." The exemption, section 120.57(5) states that "this section does not apply to any proceeding in which the substantial interests of a student are determined by the State University System......

...al interest has been determined: "[W]e believe that before one can be considered to have a substantial interest in the outcome of the proceeding he must show 1) that he will suffer injury in fact which is of immediate sufficiency to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of a type or nature which the proceeding is designed to protect." Agrico Chemical Co....

...sly Metsch has an interest, as that term is ordinarily used, in admission to the University's College of Law; however, his "sincere desire to study law" at that institution does not rise to the level of a "substantial interest" within the meaning of section 120.57(1)....

...Florida State University, 432 So.2d 166 (Fla. 1st DCA 1983) (student requesting readmission to doctoral program in economics at Florida State University did not have substantial interest in readmission determination and was thus not entitled to an administrative hearing pursuant to section 120.57(1)), rev....

...plications. While this scenario is not the basis for our denial of Metsch's claim, we cannot ignore the repercussions that would flow from granting the relief which he seeks. Even if the University's action determined Metsch's substantial interests, section 120.57(5) exempts from formal administrative proceedings "any proceeding in which the substantial interests of a student are determined by the State University System." Metsch's argument that this section does not preclude granting him an administrative hearing flies in the face of reason....

...In the alternative, and in the event PERC failed to set aside the election, then the College requested a "hearing" on its objections. Nowhere in the record before us did the College identify any disputed issues of fact which would justify a hearing under Section 120.57(1) Florida Statutes (1971)....

...Moreover, the College's demand for a hearing was equivocal, to be granted only if PERC failed to set aside the election as requested. We agree with our sister court in City of Punta Gorda v. Public Employees Relations Commission, 358 So.2d 81 (Fla. 1st DCA 1978) that Section 120.57 is applicable to a ruling on a party's objections to an election....

...0 as requiring an agency to convene an unrequested formal hearing whenever it perceives the possibility of a disputed issue of material fact. Just as a litigant must request trial by jury, so much a substantially affected person affirmatively seek a 120.57(1) hearing." The College, having failed to identify any disputed issues of material fact, is not deemed entitled to formal proceedings pursuant to Section 120.57(1)....

...Appellant Central Florida Regional Hospital (CFRH), which is located within HRS District 5 in Sanford, opposed the granting of this application. HRS denied the application, on the ground that HRS District 4 is "over-bedded." DBGH applied for and received a § 120.57 hearing on the denial....

...smission line. See Section 403.537, Florida Statutes. Second, if the PSC determines that the line is needed, an application for certification is made to the Department of Environmental Regulation (DER). A public hearing is then conducted pursuant to Section 120.57, Florida Statutes, after which a hearing officer of the Division of Administrative Hearings issues a recommended order, either denying or approving the application....

...nding on all parties to any certification proceeding" and "constitutes final agency action. " (e.s.) As final agency action, the decision of need made by the PSC may only be reviewed if appealed within thirty days from the issuance of the order. See Section 120.57 Florida Statutes, and Fla.R.App.P....

...60-bed osteopathic facility. The only issue which merits discussion is appellant's argument that HRS inappropriately changed the hearing officer's recommendation for 120 beds to 60 beds. We agree with appellant and reverse. Additionally, pursuant to Section 120.57(1)(b)9, Florida Statutes (Supp....

...Accordingly, we hold that HRS erred in rejecting the hearing officer's conclusions and therefore remand for entry of an order in accordance with those conclusions, granting a certificate of need for 120 beds. Motion for attorney fees is granted pursuant to Section 120.57(1)(b)9, Florida Statutes (Supp....

...hich considered the hearing officer's recommended penalty of a fine and probation, but instead ordered the more severe penalty of the revocation of appellant's real estate broker's license. We agree that appellee has failed to adequately comply with section 120.57(1)(b)(10), Florida Statutes (1987), in order to properly increase the severity of the hearing officer's recommended penalty and we, therefore, reverse and remand the penalty provision in the final order....

...nsactions described in the Recommended Order. The Commission finds that these facts, as supported by the evidence and the Hearing Officer's findings, constitute aggravating circumstances which support and justify imposition of a more severe penalty. Section 120.57(1)(b)(10) provides, in pertinent part, that an agency may not reduce or increase the recommended penalty in a recommended order of a hearing officer "without a review of the complete record and without stating with particularity its re...

...1st DCA 1986), all considered action by agencies attempting to increase the severity of a recommended penalty in which the agencies set forth reasons strikingly similar to the reasons set forth by appellee below. We find appellee's attempted compliance with section 120.57(1)(b)(10) not sufficiently dissimilar and, therefore, no more adequate than the efforts by the agencies in O'Connor, Pluto, Pages, Bernal, Van Ore and Hutson....

...Department of Business Regulation, 561 So.2d 410 (Fla. 5th DCA 1990), essentially prohibit an administrative board from altering the recommended penalty unless the board also rejects one of the hearing officer's findings of fact or conclusions of law. Such a rule is not required by section 120.57(1)(b)(10), Florida Statutes (1987), and is incompatible with the recently added language in section 455.2273, Florida Statutes (1987)....

...It decided, however, that the hearing officer had misunderstood the penalty which the Commission intended for multiple violations under its established guidelines. Moreover, it observed that the penalty of probation was not authorized by statute at the time of these violations. Section 120.57(1)(b)(10) merely requires that an agency which chooses to increase or decrease a recommended penalty must: 1) conduct a review of the complete record, and 2) state with particularity its reasons therefor in the order, by citing to the record in justifying the action....

...escribed by its guidelines. It only needed to comply with that statute to depart from its established guidelines. In order to deviate from the recommended penalty, so long as the new penalty was within the guidelines, it merely needed to comply with section 120.57(1)(b)(10)....

...At the commencement of the proceeding below, the PSC refused to speculate on the need for an evidentiary hearing to address the reasonableness of FPL's rates, and expressly recognized the possibility of a negotiated settlement as provided under Florida law. See § 120.57(4), Fla....

...s referee's conclusion that she voluntarily left the job without good cause. To successfully challenge any finding of the appeals referee, an appellant must show that the finding is not supported by competent, substantial evidence in the record. See § 120.57(1)( l ), Fla....

...DeWitt by letter that the superintendent of schools had determined that there was just cause to terminate his employment because of misconduct in office and that a *324 recommendation of termination would be made to the School Board. Pursuant to sections 120.57, 120.569, and 231.36, Florida Statutes (1997), Mr....

...The School Board's order that "this action is dismissed as moot" (emphasis supplied) does not in our opinion equate to a dismissal of the charges against Mr. DeWitt. The actions that an agency may take in response to a recommended order are provided in section 120.57(1)( l ), Florida Statutes (2000): ( l ) The agency may adopt the recommended order as the final order of the agency....

...State, 402 So.2d 38 (Fla. 2d DCA 1981); Kocsis v. State, 467 So.2d 384 (Fla. 5th DCA 1985); Boston v. State, 411 So.2d 1345 (Fla. 1st DCA 1982). We reverse the failure of the final order to dispose of the recommended order and the charges against Mr. DeWitt as required by section 120.57(1)( l ) and remand for appropriate action in accord with this opinion....

...llenging the Rule in question. The Division of Employment Security terminated [appellant], relying upon Rule 22SM-1.12 as its authority. Whether or not that termination was proper is an issue for determination in the proceeding requested pursuant to Section 120.57(1), Florida Statutes....

...ven situation does not invalidate the Rule. The challenged Rule certainly does not mandate an application contrary to or conflictive with the enabling legislation. The remedy for an erroneous application of Rule 22SM-1.12 is a proceeding pursuant to Section 120.57, Florida Statutes, on the issue of whether the agency properly terminated the employee for reasons of inadequate performance and not for political reasons. Just as the outcome of this proceeding could not result in the automatic reinstatement of an employee, the outcome of a Section 120.57 proceeding does not result in an automatic invalidation of the Rule relied upon as authority for termination....

...We agree that the Department's final order must be reversed for another hearing before a different hearing officer. However, Twins D & D failed to object to the agency's decision to grant an informal hearing, despite several opportunities to demand a formal hearing pursuant to section 120.57(1), Florida Statutes (1997)....

...Furthermore, Stanley's testimony regarding Benjamin's comments is hearsay. While hearsay is admissible in administrative cases to supplement or explain evidence, hearsay alone is not competent substantial evidence. Forehand v. Sch. Bd. of Gulf County, 600 So.2d 1187, 1191 (Fla. 1st DCA 1992); see also § 120.57(1)(c), Fla....

...For these reasons, the Commission determined that the petition contains uncorrectable defects. Our review is de novo. See Sickon v. Sch. Bd. of Alachua County, Fla., 719 So.2d 360, 362 (Fla. 1st DCA 1998). In considering the dismissal of a petition for a hearing under section 120.57, Florida Statutes, an agency must “accept as true the factual allegations of the petitions and may not consider any factual matters outside the amended petitions.” St....

...erests will be affected by any action of the commission in the performance of its statutory duties or responsibilities,” which include “[l]and acquisition and management.” As a general principle of administrative law, a person is entitled to a section 120.57 hearing when an agency takes a final action affecting that person’s interests and there is a disputed issue of material fact related to that action....

...v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977). But neither the letter nor the purposes of the Act justify subjecting formal agency statements, in declaratory statements rendered pursuant to Section 120.565, or in orders entered pursuant to Sections 120.57 and .59, to such collateral scrutiny and review by hearing officers. Section 120.565 declaratory statements constitute "final agency action" and they are reviewable, in the same way as orders entered in Section 120.57 proceedings, by timely petition in a district court of appeal....

...efore are not in a position to seek judicial review of the resulting declaratory statement, may later be adversely affected by the agency's enforcement against them of its interpretation of law thus announced. That is true. Agency orders rendered in Section 120.57 proceedings may in the same way indirectly determine controversies and affect persons yet unborn. But the rule is stare decisis, not res judicata. If such a person's substantial interests are to be determined in the light of a prior agency order or declaratory statement, Section 120.57 proceedings will afford him the opportunity to attack the agency's position by appropriate means, and Section 120.68 will provide judicial review in due course....

...aused by Revonda Cross, a real estate licensee. The specific issue we must resolve is whether disputed issues of material fact existed that prohibited disposition of the issues raised by the Mellers pursuant to the informal hearing proceedings under section 120.57(2), Florida Statutes (2003)....

...sient occupancy, any public lodging establishment licensed under Chapter 509."). Hence, whether the property was licensed under Chapter 509 is a critical issue because it determines whether the Mellers can recover. The order was rendered pursuant to section 120.57(2), Florida Statutes (2003), without a formal evidentiary hearing. Section 120.569(1), Florida Statutes (2003), explains when a proceeding under section 120.57(2) may properly be conducted: The provisions of this section apply in all proceedings in which the substantial interests of a party are determined by an *327 agency, unless the parties are proceeding under s. 120.573 or s. 120.574. Unless waived by all parties, s. 120.57(1) applies whenever the proceeding involves a disputed issue of material fact. Unless otherwise agreed, s. 120.57(2) applies in all other cases. We are not concerned with mediation proceedings under section 120.573 or summary hearing proceedings under section 120.574....

...Florida Real Estate Comm'n, 515 So.2d 383 (Fla. 5th DCA 1987) (holding that an order rendered by the Florida Real Estate Commission denying a claim against the Florida Real Estate Recovery Fund determines a substantial interest of the parties sufficient to require a hearing under section 120.57). Therefore, the Commission was required to render its decision in accordance with section 120.57, which provides for two types of proceedings-formal and informal. § 120.57(1), (2), Fla. Stat. (2003). We must determine whether the informal proceeding under section 120.57(2) was appropriate in the instant case. If the agency's action will determine the substantial interests of a party and there are disputed issues of material fact, a party is entitled to a formal proceeding under section 120.57(1)....

...2d DCA 2003); Buchheit v. Department of Bus. & Prof'l Regulation, Div. of Fla. Land Sales, Condos. & Mobile Homes, 659 So.2d 1220 (Fla. 4th DCA 1995); Foreman v. Columbia County Sch. Bd., 408 So.2d 653 (Fla. 1st DCA 1981). A person may waive the right to a section 120.57(1) hearing by electing an informal hearing under section 120.57(2). § 120.569(1), Fla. Stat. (2003); Fabry v. Department of Health & Rehabilitative Servs., 703 So.2d 502 (Fla. 5th DCA 1997). Absent a waiver, an informal proceeding under section 120.57(2) is appropriate when the substantial interests of a party are determined but no material facts are in dispute....

...Department of Bus. & Prof'l Regulation, 677 So.2d 98, 99 (Fla. 5th DCA 1996) ("[W]hen no material facts are in dispute, an agency is not required to hold a formal hearing."). [2] However, if it becomes apparent during the course of an informal hearing under section 120.57(2) that material facts are in dispute, a formal hearing should be convened, and evidence that may have been obtained during the informal hearing may be considered in the formal proceeding....

...Division of Alcoholic Beverages & Tobacco, 463 So.2d 278, 285 (Fla. 1st DCA 1984); E.M. Watkins & Co. v. Board of Regents, 414 So.2d 583 (Fla. 1st DCA), review denied, 421 So.2d 67 (Fla.1982). *328 Here, there is nothing in the record to indicate that any party waived the right to a formal proceeding under section 120.57(1), and it is evident that whether the property was licensed under Chapter 509 is a disputed issue of material fact....

...[3] Even if it had been appropriate to commence informal proceedings, it surely became apparent that a disputed issue of material fact emerged, triggering the need for a formal proceeding. [4] Thus, it was error to enter the order under review without first conducting a formal hearing in accordance with section 120.57(1). We, therefore, reverse the order under review and remand for proceedings pursuant to section 120.57(1). REVERSED AND REMANDED. PETERSON and MONACO, JJ., concur. NOTES [1] Both mediation proceedings and summary hearings are available if the parties agree in writing. § 120.573, Fla. Stat. (2003); § 120.574(1)(b), Fla....

...tion omitted). [4] This court has held that when a party at an informal hearing does not request that a formal hearing be convened after the discovery of the existence of a disputed issue of material fact, the party waives the right to proceed under section 120.57(1). See Stueber v. Gallagher, 812 So.2d 454 (Fla. 5th DCA 2002); Walker v. Florida Dep't of Bus. & Prof'l Regulation, 705 So.2d 652 (Fla. 5th DCA 1998). In both Stueber and Walker, an election had been made to proceed with an informal hearing under section 120.57(2)....

...3d at 1153. In Citizens I, we affirmed a Commission determination that a nonunanimous settlement agreement—as a whole—was in the public interest. Id. at 1153-54, 1164-65. Despite OPC’s objection, this Court approved that settlement, in part, because section 120.57(4), Florida Statutes, authorizes “informal disposition of the rate proceeding . . . by stipulation, agreed settlement, or consent order ‘[u]nless precluded by law.’ ” Citizens I, 146 So. 3d at 1150 (second alteration in original) (quoting § 120.57(4), Fla....

...n stating with particularity in its final order which findings of fact are being rejected and why those findings of fact were not based upon competent substantial evidence or why the proceedings did not comply with the essential requirements of law. § 120.57(1)(b)10, Fla....

...f the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. § 120.57(1)(j), Fla....

...r that reason. The present case does not implicate the "basic residuum rule," Bellsouth Adver. and Publ'g Corp. v. Unemployment Appeals Comm'n, 654 So.2d 292, 295 (Fla. 5th DCA 1995) (construing language in former section 120.58(1)(a)1. now found in section 120.57(1)(c)), which may itself require refinement in light of section 120.57(1)(j), Florida Statutes (Supp.1996)....

...aring. On appeal, Autoworld argues that the findings of fact contained in the final order are not supported by competent substantial evidence. Autoworld misapprehends the applicable principles under the Florida Administrative Procedure Act: Choosing § 120.57(2) hearings in professional license disciplinary proceedings is similar to pleading guilty to the facts alleged in the administrative complaint, because they are not disputed....

...On appeal, Autoworld now contends that one or more findings are not supported by competent substantial evidence because they were based on hearsay. In order to challenge the factual basis of the complaint, it would have been necessary for Autoworld to request a formal hearing under subsection 120.57(1), Florida Statutes, rather than an informal hearing under subsection 120.57(2)....

...d before the University Senate Committee on Academic Freedom and Tenure (AFTC) pursuant to Rule 6C1-7.41(c), Florida Administrative Code. Under Rule 6C1-7.41(1), a faculty member at the University may elect to have a grievance heard: (a) pursuant to Section 120.57; (b) pursuant to Rule 6C1-7.42; or (c) before the AFTC....

...distinction in two of the three main areas of academic endeavor — teaching, research, and service. See Rule 6C1-7.19(3), Florida Administrative Code. Remsen now contends that the University: (1) violated her due process rights and her rights under Section 120.57(1)(b)9, Florida Statutes (1981), when it rejected the AFTC's findings of fact without finding that they were not supported by competent substantial evidence; (2) violated Section 120.59(1)(b), Florida Statutes (1981), when it issued it...

...Rule 6C1-7.41(6), Florida Administrative Code, states that the president is not bound by the recommendation of the AFTC. Forcing the University to accept its recommendation would contravene the plain language of that rule. Moreover, Remsen may not now claim the benefits of a Section 120.57 hearing. She waived those rights by electing to proceed before the AFTC. See Rule 6C1-7.41(2), Florida Administrative Code. Consequently, the University is not bound by Sections 120.57(1)(b)9, 120.59(1)(b), 120.59(2), or 120.66....

...continuing teacher's contract, and ordered her reinstated. Section 120.68, Florida Statutes (Supp. 1976). In a controversy arising out of Steele's absence from school to attend an Equal Rights Amendment rally in Tallahassee, the School Board, after Section 120.57(1) proceedings, discharged her on account of breach of contract, absence without leave and willful neglect of duty....

...To recognize the order of the Board of Education as "final agency action," we stated, "... would effectively displace the Santa Fe Trustees as the body having authority to discharge instructional personnel at that college. A hearing would be required [under Section 120.57(1)] before the Board of Education itself, or before one of its members, or before a hearing officer whose proposed order would be submitted to the Board....

...Were we to recognize the order of the Board of Education as final agency action, subject to review on petition of the Collier County School Board, we would necessarily subject the Governor and Cabinet to all responsibilities concerning final agency action which are imposed by Chapter 120. Section 120.57(1) would require factfinding by the Board of Education or a hearing officer assigned in its place, thus removing that function from the district school board or adding a second, duplicative trial....

...Accordingly, the Department deducted the discounts and the contractor's fifteen percent markup in all of the pending applications. Between September of 1995 and February of 1996, Environmental Trust and Sarasota Investors filed forty-five petitions for administrative hearings under section 120.57(1), Florida Statutes (1995), to contest the denial of these claimed expenses....

...dopted rules. The two sets of cases, including the individual petitions in each set, were consolidated for hearing. On October 8, 1996, Administrative Law Judge Suzanne Hood entered two orders in the consolidated cases. The first was an order in the section 120.57(1) proceeding determining that the applications for reimbursement were properly denied....

...Ultimately, the judge granted the motion and awarded costs and attorneys' fees in favor of the investment companies. The Department appeals this order, as well (No. 97-3937). II. We find no error in the Department's final order in the proceeding under section 120.57(1), Florida Statutes (1995), denying in part the applications for reimbursement....

...ns that financial returns to an investment company are not reimbursable, regardless of their characterization. If the Department improperly denies a claim for reimbursement of discounts earned by a factoring agent, that action can be challenged in a section 120.57(1) proceeding....

...If that were true, the agency would be forced to adopt a rule for every possible variation on a theme, and private entities could continuously attack the government for its failure to have a rule that precisely addresses the facts at issue. Instead, these matters are left for the adjudication process under section 120.57, Florida Statutes....

...We need not determine whether the administrative law judge properly applied the 1996 version of the Administrative Procedure Act, because there is no substantive basis for an award of attorneys' fees. IV. In summary, we affirm the Department's final order in the proceeding under section 120.57(1), Florida Statutes (1995), on the ground that it is supported by competent substantial evidence....

...uthorized a rule that would apply retroactively. I would affirm invalidation of the amendment insofar as it proposed to operate retroactively. Retroactive application of the proposed rule amendment is incompatible with the procedural requirements of section 120.57(1)(e), Florida Statutes (Supp.1996), which contemplate "de novo review by an administrative law judge" rather than the deference to which duly promulgated rules are entitled in substantial interest hearings....

...South Broward Hospital District d/b/a Memorial Healthcare System (Appellant) seeks review of a final order entered by the Secretary of the Agency for Health Care Administration (AHCA) dismissing Appellant’s request for a formal administrative hearing pursuant to sections 120.569 and 120.57(1), Florida Statutes....

...We agree with Appellant and conclude that it has met the requirements for third-party standing under Agrico Chemical Co. v. Department of Environmental Regulation, 406 So.2d 478, 479 (Fla. 2d DCA 1981). Accordingly, we reverse and remand for an administrative hearing pursuant to section 120.57, Florida Statutes....

...In particular, AHCA adopted rule 59G-1.025 of the Florida Administrative Code, which allows counties to submit either advanced refund requests or back-end refund requests (BERR). If AHCA denies any portion of a county’s BERR, it provides the county with a notice of administrative rights under sections 120.569, 120.57, and 120.573, Florida Statutes....

...AHCA sent a Final Determination Notice regarding this BERR, granting in part and denying part. Broward County did not seek review of AHCA’s determination; however, Appellant filed a request for a formal administrative hearing pursuant to sections 120.569 and 120.57(1), Florida Statutes, asserting that it was affected by AHCA’s determination because it had been charged $149,943.24 of the $478,228.73 that AHCA declined to refund the county....

...ompetitors only had standing to intervene if they could establish that they had a substantial interest in the outcome of the proceedings by showing that: (1) they would “suffer injury in fact which is of sufficient immediacy to entitle [them] to a section 120.57 hearing, and 2) that [their] substantial injury is of a type or nature which the proceeding is designed to protect.” Id....

...Before HUBBART, C.J., and HENDRY and BASKIN, JJ. BASKIN, Judge. Preston Carroll Company, Inc., unsuccessful bidder for a water supply contract, challenges *525 an Order of the Florida Keys Aqueduct Authority (FKAA) denying Preston Carroll's protest pursuant to section 120.57, Florida Statutes (1979) of the award of the contract to another bidder, Iacobelli-Ferrera....

...See Jets Services, Inc. v. Hoffman, 420 F. Supp. 1300 (M.D.Fla. 1976); Couch Construction Co., Inc. v. Department of Transportation, 361 So.2d 184 (Fla. 1st DCA 1978); Greenhut Construction Co. v. Henry A. Knott, Inc., 247 So.2d 517 (Fla. 1st DCA 1971); § 120.57, Fla....

...allmarks of finality required for final orders affecting substantial interests in that it failed to inform appellant of his right to request administrative review and failed to state the time within which he was required to request proceedings under Section 120.57." Compare Lamar Advertising Co....

...1st DCA 1988), observing that although the department's notice did not use the term "final agency" action as specifically required in the department's rule, it did advise applicant that his permit had been denied and that he had the right to request a 120.57 hearing within 30 days of the date of the notice....

...By failing to consider all of the hearing officer's findings regarding mitigation, PERC's conclusion also contravenes a general requirement of the Administrative Procedure Act that an administrative agency may not increase a recommended penalty unless it reviews the complete record and justifies its actions in writing. See § 120.57(1)( l ), Fla. Stat. (2006); see also Palm Beach County Police Benevolent Ass'n, Inc. v. City of Riviera Beach, 774 So.2d 942, 944 (Fla. 1st DCA 2001) (requiring PERC to comply with section 120.57(1)( l ), Florida Statutes)....

...icaid and medicare-eligible patients. In May of 1983 when Upjohn originally applied for a CON, HRS denied the application based upon a methodology or formula known as the "Rule of 300." As a result of that action, Upjohn sought a hearing pursuant to section 120.57, Florida Statutes, but the hearing was continued pending the outcome of the appeal in HRS v....

...[1] In applying the newlyfashioned formula to Upjohn's CON application, HRS determined there was a need for an additional home health agency in Escambia County and stipulated with Upjohn to such need. The hearing officer nevertheless rejected the stipulation in reliance upon that portion of section 120.57(1)(b)(3) which provides that "[t]he referring agency shall take no further action with respect to the formal proceeding, except as a party litigant, as long as the division has jurisdiction over the formal proceeding"; he entered an order recommending that Upjohn's application for a CON be denied....

...an incipient policy to other pending CON applications, and on the basis of that policy had entered into a stipulation with Upjohn for the award of a CON. Although the hearing officer may have correctly refused to sanction the stipulation because of section 120.57(1)(b)(3) and the effect of the stipulation upon Northwest, HRS' ultimate refusal to allow the development of evidence of an existing policy it was actually utilizing was nothing less than whimsical....

...Petitioner, the Department of Community Affairs (Department), issued a notice of intent to find the Escambia County Comprehensive Plan not in compliance with section 163.3184, Florida Statutes (Supp. 1990). A formal administrative hearing pursuant to section 120.57(1) was to be conducted by DOAH beginning on May 13, 1991....

...cluding those described in chapter 163. Here, the Department and the County are proceeding under chapter 163. Section 163.3184 governs the process for adoption of comprehensive plans. Sections 163.3184(9)(b) and (10)(a) state that a proceeding under section 120.57 shall be conducted in the affected local *1239 jurisdiction....

...of a crime which directly relates to the business for which the license is held, regardless of adjudication." At the time that it served the complaint upon appellant, the Department also advised him in writing of his rights under Sections 120.60 and 120.57, Florida Statutes, to an administrative hearing. Appellant was specifically advised that he had a right to a formal hearing under Section 120.57(1) if he disputed the facts upon which the proposed action was based, or an informal hearing under Section 120.57(2) if he did not dispute the facts upon which the proposed agency action was based but wished to "make an explanation of those facts or to submit a written statement or speak on [his] behalf at an informal hearing." Appellant was furth...

...eriod and that failure to make a timely request for hearing would result in the Department's disposition of the complaint by final order. Appellant's attorney timely returned the election of rights form specifically requesting a formal hearing under Section 120.57(1). Along with such form appellant's attorney submitted his "Request for Formal Hearing and Statement of Disputed Issues of Fact." That document specifically requested a "formal hearing pursuant to Section 120.57(1), Florida Statutes." Further, the request for hearing essentially admitted that appellant had, as alleged, been found guilty of the above-referred crime and that the "appellate court has affirmed the Respondent's conviction, but a mo...

...conviction that is material to the agency action proposed here, so as to warrant a formal administrative hearing." *1195 Appellant asserts on appeal that the Department erred in entering its final order of revocation without permitting him a formal 120.57(1) hearing. We disagree. To the extent that appellant sought to relitigate the question of his guilt regarding the subject offense, such is improper. To the extent that appellant's petition for hearing sought to present mitigation, an informal hearing under Section 120.57(2), would have provided a forum more than adequate for such purpose. Appellant has not asserted, either in the proceedings below or on appeal, that the Department erred in failing to provide appellant with a Section 120.57(2) informal hearing....

...Levin, Asst. Gen. Counsel, Dept. of Environmental Regulation, Tallahassee, for appellee. JOANOS, Judge. Manasota-88, Inc., appeals from the Department of Environmental Regulation's (DER) denial of its request for an administrative hearing pursuant to Section 120.57(2), Florida Statutes....

...filed a petition for an informal de novo administrative proceeding concerning these two *847 permit revisions. DER denied the petition on the basis that (1) Manasota-88, Inc., had received actual notice of DER's actions and the notice constituted a clear point of entry to Section 120.57 proceedings, (2) the petition was not timely filed pursuant to Rule 17-1.62, Florida Administrative Code, which requires filing within fourteen days after written notice of agency action, and (3) Manasota-88, Inc., failed to allege tha...

...The sole evidence to support the Commission's finding of guilt consisted of the deputy's recitation of Pauldon's hearsay statement, but hearsay alone is not sufficient to sustain the revocation of parole. See Jones v. Florida Parole and Probation Commission, 348 So.2d 681 (Fla. 1st DCA 1977); see also § 120.57(1)(c), Fla....

...An intended effect of the rule is to insulate agency decisions “on the selection of an[ ] adoptive home” from the scrutiny otherwise available in substantial interest proceedings under provisions of the Administrative Procedure Act, specifically sections 120.569 and 120.57, Florida Statutes (2003). 2 At the time DCFS denied their application to adopt T.T., a DCFS rule required that I.B: and D.B. “be told of that decision in writing and be advised of ... their right to a hearing pursuant to s. 120.57, F.S.” Fla....

...ment of this child. See, e.g., Fla. Admin. Code. R. § 65C-16.002(2), .005, .008 (providing for an Adoptive Applicant Review Committee for dispute resolution and further administrative review).”). Once I.B. and D.B. requested a hearing pursuant to section 120.57, Florida Statutes, DCFS referred the substantial interest proceeding to the Division of Administrative Hearings (DOAH)....

...1st DCA 2001) (“[T]he test is whether a ... rule gives effect to a ‘specific law to be implemented,’ and whether the ... rule implements or interprets ‘specific powers and duties.’ ”). . As “specific authority,” Rule 65C-16.008(2) cites sections 120.57, 120.68, 409.026(8), and 409.145. As “law implemented,” Rule 65C-16.008(2) cites sections 120.68 and 409.145. Section 120.57 pertains to substantial interest hearings of the kind which the amended rule would forbid, not facilitate; and section 120.68 has to do with judicial review of agency action once an agency has made a decision' — ordinarily after a hearing, except where hearing has been waived....

...cy’s original decision, the applicant or parent must be told of that decision in writing and advised of their judicial option as described in the Administrative Procedures [sic] Act, Section 120.68, F.S. and of their right to a hearing pursuant to Section 120.57, F.S....

...Robert Lazarus' medical license for two years. We affirm the order appealed from based on the controlling authority of Rush v. Department of Professional Regulation, 448 So.2d 26 (Fla. 1st DCA 1984), except as to one particular. The order under review fails to give any reasons, as required by Section 120.57(1)(b)9, Florida Statutes (1983), for increasing the penalty recommended by the hearing examiner in this case....

...The Board suspended Cartaya's license for two years concurrent with two years of probation, along with continuing education, fines and costs. We reverse because the Board erred by departing from the ALJ's recommendations without stating with particularity its reasons for doing so in its written order. Florida Statutes section 120.57(1)( l ) provides: "[t]he agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the ord...

...ized policy and procedure defining what constitutes a completed application is an invalid exercise of delegated legislative authority. In case number 89-2231, appellant, Martin County Liquors, Inc., appeals from a final order of the DABT following a Section 120.57 formal hearing in which the DABT adopted in toto the hearing officer's recommended order wherein the hearing officer found the Department's disapproval of the application for a quota liquor license was proper....

...specific location within the extended period as granted by the agency. Also, applicant has failed to provide complete verification of his financial investment," citing Section 561.18, Florida Statutes. The denial of the license was challenged in the Section 120.57 proceeding referred to above....

...pplication, thus waiving its right to file for a quota license. As earlier noted, the recommended order was adopted by the DABT. This gave rise to the appeal by Martin County Liquors, Inc. in case number 89-2231. *173 Following the conclusion of the 120.57 formal hearing, Martin County Liquors, Inc....

...neffective as of the date the decision of this court becomes final. Board of Optometry v. Florida Society of Ophthalmology, 538 So.2d 878 (Fla. 1st DCA 1988). We next turn to Martin County Liquors, Inc.'s appeal of the final order rendered after the Section 120.57 hearing upholding the disapproval of its application based on its failure to provide a proper business location....

...Under protest, Coastal unsuccessfully endeavored to satisfy the department's additional security requirements. The department issued a final order denying Coastal's permit, stating that the application did not adequately ensure the protection of the state's coastal and marine resources. Proceedings under section 120.57(2), Florida Statutes, resulted in a final order affirming the permit denial....

...Community Services, Inc. (CCSI), and all were denied because of a lack of need for additional nursing home beds in Dade County. Pursuant to R. 10-5.10(8) and 10-5.12, both petitioner and CCSI requested formal proceedings on their applications under § 120.57(1)....

...ing petitioner that it was impossible to grant it because CCSI had voluntarily dismissed its case on December 14, 1983. CCSI had entered into a stipulation with respondent on December 9, 1983, which provided that if CCSI would drop its request for a § 120.57(1) hearing, HRS would grant its request for a CON to build a 180-bed nursing home in Dade County, such CON to be issued within 30 days of the date of the stipulation. On January 6, 1984, before the expiration of the 30-day period (January 8, 1984), petitioner filed a request for hearing under § 120.57(1) requesting that the CON not be granted to CCSI until there had been a comprehensive review of all of the Dade County applications, as required by respondent's rules. Pursuant to § 120.57(1)(b)(1), requests for hearings shall be granted or denied within 15 days of receipt, therefore respondent had until approximately January 23, 1984, to grant or deny petitioner's request (January 21, 1984 is the 15th day but is a Saturday). In its petition for writ of prohibition, petitioner alleges that "respondent [HRS] has informed [it] that ... it intends to proceed to enter a final order granting the CON to CCSI," apparently without the § 120.57 hearing....

...The petition for writ of prohibition is denied. The facts alleged do not show respondent to be without jurisdiction to act with respect to the certificate of need covered by the stipulation in question. We note, however, that petitioner's January 6, 1984 request for proceedings under § 120.57(1) to review respondent's entry into the stipulation may render voidable any action taken pursuant thereto prior to respondent's resolution of petitioner's request....

...1st DCA 1978), the agency's use of informal letters and telegrams in an attempt to suspend Capeletti's certificate of qualification was called "free-form action." The opinion recognized that the "vast majority of an agency's free-form decisions become conclusive because they are not challenged in § 120.57(1) ... proceedings," but that "absent waiver [of § 120.57 benefits by an adversely affected party], ... an agency's free-form action [is] only preliminary irrespective of its tenor." Id. at 348 (emphasis supplied). The agency was found to be "powerless" to suspend the certificate "until proceedings [were] had satisfying § 120.57." Id....

...e subject to attack for failure to comply with statutory requirements. We find the stipulation entered into by respondent to be the equivalent of the free-form action involved in Capeletti, and conclude that petitioner has not waived the benefits of § 120.57 but has properly requested them. The stipulation entered into by respondent is therefore preliminary, Capeletti, supra at 348, and any action taken pursuant to that stipulation prior to the resolution of petitioner's request for § 120.57(1) review would be similarly subject to attack. Should respondent deny petitioner's request, petitioner may of course seek review in this court, as would also be true for a final order issuing from the § 120.57(1) proceeding, if held....

...Based upon the foregoing, the Board suspended the doctor's license for one year, fined him $5,000, and placed him on probation *1221 for a period of two years following the suspension. The doctor perfected this appeal from said Final Order contending that the Board failed to comply with section 120.57(1)(b)(10), Florida Statutes (1987) when it enhanced the recommended penalty....

...appellant's appendix. Those guidelines require the DOEA to review RFPs prior to issuance. AAA's RFP includes protest guidelines, as required by the DOEA. The procedures for filing a bid protest in these guidelines copy the required procedures under section 120.57(3), as required of agencies subject to the Administrative Procedure Act ("APA"). A protest involving disputed issues of material fact and not resolved by mutual agreement shall be referred to the Division of Administrative Hearing for further proceedings. Id. Section 120.57(3)(e) authorizes the DOAH to conduct hearings on bid protests from agencies subject to the act....

...Before the hearing officer, the Department contended that the DOAH did not have jurisdiction because Mae Volen was a private, non-profit entity, and not a state agency. The trial court agreed and dismissed the appeal. Mae Volen appeals the dismissal. The DOAH is authorized to hear bid protest disputes from "agencies." § 120.57(3), Fla....

...Friedlander of University of South Florida, Office of General Counsel, Tampa, for Appellee. NORTHCUTT, Judge. Arthur Herold is an associate professor at the University of South Florida College of Medicine. He challenges USF's refusal to grant him a formal evidentiary hearing under section 120.57(1), Florida Statutes *640 (2000), in connection with his unsuccessful application for promotion to full professor....

...But the college-wide APT Committee recommended denying the application. The dean of the College of Medicine concurred with the denial, as did, ultimately, the university provost. As mentioned, USF later declined to grant Dr. Herold a formal administrative hearing. Section 120.57(1), a provision of Florida's Administrative Procedure Act, provides that a party whose "substantial interests" are determined in an agency proceeding is entitled to have disputed issues of material fact resolved in a formal evidentiary hearing. To qualify as having a substantial interest, one must show that he will suffer an injury in fact which is of sufficient immediacy to entitle him to a hearing and that this injury is of the type or nature which a section 120.57 hearing is designed to protect....

...t, and not on a mere unilateral expectation. See Fertally v. Miami-Dade Cmty. Coll., 651 So.2d 1283 (Fla. 3d DCA 1995) (holding that nonrenewal of community college professor's annual contract did not affect her substantial interests for purposes of section 120.57); Metsch v. Univ. of Fla., 550 So.2d 1149 (Fla. 3d DCA 1989) (holding that applicant's desire to attend law school was not a substantial interest entitling him to a section 120.57 hearing upon denial of his application)....

...School Bd. of Alachua County, 719 So.2d 360 (Fla. 1st DCA 1998) (holding that school teacher's desire for reappointment as band director was not based on legal or constitutional entitlement, and therefore she had no substantial interest entitling her to section 120.57 hearing)....

...Herold does not assert his concern for his professional reputation strictly as a matter of protecting his liberty or property interests under the federal constitution. Rather, he argues that his reputation is, in itself, a substantial interest for purposes of his statutory right to a hearing under section 120.57(1)....

...See Agrico, 406 So.2d 478. Dr. Herold relies on Spiegel v. University of South Florida, 555 So.2d 428 (Fla. 2d DCA 1989), in which we held that Spiegel, a member of USF's faculty, had a substantial interest that entitled him to a formal hearing under section 120.57 upon his removal as department chairman....

...this removal, damaging his reputation and impairing his ability to obtain employment elsewhere, factors which implicate his liberty interest protected by the Fourteenth Amendment." Spiegel, 555 So.2d at 429. *642 It can be seen that, for purposes of section 120.57, Spiegel's substantial interest was not in his reputation per se, but in his constitutional liberty interest which was implicated when he suffered a stigmatizing alteration in legal status-in other words, a "stigma-plus." See Cannon, 250 F.3d 1299....

...l interest, Dr. Herold complains that he has been denied the enhanced prestige associated with the rank to which he aspires. If that aspiration, a mere unilateral expectation, does not itself rise to the level of substantial interest for purposes of section 120.57, neither do its attendant intangible collateral benefits, such as enhanced professional reputation....

...l in north Jacksonville. This filing placed them in an HRS batching *713 cycle for which applications were due by June 15, 1983. Fla. Admin. Code Rule 10-5.08(1). Both of these applications were denied by HRS in October 1983. Humana petitioned for a section 120.57, Florida Statutes (1983), administrative hearing, but HCA's case was voluntarily dismissed. In November 1983, two batching cycles and five months after Humana's application, UMC applied for a CON to construct a 100-bed general acute care hospital in north Jacksonville. The application was denied by HRS in April 1984, and UMC requested a section 120.57 hearing....

...hat the batching cycle rules relate solely to the HRS review process leading to HRS's preliminary determination on the application. Nothing in rule 10-5.08, according to UMC, precludes comparative consideration of competing applications at a de novo section 120.57 administrative hearing, even if such applications were filed in different batching cycles and not considered comparatively in HRS's preliminary review....

...To hold otherwise would substantially defeat the effectiveness of the batching rules and would not accord with either the intent of the rules, Biomedical, or Ashbacker. We agree, as stated in McDonald v. Dept. of Banking & Finance, 346 So.2d 569, 584, that section 120.57 proceedings are not separate appellate review proceedings, but are part of the total administrative process intended to formulate final agency action....

...tgage holder thereupon foreclosed on the property and obtained a deficiency judgment against appellant and his wife for over $500,000. In his recommended order the hearing officer set forth his findings of fact and conclusions of law, as required by Section 120.57(1)(b)(8), Florida Statutes....

...on the transfer. It also refused to be bound by the hearing officer's finding that Northwest Liquor had not made payments on the mortgage, taking the position that this was a "conclusion of law", and thus subject to rejection by the Department under Section 120.57(1)(b)(9), Florida Statutes....

...They may not be ignored or overturned unless review of the entire record reveals a total lack of substantial evidence to support them. Chakford v. Strum, 87 So.2d 419 (Fla. 1956). Florida's Administrative Procedure Act expressly adopted those principles. § 120.57(1)(b)(9), Fla....

...Micjo also disputed the timeliness of certain of the assessments. The parties agreed on a statement of stipulated facts and agreed “[t]he subject of [the] entire dispute centered] on the legal definition of ‘wholesale sales price.’ ” This resulted in an informal hearing pursuant to section 120.57(2), Florida Statutes (2010)....

...The weight or credibility of witness testimony is a factual finding made by the hearing officer. See Strickland v. Fla. A & M Univ., 799 So.2d 276 (Fla. 1st DCA 2001); Tuveson v. Fla. Governor's Council on Indian Affairs, Inc., 495 So.2d 790, 793 (Fla. 1st DCA 1986). Section 120.57(1)( l ), Florida Statutes (2005), provides that after an administrative hearing, an "agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particular...

...to withdraw its Chapter 190 petition for a Community Development District (CDD) before rendering a decision thereon. The rehearing motion alleges error on the part of the court in failing to recognize that the proceeding below was held pursuant to the requirements of § 120.57, Florida Statutes (1981)....

...... shall be pursuant to rule adopted under Chapter 120." (emphasis supplied). It is true that the statute does not specify which part of Chapter 120 shall govern, the *871 informal procedures set forth in § 120.54 or the more formal procedures of § 120.57....

...However, § 120.54(16) states that "[r]ulemaking proceedings shall be governed solely by the provisions of this section... ." (emphasis supplied). Appellant argues that subsection (16) goes on to provide a procedure by which a party can "draw out" a § 120.54 proceeding to the more formal § 120.57 proceeding if the party "timely asserts that his substantial interests will be affected in the proceeding and affirmatively demonstrates to the agency that the proceeding does not provide adequate opportunity to protect those interests." Appellant has provided no evidence of such a "draw out" in this case....

...a, Inc.'s alleged failure to file an adequate economic impact statement pursuant to the requirements of § 120.54(2)(a). After the conclusion of the proceedings, appellant filed with the hearing officer, not a proposed recommended order, pursuant to § 120.57(1)(b)(4), but a proposed "Report of Hearing Officer." Therefore, it does not appear that even appellant viewed the proceedings as having been "drawn out" to a § 120.57 proceeding pursuant to § 120.54(16). In further support of its contention that § 120.57 controlled the proceedings below, appellant argues that its intervention was allowed by the hearing officer pursuant to administrative rule applicable to formal administrative proceedings under § 120.57....

...In conclusion, because § 120.54 governs the hearing prescribed in § 190.005(1)(b), appellant's argument that the FLWAC erred in failing to comply with § 120.59 is inapposite, since that statute is applicable only to proceedings held pursuant to § 120.57....

...Spiegel's chairmanship through a letter which provided no reason for the action. Dr. Spiegel contends that he was entitled to the protections of the USF's grievance procedures, set forth in Chapter 6C4-10, Florida Administrative Code, and that his entitlement to a formal administrative hearing is further ensured by section 120.57, Florida Statutes (1987)....

...Beckum's January 18th request for a hearing was beyond the 30 day time period provided for in Rule 10-2.36. However, Dr. Beckum's January 18th request was unnecessary since he had already timely initiated formal proceedings concerning this identical controversy in Case No. 82-1961. [2] In accordance with Section 120.57, Florida Statutes (1981), Dr....

...The Department's final order is reversed, and the cause is remanded for proceedings consistent with this opinion. WENTWORTH and JOANOS, JJ., concur. NOTES [1] This rule provides that failure to request a hearing within 30 days of receipt of the Agency decision shall be deemed a waiver of any right to a Section 120.57, F.S., hearing and the Agency decision shall become final agency action....

...artment) [1] for review. FWUA sought a 96% rate increase. On July 16, 1999, the Department issued a Notice of Intent to disapprove of the rate increase in its entirety. The Department advised FWUA of its right to request a formal hearing pursuant to section 120.57(1), Florida Statutes, or alternatively, to demand arbitration under section 627.062(6), Florida Statutes....

...Fahlbusch, Senior Assistant Attorney General, Fort Lauderdale, for Appellee. BENTON, J. J.M. appeals a "Final Order Denying Petition for Administrative Hearing" in which the Agency for Persons with Disabilities (APD) ruled that J.M. was not entitled to a hearing under section 120.57(1), Florida Statutes (2005), to resolve a dispute arising under section 393.0651, Florida Statutes (2005), stating: The Office of Appeal Hearings, administratively located [not within the Agency for Persons With Disabilities but] withi...

...able under State Plan Medicaid, is nonetheless a Medicaid program authorized under Title XIX of the Social Security Act. The DD/HCBS waiver is, therefore, included within the section 120.80(7) exemption, and a Fair Hearing [in contradistinction to a section 120.57 hearing] is the appropriate forum to consider petitioner's challenge to the Agency's decision to reduce his benefits. We reverse APD's order with directions that J.M. be granted a section 120.57(1) hearing either before APD's director (the agency head) or before "an administrative law judge assigned by the [D]ivision [of Administrative Hearings]." 120.57(1)(a), Fla....

...."). As is plain from its tenor (and as APD's counsel confirmed at oral argument), the order under review was intended as the last action APD would take in J.M.'s case. Our jurisdiction is, moreover, routinely invoked to review agency orders denying section 120.57 hearings. See, e.g., Gopman v. Dep't of Educ., 908 So. 2d 1118, 1120-21, 23 (Fla. 1st DCA 2005) (reviewing denial of a request for formal hearing under section 120.57 where agency asserted other, statutorily prescribed hearing procedures sufficed); Sickon v. Sch. Bd. of Alachua County, 719 So. 2d 360, 361 (Fla. 1st DCA 1998) (reviewing denial of a request for formal hearing under section 120.57); Yunker v....

...in fact received from APD interlocutory. APD has announced that it will take no further action in the case, unless the order under review is reversed. Administrative proceedings within APD concluded when APD's final order denied J.M.'s request for a section 120.57 hearing....

...Any person substantially affected by an APD decision, concerning eligibility for developmental disability services initially, or concerning subsequent changes in a support plan regarding such services arising from annual reviews thereafter, has the right to a hearing pursuant to section 120.57....

...cate, or client advocate for a client, who is substantially affected by the client's initial family or individual support plan, or the annual review thereof, shall have the right to file a notice to challenge the decision pursuant to ss. 120.569 and 120.57....

...(2005) (emphasis added). With respect to initial eligibility determinations at least, the statute also provides: "Any applicant determined by the agency to be ineligible for developmental services has the right to appeal this decision pursuant to ss. 120.569 and 120.57." 393.065(3), Fla. Stat. (2005). Here, as below, APD contends that, these clear statutory directives [5] notwithstanding, J.M. is not entitled to a section 120.57(1) hearing because the exemption from the obligation to conduct formal administrative hearings set out in section 120.80(7), Florida Statutes, applies. The language creating the exemption provides: Notwithstanding s. 120.57(1)(a), http://web2.westlaw.com/find/default.wl?DB=1000006&DocName=FLSTS120%2E57&FindType=L&ReferencePositionType=T&ReferencePosition=SP%3B9f800000f2221&AP=&fn=_top&utid=%7b7828731A-D52A-41CC-9609-FCCE915A4466%7d&rs=WLW6.05&mt=Florida&vr=2.0...

...ve law judge assigned by the division. 120.80(7), Fla. Stat. (2005). We need not decide in the present case the precise scope of the exemption section 120.80(7) creates, because chapter 393 unambiguously calls for administrative hearings pursuant to section 120.57 in cases like J.M.'s....

...Chapter 393, on the other hand, does specifically apply to programs for the developmentally disabled and to the Medicaid waiver program that APD is responsible for administering for the benefit of J.M. and others. Chapter 393 specifically provides for hearings pursuant to section 120.57, and authorizes no exceptions....

...d prevail as the last expression of legislative intent," McKendry, 641 So. 2d at 46, also supports this result. The first time chapter 393 incorporated a provision entitling an applicant for developmental disability services to a hearing pursuant to section 120.57, was in 1988, see Ch....

...(creating section 393.065(3), Florida Statutes (1988)), while the section 120.80(7) exemption can be traced back to the Administrative Procedure Act of 1974. See Ch. 74-310, 1, at 961, Laws of Fla. [6] Section 393.0651, Florida Statutes, was originally enacted in 1989, and includes the right to a hearing pursuant to section 120.57. See Ch. 89-308, 10, at 2012-14, Laws of Fla. Because the statutes providing the right to a hearing pursuant to section 120.57 were enacted after the exemption now found in 120.80(7) was created, the statutes providing for section 120.57 hearings control. Section 120.80(7) has no application here. III. APD must grant a formal hearing pursuant to section 120.57(1) when material facts are in dispute and an applicant or client is "determined by the agency to be ineligible for developmental services," 393.065(3), Fla....

...LED. ERVIN, J., concurring. I concur for the purpose of separately expressing my disagreement with what appears to be the policy position of the Agency for Persons with Disabilities (APD), which denies developmentally disabled persons the right to a section 120.57 hearing, despite language in section 393.065(3), [7] placed within the Developmental Disabilities Prevention and Community Services Act, clearly providing them such relief....

...n 120.80(7) exemption since its creation in 1974. I think it reasonably clear that the more general provisions of section 120.80(7) cannot trump the later enacted and more specific provisions of sections 393.065(3) and 393.125, authorizing resort to section 120.57....

..., rather than denied altogether. Section 393.065(3), Florida Statutes (2005), explicitly states that an "applicant determined by the agency to be ineligible for developmental services has the right to appeal this decision pursuant to ss. 120.569 and 120.57." (Emphasis added.) In the case at bar J.M....

...in developmental services would be restricted solely to fair hearings, its purpose has not been expressed with the clarity one should reasonably expect. As it now stands, an applicant denied developmental services has the option of seeking either a section 120.57 proceeding, accorded by sections 393.065 and 393.125, or a fair hearing as authorized by section 409.285....

...a notice of fair hearing scheduling a hearing before a hearing officer at the Department of Children and Family Services. (The hearing has since been continued.) Unlike Ford, however, J.M. took the additional step of filing a petition for administrative hearing with APD seeking a section 120.57 hearing....

...[5] "When the statute is clear and unambiguous, courts will not look behind the statute's plain language for legislative intent or resort to rules of statutory construction to ascertain intent." Daniels v. Fla. Dep't of Health, 898 So. 2d 61, 64 (Fla. 2005). [6] Chapter 74-310 created section 120.57, which required formal proceedings before the agency head or a hearing officer of the Division of Administrative Hearings....

...Among other proceedings originally exempted were "hearings within the division of family services of the department of health and rehabilitative services." Ch. 74-310, 1, at 961, Laws of Fla. Substantial revisions were made to the Administrative Procedure Act in 1996, and all exemptions from the requirements of section 120.57 were moved to section 120.80. See Ch. 96-159, 41, at 204-10, Laws of Fla. (creating section 120.80, Florida Statutes (1996)). [7] Section 393.125, Florida Statutes (2005), adopted in 1989, similarly furnishes a 120.57 hearing to any developmental services applicant whose substantial interests are affected by the agency....

...BENTON, J., dissents with written opinion. ERVIN, Judge, concurring. I fully concur with Judge Booth's opinion for the court and write separately only to address some of the reservations Judge Benton has expressed in his dissent to the majority's disposition. Judge Benton interprets section 120.57(1)(j), Florida Statutes (1997), as permitting an agency to review only an administrative law judge's (ALJ) legal conclusions and/or rule constructions that are within the substantive jurisdiction of the agency. [2] I cannot agree. Since the enactment of the Administrative Procedure Act in 1974, and until its amendment in 1996, this provision, formerly section 120.57(1)(b)(10), has provided, in essentially the same language: The agency may adopt the recommended order as the final order of the agency....

...For many years, this statute has been interpreted as allowing a reviewing agency to displace the conclusions of law of an ALJ if the reasons for the rejection are sufficiently explained. See McDonald v. Department of Banking & Fin., 346 So.2d 569, 583 (Fla. 1st DCA 1977). The current provision, now numbered 120.57(1)(j), reads as follows: The agency may adopt the recommended order as the final order of the agency....

...This proceeding began with the filing of an administrative complaint. Apprised of a factual dispute, the Department of Children and Family Services referred the matter for hearing to the Division of Administrative Hearings, where it was assigned to an administrative law judge, all in keeping with section 120.57(1), Florida Statutes (1997)....

...This order did not revisit the merits of the recommended order's conclusion that it was "impossible to discern from these pleadings what violation of training standards Petitioner is trying to allege and Respondent is obligated to defend." Instead, the order declining remand stated its rationale, as follows: Under Section 120.57(1)(j), Florida Statutes, CFS "may reject or modify the conclusions of law and interpretation of administrative rules over which it has substantive jurisdiction." Determining the adequacy of allegations is a legal issue, but not one over which CFS has substantive jurisdiction....

...les of Appellate Procedure." *1079 The Department's petition seeks reversal of the order declining remand on the theory that the earlier recommendation to dismiss part of the administrative complaint was erroneous, but does not address the effect of section 120.57(1)(j), Florida Statutes (1997). The Department's petition should be denied because the administrative law judge's interpretation of section 120.57(1)(j), Florida Statutes (1997), is correct....

...ldren or with whether Patti Cake was or was not in compliance with departmental rules or with laws the Department administers. The Legislature has entrusted just this type of procedural question to administrative law judges, who stand as neutrals in section 120.57 proceedings between agencies and citizens who are subject to adverse agency action....

...e standards as parties against whom it is litigating disputed facts, the Legislature has ordained that the administrative law judge's procedural rulings are not subject to reversal by the agency that is, after all, one of the parties to the dispute. § 120.57(1)(j), Fla....

...The Department could have obtained an administrative hearing on the questions of concern to it more expeditiously by beginning anew with a more explicit administrative complaint than by traversing the tortuous route through the appellate process the Department has instead pursued. The restriction contained in section 120.57(1)(j), Florida Statutes (1997), on agency authority to modify or reject conclusions of law in recommended orders should be enforced....

...nting other evidence. It is not sufficient, standing alone, to prove a material fact in issue unless it would be admissible over objection in a civil proceeding." Yost v. Unemployment Appeals Comm'n, 848 So.2d 1235, 1237 (Fla. 2d DCA 2003); see also § 120.57(1)(c), Fla....

...rty or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee. The language of Section 163.3215(b), Florida Statutes, is substantially similar to former Section 120.57(1)(b)(5), Florida Statutes, and to Rule 11 of the Federal Rule of Civil Procedure. Thus, the case law construing Section 120.57(1)(b)(5) and Rule 11 are useful in applying Section 163.3215(b)....

...ign pleadings, motions or other papers. See Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498 U.S. 533, 111 S.Ct. 922, 112 L.Ed.2d 1140 (1991). Similarly, an objective standard of reasonable inquiry is applied under Fla. Stat. § 120.57(1)(b)(5)....

...board's stated reason for the increase in penalty is based on the premise that Boulton did in fact use racial slurs in the 1990 incident. No other interpretation of the order is consistent with the plain meaning of the words used in the final order. Section 120.57(1)(b)(10), Florida Statutes (1993), provides that an agency may not increase the recommended penalty in a recommended order "without a review of the complete record and without stating with particularity *1105 its reasons therefor in t...

...he record in justifying the action." Thus, it is clear that an agency may adopt in toto the hearing officer's findings of fact and conclusions of law, yet reject the recommended penalty. But in doing so, the agency must comply with the provisions of section 120.57(1)(b)(10). See Criminal Justice Standards v. Bradley, 596 So.2d 661 (Fla. 1992). In the present case, the school board's attempt to satisfy the requirements of section 120.57(1)(b)(10) fails because its reasons for varying from the hearing officer's recommended penalty is grounded on factual predicates not found by the hearing officer....

...ons of the Yacht and Ship Broker's Act. [1] Because we agree with Buchheit that his letter of July 5, 1994, should have been interpreted as a request for a formal hearing, we reverse the final order and remand this cause for formal proceedings under section 120.57(1), Florida Statutes (1993)....

...Urging that MSSW permits must be consistent with this objective, it points out that no findings of consistency with this objective were made by the hearing officer or the District, and that Appellees did not provide any evidence to prove this essential finding at the section 120.57 hearing....

...Johns River Basin." Urging that MSSW permits must be consistent with this objective, SAVE points out that no findings of consistency with this objective were made by the hearing officer or the District, nor did Appellees provide any evidence to prove this essential finding at the section 120.57 hearing....

...c floodplain of the upper St. Johns River basin. However, this specific objective is not referred to in any of the cited rules and, as the Commission ruled, this specific objective was not the subject of any proof of non-rule policy presented at the section 120.57 hearing....

...r) gave sworn testimony intended to be evidence in the case. Indeed, the Commission's order properly notes the limitation imposed by its appellate function and that its decision in this case must be confined to the evidence made in the record at the section 120.57 hearing....

...g and, in return, HRS would grant West Boca's application for a CON. Thereafter, West Boca voluntarily dismissed the requested administrative hearing and was issued CON 2461 by HRS. Petitioners were not parties to this agreement but petitioned for a Section 120.57 hearing on the issuance of the CON to West Boca....

...That the actual certificate *262 fails to state that it is a "notice of intent to issue CON" or that it is "subject to administrative review" does not change the character of the certificate as preliminary agency action. Such action is subject to administrative review via Section 120.57(1) or (2) hearings on the petition of a substantially affected party....

...The agency's failure to differentiate between preliminary and final agency action leads to a situation where a health care facility is being operated under the authority of a CON which has not yet been issued by final order of the agency. A petition for a Section 120.57 hearing commences a de novo proceeding at which the applicant will carry the burden of proving it meets the statutory criteria and is entitled to a CON....

...To allow an applicant to operate a health care facility based solely on the preliminary determination of the agency is tantamount to presuming that the preliminary decision of the agency is correct. Such policy also fails to recognize the proper role of Section 120.57 hearings in the administrative process, i.e., such hearings are to aid in the formulation of final agency action and are not intended solely for review of action taken earlier and preliminarily....

...eceipt of the instant petition, an order to show cause was entered and a temporary stay on the opening and operation of West Boca Raton Artificial Kidney Center was imposed. When it became apparent that this opinion would not be released until after Section 120.57 hearings were held, an order was entered dissolving the temporary stay....

...Peterson, et al. appeal from final agency action of the Division of State Planning, whose authority as state land planning agency has now been assumed by the Department of Community Affairs (Department), denying their petition for formal hearing under Section 120.57(1), Florida Statutes (1977)....

...(IPRC) pursuant to Section 380.06(4)(a), Florida Statutes (1977), determining that a 90-acre tract of land in Bay County was not a development of regional impact (DRI). The issue which is dispositive of this appeal is whether Peterson, et al. had standing under Section 380.06(4)(a) to demand a Section 120.57(1) hearing....

...filed with the Department documents entitled "Appearance as Parties" and "Petition to Intervene" alleging that they would be affected by the proposed project and by any agency action on it. On 22 February, the petition to intervene was supplemented by adding that the petition was filed in accordance with Section 120.57(1). The Department responded on 7 March by letter stating that the "request for a formal hearing pursuant to Section 120.57(1), Florida Statutes, is hereby denied." On 27 March, Peterson, et al. filed a "request for formal hearing under Chapter 120.57(1), F.S." By letter dated 12 April, the Department stated that it could not act on their request of 27 March, that the binding letter of 14 March complied with the initial steps of an informal proceeding under Section 120.57(2)(a)1, that the proceeding could be continued through the remaining steps of the informal process, and that there was inadequate information on the face of the pleadings to allow the Department to determine whether there were disputed issues of material fact....

...responded that an informal proceeding would be inappropriate and that a formal hearing was again requested. They asked that if the request were denied, it be denied in an "order" form appealable to this court. On 25 April, by letter sent to Peterson, et al., the Department denied the Section 120.57(1) hearing on the ground that a proper petition for a formal hearing had not been filed, but granted them a Section 120.57(2)(a) hearing and gave them 20 days in which to submit any written evidence regarding the binding letter issued on 14 March. Peterson, et al. were informed that the hearing would be before the then division director and would be recorded. On 15 May, Peterson, et al. filed a "Petition for Formal Hearing" which complied with the requirements of a petition for a Section 120.57(1) hearing....

...Although we find petitioner’s point to be well taken we find no necessity for reversal nor remand but, instead, in accordance with F.S. 120.68(9)(a) we modify the penalty imposed by respondent and reduce same to that recommended by the hearing officer, viz: A total of $2,000.00. 1 By its third point, petitioner, citing F.S. 120.57(1)(b)(7); F.S. 120.57(1)(b)(8) and F.S. 120.57(1)(b)(9) urges that upon petitioner having filed exceptions to the findings of fact made by the hearing officer, the Director could not meaningfully consider the exceptions and determine whether the findings of fact were based upon competen...

...have been challenged, without first reviewing the complete record reduces the final order to a useless act. That argument is not without logic. However, to so hold would ignore the plain language of the cited statute. It is clear from a reading of F.S. 120.57(1)(b)(9) that the legislature intended that a complete review of the entire record be required of the agency only in those instances wherein the agency in its final order rejects or modifies the findings of fact in the recommended order and when, by agency order, the recommended penalty is increased....

...d a suspension a state agency employer seeks to impose, when a PERC hearing officer recommends mitigating the suspension to a reprimand, and PERC acts without the benefit of a transcript of the proceedings before the hearing officer. As we interpret section 120.57(1)(j), Florida Statutes (Supp.1996), a transcript is required....

...Recognizing that this employee's victory may prove Pyrrhic, inasmuch as PERC has by now obtained a transcript, we reverse and remand. PERC hearing officers are authorized to conduct career service hearings and enter recommended orders, which may include recommendations with regard to mitigation, under section 120.57(1), Florida Statutes (Supp....

...f material fact notwithstanding. § 120.80(12)(a), Fla. Stat. (Supp.1996). Even so, the Administrative Procedure Act applies to career service proceedings before PERC, and PERC is bound to give recommended orders it reviews the deference required by section 120.57(1)(j), Florida Statutes (Supp. 1996), which contains language formerly found in section 120.57(1)(b)10: The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action. *1384 § 120.57(1)(j), Fla. Stat. (Supp.1996). In construing this language, we do not write on a blank slate. Under former section 120.57(1)(b)10, discipline imposed on career service employees has consistently been treated as a penalty....

...Department of Health and Rehabilitative Servs. v. Gordon, 590 So.2d 484 (Fla. 1st DCA 1991); Neville v. Department of Labor and Employment Sec., 9 FCSR ¶ 070 (PERC 1994). Until April 8, 1994, moreover, PERC itself had "long interpreted subparagraph 6 of Section 120.57(1)(b), when read in pari materia with subparagraph 10, as prohibiting [the Commission] from altering [its] hearing officers' recommendations regarding mitigation of discipline in a career service appeal without reviewing a transcript." Neville, 9 FCSR at 309....

...transcript before declining to impose a recommended penalty. The Bradley opinion does not indicate whether the agency head had reviewed a transcript in that case. In the present case, the parties agree that "[a]s long as the ... agency complies with section 120.57(1)(b)10 [now 120.57(1)(j), the] ......