Taylor v. Department of Professional Regulation, Bd. of Medical Examiners
| Decision Date | 18 August 1986 |
| Docket Number | No. BI-328,BI-328 |
| Citation | 493 So.2d 498,11 Fla. L. Weekly 1825 |
| Parties | 11 Fla. L. Weekly 1825 William N. TAYLOR, M.D., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD of MEDICAL EXAMINERS, Appellee. |
| Court | Florida District Court of Appeals |
Julian Clarkson and Michael L. Rosen of Holland & Knight, Tallahassee, for appellant.
William M. Furlow, Department of Professional Regulation, Tallahassee, for appellee.
The Department of Professional Regulation (DPR) has moved to dismiss this appeal, contending that appellant, William N. Taylor, failed to timely file his notice of appeal.
On June 26, 1985, after having held an evidentiary hearing, the Board of Medical Examiners filed its order which found Dr. Taylor guilty of professional misconduct, suspended his license to practice medicine, and stayed the suspension pending Dr. Taylor's satisfactorily serving five years' probation. The record reflects that at the conclusion of the hearing the Board of Medical Examiners stated that it agreed to impose only three years' probation. A certified copy of the June 26 written order, signed by the chairman of the Board, was sent to Dr. Taylor at a Sarasota address, but Dr. Taylor did not receive a copy until July 13, at a Palm Harbor address. The order advised Dr. Taylor of his right to appeal within thirty days. Dr. Taylor was not represented by counsel, and on July 15 he sent a letter to the Board by certified mail which stated that the final order contained "an important error ... with regards to the length of probationary period." After referring to the discussion of the three-year probation that occurred at the end of the hearing, the letter requested that the Board respond
Approximately three weeks later, on August 8, 1985, the Board filed an "Amended Final Order" correcting the length of the probationary period to three years and incorporating all other provisions of its original final order. It advised Dr. Taylor of his right to appeal "within thirty (30) days of the date this order is filed." A copy was furnished to Dr. Taylor, and thereafter, on September 6, 1985, he filed a notice of appeal from the "Amended Final Order of the Board of Medical Examiners rendered August 8, 1985."
After the appeal from the amended order was perfected and appellant's brief had been served and filed, DPR filed, with its answer brief, the instant motion to dismiss. There is no dispute that the notice of appeal was filed within thirty days of the August 8 amended final order, but it was not filed within thirty days of the original June 26 final order.
Appellate jurisdiction may be timely invoked by filing a notice of appeal "within 30 days of rendition of the order to be reviewed." Rule 9.110(b), Fla.R.App.P. "Rendition" is defined as "the filing of a signed, written order with the clerk of the lower tribunal." Rule 9.020(g), Fla.R.App.P. This latter rule also provides: "Where there has been filed in the lower tribunal an authorized and timely motion for new trial or rehearing ... the order shall not be deemed rendered until disposition thereof."
No statute or rule authorizes the filing of a motion for rehearing which tolls the time for appealing the Board's final agency order, nor is there any express authority by statute or rule for the agency to retain jurisdiction over its final order, once filed, so as to permit the agency to withdraw the order and change or modify it. As urged by DPR, Dr. Taylor's appeal from final agency action was untimely because his letter of July 15, even if treated as a motion for rehearing, could not toll the time for filing a notice of appeal since it was not authorized by rule or statute and was not filed within thirty days of the June 26, 1985 order, the only final order authorized by statute to be entered by the Board of Medical Examiners.
We hold that the motion to dismiss must be granted on the authority of Systems Management Associates, Inc. v. Department of Health and Rehabilitative Services, 391 So.2d 688 (Fla. 1st DCA 1981). We recognize that this result is unduly harsh, but conclude that this court is not empowered to write, by judicial fiat, a procedure for granting the right to rehearing which tolls the time for appeal pending decision on the motion.
For the reasons stated in the dissenting opinion, however, we certify the following as a question of great public importance:
DOES AN ADMINISTRATIVE AGENCY EXERCISING ITS QUASI-JUDICIAL POWER IN A LICENSE REVOCATION PROCEEDING HAVE THE INHERENT AUTHORITY TO CHANGE OR MODIFY ITS FINAL ORDER WITHIN A REASONABLE TIME AFTER FILING IT SO THAT THE TIME FOR TAKING AN APPEAL BEGINS TO RUN FROM THE DATE OF FILING THE AMENDED ORDER?
The appeal is DISMISSED.
ZEHMER, J., dissents with written opinion.
I concur in the dismissal of the appeal because this court established the determinative criteria for a timely appeal five years ago in Systems Management Associates, Inc. v. State Department of Health and Rehabilitative Services, 391 So.2d 688 (Fla. 1st DCA 1981), in which it recognized the right of an aggrieved party to appeal agency action and implicitly held that due process was thereby afforded. This is, at best, a skeletal form of due process.
It would be inappropriate for this court to destabilize the law by receding from the rule enunciated in Systems Management. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). However, the foundation of the decision in Systems Management appears to have suffered erosion, in that most administrative agencies have not adopted rules to permit them to correct errors in final agency orders. In view of the fact that Systems Management was issued more than five years ago, it is difficult to believe that the agencies are not callously indifferent to, but merely unaware of, the problems caused by the absence of such procedural rules.
No problem persists indefinitely without a solution. It is apparent that this skeletal form of due process provided to litigants in the administrative process is crumbling into a pile of meaningless bones. Were this the Supreme Court of Florida, and not the progenitors of Systems Management, I would be inclined to hold that appellant has been denied due process of law.
My sympathies obviously lie with Judge Zehmer's dissent, a position with which I was not unfamiliar in its articulation. Accordingly, the certified question is one of immediate and expansive gravamen.
The Department of Professional Regulation's position is necessarily predicated on the premise that the June 26 order became irrevocably final when filed and that as a consequence the Board of Medical Examiners thereupon lost all power to modify or amend any substantive provisions of the order so as to make it conform to the Board's true intention and decision. The only right of appeal, DPR necessarily contends, is from the original erroneous order. As a result, Dr. Taylor has lost his right of appellate review of the substantive findings by the Board solely because he did what any reasonable person in such circumstances would have done--he asked the Board to correct its apparent error by entering a correct order before he filed the notice of appeal.
Under DPR's reasoning, the August 8 amended order has no validity whatsoever. So, with the dismissal of this appeal, Dr. Taylor will stand convicted and disciplined under a final order that imposes a penalty for five years, two years more than the Board intended, without any opportunity for correction of the admitted error by the Board, and without an opportunity for appellate review on the merits of the correct order. This result is undesirable, unnecessary, and, in my view, offensive to the purpose of the quasi-judicial power conferred on this administrative agency under the constitution and applicable statutes. DPR's position in this case, approved in the majority opinion in reliance on the decision in Systems Management Ass'n, Inc. v. Department of Health and Rehabilitative Services, 391 So.2d 688 (Fla. 1st DCA 1981), will serve only to compel parties in administrative proceedings to immediately appeal an obviously incorrect order without first giving the agency an opportunity to correct its error, and thereby needlessly add additional issues for review by already-overburdened appellate courts.
The needlessly harsh result in this case cannot be reconciled with the notions of due process and fundamental fairness underlying the statutes and rules governing administrative proceedings in this state. This is not the first time concerns for due process have caused the courts of this state to comment on the failure to adopt rules authorizing an agency to reconsider and set aside a final order. In Tall Trees Condominium Ass'n, Inc. v. Division of Florida Land Sales and Condominiums, 455 So.2d 1101, 1103 (Fla. 3d DCA 1984), the appellate court aptly observed:
As a parenthetical, we note that the Division has no procedural rule or provision for setting aside a final order; no counterpart to Rule 1.540, Florida Rules of Civil Procedure. Chapter 28-3, Florida Administrative Code and Section 120.53, Florida Statutes (1983), give agencies the authority to enact rules of procedure and practice. While we cannot require that the Division adopt such a rule, Citizens of Florida v. Mayo, 357 So.2d 731 (Fla.1978), we suggest that notions of due process and fundamental fairness require that a procedure for setting aside a final order be available for use in appropriate situations.
It is well-established that a court has the inherent power to rehear and set aside or modify its own final orders, whether or not such power is expressly conferred by statute or rule,...
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