Adjudication of disputed issues of fact under the APA.

• Author: Stampelos, Charles A.
• Position: Administrative Procedure Act - Florida

There are many types of disputes arising between persons whose substantial interests are determined by an agency and the agency, that are subject to the Administrative Procedure Act, F.S. Ch. 120. These include, but are not limited to, professional licensing, including discipline; environmental permitting, including environmental resource and consumptive water use permits; growth management decisions, including comprehensive plan amendments; bid protests by vendors vying for business with agencies; employment discrimination cases originating with the Commission on Human Relations; ethics and election violation cases; and many more.

These matters have common procedural threads running throughout to the extent the matters involve disputed issues of material fact; that is, unless exempted, they are resolved pursuant to the procedures set forth in the APA. Litigation under the APA can be complex and time-consuming, but resolution occurs within a relatively short period of time. The purpose of this article is to acquaint the novice with the basic procedures when either representing an agency or a person who is the subject of agency action. There are many other issues that are commonplace in administrative adjudication, such as the concepts of standing, (1) intervention, (2) exhaustion of administrative remedies, (3) challenges to the constitutionality of statutes and rules on their face and as applied, (4) circuit court jurisdiction, (5) sanctions for signing a pleading for an improper purpose (6) that are not discussed in this article.

The following case involving Mr. Jones and the fictional agency present a real-life scenario.

The Plight of Mr. Jones

Mr. Jones has applied to be licensed as an operator of widgets in the state of Florida. He filed his application with the Board of Widgets (board). However, upon review, it was determined that Mr. Jones had had several negligence cases filed against him; some resulted in settlements, while others were dismissed. He also had disciplinary action taken in another state as a result of one negligence case.

Mr. Jones appeared at a credentials committee (composed of members of the board) meeting, but did not convince the committee that he can operate widgets with the requisite skill and safety. The committee recommended that the board deny him a license. The full board agreed and voted to deny Mr. Jones' application.

Thereafter, the board sent Mr. Jones a letter by certified mail, advising him of its negative "agency action" and further advising him of a "point of entry" (7) to seek a hearing under the APA and the Uniform Rules of Procedure (Ch. 28, Florida Administrative Code) including the right to file a "petition" (8) requesting a "hearinge" (9) within 21 days after receiving the letter/notice. (10)

You have determined from reading the application file that there are disputed issues of material fact, so you timely file a petition with the board and request the board to refer the petition to DOAH for the assignment of an administrative law judge (ALJ). The board must determine whether the petition complies with all pleading requirements and within 15 days of receipt, the board shall refer the petition to DOAH, requesting the assignment of an ALJ. (11)

Once the petition is sent to DOAH, the referring agency, here the board, shall take no further action with respect to a proceeding under [section] 120.57(1), except as a party litigant, as long as DOAH has jurisdiction over the proceeding under [section] 120.57(1). (12)

All proceedings conducted pursuant to F.S. [section] 120.57(1), "shall be de novo." Section 120.57 hearings "are to aid in the formulation of final agency action and are not intended solely for review of action taken earlier and preliminarily." (13) In other words, there is no presumption of correctness that attaches to the agency action that is subject to the [section] 120.57(1) hearing.

Upon receipt of the petition, DOAH will assign an ALJ and will send each party an initial order that requires the parties to respond in seven days and provide proposed dates and the numbers of days needed for hearing, whether there are any related cases, and a proposed place for conducting the hearing. (14)

Upon receipt of the response to the initial order, the ALJ will set the date for the final hearing. Generally, cases are set for hearing within 30 to 70 days after an ALJ is assigned.

The issues are as stated in the petition unless the petition is amended or unless the parties raise additional issues. (15) The proceeding before DOAH will be conducted pursuant to the APA and the Uniform Rules of Procedure. (16) The board's substantive practice act will also be considered and applied. A pre-hearing conference may be held at the discretion of the ALJ. (17)

You have the opportunity to conduct discovery pursuant to Fla. R. Civ. P. 1.280 through 1.400. (18) The presiding officer, here the ALJ, may issue appropriate orders to effectuate discovery and to prevent delay, including the imposition of sanctions, except contempt. (19) The ALJ issues subpoenas. (20)

The board has served your client with interrogatories and a request for production of documents. You evaluate them and respond to some, but object to others. The board moves to compel, and after considering the motion to compel and a response, the ALJ orders your client to respond. (21) If you fail to respond, sanctions may be imposed, (22) but enforcement of the order may only be pursued in circuit court. (23)

You also may seek review of this nonfinal order in the appropriate appellate court pursuant to [section] 120.68(1) and Fla. R. App. P. 9.100(b) and (c) and 9.190(b) (2). The order is reviewable upon a limited basis "if review of the final agency decision would not provide an adequate remedy." (24) Let us assume you respond; the parties complete discovery and proceed to the final hearing. (25)

Before the final hearing, the parties should discuss which party is required to proceed first. Stated otherwise, which party has the burden of proof and ultimate burden of persuasion? Do both parties have a burden of proof?. Also, what is the standard of proof?. If the parties cannot agree, the ALJ will decide. (26)

Here, Mr. Jones is the applicant, so he would proceed first and has the burden of proving, by a preponderance of the evidence, entitlement to be licensed. The board proceeds next followed by rebuttal, if appropriate. In disciplinary cases, the agency has the burden of proof and ultimate burden of persuasion and proceeds first. (27) Unless otherwise provided by law, the agency is required to prove allegations by clear and convincing evidence in order to impose an administrative fine. (28)

During the final hearing, all parties have the right to respond, present evidence, and argument on all issues involved, to conduct cross-examination, and submit rebuttal evidence. The agency, here the board, is required to "accurately and completely preserve all testimony in...