Title: Administrative Law - Res Judicata and Collateral Estoppel in Administrative Proceedings By John J. Rimes III and M. Catherine Lannon
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00004555/00001
 Material Information
Title: Administrative Law - Res Judicata and Collateral Estoppel in Administrative Proceedings By John J. Rimes III and M. Catherine Lannon
Physical Description: Book
Language: English
Publisher: The Florida Bar Journal /April 1988
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Jake Varn Collection - Administrative Law - Res Judicata and Collateral Estoppel in Administrative Proceedings By John J. Rimes III and M. Catherine Lannon (JDV Box 90)
General Note: Box 24, Folder 1 ( Governmental Rules, Regulations, Legislation and Administrative Laws - 1996 ), Item 9
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00004555
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

Administrative Law

Res Judicata and Collateral Estoppel

in Administrative Proceedings

by John J. Rimes III and M. Catherine Lannon

Res iudicata and its corollary, collateral
esto pe issue Irec uslto n
ed to e a ae in nrd n-
istrative orders and decisions bv an admin-
istrative agency actng in a quasi-iudicial
M 'Thomson v. Department of En-
vironmental Regulation, 511 So.2d 989
(Fla. 1987); Yovan v. Burdine's, 81 So.2d
555 (Fla. 1955); Carol City Utilities, Inc. v.
Miami Garden Shopping Plaza, Inc., 165
So.2d. 199 (Fla. 3d DCA 1964).
Likewise, the doctrine of collateral estop-
pel or issue preclusion has also been applied
to bar relitigation of specific issues in sub-
sequent administrative or civil proceedings
in circuit court when the issue in the subse-
quent action is identical to necessary and
material issues resolved in the administra-
tive proceeding and when identity of par-
ties in both actions has been shown to exist.
See DeBusk v. Smith 397 So.2d 327 (Fla.
1980); Florida Department of Transporta-
tion v. Gary, 513 So.2d 1338 (Fla. 1st DCA
1987); United States Fidelity and Guaran-
tee Co. v. Odoms, 444 So.2d 78 (Fla. 5th
DCA 1984); Jet Air Freight v. Jet Air
Freight Delivery, Inc., 264 So.2d 35 (Fla.
3d DCA), cert. denied, 267 So.2d 833 (Fla.
Notwithstanding the general proposition
that both collateral estoppel and res judi-
,cata apply to quasi-judicial administrative
determinations in a manner which is con-
ptually the same as that long accepted by
judiciary, it is clear that courts have ap-
oached the use of the related doctrine with
e caution. Thus, one finds that in cases
ich rezoning is sought and denied and
quently re-applied for, or when a spe-
ception has been refused and a peti-

tion subsequently renewed, the courts have
not only analyzed the four corners of the
petition or request to determine whether it
is precluded by prior administrative deci-
sions, but also have analyzed extraneous
changesofcircumstance,whichcould revive
an otherwise preclusive administrative pe-
tition and entitle it to full de novo review.
City of Miami Beach v. Prevatt, 97 So.2d
473 (Fla. 1957) cert. denied, Wags Trans-
portation System, Inc., v. Prevatt, 355 U.S.
957 (1958); Coral Reef Nurseries, Inc., v.
Babcock Co., 410 So.2d. 648 (Fla. 3d DCA
Likewise, administrative agencies in-
volved in issuing permits approving or de-
nying applications for various forms of land
use or development have applied res judi-
cata and issue preclusion concepts with an
understanding that changed circumstances
ma make a strict aplicationimproperr
inuab e. See Metropotitan County
oard o county Commissioners v. Rock-
matt Corporation, 231 So.2d 41 (Fla. 3d
DCA 1970). Furthermore, the caselaw re-
garding zoning matters requs '
doctrine o0 r. ndiata nnQ.t bh li v rliv
ctnntre m vor f th Unt, Coral
ReefNurseries, Inc., v. Babcock Co., 410
So.2d 648 (Fla. 3d DCA 1982). The court
in Coral Reef made it clear, however, that
the determination of whether the doctrine
of res judicata applied in a cause is a deci-
sion to be made by the administrative body
itself. On appeal the lover tribunal's deci-
sion should not be reversed "unless that
body has acted with 'manifest' and 'flagrant'
abuse of discretion or by'arbitrary impulse,
whim or caprice.'"410 So.2d at 655.
In Thomson v. Department ofEnviron-

mental Regulation, the Supreme Court, in
reversing a decision by the First District
Court ofAppeal, Thomson v. State, Depart-
ment of Environmental Regulation, 493
So.2d 1032(Fla. 1986), invoked the concept
that administrative res judicata and collat-
eral estoppel must be "tailored" to the type
of administrative decisionmaking being re-
viewed. The Supreme Court determined in
Thomsonthat a renewed application for a
permit to develop certain environmentally
sensitive land was entitled to be heard on
its merits despite an earlier denial of a simi-
lar permit atpiication for the same land.
Te court reasoned that the evidence pre-
sented by the Thomsons in support of their
second application was sufficient to show
either changed circumstances or additional
information which was not available at the
time of the initial agency adudication. See
also Holingsworth v. Department of En-
vironmental Regulation, 466 So.2d 383(Fla
1st DCA 1985); Abbanat v. Reynolds and
Department of Environmental Regulation,
9 FALR 1898 (March 3, 1987); Williams
andCauseyv. Moeller, MoellerandDepart-
ment of Environmental Regulation, 8
FALR 5537, 5546-7 (November 4, 1986).
Thedoctrine ofres iudicatacontains four
el : (1) identity in the thing sued for;
(2) identity of the cause of acn; (3) iden-
tity of persons and parties of the action: and
(4) identity of the quality in the person for
or against whom the claim is made.
eihart v. Pioneer Iederal Savings and
Loan Association, 498 So.2d 594 (Fla. 2d
DCA 1986). See also Donahue v. Davis, 68
So.2d 163 (Fla. 1953). While the same ele-
ments are present in the administrative
arena, caselaw involving litigation arising


sation decisions, bid protests, and career serv-
ice dismissals tends to show the courts'
profound reluctance to apply administra-
tive res judicata and collateral estoppel in
such a manner as to preclude a litigant a
day in court, even while recognizing that ad-
ministrative decisionmaking is entitled to fi-
nality and a degree of deference on the part
of the judiciary. See Gator Shoe Corp., v.
Mungia, 510 So.2d 1192 (Fla. 1st DCA
1987); see Neidhart v. Pioneer Federal Sav-
ings and Loan Assoc., 498 So.2d 594 (Fla.
2d DCA 1986); Walleyv. Florida Game and
Fresh Water Fish Commission, 501 So.2d
671 (Fla. 1st DCA 1987); Florida Depart-
ment of Transportation v. Gary, 513 So.2d
1338 (Fla. 1st DCA 1987) (issues litigated
in administrative delinquency determina-
tion said to involve res judicata and issue
preclusion only as to subsequent administra-
tive actions and not necessarily as to
contemporaneously filed breach of contract
action filed in circuit court).
For purposes of reviewing some of the
cases which exemplifythe application of the
doctrine's analysis, the first two elements
will be referred to as"identity of issues"and
the last two elements will be referred to as
"identity of parties."

Identity of Issues
In Neidhart, an unemployment appeals
referee found that an employee's discharge
was not based on misconduct by the em-
ployee. Subsequently, the employee sued
the employer in circuit court for compen-
satory and punitive damages for improper
dismissal, alleging that he had been dis-
charged because he made himself available
for jury duty. The appellate court held that
there was no identity of issues since, in the
unemployment compensation arena, the
only issue was whether Neidhart was dis-

charged for misconduct as that term is de-
fined by statute; whereas, in the circuit court
case he had to show that he was discharged
specifically for responding to a jury sum-
mons and, to recover punitive damages, that
his employer acted maliciously and will-
Similarly, in State of Florida, Depart-
ment ofHealth and Rehabilitative Services,
v. Vernon, 379 So.2d 683 (Fla. 2d DCA
1980), the court found that the standard for

Thus [the court] rejected the
contention that the state could
not "relitigate" the issue of
just cause for the dismissal
in a career service hearing
after having been ordered
to pay unemployment
compensation benefits

"misconduct" for purposes of the award of
unemployment compensation was not the
same as that for purposes of determining
whether there was "just cause" for a dis-
missal of a career service employee. Thus
it rejected the contention that the state could
not"relitigate"the issue ofjust cause for the
dismissal in a career service hearing after hav-
pensation benefits.
In Florida Department of Transportation
v. Gary, the First District Court of Appeal
quashed an order staying administrative

proceedings. In so ruling, the court held that
the issues to be litigated in the breach of con-
tract suit in circuit court were not "identi-
cal to necessary and material issues" to be
determined in the administrative action in
which the Department of Transportation
would attempt to defend its suspension of
construction company's certificate of quali-
fication due to unsatisfactory work.
Inadifferentvein,the FirstDistrictCourt
of Appeal has held that work search issues
relating to wage loss benefits are not barred
in workers'compensationcaseseven ifthere
is not proof of change of condition or mis-
take of fact. Gator Shoe Corporation v.
Mungia, 510 So.2d 1192 (Fla. 1st DCA
1987). The court specifically permitted the
presentation of evidence of a work search
made after a prior adverse ruling, stating,
We further reject, as contrary to the spirit and
purpose of the workers' compensation law, the
suggestion implicit in the employer/carrier's ar-
guments here that even if claimant was in reality
unableto secure employment within his capabili-
ties at the time of the first hearing, he should be
precluded from proving that he is unable to do
so at the time of his modification hearing, because
such proof does not establish a "change in con-
Flesche v. Interstate Warehouse, 411 So.2d
919 (Fla. 1st DCA 1982).

Identity of Parties
There are two cases which directly deal
with the issue of lack of identity of parties
in the situations when an administrative liti-
gant has attempted to bar action with a
claim of res judicata or collateral estoppel.
In Todd v. Carroll, 347 So.2d 618 (Fla.
4th DCA 1977), the court held that a local
school board could terminate a dean's em-
ployment even though the State Board of
Education had reviewed the same charges
and decided not to revoke or suspend the

U -.'I



PIrgest stockiets of fine quality hanb tooleb leatller top
he0kh in the onutheast- 18,000 sq. ft. of 3nglietl antique
anb reproburtion furniture.
usft starting out, or fell establisllec, let us foork h itlhin
4our budget.
5109 South Tamiami Trail 845 North Federal Highway
Sarasota, FL 33581 Fort Lauderdale, FL 33304
813-921-2288 305-522-0500

~rifie~ ~nfi~ ~mparfere, ~fn~.

dean's teaching certificate. The court found
that res judicata did not apply because the
local school board and the State Board of
Education were "two separate and distinct
governmental units" and because the re-
views by the two bodies were for different
purposes. But see the dissent by Judge
Dauksch which urges that the parties were
effectively the same since the state board
proceeding was initiated upon a complaint
by the local school board and the local
school board participated in the prosecu-
.Similarly, in Walleyv. Florida Game and
, Fresh Water Fish Commission, the First Dis-
trict Court of Appeal held that there were
neither identical issues nor identical parties
in which the same charges against a state
employee who was a certified law enforce-
ment officer resulted in a Career Service
Commission decision which upheld the fir-
ing of the employee and a Criminal Justice
Standards and Training Commission deci-
sion not to revoke his certificate. As in Todd
v. Carroll, the court notedthat the two bod-
ies performed different functions and re-
viewed the evidence for different purposes.
One word of warning to practitioners:
even if there is an identity of issues and an
identity of parties, estoppel or res judicata
,will not obtain if the tribunal which ren-
dered the judgment did not have subject mat-
j- ter jurisdiction. Florida Export Tobacco
Co., Inc. v. Department of Revenue, 510
So.2d 936 (Fla. 1st DCA 1987).

Res Judicata in Administrative
More complex than the limited deference
S shown by courts to the concepts of res ju-
dicata and collateral estoppel in those ad-
ministrative proceedings wherein an appli-
cant seeks to receive some sort of approval
or permit from an agency, are those in-
stances in which an agency is seekingto take
administrative action in an affirmative
sense, such as discipline against a license or
permit necessary to practice a profession or
occupation, enforcement of an already ad-
judicated agency decision under F.S.
120.69, or revocation or suspension of a
permit to conduct business in a regulated
industry or to develop an environmentally
sensitive project.
F.S. 120.69 provides for enforcement in
circuit court of final administrative orders
entered under the provisions ofCh. 120. The
doctrine of resjudicata would appear to pre-
I lude relitigation of the same questions be-
Sfore the circuit court when enforcement is
applied for. Indeed, F.S. 120.69(3) specifi-
ally provides that "the doctrines of res ju-

dicata and collateral estoppel shall apply,
and the court shall make such orders as are
necessary to avoid multiplicity of actions."
But F.S. 120.69(5) provides that, in any
enforcement proceeding, the respondent
(whocould betheagency,theAttorneyGen-
eral, or a member of the public) may assert
as a defense the invalidity of any relevant
statute, the inapplicability of the adminis-
trative determination to respondent, com-
pliance by the respondent, the inappropri-
ateness of the remedy sought by the agency,
or any combination of the foregoing.
At least one district court of appeal has
determined that the ability of the enforcing
circuitcourt to erthe imapproprate-
ness of the remedy sought by the agency"
permits a circuit court to modify an already
imposed adnitrl n lt, en
though such penalty was within the statu-
tory authority nfthe aoencv and wns fmlnd
o be ann ..rnrit hv ehnarinp nffirwr ,
cepted by the agency in its final nrdAp, a
never appealed tothe appropriateappellate
court See State Department of Environ-
mental Regulation v. Brown, 449 So.2d 908
(Fla. 3d DCA 1984), review denied, 459
So.2d 1039 (Fla. 1985).

In the Brown case, the district court per-
mitted the circuit court to modify the pen-
alty sought to be enforced by the agency
even though the penalty recommended by
the hearing officer and .approved by the
agency was within the agency's statutory
authority and could not have been modi-
fied on direct appeal under the doctrine set
forth in Florida Real Estate Commission v.
Webb, 367 So.2d 201 (Fla. 1978). In so rul-
ing, the court held that the circuit court
could determine whether the Denalty was
"'appropriate,'i.e., not suitable for the par-
ticular person, condition, occasion, or
ace' t explained that, although there is
a presumption that the agency action is cor-
rect in an enforcement proceeding, as would
be the case in judicial review, the presump-
tion is rebuttable. The court distinguished
Webb on the basis that it involved 120.68
review, not 120.69 enforcement.
In contrast, in Department of Environ-
mental Regulation v. Webb, 382 So.2d 89
(Fla. 1st DCA 1980), the court rejected ar-
guments raised in an enforcement proceed-
ina. nntinathat thenartvmakine them les
not "suegest why the Department's unap-
nealed order... is subject to collateral at-









SUITE 1650
' TAMPA, FLORIDA 33602-5394





tack in the circuit court."
Another issue to be explored by Florida
courts is whether an agency acting in an ad-
ministrative enforcement capacity in seek-
ing to revoke, suspend, or otherwise disci-
pline a professional's license to practice his
profession or to remove a permit or license
to operate a business or regulated facility
is precluded by resjudicata or collateral es-
toppel from filing subsequent enforcement
proceedings upon the adjudication and dis-
missal of an initial proceeding. While such
questions on occasion have been couched
in terms of "administrative double jeop-
ardy," no court in Florida has yet held that
the dismissal of an agency disciplinary ac-
tion on one set of facts would preclude the
refiling of a similar administrative com-
plaint involving the same transaction or oc-
currence, but alleging newly discovered or
previously unpleaded facts. Recently a pro-
posed Division of Administrative Hearings
rule of procedure (proposed Rule 221-6.037
(3)), which would have forbidden agencies
to file a third administrative complaint al-
leging the same facts against the same per-
son was stricken as an invalid exercise of
legislative authority (Department of Trans-
portation v. Division ofAdministrative Hear-
ings, (Case No. 87-3661 R, opinion rendered
January 15, 1988)).
Indeed, while denying the ability of an
agency to reopen a case which had already
been contested before the Division of Ad-
ministrative Hearings, the court in Hender-
son Signs v. Department ofTransportation,
397 So.2d 769 (Fla. 1st DCA 1981), indi-
cated that, on exceptional occasions, an
agency could, by using its authority to re-
mand to the Division of Administrative
Hearings raise and resolve issues which had
not been fully litigated in the initial proceed-
ing. See also Cohn v. Department of Pro-
fessional Regulation, 477 So.2d 1039 (Fla.
3d DCA 1985).
The argument that "fundamental fair-
ness"or"doublejeopardy"should preclude
agency relitigationof already completed en-
forcement proceedings while not preclud-
ing subsequent relitigation on permit or
zoning applications (given a showing of
changed circumstances) seems to be based
upon the concept that disciplinary or enforce-
ment proceedings are penal in nature and
thus are qualitatively different from other
regulatory action. This concept was clearly
enunciated in State ex rel. Vining v. Flor-
ida Real Estate Commission, 281 So.2d 487
(Fla. 1973), when the Supreme Courtfound
that the potential revocation of a license to
sell real estate was penal and of such a quasi-
criminal nature as to mandate that the con-

stitutional right not to self-incriminate one-
self must apply. The Supreme Court, how-
ever, has itself called into question the un-
derlying rationale of Vining by determining
that professional licensingdisciplinary pro-
ceedings are "remedial" and not "penal" in
nature. See DeBock v. State, 512 So.2d 164
(Fla. 1987).
Under the DeBock rationale, double jeop-
ardy arguments should not bar relitigation
if an agency makes a legitimate showing that
new evidence has come to its attention or
that its legal analysis was shown by subse-
quentjudicial or quasi-judicial decisions to
be faulty. See Cohn v. Department of Pro-
fessional Regulation, 477 So.2d 1039 (Fla.
3d DCA 1985). In fact, an argument could

The argument that
"fundamental fairness" or
"double jeopardy" should
preclude agency relitigation
... seems to be based upon the
concept that disciplinary or
enforcement proceedings
are penal in nature.

be made that facts which would justify the
reopening of a litigated case need not nec-
essarily be those which could not have been
found by the agency, exercising due dili-
gence, at the initial proceeding. In Depart-
ment of Environmental Regulation v. Th-
omson, the Supreme Court used, as part of
its justification for permitting the reappli-
cationofapreviouslydenied permitrequest,
the fact that the applicants now had pro-
duced an environmental impact study to but-
tress the new application. 511 So.2d at 992.
One may question whether such study was
"new" or simply was recognized bylie ap-
plicants as "necessary" for favorable con-
sideration of their reapplication.
An agencyseekingto reopen a previously
litigated and dismisseddisciplinaryorlicen-
sure action should be aware, however, that
a failure to adequately plead sufficient
changed circumstances to justify such reli-
tigation may wel bring into play the pro-
visions of the Equal Access to Justice Act,
(F.S. 57.111) and subject it to attorneyfees
and cost.
The cases involving relitigation of previ-
ously denied applications suggest that an
agency could relitigate disciplinary issues,

if additional facts or circumstances are al-
leged or, conceivably, if any technical defi-
ciencies in the complaining document are
By recasting disciplinary (and by logical
extension, other police power enforcement
acts) in remedial, as opposed to penal,
terms, DeBock seems to leave agency en-
forcement or disciplinary proceedings in a
status little different from regulatory and per-
mitting functions, as far as application of
the principles of res judicata and collateral
estoppel. 9j

John J. Rimes III and M. Cather-
ine Lannon are assistant Attorneys Gen-
eralin the Administrative Law Section
of the Attorney General's Office. Mr.
Rimes is senior attorney andhas been
with the Attorney General's Office for
nine years, serving as legal advisor to
the Boards of Accountancy, Architec-
ture, Engineers, and Pharmacy, and
the Florida Elections Commission. He
received bachelor's degreefrom Cen-
tre College of Kentucky and attended
the University of Aberdeen in Scot-
land. He receivedhis J. D. degree (with
honors)in 197 from FloridaState Uni-
Ms. Lannon is the section chief of
the Administrative Law Section and
has been with the Attorney General's
Office since 1982. She serves as legal
counsel to the Boards of Medicine and
Veterinary Medicine and to the Occu-
pational Therapy Council. Previously,
she was a law clerk at the First District
Court of Appeal for approximately
four years. She received a B.S. and
M.S.from IllinoisState University and
received her J.D. (with honors) from
Florida State University in 1978.
The opinions expressed in this arti-
cle are the opinions ofthe authors them-
selves and not of the Attorney Gen-
eral's Office.
They write this column on behalf of
the Administrative Law Section, Chris
H. Bentley, chairman, and Robert T
Benton II, editor.


. ..~

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