Rules/Policies
– to challenge a rule, prove rule done incorrectly
– quasi-legislative area
– agencies make rules to govern peoples actions
Adjudications
– quasi-judicial
– way people are disciplined
~ permitting
~ licensing
~ public employees relations commission
– mini-trials
Other Areas
– ex: Birth Related Neurological Act
– community affairs
– arbitration
– admin. hearings
– certificates of need
– bid protests
Chp. 120, FL Administrative Procedure Act
Chp. 28, Fl Admin Code
**3 Branches of Government
1) Legislature (make laws)
– H of R & Senate
– delegate to agencies:
– legis. powers: (cannot delegate)
~ def. of a crime
~ the authority to appropriate money
~ the power to enact a law
~ the power to tax & define taxes
2) Executive (implementing the law)
– Gov & Cabinet
– has a lot of power
– a lot of time the Gov cannot do anything w/o Cabinet approval
– members: Governor, CFO, AG, Comm. of Agriculture
– governor’s powers: (cannot be delegated)
~ the power to veto a bill
~ the power to appoint public officials
~ the power to grant a pardon (clemency)
3) Judicial (interpret the law)
Fl Sup Crt, DCA – Dist Crt of Appeals, Circuit Crt
– reviews actions by executive branch and sometimes the legis. branch
– powers: (cannot be delegated)
~ the regulation of lawyers
~ the power to set procedures for courts
~ the power to decide the constitutionality of a statute
**FL Constitution
– states that appeals from Admin Agencies: directly to the DCA
~ Judicial Review, for Admin cases
– Art II, §3: Separation of Powers,
(sets up the 3 branches of the government)
– Art III, §1: The power to make laws is vested in the legis.
~ since the legislature makes the laws, can’t have anyone else making laws
engrossed bill – passed by leg. branch, but not yet by the president/governor
enrolled bill – when president/governor signs the law
Federal Systems
– Rules & Regs process
– CFR: Federal Regulations
~ where the federal rules & regs. are generally codified
– Fed, called “regulations”
– before rule can take affect, publish in the Federal Register
FL System
– FL Administrative Code
– FL, called “rules”
– before rules can take affect publish in FAW
FL Rules & Regs., have the force and effect of law
Federal Register: proposed regulations
– if someone has a prob. will ask for an admin. hearing
Rate setting cases, appeals go directly to FL Sup Court
**Burden of Proof
*- Preponderance of the Evidence (general standard of proof, for most admin. hearings)
~ proposed rule: agency burden
~ existing rule: petitioner burden
~ application/renewal: petitioner burden
*- Clear & convincing evidence (penal/licensing cases)
~ revocation/suspension of license: agency burden
~ taking something away: agency burden
~ forcing continuing education: agency burden
**DOAH: Div. of Admin. Hearings
– the people who hold hearings
– where admin. law judges work
– decide cases
– under exec. branch
– indep. branch
ALJ: Admin. Law Judges
– do DOAH hearings
FAC: Fl Admin. Code (www.flrules.org)
– rule that an agency has passed
**Policies
*- an agency has decided that it wants a policy
~ all agencies have policies (a.k.a.: memorandums)
*- the agency will enforce it, w/o going thru the rules process
– published in FAW
– can be challenged
– policies are in disfavor, 2008 amendments, want policies in rule form
*- agency can say they don’t have enough info to make a rule
*- agency may not be authorized by statute to make a rule
*- agency might be in the middle of rule-making
(will make challenge to policy ineffective)
**Fl Admin. Procedure Act (1974)
– before, the agencies could do whatever they wanted
~ they were creating their own laws
– amended 1996, 1999, 2003, 2008
1996: variances, waivers, summary hearing
~ gave the agencies a little more flexibility
~ b/c 1974 act was very rigid, and the agencies really couldn’t do anything
2008: transparency of government
– provides a way to challenge a rule
– leg. is supposed to make the law, not exec. agencies
– cannot make a rule unless based on the law,
~ w/in the specific powers and duties given to the agency
– go back to the original law to find the provision that the rule of the agency is implementing
**APA, Chp. 120
– sets forth how quasi-legis. authority & quasi-judicial authority are exercised
– sets out methodology of how to decide disputes
– requires agencies to explain what they are doing
Admin. law is extremely fast (usually 60-90 days)
**Fall under the Fl APA
state
multi-counties
**Doesn’t fall under Fl APA
single counties
municipalities
(but, most have elected to follow the APA)
**FAW = Florida Administrative Weekly
– Comes out weekly. J Who knew?
– It announces everything you need to know about admin law, every week.
– Received by all gov’t agencies, corporations, a lot of law firms… Studied by corporations that are
regulated.
– It shows the new rules and regs that are coming out… it keeps firms, corporations, etc. up to
date on new changes and new rules/regs.
– It also has proposed rules. If no one contests those rules, the rules will become law.
– There are emergency rules, in case they can’t get through the whole process.
– Gives notice of meetings.
QUASI-LEGISLATIVE
*- petition: to DOAH
Rule: each agency statement of general applicability that implements, interprets or prescribes law or policy or describes the procedure and practice requirements of an agency.
1) “each agency statement of general applicability”
– rules have to have general applicability.
– rules are not just for specific counties, but instead, for the whole state.
– Pass the rules for the public and the state of FL, so that everyone in FL is even and knows
what specific departments will do
2) “that implement, interprets or prescribes law or policy”
– agency will look at the statute, interpret the statute…
– Agencies have a lot of policies that will turn into rules.
– Agencies generally have rules, in the FL Admin. Code; but they also have a lot of policies,
which are not printed in the FL Admin. code – these are usually in manuals.
– Ultimately, policies are going to ha
~ b/c, rules are meant to implement and interpret, not paraphrase the statute
– makes sure that there are no contradictions w/ federal mandates
~ when you file w/ JAPC, you have to certify to them that you’re not breaching any federal law
or standard
– this is an executive body, (no legislative power)
– if don’t like what the agency is doing or feel that the agency has gone too far, and the agency
refuses to listen to JAPC
1) can get authority from the legis. can go to court and sue the agency for violating the APA
2) can take away Agency funding
3) can get the legis. to pass a law that changes the rule or does something to the rule
– every rule to be promulgated or denied has to be approved by JAPC
**Florida Administrative Weekly (FAW)
– anything that is done in admin. law is published in FAW
– online
– lists what is going on w/ the agencies
When counting days, don’t count the 1st day, but count the last day
No mailing rule in Admin Law
– if postmarked on the last day, then procedure will give you some additional mailing days for the
paperwork to get to the office/agency
**Rule-making procedure
1) propose the rule
2) implement the specific powers and duties stated in the law
3) presumed feasible
– when legis. passes a law, presumed rule making should be done, esp. if a grant of rule
making authority
– when legis. passes a law the agency has 180 days to start the rule making process
– exception: if an agency can show that there is not enough factual detail (not enough info.)to
implement the rule, then that is a reason to not make the rule, (a way to challenge
the law)
– **will not have to make a rule right away
1) not enough factual info right now (agency does not have enough experience)
~ this is why we have policies
2) can get a judicial ruling to put off the rule making process
**How to make a rule: [handout: FLOW OF ADMINISTRATIVE CASES – A. QUASI-LEGIS. PROCEDURE]
1) Workshop and Rule Development
a) notification of workshop
b) pub. notification of workshop in FAW
c) list est. of costs
d) w/in 14 days notify if want to be part of workshop
e) if no workshop requested, then no workshop required
2) Proposed Rule in FAW/Existing Rule in FAC
a) pub. notification of proposed rule in FAW
– specific legal authority for the rule
– SERC
b) 21 days to ask for admin. hearing
– petition directly to DOAH (not the agency)
3) Petition: DOAH (Div. of Admin. Hearings)
a) have 21 days after pub. of notification to file petition for admin. hearing
