Florida Administrative Law Summer 2013
Administrative Due Process
Why FL needs the Administrative Procedural Act
In 1974 the Florida Revision Council proposed an enactment to the FL legislature for a revised Administrative Procedure Act. Purpose: to remedy massive definitional, procedural, and substantive deficiencies in existing law. Amendment to F.S. Ch. 120 were created to address the problems:
· Prescribing due process minima for the operation of Florida admin agencies
· Defining with particularity the agencies covered or excluded
· Clarifying inconsistencies and rectifying incongruities in the existing law
· Expanding the opportunities for flexibility and informality in FL administrative processes
· Broadening public access to the precedence and activities of agencies
· Clarifying the scope of judicial review
Another goal of the 1974 enactment was to increase access to and the availability of public information about the actions of state agencies.
1990 there were increased amounts of review and amendments to Ch. 120, in hopes of simplifying the Administrative Procedure Act, increase flexibility in the application of rules and procedures, and increase agency accountability to the legislature and the general public.
FL Legislature created a comprehensive administrative decision making process which provides a roadmap of authority delegated to the agencies. The decision making template contained in the FL admin procedure act contains a comprehensive process which subjects state agencies to a uniform procedureà thus hopefully assisting in predictability and guarding against arbitrariness.
The Florida division of administrative Hearings
FL made the Division of Administrative Hearings its main adjudicator for admin law in 1974 modeled after the California system.
Due process is needed when there is a more controversial dispute involved, however it is never the most efficient process for the implementation of agency purpose.
The Division’s budget is funded by a trust funds, rather than general revenue.
Due process is not only for the courts, it can also be seen by executive branch through the fair procedures to the people of Florida through administrative law.
The old process consisted of an agency assigning an employee to make a factual recording for the agency head. However, this was not very effective because it was seen as nothing more than an informal meeting with the agencies staff. People did not trust this sort of system, nor was it very translucent for the public.
Instead of circuit courts hearing administrative issues, the administrative law judges have the authority to place final orders on whether an agency’s rule is invalid exercise of delegated legislative authority.(on test) Having a central panel of administrative law judges effectively provides impartiality, accountability, professionalism, and economies of scale.
Administrative Due process contains three things: notice, hearing, and judicial review.
Rosalie Whiley v. Rick Scott (2011)
Background: legislature did no trust the agencies, so the legislature in 1974 created the Administrative Procedure Act.
Main issue: Governor Scott was in violation of the separation of powers because the executive orders suspend the rulemaking process established by the Florida legislature under Ch. 120.
– Proper method for questioning the governor’s power is through quo warranto (by what authority).
Facts: Scott created OFARR, office of fiscal accountability and regulatory reform. The executive order OFARR directed each agency head to:
· Appoint an Accountability and Regulatory Affairs officer
· Review and evaluate the agency’s current policies “relating to programs and operations administered or financed by the agency and make recommendations to improve performance and fiscal accountability
· Submit to the Governor a comprehensive review of existing rules and regulations, together with recommendations as to whether any such rules should be modified or eliminated, and
· Submit a regulatory plan which identities and describes any rules the agency head expects to promulgate during the following 12 month period.
Application: why did the FL Supreme Court say he was not able to do this? Because some agencies he was attempting to regulate are cabinet agencies so he didn’t even have the authority to control them. Looking back at our Quasi Legislative Procedure chart, Scott was saying that the before any of those steps are to be done the rules should be sent to him FIRST!
Conclusion: Governor Scott had no authority to do what he did.
Dissent: thought that since Governor appoints the heads of the agencies he should have the right to control them, however this was denied.
1. Quasi- Legislative
Rules (proposed and existing)
Policies
Development
Procedure
Challenge
2. Quasi- Judicial
Administrative adjudications
Licensing
Permitting
Discipline
3. Other areas
Bid Protest
Neurological Injury Compensation Act
Development of Regional Impact Act (environmental)
Baker marksmen Act (mental Illness)
Certificate of Need
PERC
Three Branches:
1. Legislative: pass and create laws
· 120 Legislatures in FL
2. Executive Branch: execute the laws
· Head: Rick Scott
3. Judiciary Branch: Interpret the laws
· District Courts of Appeal (5)
Florida has a cabinet system, which has 4 members.
-The Attorney General
-The Chief Financial Officer
-Dept. of Agriculture
– The Governor
Review definitions from Ch. 120
Under the FL constitution there are 25 departments allowed under the executive branch, however there have been amendments now, which allow for more. FL administrative Code can be found at www.flrules.org.
Article V section 1-5: important for us to review!
District courts of appeal have a right of review. So when you have a final order in an agency you have the right to get it reviewed by a higher court.
Every Agency or department will be subject to the Agency Procedural Act, however single counties are not considered agencies and do not need to follow the FL Code. Since most of those counties do no have the ability to create their own publications they usually opt to follow the FL admin code. When there are multiple counties that are joined together then they must follow the code. Municipalities also do not need to follow the Administrative Procedural Act. (on test)
Flow of Administrative Cases Chart
A. Quasi Legislative Procedure
Workshop- anyone can write to the agency and ask for a workshop. At the workshop they will discuss everything going into the proposed rule. Typically you will have 21 days to file a petition and disagree with the proposed rule. If no one has filed a petition then they go into the final rule stage. The petition is filed with the division of administrative hearings. Go to chapter 28 to see a sample petition. The administrative hearing will then have a hearing with an administrative law judge. After the hearing there will be a final order rendered by the administrative law judge and that can then be appealed to the district court of appeals.
B. Quasi Judicial Procedure
· Invalid exercise of delegated legislative authority: agency does something they are not supposed to do. Seen often.
· Invalid delegation of legislative authority: legislature is giving the agency authority, which they are not supposed to have. This is not something that we see very often.
Review:
ALJ: Administrative Law Judge
DOAH: Division of Administrative Hearing
Everything above a single county or municipality is considered an agency under the FL administrative procedure act.
Agency has 180 days to start the rule making process and then 90 days to complete it. Typically the rule making process is started once they draft something in the FL admin register. They will announce that there will be a workshop, the authority that they are working under, the specific statute that they are trying to implement, and a proposed rule, may list any economic impact, and a clear point of entry. Clear point of entry: anytime an agency posts something they need to tell the public who they must petition towards, in what form and what manner, how many days they have to file this petition, and what occurs if there is a failure to get a petition in. If you are late there isn’t much that the Clerk will do, rather they will send it back. After the workshop is complete they again will place a proposed rule into the FL admin register along with a SERC (summary of statement of estimated regulatory cost). They then have a hearing if one is requested; at the conclusion of the hearing the judge offers a final order. The agency and the person affected are ENTITLED to an appeal if requested. Admin law judge’s final order will have findings of fact and conclusions of law. The conclusions of law will either be an invalid exercise of legislative authority or it is not. The general standard for appellate review is that the rule/ factual findings are not supported by competent substantial evidence, and/or does not comport with the essential requirements of law. Reviews of clearly erroneous standards ONLY apply to review of policy.
Division of Administrative Hearings (DOHA) is like an agency who work for the administrative judges. They are entirely independent and protected. ALJ are the administrative law judges. Administrative law judges can hold hearings through video, in Tallahassee where the majority of agencies are located or locally.
Standing: in order to challenge an existing or proposed rule you’ll need to have standing to file a petition against that rule.
1. Must be substantially affected
a. Immediate injury
b. Must be within the zone of interest (the rule either takes away a right of the petitioner or requires compliance by the petitioner)
2. Have a personal interest
Joint Administrative Procedures Committee (JAPC): composed of the president of the FL senate, speaker of the house, and sometimes-other staff. Must tell the JAPC’s if you are obeying the minimum federal standards or federal guidelines. The reason for this committee is to monitor the agencies, the JAPC receive copies of all proposed rules and they then check those proposed rules:
· For any invalid exercise of legislative authority
· Too many legalese, grammar, and redundancies
· How this new rule will affect small businesses
The JAPC is funded by the legislative branch, which means that the executive agency can say no to them if they want to. At which point the JAPC can change the law by proposing a new law when the legislature next meets, or appoint procreations. The JAPC actually makes a report to the Secretary of State because the Secretary is responsible for the FL administrative code.
There is a possibility of negotiation during the workshop.
Policy: standard procedures that the age
me issue. However, this is an administrative agency so they are not required to do this! Also, there is no appeal to a declaratory statement.
Variance and Waiver:
Variance: the rule will apply to you but we will modify it for you.
Waiver: knock the rule out and it won’t apply to you.
We are assuming the agency’s rule is valid. When the person can show some undue hardship when trying to follow a rule the agency will be able to grant a variance or waiver. Another example is a small business having a negative economic hardship when following or attempting to follow the rule. Allowing waivers and variances is useful because it doesn’t require the entire rule to be changed for everyone, just the people unduly affected by it. The agency will have 90 days to take action once they receive the request; if they fail to within the 90 days then it is automatically granted (variance granted by default). The client will need to let the clerk know that the 90 days has passed and then the clerk will grant it.
Emergency request of variance or waiver can also be requested when 90 days will just be too long. The agency can also write back and deny the emergency request, bumping the client back into the 90 days category.
Statement of estimated regulatory costs (SERC):
When proposed rules include a SERC to inform others how much it will cost to implement the rule. If you want to challenge a rule you can challenge it based on the SERC, example: this SERC is wrong and there are cheaper ways to accomplish this need.
* You can challenge even an existing rule when you believe that at the time the rule was originally passed the SERC was improper, but you only have 1 year from the time of when the rule was placed in the FL administrative code.
Board of Internal Improvement Trust Fund (governor and cabinet):
All public land in FL is owned by this fund and cannot be sold or leased without approval. As such, the Division’s role goes far beyond just acquiring lands for protection. It provides oversight for the management of activities on more than 12 million acres of public lands including lakes, rivers and islands. These public lands help assure all Florida’s residents and visitors have the opportunity to truly appreciate Florida’s unique landscapes
Summary Hearings:
120.504. If you want a really fast decision or order then you send in your petition, agency will send to DOAH, DOAH will then within 5 days offers both parties a summary hearing, both sides need to accept. Summary hearing will be filed within 30 days!! This means that discovery will be curtailed, no time for depositions or interrogatories, no motions. *Exception: in summary hearing the ALJ renders the final order and not the agency. Think about this, you’re an agency attorney and get an invitation for a summary hearing; yeah you’ll get the case off your desk but at the same time giving up your authority. The decision will be binding, meaning most agencies will deny the summary hearing requests.
Cases:
Dept. of Health and Rehabilitative Services v. Marlow
School Board of Leon County v. Hill
Federal funding requires that all schools offer transportation for children who live further than 2 miles away from school. In this case the Leon County school Board was offering transportation for children who live less than 2 miles and then stopped. People petitioned against this saying the school cannot properly make this rule. However. The proper way to go about this case would have been for the parents to use the decision involving substantial interest since the parents would have standing, but they didn’t do that so they lost.
Board of Trustees of the internal improvement trust fund v. lost tree village corp.
Board of trustees can decide how the public land is to be used. The trustees then requested more information (through moratoriums) from people making requests for using the lands. Someone challenged that the moratoriums were improper? This case does talk about the delegation of authority.
Straughn v. O’riordan
If you’re collecting sale tax from storage facilities you will need to set-up a bond. Problem with this case is that the dept. of revenue put out some guidelines to determine if the bond was necessary. Problem with this is that it was never placed into rule form, and the dept. of revenue is a state agency, which must be placed into rule form in order for its citizens to be on notice of these standards. Decision: invalid exercise of legislative authority.
