1979-07-02_ENFORCEMENT - M1978352

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This contention is made despite the explicit statutory language of Section 24-4-106 (2) , C. R. S. 1973 which merely declares that "final agency action under this or any other law shall be subject to judicial review. . . " Prior to the adoption of the Administrative Procedure Act, the judicial language of "exhaustion of administra- tive remedies" was used to define the same concept. But clearly, since the adoption of the Administrative Procedure Act in 1959, judicial determinations of when judicial review of administrative actions are appropriate must rely on the final agency action language of the statute. Of all the cases cited by Defendant, only Hannum v. Hillyard, 130 Colo. 37 , 278 P. 2d 1015 (1955) can be said to stand for the doctrine that even though final agency action has been accomplished, the failure to exhaust administrative remedies precludes judicial review. This case is clearly inappro- priate for barring Plaintiff' s judicial review on several grounds. First, and most important, the Hannum case was decided prior to the adoption of the Administrative Procedure Act and the formula- tion of the final agency action concept. As a consequence, exhaustion of administrative remedies was the only doctrine which the Court had to apply to the factual circumstances. The Hannum case is further inappropriate as it dealt with a situation in which the protesting party totally failed to appeal to the Administrative Board in order to overcome the lower level order of the City Building Inspector. The fact is that in 1979 we do have an Administrative Procedure Act whose explicit directives are to be complied with, and the fact is that the Plaintiff appeared and made known it ' s objections to the Board' s actions prior to the Board taking final agency action. Therefore, final agency action having been accomplished, the Plaintiff is entitled to judicial review of said actions. -3-