Title: Administrative Law--Administrative Res Judicata: Giving The Developer Another Bite of the Apple--Thomson V. Department of Environmental Regulation, 511 So. 2d 989 (Fla. 1987)
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00004556/00001
 Material Information
Title: Administrative Law--Administrative Res Judicata: Giving The Developer Another Bite of the Apple--Thomson V. Department of Environmental Regulation, 511 So. 2d 989 (Fla. 1987)
Physical Description: Book
Language: English
Publisher: Florida State University Law Review (Vol. 16:403, 1988)
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Jake Varn Collection - Administrative Law--Administrative Res Judicata: Giving The Developer Another Bite of the Apple--Thomson V. Department of Environmental Regulation, 511 So. 2d 989 (Fla. 1987) (JDV Box 90)
General Note: Box 24, Folder 1 ( Governmental Rules, Regulations, Legislation and Administrative Laws - 1996 ), Item 10
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00004556
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text


of Environmental Regulation, 511 So. 2d 989 (Fla. 1987)

FLORIDA agencies authorized to restrict environmentally un-
sound use of land and water and individuals who own land and
wish to exercise their ownership rights are involved in an ongoing
process of confrontation and compromise. Occasionally, the agen-
cies win a battle in favor of the environment, but often the interests
of the property owners prevail. The Florida Department of Environ-
mental Regulation (DER) is one of the agencies charged with pre-
venting degradation of the environment. In line with its authority to
control and prohibit air and water pollution and to promulgate cur-
rent and long-range plans to provide for air and water quality con-
trol and pollution abatement, DER has developed rules relating to
permits for "the operation, construction, or expansion of any instal-
lation that may be a source of air or water pollution."' Under these
rules, every proposed structure, large or small, that will intrude into
waters over ecologically sensitive submerged lands must be approved
by DER before construction can begin. This covers all docks, over-
water platforms, marinas, and other similar structures.
The agency is required to process what turns out to be an enor-
mous number of dredge and fill permits every year.2 The permit ap-

1. FLA. STAT. 403.061(14) (1987). Specifically, Rule 17-4.280(3) of the Florida Admin-
istrative Code requires that an individual applying for a dredge and fill permit "affirmatively
provide reasonable assurance to the department that the short-term and long-term effects of
the activity will not result in violations of the water quality criteria." FLA. ADMIN. CODE R.
17-4.280(3) (1987).
2. There are currently 300 active permits being processed at the main offices of DER in
Tallahassee, Florida. The main office, however, only processes permits for larger projects.
The total number of dredge and fill permits processed each year includes all the applications
for smaller projects, like the one involved in the instant case, which are processed by DER's
six district offices. During the period between July 1, 1987 and June 30, 1988, DER issued
1,860 dredge and fill permits. Telephone interview with Janet Llewellyn, Environmental Ad-
ministrator, Wetland Resource Regulation, DER, (Aug. 16, 1988). Under the provisions of
Rule 17-4.280(1 )(e), DER must either grant, deny or act on the permit in some way within 90
days of receiving it; thus, the total number processed in a 12-month period is substantial. FLA.
ADMIN. CODE R. 17-4.280(1 l)(e) (1987).


plication process is detailed, lengthy, and sometimes very expensive.3
It also affects a great number of people because of the numerous
kinds of structures falling within the purview of DER's jurisdiction.
The Florida Supreme Court recently reviewed a denial by DER of
such a dredge and fill permit application in Thomson v. Department
of Environmental Regulation.4 The Thomsons had applied for a per-
mit to construct an overwater walkway and platform leading from
their waterfront restaurant through a stand of mangroves. The initial
proposed design was turned down by DER because of projected ad-
verse environmental impacts. Several months later, the Thomsons
submitted another application with a slightly modified design. The
Department concluded that the applications were too similar and de-
nied a permit on the basis of res judicata.
Although this case turned on a fairly narrow issue-whether the
Thomson's two applications were sufficiently different to preclude
DER from applying res judicata-the case nevertheless afforded the
Supreme Court of Florida a unique opportunity to articulate its posi-
tion on the general applicability of administrative res judicata to en-
vironmental permitting proceedings. The case remains of interest
because of the method employed by the supreme court in assuming
jurisdiction over the matter. Although the court often exercises its
conflict jurisdiction, for the court to find a conflict sufficient to sup-
port such jurisdiction in this instance required a leap of imagination.
Thomson was preferred as conflicting with Matthews v. State ex rel.
St. Andrews Bay Transportation Co.,' a case decided by the Su-
preme Court of Florida fifty years ago, which is, by the supreme
court's own admission, a case no longer relevant in the jurisprudence
of Florida administrative law.6
The supreme court reversed the ruling of the First District Court
of Appeal, concluding that the appeals court had erroneously ap-
plied the doctrine of administrative res judicata to preclude the
Thomson's second application. In reviewing the doctrine as applied
by both DER and the First District, however, the supreme court re-
stated and possibly limited the availability of the doctrine to the en-
vironmental agencies for use in abbreviating and streamlining the
permitting process. This Note briefly explores the role of res judicata
in the administrative process by looking at workers' compensation
benefits cases and zoning use cases and then explains how the doc-

4. 511 So. 2d 989(Fla. 1987).
5. 111 Fla. 587, 149 So. 648 (1933).
6. Thomson, 511 So. 2d at989, 991.


trine has been used as an effective tool in relieving the burden upon
governmental agencies charged with environmental permitting. This
Note also briefly reviews changes in the doctrine's use over time
which culminate in Thomson, and shows why the Thomson decision
hands a small defeat to those who believe that the environmental
permitting process is the best mechanism for regulating rapacious de-

Res judicata is a "rule that a final judgment rendered by a court
of competent jurisdiction on the merits is conclusive as to the rights
of the parties and their privies, and, as to them, constitutes an abso-
lute bar to a subsequent action involving the same claim, demand or
cause of action."7 Res judicata "puts to rest every justiciable, as well
as every actually litigated, issue,"8 as long as several preconditions
are met: "identity of the thing sued for; identity of the cause of ac-
tion; identity of parties; [and] identity of the quality in the person
for or against whom the claim is made."9 "Where a reasonable op-
portunity has been afforded to the parties to litigate a claim before a
court which has jurisdiction over the parties and the cause of action,
and the court has finally decided the controversy, the interests of the
State and of the parties require that the validity of the claim and any
issue actually litigated in the action shall not be litigated again by

A. An Historical Perspective
For some time there was a strongly held concern that res judicata
as it was recognized in judicial proceedings should not be applicable
in administrative determinations. Courts' concerns with administra-
tive res judicata revolved around the differences between judicial
and administrative procedures: the "regularized procedure of courts
conduces to application of the doctrine of res judicata,"" but ad-
ministrative proceedings are "often summary, parties are sometimes
unrepresented by counsel, and permitting a second consideration of
the same question may frequently be supported by other similar rea-
sons which are inapplicable to judicial proceedings."12

7. BLACK'S LAW DICTIONARY 1174 (5th ed. 1979).
8. Albrecht v. State, 444 So. 2d 8, 11-12 (Fla. 1984).
9. Id. at 12.
11. 2 K. DAVIS, ADMINISTRATIVE LAW TREATISE 18.01, at 545 (1958).
12. Id.



The United States Supreme Court voiced this concern in a case
decided near the turn of the century, Pearson v. Williams." Pearson
involved a British citizen who had been permitted entry to come to
work in the United States by a board of special inquiry.'4 A few
weeks after his entry, he was arrested, made to appear before an-
other board of special inquiry, and was ordered to be returned to
England." The United States Supreme Court heard arguments that
the board should not have had the power to redecide the issue once
the man had been admitted. The Court refused to adopt this reason-
ing, stating, "The board is an instrument of the executive power, not
a court. Decisions of a similar type long have been recognized as
decisions of the executive department, and cannot constitute res ju-
dicata in a technical sense."'6
Although the Pearson decision has been cited for the proposition
that an administrative decision cannot be res judicata, the Court's
holding is not that broad. Rather, because the administrative pro-
ceeding at issue in Pearson was summary, the Court's decision can
be understood more narrowly to prohibit the application of adminis-
trative res judicata only when the administrative proceeding does not
parallel a judicial proceeding."
The United States Supreme Court ultimately articulated the view
that administrative determinations could be res judicata in Sunshine
Anthracite Coal Co. v. Adkins.'s This case involved a commission's
finding that a certain company's coal was bituminous, and the coal
company's subsequent attempt to argue with tax officials that the
coal was not. The Court noted that "a judgment in a suit between a
party and a representative of the United States is res judicata in reli-
tigation of the same issue between that party and another officer of
the government."'9 "The Sunshine case is in all respects a clear
strong holding that the administrative determination was res judi-

B. A Current Perspective
Today, most jurisdictions follow the United States Supreme
Court's lead, adhering to the principle that the policies underlying

13. 202 U.S. 281 (1906).
14. Id. at 282.
15. Id.
16. Id. at 284-85 (citations omitted).
17. K. DAVIS, supra note 11, 18.02, at 548.
18. 310 U.S. 381 (1940).
19. Id. at 402-3 (citations omitted).
20. K. DAVIS, supra note 11, 18.02, at 555.


the doctrine of res judicata are "fully applicable to some administra-
tive proceedings."21 The reasons against allowing two parties to reli-
tigate the same issues are "precisely the same for some
administrative determinations as they are for most judicial determi-
nations."22 Thus, as a general proposition, determinations made by
an administrative body can be res judicata as to an attempt to later
relitigate the same issue before the same administrative body. One
important consideration, however, is that certain "safeguards" exist
to allow the use of the doctrine. They include: "due notice, a fair
opportunity to be heard in person and through counsel, the right to
present evidence and the right to cross-examine adverse witnesses."23
These safeguards are intended to guarantee that an administrative
proceeding is sufficiently quasi-judicial to permit the use of res judi-


While Florida courts apply the basic proposition that administra-
tive determinations can be res judicata, certain limitations on this
rule have developed over time. To temper what otherwise might be a
fairly rigid rule precluding relitigation, courts follow the admoni-
tions of the Supreme Court of Florida in Universal Construction Co.
v. Ft. Lauderdale.24 The case involved a contractor's suit against the
City of Fort Lauderdale to recover damages upon a theory of quan-
tum meruit for the cost of additional improvements the contractor
had made on a project for the city. Although the state's high court
found "all the requisites of res judicata"25 from the facts presented,
the court was nevertheless "convinced that this doctrine should not
necessarily be controlling under the facts and circumstances atten-
dant upon this litigation."26 The court showed itself amenable to a
less rigid application of res judicata: "[W]hen a choice must be made
we apprehend that the State, as well as the courts, is more interested
in the fair and proper administration of justice than in rigidly apply-
ing a fiction of the law designed to terminate litigation."27 Indeed,
the court stated broadly, "[T]his very Court among others, has an-

21. Id. at 548 (emphasis in original).
22. Id.
23. Coral Reef Nurseries v. Babcock Co., 410 So. 2d 648, 652-53 (Fla. 3d DCA 1982).
24. 68 So. 2d 366 (Fla. 1953).
25. Id. at 369.
26. Id.
27. Id.



nounced the salutary principle that the doctrine of res judicata
should not be so rigidly applied as to defeat the ends of justice."28
Although Universal Construction did not involve an administra-
tive body's determination, its general proposition that res judicata
does not apply where use of the doctrine might cause manifest injus-
tice has carried over into administrative proceedings.29 Courts seem
to generally follow this idea in the administrative arena, relaxing or
qualifying the doctrine "in any desired degree without destroying its
essential service"30 when fairness would demand as much.
While heeding Universal Construction's admonition of selective,
discretionary use of res judicata in administrative decisions, use of
the doctrine by the courts has nevertheless increased over time, and
it is now widely utilized by agencies to put a definite end to certain
types of proceedings. Res judicata is applied in workers' compensa-
tion benefit evaluations,3 zoning change requests,32 and, in the area
of concern in Thomson, environmental permitting cases." The poli-
cies underlying these different kinds of proceedings play a key role in
defining the way administrative res judicata is applied.

A. Workers' Compensation
Workers' compensation cases reflect what is perhaps the most
flexible use of res judicata to bar a petitioner from appearing before
an administrative body successive times in order to argue a claim.
The intent and social policy underlying workers' compensation sta-
tutes is to ensure that an injured worker will be able to obtain redress
for injuries.34 Any mechanical application of res judicata to prevent
modification of an inadequate initial award would defeat that end.
The worker is injured and is entitled to benefits; once entitlement is
firmly established, the only issue for the administrative body to de-
cide is the amount of the benefits the worker will receive.
Sauder v. Coast Cities Coaches, Inc." involved a bus driver who
had been injured on the job, and who had then submitted his claim
to a deputy commissioner of the Florida Industrial Commission to
be evaluated for benefits. At the original proceeding, the deputy
found on the evidence before him that the injured worker had a ten-

28. Id.
29. K. DAVIS, supra note 11, 18.03, at 558.
30. Id.
31. See infra notes 34-51 and accompanying text.
32. See infra notes 52-73 and accompanying text.
33. See infra notes 74-92 and accompanying text.
34. Trail Builders Supply Co. v. Reagan, 235 So. 2d 482 (Fla. 1970).
35. 156 So. 2d 162 (Fla. 1963).


percent permanent partial disability and entered an order for the
payment of compensation benefits.36 Some years later, the worker
petitioned for a modification of the original award of benefits,
claiming his injury had been greater than the deputy commissioner
had determined from the outset.7 A second deputy commissioner
granted the modification, determining that the first deputy had made
a mistake in the finding of fact involving the worker's condition at
the original proceeding.38
The modification was later reversed by the full Commission, and
this reversal was appealed to the Supreme Court of Florida. Accept-
ing certiorari, the supreme court noted initially:

In order to support a modification ... on the ground of the
mistake in the determination of a fact, a claimant has the burden of
showing that the mistake was one committed by the deputy and was
not merely an erroneous conclusion formed by his own witnesses.

... It is our view that all known evidence bearing on the claim
should be submitted to the deputy. If the claimant fails to produce
evidence available to him or produces unreliable evidence, he
cannot later effectively maintain that the deputy committed error in
relying upon the evidence which he himself produced.39

Although the Supreme Court of Florida refused to support the sec-
ond deputy commissioner's rationale for modifying the initial
award, the court did not find the initial determination to be res judi-
cata. Instead, the court found that the initial award could be modi-
fied, because the claimant's evidence of a change in his condition
over time was sufficient to support such modification:4

The so-called change of condition provision is available to bring
relief to a claimant whose condition becomes progressively worse
even though not anticipated by the original diagnosis. A change
may also be the product of evidentiary factors not known at the
time of the initial claim proceeding. The burden remains with the
claimant to establish by competent substantial evidence the
occurence of the change .41

36. Id. at 164.
37. Id.
38. Id.
39. Id. at 164-65.
40. Id. at 165.
41. Id.



The court remanded the cause to the Florida Industrial Commission
for consideration of the injured man's changed condition.42
A more recent workers' compensation decision43 concerned an in-
jured worker who was initially denied a claim for loss in wage earn-
ing capacity because the worker had not supplied evidence to the
deputy commissioner of an unsuccessful work search in order to suf-
ficiently demonstrate that his disability did indeed make him unem-
ployable." After the denial, the worker conducted an exhaustive but
unsuccessful work search and petitioned for a modification of the
initial denial.45 The deputy commissioner denied this petition, ruling
that the claimant's evidence of a work search should have been sub-
mitted at the initial hearing and, therefore, the issue of his unem-
ployability was res judicata.46 In reversing this application of res
judicata, the First District Court of Appeal held that the applicable
statute in this case47 provides that a requisite change in condition for
modification should include "a change in claimant's ability to get or
hold employment, or to maintain his earlier earnings level."48 Em-
phasizing that section 440.28 provides a two-year period for changes
in a claimant's condition to prompt a modification, the court noted
that employability is the ultimate issue; the work search test is
merely the vehicle to prove it.49 Noting further that "workers' com-
pensation proceedings are inherently and uniquely 'piecemeal' in na-
ture, for the simple reason that various aspects of a claimant's
entitlements 'mature at different times,'"'0 the court concluded:

[T]here are so many variables connected with the job search
requirement that a "false reading" often results from the initial
hearing on this issue. We think a far better result can be reached
by allowing any deficiencies in a claimant's job search effort to
be remedied and corrected by means of a modification petition.51

42. Id.
43. Flesche v. Interstate Warehouse, 411 So. 2d 919 (Fla. 1st DCA 1982).
44. Id. at 920-21.
45. Id. at921.
46. Id.
47. FLA. STAT. 440.28 (1987). The workers' compensation modification statute provides
that an interested party can petition a deputy commissioner to review a case on the grounds of
a change in condition or a mistake in fact. This review can occur any time within a two-year
period from whenever compensation was first denied or whenever compensation was last re-
ceived. Id.
48. Flesche, 411 So. 2d at 921 (quoting 3 A. LARSON, WORKMEN'S COMPENSATION LAW
81.31(e) (1983)) (citations omitted).
49. Id. at 922.
50. Id. at 923 n.7 (citing Hunt v. Int'l Minerals and Chem. Corp., 410 So. 2d 640 (Fla.
1st DCA 1982)).
51. Id. at926.


Thus, the respective courts in Sauder and Flesche concluded that
workers' compensation decisions governing changes in employability
or disability deserve treatment different from that afforded other ad-
ministrative decisions. An injured worker who has proven entitle-
ment to some disability benefits will be given subsequent
opportunities to show that conditions have changed enough to jus-
tify additional benefits. The courts will not allow an administrative
body's defense of res judicata to preclude an injured worker from
making several applications to that administrative body for altera-
tions in the amount of the compensation benefits.

B. Zoning
Res judicata is frequently invoked in zoning cases, most often to
prevent an individual from requesting a previously denied zoning
change. There is generally a fixed time period within which an appli-
cant and any successors in interest to the same property are pre-
cluded from reapplying. However, zoning regulations are mutable,
and an applicant can avoid the application of res judicata during this
time period by showing that the requested change is different from
the previous one, or that there has been some change in the classifi-
cation or other status of the subject property. Metropolitan Dade
County Board of County Commissioners v. Rockmatt Corp.52 in-
volved the denial of a permit to operate a nightclub in an area where
applicable zoning did not authorize night clubs.3 The permit was de-
nied because "the requested special exception and unusual use per-
mit would not be compatible with the area and its development
would not conform with the requirements and intent of the Zoning
Procedure Ordinance."54 The permit denial by the Dade County
Zoning Appeal Board was upheld by the County Commission both
on its merits and because a similar application filed by the plantiff's
predecessor in interest had been denied a year earlier." Affirming the
denial on appeal, the Third District Court of Appeal noted that res
judicata "is applicable to rulings of administrative bodies unless
it can be shown that since the earlier ruling thereon there has been a
substantial change of circumstances relating to the subject matter
with which the ruling is concerned, sufficient to prompt a different
or contrary determination."56 Thus, because the same special excep-

52. 231 So. 2d 41 (Fla. 3d DCA 1970).
53. Id. at 42.
54. Id. at 42 n.2.
55. Id. at 42, 44.
56. Id. at 44 (citations omitted).



tion and unusual use permit application had been made a year ear-
lier, and, since the circumstances surrounding the property in
question and the use for which it had been zoned had not changed,
res judicata was applied and the permit was denied.7
Several years later, the Third District heard a similar case." A pre-
vious property owner had applied for a reclassification of a corner
lot in Dade County, Florida, to change its zoning to neighborhood
business in order to build a Burger King.59 The Dade County Com-
mission had denied the reclassification. The appellants had pur-
chased the property with knowledge of the previous denial, but
applied to change the property zoning to accommodate professional
offices. They also applied for a permit to have the building house a
Burger King. The County Commission reclassified the subject prop-
erty, but once again denied the permit.60
On appeal, the Third District noted:

This current attempt at liberalizing the classification of this
particular piece of property marks the third time that the Dade
County Commission has heard arguments on whether to permit
construction of a "Burger King" . During the time between
our prior decision and the present, we have not been shown a
substantial change of circumstances applicable to the property
sufficient to overcome the effect of administrative res

The appellant contended that the recent reclassification was itself a
sufficient change in circumstances in the property, but the court
found such reclassification insubstantial to meet the standard re-
quired for a change in circumstances to preclude res judicata.62
The Third District squarely addressed the issue of what magnitude
of "changed circumstances" in the subject property was necessary to
preclude res judicata on a zoning reapplication in Coral Reef Nurser-
ies v. Babcock Co.63 Babcock Company's first application for a zon-
ing change for certain of its property located in Dade County was

57. Id.
58. Burger King Corp. v. Metropolitan Dade County, 349 So. 2d 210 (Fla. 3d DCA
59. Id. at 211.
60. Id.
61. Id. (citing Metropolitan Dade County Bd. of County Comm'rs v. Rockmatt Corp.,
231 So. 2d 41 (Fla. 3d DCA 1970)).
62. Id.
63. 410 So. 2d 648 (Fla. 3d DCA 1982).


denied for various reasons.6 Eighteen months later, Babcock filed
new applications for the same rezoning.65 These applications, which
"substantially differed" from the ones previously filed, were ac-
cepted.66 The zoning board found that there were sufficient changes
in the subject property to prompt a reconsideration of the applica-
tion. Thus, the Third District stated, "Where there are changed
conditions and new facts which did not exist at the time of the prior
judgment of the Commission denying Babcock's rezoning applica-
tion, administrative res judicata will not act as a bar to prevent the
Commission from its later action."67 "Sweeping changes" in the ap-
plication and the changed conditions in the subject property
prompted the court to declare res judicata inapplicable.68
The court went on to note that "the applicability of the res judi-
cata doctrine is primarily within the province of the administrative
body considering the matter in question, and that body's determina-
tion may only be overturned upon a showing of a complete absence
of any justification therefore"6 9 The standard for review in zoning
cases was therefore established as requiring "manifest" or "fla-
grant" abuse of discretion or "arbitrary impulse, whim or caprice"70
on the part of the reviewing agency.
Cases discussed up to this point demonstrate how the judiciary re-
fined its attitude concerning agency use of administrative res judi-
cata. Early concerns that the doctrine be applied very selectively (and
definitely not where it would cause an injustice) gave way to a will-
ingness not to disturb an administrative body's use of res judicata
absent a flagrant abuse of agency discretion, or a "complete absence
of any justification therefore"" 7 The cases and issues discussed to
this point reflect the courts' varied application of res judicata in ad-
ministrative proceedings to prevent a party from relitigating the
same issues before an administrative body.

64. Id. at 649-50. The primary reason was that the property was viable as agricultural
property, and rezoning would have deprived the community of such use of the land.
65. Id.
66. The Third District found differences in the new application that "addressed the con-
cerns raised by the Commission at the earlier hearing and sought to minimize the impact on
the area's future growth and development." Id. at 650. Such differences included sweeping
changes in the placement of roadways and sewer mains, a plan for park and school dedica-
tions, and other changes which were calculated to "discourage future growth beyond that
envisioned by the county planners." Id.
67. Id. at 654.
68. Id. at 654-55.
69. Id. at 655.
70. Id. (citations omitted).
71. Id.



The workers' compensation cases illustrate the courts using a very
flexible approach in applying res judicata. Injured workers are not
to be precluded from receiving benefits where a mechanical applica-
tion of res judicata would defeat justice. Where workers are injured
and have shown an entitlement to benefits, they will not be left un-
compensated for their disabilities solely because of a prior claim.
There is also a safety net built into this process; the worker may have
two years to establish an inability to find suitable work, worsening
of condition, or a mistake in the initial determination of the extent
of the injury. During this time, the amount of the reward can be
In contrast, the zoning cases show the courts applying res judicata
in a more ministerial manner. Because zoning laws are in place, an
application for an unusual use permit cannot, and will not, issue
where a previous and identical application has been denied. Unless
the applicant can show a significant change in circumstances, the
zoning board will assert res judicata. To provide a safeguard in this
process, and in recognition of the fact that zoning issues often in-
volve "fast growing areas, [where] changes occur with great rapid-
ity,"72 a short time period (usually twelve months) is built into the
process after which an identical application can be resubmitted.
This temporary use of res judicata to preclude burdensome reap-
plication assures an administrative body that "it need not process,
entertain, or be beleaguered by reapplications until and unless the
waiting period has passed and assures opponents of the application
that at least for some fixed period of time they may rest easy."73
When the appropriate time for reapplying arrives, the administrative
body can then make a determination whether substantial changes
have occurred in either the application or conditions surrounding the
project area to preclude a more permanent application of res judi-

C. Environmental Permitting
Unlike cases involving workers' compensation benefits, cases deal-
ing with environmental permitting do not involve a request to an ad-
ministrative body for something to which the applicant has shown an
entitlement. The environmental permitting process likewise differs
from the zoning process in that zoning ordinances envision the grant-
ing of zoning changes as conditions in the urban areas and the prop-

72. Id. at 654 (quoting Miami Beach v. Prevatt, 97 So. 2d 473, 477 (Fla. 1957)).
73. Id. at 653.


erty at issue rapidly change. Res judicata is used in the zoning
context as a temporary measure; the applicant is permitted to resub-
mit the same application ad infinitum, as long as there is a twelve
month interval between submissions.
Environmental permitting, on the other hand, reflects perhaps the
least flexible use of administrative res judicata. If a planned project
would be detrimental to the environment, the permit most likely will
be denied. The only way for the applicant to obtain a permit for
such a project is to reduce substantially its projected impacts on the
environment, or later resubmit the same project for approval when it
can be shown that conditions have changed to such an extent that the
project no longer has adverse environmental impacts.
In the absence of either of these variables, a second application for
a project once denied will not be successful irrespective of how much
time has elapsed between applications. Thus, res judicata has been
successfully applied to unburden agencies assigned the task of pro-
tecting the public safety and welfare from environmental hazards as-
sociated with excessive and uncontrolled development. An individual
wishing to develop or construct a project with possible adverse envi-
ronmental impacts is prevented from consuming an excessive amount
of an agency's time by not being allowed to relitigate appropriate
agency denial of an unacceptable project.
Shortly after Coral Reef, the First District decided Doheny v.
Grove Isle, Ltd.74 Doheny involved an interested party/intervenor's
appeal of DER's issuance of a default permit to a condominium con-
cern for the construction of a marina adjacent to the condomin-
ium.7 The condominium group had applied to DER initially for a
dredge and fill permit to allow it to construct the marina.76 Follow-
ing a hearing on the matter, a hearing officer recommended that
DER issue the permit.77 The Department, however, denied the per-
mit, stating that the hearing officer had applied the wrong water
quality standard in his evaluation of the project.78 The Department
then remanded the case to the hearing officer, who looked at it a
second time, and denied it on different grounds.79 The Department

74. 442 So. 2d 966 (Fla. 1st DCA 1983).
75. Id. at 968.
76. Id.
77. Id. (quoting Grove Isle, Ltd. v. Bayshore Homeowner's Ass'n, 418 So. 2d 1046, 1048
(Fla. 1st DCA 1982)).
78. Id. (quoting Grove Isle, Ltd. v. Bayshore Homeowner's Ass'n, 418 So. 2d 1046, 1048
(Fla. 1st DCA 1982)).
79. On remand, the hearing officer found that the condominium group had not made a
showing separate from the water quality issue that the marina was "clearly in the public inter-
est." Id. at 969 (quoting Grove Isle, Ltd. v. Bayshore Homeowner's Ass'n, 418 So. 2d 1046,
1048 (Fla. 1st DCA 1982)).



agreed with the hearing officer on remand and entered its final order
denying the permit.80 Grove Isle, the condominium group, appealed
the denial to the First District Court of Appeal.
Sometime prior to its appeal, however, Grove Isle submitted a sec-
ond application which differed only slightly from the first."' Finding
insufficient information in the application concerning whether the
project was clearly in the public interest, DER requested additional
information from Grove Isle.82 When Grove Isle failed to submit any
additional information, DER denied the permit.83
Grove Isle eventually requested a hearing on the matter, and asked
for a summary order on the second application in its favor because
DER had not denied its permit within the requisite time period.84
Grove Isle asserted that this lack of timeliness entitled it to a default
permit.85 After a hearing was held on the default permit, the hearing
officer recommended that such a permit be granted to Grove Isle.86
The Secretary of DER, pursuant to this recommended order, en-
tered her final order in which she found, among other things, that
res judicata was not available to bar Grove Isle's second, slightly
modified application.87 The Secretary found that Grove Isle's second
application, because it asked for a mixing zone, was sufficiently dif-
ferent from the first application and there was "no identity between
the thing being sued for in the previous proceeding and the present
action."88 She did find, however, that since DER had rejected the
first application because the proposed project was not clearly in the
public interest, relitigation of the public interest issue would be
barred by estoppel by judgment if such issue were to arise in a hear-
ing on the second application.89 Ultimately, however, the Secretary
adopted the hearing officer's recommendation and ordered issuance
of the default permit.90

80. Id. (quoting Grove Isle, Ltd. v. Bayshore Homeowner's Ass'n, 418 So. 2d 1046, 1049
(Fla. 1st DCA 1982)).
81. Id.
82. Id. at 971 (Nimmons, J., dissenting).
83. Id.
84. Id. at 972. In this case, 90 days was the time period within which DER had to act.
85. Id. "Any application for a license not approved or denied within the 90 day or
shorter time period shall be deemed approved ." FLA. STAT. 120.60(2) (1987).
86. Doheny, 442 So. 2d at 972 (Nimmons, J., dissenting).
87. The hearing officer who conducted the hearing on the default permit had initially
directed Grove Isle to show cause why res judicata would not bar its reapplication, and had
directed DER to show cause why it should not be deemed to have waived the defense of res
judicata against Grove Isle's attempt to reapply, since DER did not issue the permit denial in
time. Id.
88. Id. at 973 (Nimmons, J., dissenting).
89. Id.
90. Id.


On review, the First District found that Grove Isle's first applica-
tion had been denied because it was not clearly in the public interest.
Upon reviewing the second application the court further noted:

Inasmuch as this court affirmed the denial of Grove Isle's first
application on the grounds of the applicant's failure to show that
the proposal was clearly in the public interest and since it was
determined that the first application was properly denied it
would appear that the reapplication should be denied unless the
applicant could demonstrate some change or modification which
would show that the project was clearly in the public interest

The First District reversed DER's issuance of the default permit to
Grove Isle and remanded the matter to DER for further proceedings
to determine whether the project, as modified, was in the public in-
The decision in Doheny seemed to indicate that courts were going
to allow agencies a fair amount of latitude in applying res judicata
where an applicant submitted a design for a project very similar to
one already denied. The standard for applying the doctrine appeared
to be that an agency's denial, absent capriciousness or abuse of dis-
cretion, would be left intact. The only situations in which a previ-
ously denied project would become acceptable to an agency would be
either where the design was sufficiently modified so as to present an
entirely different impact on the environment, or where environmen-
tal conditions affecting the property in question had themselves

Case law governing the appropriate use of administrative res judi-
cata in environmental permitting was further developed by the First
District's opinion in Thomson v. State.93 In this case, the Petitioners
(Thomsons) had applied for a permit to construct a walkway and
roofed platform which was to extend out from their waterfront res-
taurant into waters adjacent to the intercoastal waterway.94 This
walkway and platform were to be located over submerged lands
within the Loxahatchee River-Lake Worth Creek Aquatic Preserve,95

91. Id.at975-76.
92. Id. at 977.
93. 493 So. 2d 1032 (Fla. 1st DCA 1986), rev'd, 511 So. 2d 989 (1987).
94. In re Application for Permit by Thomson, Fla. Admin. Order (Nov. 7, 1983).
95. Id.



lands owned by the Thomsons. The application was reviewed by
DER, which conducted an on-site inspection of the project area.96
Once DER had determined that the project would have adverse envi-
ronmental impacts, it issued a letter informing the Thomsons of its
intent to deny the permit and informing them of their right to ask
for an administrative hearing before the agency entered its final or-
der.97 The following adverse environmental impacts were listed in
DER's statement of intent to deny:

The proposed roofed platform and walkway will be located over
seagrasses. The resultant shading is expected to destroy those
seagrasses which, as a base of a detrital food web, contribute to the
commercial and recreational shellfish and fishing industry.
Seagrasses also provide habitat and nursery grounds for many
marine organisms, consolidate sediments and can improve water
quality by removing nutrients from the water and reducing
turbidity. As a result of the above cited factors, degradation of
water quality is expected.

The proposed activity would be expected to interfere with the
conservation of fish and wildlife to such an extent as to be contrary
to the public interest, and will result in the destruction of natural
marine habitats, grass and marine life, and established marine soils
suitable for producing plant growth of a type useful as a nursery or
feeding grounds for marine life.9

When the Thomsons failed to request an administrative hearing to
present their evidence on the issues involved, DER issued its final
order denying the permit.99
Several weeks later, the Thomsons had an environmental specialist
conduct a survey of the seagrass habitat around the area of the pro-
posed project. This report "recommended modification of the loca-
tion of the proposed structures as a means of minimizing impacts to
existing seagrass beds."'10 The Thomsons modified their platform
design, slightly extended the proposed walkway, and then submitted
another permit application to DER.101 The Department issued an-
other notice of intent to deny and again notified the Thomsons of
their right to request a hearing.

96. Id.
97. Id. at 2.
98. Thomson, 493 So. 2d at 1033-34 n.1.
99. In re Application for Permit by Thomson, Fla. Admin. Order (Nov. 7, 1983).
100. Thomson, 493 So. 2d at 1039 (Zehmer, J., dissenting).
101. Id. at 1034.


In its second notice of intent to deny, DER reiterated concerns
that were very similar to those expressed in its earlier denial: the pro-
posed structures "[would] be located over and near marine bottom
capable of supporting seagrasses."'02 The Thomsons requested and
were granted an administrative hearing.103 Ultimately, DER entered
its final order of denial, stating: "The second application is for the
same walkway in exactly the same location as was proposed in the
first application. The platform, while in a slightly different location
and configuration, overlaps the original platform in some areas."'4
Taking notice that there were some design changes to the gazebo
platform, the Secretary nevertheless found these changes would not
eliminate shading on the seagrass beds.105 The Secretary reiterated
water quality concerns: "[T]he first notice [on the first application]
listed four water quality criteria which would be violated by the pro-
ject. Petitioners failed to state in their memorandum how the water
quality of the modified location would be affected in relation to
those criteria." 06
Finding the overall modification "not significant" and the circum-
stances "otherwise unchanged,"'07 the Secretary found res judicata
applicable. The Secretary concluded:

In the first application proceeding, Petitioners were afforded the
right to a hearing. The method for exercising that right was clearly
set forth in the Notice. Petitioners waived that right and a final
order denying the application on the merits was entered. I find that
the subsequent application does not constitute a significant change
from the first application. 10

It was from this order that the Thomsons appealed.

A. The First District's Opinion
The First District Court of Appeal affirmed DER's denial of the
proposed project. Because the Thomsons had been afforded an op-
portunity for a hearing, the First District concluded that DER's ad-
judication of the issue was not "vitiated by [the Thomsons'] decision

102. Id.
103. The second time, the Thomsons requested a formal 120.57(1) factfinding hearing,
but DER instead offered an informal 120.57(2) hearing. Thomson, 493 So. 2d at 1034.
104. 6 Fla. Admin. L. Rep. 3436 (1984).
105. Id. at 3437.
106. Id.
107. Id.
108. Id. at 3438.



not to request a hearing.""9 The First District found that due proc-
ess considerations were therefore met.
The First District also concluded that DER had appropriately
placed emphasis on affected water quality standards and conserva-
tion considerations as independent bases for the initial permit denial.
Therefore, the Thomsons' "minor design modifications to the pro-
posed platform"110 and absolute lack of modifications to a "major
portion of the project""' were not sufficient or substantial enough
to preclude the application of res judicata.112
In a dissenting opinion, Judge Zehmer, arguing for the "rights of
private citizens,""3 found the differences between the two applica-
tions sufficient to prevent DER from summarily denying the second
application by asserting res judicata."4 Of even more concern to
Judge Zehmer, however, was his perception that a patent injustice
was being worked against the Thomsons because they had never ac-
tually had a formal fact finding hearing where they could have pre-
sented their evidence of design modifications."5
The dissent asserted that the Thomsons had modified their design
after the initial denial, incorporating design recommendations which
addressed the issue of seagrass shading."6 Further, Judge Zehmer
discounted DER's emphasis on water quality standards and conser-
vation interests, finding those of no importance because they had not
been specifically singled out as important by DER in its permit de-
nial.17 The Thomsons appealed the First District's decision.

B. The Supreme Court of Florida's Opinion
The Supreme Court of Florida assumed jurisdiction by asserting a
conflict between the lower court's decision in Thomson and a case
the supreme court had decided fifty years earlier, Matthews v. State
ex rel. St. Andrews Bay Transportation Co."8 Matthews involved the
Florida Railroad Commission's denial of an application for a certifi-

109. Thomson, 493 So. 2d at 1034.
110. Id. at 1035.
111. Id. at 1035 n.4. Counsel for DER stated at oral argument before the First District:
"[T]he first application did deny a major portion of the project which was not changed in any
manner at all [by the second application] and there were no changes in the conditions of the
site . The method of construction, the size, everything was the same.. ."Id.
112. Id. at 1035.
113. Id. at 1037 (Zehmer, J., dissenting).
114. Id.
115. Id. at 1043-44.
116. Id. at 1038-39.
117. Id. at 1045.
118. 111 Fla. 587, 149 So. 648 (1933).


cate of public convenience and necessity which had been filed by the
Union Bus Company in its quest to become a common carrier."9 The
bus company amended its first application to include additional in-
formation and resubmitted it to the railroad commission.120
Relying on statutory law, one of the bus company's main competi-
tors objected to this reconsideration, and the circuit court ultimately
issued a writ of prohibition against the railroad commission to pre-
vent it from reconsidering the bus company's application.'2' On ap-
peal, the Supreme Court of Florida reversed the circuit court's
decision, holding that a railroad commission order "is not res adju-
dicata of another application of exactly the same nature subse-
quently filed. Every promulgated order of an administrative tribunal
. may be superseded by another order."122
In a surprising move, the court in Thomson, after noting the exis-
tence of an "apparent" conflict between Matthews and Thomson,
backed off its initial assertion: "[I]t is clear that any precedential
value that Matthews may yet have is limited in its application to or-
ders of the now defunct railroad commission."'23 Apparently con-
vinced that this de facto lack of conflict was of relative
unimportance, the court went ahead and issued its opinion on the
The supreme court initially refused to find that the Thomsons
were denied due process with respect to their first application.124 The
court admitted, however, that "the principles of res judicata do not
always neatly fit within the scope of administrative proceedings,"
and "the doctrine of res judicata is applied with 'great caution' in
administrative cases."'25 After laying this cautionary groundwork,
the court proceeded to analyze the Thomsons' two applications.
The supreme court focused primarily on the dissimilarity between
the two applications, starting from the presumption that if the two
applications were not the same, then DER's summary denial of the
first had no res judicata effect on the second. The court looked to
the slightly different environmental impacts of the two designs in
making its determination. It compared these effects and concluded
that the first application was denied because of concerns about its
potential for adverse effect on existing seagrass beds, but, in denying

119. Id. at 589, 149 So. at 648.
120. Id. at 589, 149 So. at 649.
121. Id. at 590, 149 So. at 649.
122. Id. at 591, 149 So. at 649.
123. Thomson v. Dept. of Envtl. Regulation, 511 So. 2d 989, 991 (Fla. 1987).
124. Id.
125. Id. (citations omitted).



the second application, the court found that DER had shifted its
concerns to the potential for adverse effects on areas where seagrass
might be grown in the future.'26 Because of this shift in emphasis, the
Supreme Court of Florida found "the doctrine of res judicata can-
not be fairly applied to deny the Thomsons' second application on
its face."'27
Thomson shows the Supreme Court of Florida exercising "great
caution" in deciding whether to apply res judicata to an environmen-
tal permitting decision.'28 In determining that DER could not use res
judicata against the Thomsons, the court cited Universal Construc-
tion as supporting authority.129 Thus, the court's primary concern in
Thomson appears to be not whether the doctrine of res judicata
could have been applied in a technically correct fashion in this case,
but rather whether it would have been fair to do so.
The supreme court appears to agree in part with Judge Zehmer's
dissent in the lower court's opinion,'30 motivated more to correct
what is perceived as a "patently unjust" treatment of the Thomsons'
second application than to apply the standard for res judicata that
had been articulated by other courts. Focusing on what he sees as a
clear deficiency on DER's part in establishing a record, Judge Zeh-
mer glosses over what the First District found was the heart of the
matter: that the Thomsons had a fair opportunity to present their
case in support of their permit application, and failed to take that
opportunity.The First District and DER both found that the Thom-
son's two applications were the same. Indeed, there was a great deal
of analysis by DER and the district court in reaching this conclusion.
Because the Thomsons submitted the exact same design for the walk-
way and only a slightly modified design for the gazebo, DER, having
decided that the adverse environmental impacts of the first design
would be too great (and not seeing sufficient modifications reflected
in the second) applied res judicata to prohibit the Thomsons' reap-
Acting in a reasonable manner, DER determined that the first de-
sign would have adverse environmental impacts, and that the second
design was a slightly modified version of the first. As a general rule,
such agency determinations are left intact by a reviewing court unless
there is a showing that the administrative body has acted with a "fla-

126. Id. at 991-92.
127. Id. at 992.
128. Id. at 991.
129. Id. at 992 (citing Universal Constr. Co. v. Ft. Lauderdale, 68 So. 2d 366 (Fla. 1953)).
130. Id. at 1037-45.


grant" abuse of discretion.'3 That is clearly not the case here. Be-
cause this case involved agency discretion, rightfully overturned only
in instances where the decision has been driven by caprice or where
there is a "complete absence of any justification therefor,"132 the Su-
preme Court of Florida perhaps should have exercised "great cau-
tion" here and not reached out and assumed jurisdiction.

The progression of administrative cases where res judicata has
been most frequently applied demonstrates that courts have not hesi-
tated to affirm administrative decisions using res judicata to pre-
clude relitigation of a previously decided issue. Both the lower court
and the supreme court in Thomson cite Coral Reef Nurseries v. Bab-
cock Co.'33 It is from the standard for res judicata articulated in
Coral Reef that the supreme court takes its great leap in Thomson.
The court in Coral Reef perceived administrative res judicata as a
means by which an administrative body could deny a reapplication
and, thus, temporarily relieve the agency of having to relitigate an
issue that had already been determined. The safety valve for the ap-
plicant is the one-year limit on the bar against reapplication.
Whether res judicata would be used a year later to bar the same ap-
plication because there were no changes in either the application it-
self or the subject property in question is an entirely separate issue.
The often-cited statement by the Coral Reef court that administra-
tive res judicata should be applied with great caution134 is wrongly
emphasized in Thomson. The court in Coral Reef observed that
great caution was to be exercised in zoning cases.'3 Although no ad-
ministrative agency should apply res judicata rashly, the excessive
caution applied in Thomson extends too far the principle enunciated
in Coral Reef.
A zoning board should exercise great caution in using res judicata
after the waiting period in zoning cases because, in fast growing ar-
eas, changes occur "with great rapidity."'36 The safety valve built
into the zoning scheme to allow reapplication a year later reflects
this concern. A zoning change applicant may get a very different re-
sult upon reapplication after a year of growth and population

131. Coral Reef Nurseries v. Babcock Co., 410 So. 2d 648, 655 (Fla. 3d DCA 1982).
132. Id.
133. 410 So. 2d 648 (Fla. 3d DCA 1982).
134. Id. at 654 (quoting Miami Beach v. Prevatt, 97 So. 2d 473, 477 (Fla. 1957)).
135. Id. (quoting Miami Beach v. Prevatt, 97 So. 2d 473, 477 (Fla. 1957)).
136. Id.



change. Zoning matters should be "liberally construed in favor of
the applicant to provide the necessary flexibility in the zoning
This same flexibility is necessary in workers' compensation cases.
Workers who have benefit claims are given plenty of opportunity to
show changes in their condition over time that were not in existence
and were not anticipated at initial hearings. Rigid application of res
judicata to bar efforts to establish worsening conditions and corre-
sponding entitlement to greater benefits would be a manifest abuse
of discretion. Here, a safety valve adds flexibility to the process;
workers may have two years in which to demonstrate that an initial
determination by a commission was inadequate. During this period,
the administrative body will not assert res judicata to show the mat-
ter has been definitively decided and therefore will not be heard
The same degree of flexibility is not necessary in the environmen-
tal permitting process. The agencies involved with permitting are sta-
tutorily mandated to protect environmentally sensitive areas and to
regulate developmental impact on those areas. Parties like the Thom-
sons, who request a permit to measurably impact the environment,
cannot assert an entitlement to such a permit. Rather, the burden is
on the applicants to show that the projected impact is acceptable, in
the public interest, and will not unnecessarily degrade the quality of
the environment. Once a project is deemed to have a potential for
adverse impact, it is incumbent upon the applicant to substantially
modify the design to alleviate that impact. There is no waiting period
after which an applicant may resubmit the same application; the nat-
ural environment is not that forgiving.
The standard for res judicata applied throughout these cases has
eroded over time. Initially agencies were allowed to decide issues
uniquely within their statutory expertise and adjudicate the rights of
those parties before them. Thomson seems to show the court grow-
ing more suspicious of this exercise of discretion, and more willing
to place itself in a position to oversee agency decision making.
There is, of course, the other side to the same coin: "[T]he reason
for applying res judicata to administrative agencies is not only to
'enforce repose' but also to protect a successful party from being
vexed with needlessly duplicitous proceedings. If the latter inter-
est is not protected at the outset of the second proceeding, it will be

137. Id. (citing Russell v. Board of Adjustment, 31 N.J. 58, 66, 155 A.2d 83, 88 (1959)).


lost irreparably."38 In other words, allowing an agency's decision to
not apply res judicata to deny a permit application can also work in
favor of an applicant, if a project is later challenged by a third
The Thomson court settled on the standard for administrative res
judicata as it was applied in Coral Reef and Doheny and, in so do-
ing, has taken the flexibility built into zoning decisions and forced it
upon the environmental permitting process. The First District and
DER both found the Thomsons' two applications so substantially
similar in their potential adverse impact that res judicata was appro-
priate. The Supreme Court of Florida, in taking review and reversing
the First District, has introduced a new element into the game. What
was previously a perfectly appropriate use of agency discretion in
executing and streamling its functions may now be made less availa-

Elizabeth Bradshaw

138. Mogel, Res Judicata and Collateral Estoppel in Administrative Proceedings, 30 BAY-
LOR L. REV. 463, 476 n.69 (citing Safir v. Gibson, 432 F.2d 137 (2d Cir.), cert. denied, 400
U.S. 850 (1970)).


University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs