Florida/Georgia Personal Injury & Workers Compensation

...It is too broad a leap to take the words of a statute which provide for remand if the action is found to be in violation of the constitution and interpret them to mean that any constitutional issue must be raised there or be forever barred. The district court's reasoning is further belied by the subsequent enactment of section 253.763, Florida Statutes (Supp....

...ented in this case and file suit in circuit court on the basis that denial was proper but resulted in an unconstitutional taking of the party's property. We find that this procedure exists independent of the specific statutory authority now found in section 253.763(2), Florida Statutes (1979), which became effective on May 29, 1978, after Key Haven filed suit in the circuit court in this case....

...rits if we had jurisdiction to do so. I perceive a flaw in this Court's jurisdictional authorization, but I must be true to the constitution and follow it. Should I be able to reach the merits I would concur, but since I cannot, I dissent. NOTES [*] Section 253.763(2) provides: Any person substantially affected by a final action of any agency with respect to a permit may seek review within 90 days of the rendering of such decision and request monetary damages and other relief in the circuit cour...

...improperly allowed a challenge to the propriety of agency action in an inverse condemnation proceeding. Although the Department correctly contends that the propriety of an agency's action may not be challenged in an inverse condemnation proceeding, section 253.763(2), Florida Statutes (1983), the fact that the action was authorized pursuant to agency rules does not, as noted above, preclude a determination that the action constituted a taking....

...Tarr of Peeples, Earl, Reynolds & Blank, Miami, for appellants. Charles G. Stephens, Asst. General Counsel, Tallahassee, for appellee. CAMPBELL, Judge. Appellants, Martin Bowen, Sr. and Martin Bowen, Jr., seek review of the circuit court's dismissal of their inverse condemnation action brought under sections 253.763 and 403.90, Florida Statutes (1981)....

...the final agency action denying the permit, constituted a failure to exhaust administrative remedies and, therefore, appellants' circuit court action was barred. The application of Key Haven to the facts in this case presents two issues. 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. Sections 253.763(2) and 403.90(2) provide: Any person substantially affected by a final action of any agency with respect to a permit may seek review within 90 days of the rendering of such decision and request monetary damages and other relief in the circuit...

...on its merits, a permit application. Final agency action, in this case, is construed to mean the written decision of the DER under section 120.59(1), Florida Statutes (1981), and the Florida Administrative Code Rule 17.1.88. We find, therefore, that section 253.763(2) alters the case law as established by Key Haven, and later approved in Albrecht v. State, 444 So.2d 8 (Fla. 1984). ( Albrecht also arose prior to the enactment of section 253.763.) We see no indication now that the plain meaning of "final agency action," as used in the statute, should be extended to include an appeal to TIIF. Inverse condemnation actions cannot be adjudicated by administrative boards or agencies. We conclude that section 253.763(2) merely short-circuits the *569 procedure of administrative appeal to TIIF required by Key Haven....

...Oaklawn Memorial Park, Inc., 361 So.2d 695 (Fla. 1978); Key Haven at 159. The court in Key Haven held that "before Key Haven could use the permit denial as a basis for an inverse condemnation claim, it was required to pursue a section 253.76 appeal to the IIF trustees." Key Haven at 156. Section 253.763 now only requires, before resort to the circuit court, "final action of any agency" and not an appeal from "final action of any agency." Key Haven spoke in terms of exhaustion of administrative remedies. "Final agency action" and "exhaustion of administrative remedies" are not synonymous. In enacting section 253.763, the legislature could easily have provided that final agency action was not completed until the exhaustion of the appeal provided in section 253.76....

...hat action. In so holding, we agree with the decision of the Fifth District Court of Appeal in Griffin v. St. Johns River Water Management District, 409 So.2d 208 (Fla. 5th DCA 1982) (discussing section 373.617 (1979), which is identical to sections 253.763(2) and 403.90(2), Florida Statutes (1981).) We note, however, that DER's denial of the permit must be based on the merits of the application before direct access to the circuit court is available....

...Where procedural or substantive errors in the application or administrative hearing thereon result in a permit denial, administrative and judicial appeal through the applicable substantive statutes and chapter 120 is still the proper remedy. This requirement is reiterated by the last sentence of section 253.763(2) which provides: Review of final agency action for the purpose of determining whether the action is in accordance with existing statutes or rules and based on competent substantial evidence shall proceed in accordance with chapter 120....

...ive remedies where final administrative agency action resulted without a request for an administrative hearing. As hereinbefore indicated, final agency action, however arrived at, now seems the legislative requirement to access to the circuit court. 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....

...ns *570 submitted without hearings. Therefore, we reverse the order of dismissal by the circuit court and remand for further proceedings. There is one additional issue which is not raised by this case, but which demands clarification. The wording of section 253.763(2) raises a question as to whether the administrative appeal and the inverse condemnation action in the circuit court may be instituted simultaneously....

...Thus, if an administrative appeal is instituted under 253.76, the "taking" issue may not be heard by the circuit court until the section 253.76 proceedings are completed. The ninety-day time limitation on bringing inverse condemnation actions in the circuit court, contained in 253.763(2), is automatically tolled until the agency completes the review process....

...is determination, Polk's remedy is a tort action for negligent destruction rather than an inverse condemnation suit. The Department correctly notes that the propriety of an agency's action may not be challenged in an inverse condemnation proceeding. § 253.763(2), Fla....

...Davin, 373 So.2d 423 (Fla. 2d DCA 1979), [2] it is law that has developed after appellants' right to appeal the denial of the permit had expired in 1977. Appellants' right to appeal in the permitting proceeding also expired prior to the effective date of Florida Statutes, Section 253.763, [3] which provides a remedy for taking of private property through the permitting process....

...of Health and Rehab. Serv., 3 FALR 314-A (1981). [1] See, e.g., Cross Key Waterways v. Askew, 351 So.2d 1062 (Fla. 1st DCA 1977). [2] But see Rice v. Department of Health and Rehabilitative Services, 386 So.2d 844, 848 at note 6 (Fla. 1st DCA 1980). [3] § 253.763(2), Fla....

...r action is necessary to protect the public. That is the duty — the sole duty — of the agency, and its very reason for being. If a taking results, the land owner must pursue his remedies elsewhere. That is the procedure now expressly recognized by section 253.763, Florida Statutes (effective May 29, 1978), and it was, I submit, the proper procedure long before then....

...1978, and that appellants then had at least three years within which to file proceedings in the circuit court to establish that the agency action had deprived them of all use of their property, and to prove their resultant damages. On May 29, 1978, section 253.763 became effective, [6] and the time for filing such an action was reduced to 90 days....

...1979); Foley v. Morris, 339 So.2d 215, 217 (Fla. 1976). The relief sought by the action was by then expressly authorized and the court erred in dismissing the case. It is somewhat peculiar that neither Coulter nor Key Haven (except in the dissent) discussed section 253.763....

...That no such amendment has been made substantially discredits that hypothesis. Either the new statute did not create a new cause of action, or section 120.68(12)(c) does not make the district court of appeal the exclusive forum for raising the issue of a taking. As for Coulter, the mere fact that section 253.763 was enacted destroys the rationale of that case....

...That has not been tested below and is not before us. I am simply dealing with where and when such matters can and must be raised. I think appellants stated a viable cause of action, and I would grant rehearing and reverse the dismissal of their complaint. NOTES [1] The parties agree that section 253.763, Florida Statutes (1979), is inapplicable to this case....

...Davin, 373 So.2d 423 (Fla.2d DCA 1979). Some courts have also held that an issue, like "unjust taking" of property, must be raised in the Chapter 120 appeal before it can be raised in the circuit court. Coulter. However, none of these cases consider the later applicable statutes, section 253.763 or section 373.617....

...the waters of Pennekamp Park. Marie Krieter brought suit, as trustee of the Marie M. Krieter Trust, against the Trustees and alleged a taking of private property without compensation. The appellant's allegations were brought under the provisions of Section 253.763, Florida Statutes (1989), and the Constitutions of the United States and the State of Florida....

...The Florida Supreme Court affirmed this principle in Department of Agriculture & Consumer Services v. Polk, 568 So.2d 35, 38 (Fla.1990): "[T]he propriety of an agency's action may not be challenged in an inverse condemnation proceeding." Id. at 38 (citing § 253.763(2), Fla....

this case presents two issues. First, does section 253.763(2), which was not effective at the time pertinent

...in circuit court. Id. at 12-13 (internal citations omitted). Albrecht and Key Haven were abrogated by statute, as explained in Bowen v. Florida Department of Environmental Regulation, 448 So.2d 566 (Fla. 2d DCA 1984). Bowen held that Florida Statute § 253.763(2), which allows for an inverse condemnation claim in circuit court, "now provides for proceeding directly to the circuit court on an inverse condemnation action following final agency action denying, on its merits, a permit application." Id....

...etermination, Polk’s remedy is a tort action for negligent destruction rather than an inverse condemnation suit. The Department correctly notes that the propriety of an agency’s action may not be challenged in an inverse condemnation proceeding. § 253.763(2), Fla....

...lso Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 737, 117 S.Ct. 1659, 137 L.Ed.2d 980 (1997). Thus, a landowner possesses no obligation to exhaust administrative review procedures before asserting a takings claim pursuant to Section 1983. Section 253.763, Florida Statutes, requires that before seeking judicial review a landowner show only "final action of any agency" (and not "an appeal from `final action of any agency'"). Bowen v. Fla. Dep't of Envtl. Regulation, 448 So.2d 566, 568-69 (Fla. 2d DCA 1984). Sections 253.763(2) and 403.90(2), Florida Statutes, provide "for proceeding directly to the circuit court on an inverse condemnation action following final agency action denying, on its merits, a permit application." 448 So.2d at 568-69; see Fla. Stat. § 253.763(2) ("Any person substantially affected by a final action of any agency with respect to a permit may seek review within 90 days of the rendering of such decision and request monetary relief in the circuit court ......

...Accordingly, counts five through eight ripened at the moment the County adopted each policy and ordinance. Counts one and two assert as-applied challenges under the Takings Clause of the U.S. Constitution and Section Six of the Florida Constitution, which section governs eminent domain. Sections 253.763(2) and 403.90(2), Florida Statutes, provide that after "a final action of any agency with respect to a permit" a landowner may seek judicial review....

...As a result, our record on this issue is sparse. We are mindful that the ALJ lacked jurisdiction to declare the statute unconstitutional. See Key Haven Associated Enters., Inc. v. Bd. of Trs. of Internal Improvement Trust Fund, 427 So.2d 153, 157 (Fla.1982), superseded by § 253.763(2), Fla....

...“Absent- the state’s denial to a property owner of just compensation, there can be no cognizable harm to any federal constitutional right.” Lake Lucerne Civic Assoc. Inc. v. Dolphin Stadium Corp., 878 F.2d 1360 (11th Cir.1989). Additionally, Florida Statute 253.763(2) specifically .provides for proceeding directly to circuit court on inverse condemnation actions following final agency action....