Hall v. Career Service Com'n, BA-462

• Decision Date: 13 November 1985
• Docket Number: No. BA-462,BA-462
• Parties: 10 Fla. L. Weekly 2519 Carlton HALL, Jr., Appellant, v. CAREER SERVICE COMMISSION, Appellee.
• Court: Florida District Court of Appeals

Page 1111

478 So.2d 1111

10 Fla. L. Weekly 2519

Carlton HALL, Jr., Appellant, v. CAREER SERVICE COMMISSION, Appellee.

No. BA-462.

District Court of Appeal of Florida First District.

Nov. 13, 1985.

Thomas W. Brooks of Meyer, Brooks, & Cooper, Tallahassee, for appellant.

Burton M. Michaels, Dept. of Admin., Tallahassee, for appellee.

ERVIN, Judge.

Hall appeals from an order of the Career Service Commission (Commission) denying his motion for extension of time to file attorney's fee affidavits. We reverse and remand.

On May 31, 1984, the Commission orally determined that Hall should be reinstated to his former position of employment with the Department of Highway Safety and Motor Vehicles, and awarded him back pay. This decision was embodied in a written final order on July 18, 1984. On June 11, 1984, ¹ appellant's counsel filed a stipulated motion for extension of time for ten days to file attorney's fee affidavits, representing that the Department of Highway Safety and Motor Vehicles had no objection to the same. The motion also represented that the parties would be able to stipulate to a reasonable amount of attorney's fees and costs, thereby obviating the need for any further proceedings before the Commission.

Hall later filed his proposed attorney's fees and costs, and attached to it his affidavit. By letter dated June 22, 1984, the Commission, although acknowledging receipt of the same, stated that the motion for extension of time had been denied by the Commission on June 19, 1984; therefore the documents were not timely filed and could not be considered by it. In its written order denying Hall's stipulated motion for extension of time to file attorney's fee affidavits, the Commission explained that Florida Administrative Code Rule 22M-2.11(2) ² requires that the employee's attorney submit affidavits in support of the amount and reasonableness of attorney's fees and costs within ten days following the conclusion of the hearing in which the employee is sustained, and it had no power or authority to either waive or extend the ten-day period.

We disagree with the Commission's conclusion. While there is no specific statute or rule authorizing the Commission to entertain motions for extensions of time, the general rule is that an express grant of power to an agency will be deemed to include such powers as are necessarily or reasonably incident to the powers expressly granted. 1 Am.Jur.2d Administrative Law § 73 (1962); cf., Department of Professional Regulation v. Florida Society of Professional Land Surveyors, 475 So.2d 939, 941 (Fla. 1st DCA 1985) ("[Agencies] have rulemaking authority fairly implied from the statutory provisions governing them.").

Agencies are provided general adjudicatory powers by Florida's Administrative Procedure Act, including the parties' rights "to respond, to present evidence and argument on all issues involved...." § 120.57(1)(b)(4), Fla.Stat. The agency's power to conduct orderly administrative hearings under Chapter 120 necessarily implies the incidental power to grant extensions of time of such proceedings. In addition, the Model Rules of Administrative Procedure, specifically Florida Administrative Code Rule 28-5.204, authorizes an agency to entertain all motions, which, we consider, reasonably includes motions for extensions of time. Finally, we regard section 120.68(12)(b), providing for remand to the agency if the court finds the agency's exercise of discretion to be "[i]nconsistent with an agency rule ... if deviation therefrom is not explained by the agency", as impliedly recognizing in proper ...