Administrative Procedure for the Generalist.

Date01 November 2021
AuthorTucker, David G.

For many attorneys, the prospect of a case governed by the Administrative Procedure Act (1) (APA) is a source of fear: fear of a thicket of laws and rules with a complexity comparable to the Internal Revenue Code. And yet, given the ubiquity of matters that the APA touches--from professional licenses (for professions as different as teachers, engineers, and daycares) to environmental permitting to exceptional student educational plans--fear of the APA must be conquered. Just as various practice areas have their own rules--such as the Florida Rules of Criminal Procedure, Florida Family Law Rules, and so forth--administrative practice has its own rules as well. It turns out that the rules are neither as complicated nor as onerous as the generalist might fear.

This article serves a two-fold purpose: 1) to provide an overview of administrative practice in Florida, or at least so much as addresses substantial interests; and 2) to provide a research skeleton so that a generalist might rely on this article as a starting point. While almost every subject addressed below is worthy of its own extended article, this article likely does not address many nuances and subtleties.

This article briefly describes the process of administrative litigation under Florida law where agency action triggers a request for an administrative hearing. The legislature has defined "agency action" as "the whole or part of a rule or order, or the equivalent, or the denial of a petition to adopt a rule or issue an order. The term also includes any denial of a request made under [section]120.54(7)." (2) However, there are some areas this article does not discuss: rulemaking, including challenges to adopted (or unadopted) rules, standing issues, and judicial review. The article presupposes a situation in which a client is given a letter or other notice from an agency announcing that the agency is doing something to the client. In this article, there is no question about whether the client has standing to request an administrative hearing.

Structure of Administrative Adjudication in Florida

The APA "presumptively governs the exercise of all authority statutorily vested in the executive branch of state government." (3) Other statutes are to be construed in pari materia with the APA, and not as legislative repeals by implication as to the APA. (4)

In Florida, F.S. Ch. 120 governs proceedings across state agencies unless exempted by the legislature. (5) The Florida Constitution has always prohibited as broad delegations of substantive powers to state agencies as Congress might delegate to federal agencies. (6) The legislature has and does closely monitor and control administrative agencies and procedure. (7)

Administrative proceedings are conducted by "presiding officers." (8) The legislature has created a pool of administrative law judges (ALJ) serving in the Division of Administrative Hearings (DOAH) within the Department of Management Services. (9) Administrative law judges generally, but not always, conduct hearings that resolve contested issues of fact. These proceedings are equivalent to bench trials under the civil rules. (10) The legislature has defined those proceedings involving contested issues of material fact where ALJ's are not required to preside. (11) In those instances an agency may appoint its own hearing officer to serve as a presiding officer. (12) All ALJ's are presiding officers but not every presiding officer is an ALJ.

The legislature has also established units of specialized presiding officers outside of DOAH. Some examples include, but are not limited to, hearing officers within the Department of Children and Families or Agency for Health Care Administration who conduct fair hearings regarding disputes arising under public assistance programs or Medicaid; (13) hearing officers appointed by the Public Employee Relations Commission (PERC); (14) and re-employment appeals referees within the Department of Economic Opportunity. (15)

Even within DOAH, there have historically been efforts to specialize. Prior to 2018, DOAH organized its ALJ's into four groups. (16) Three groups were based on geography (Northern, Middle, and Southern) but the fourth was a specialized group for medical and environmental matters. (17) After July 1, 2018, the medical and environmental unit was dispersed into the three geographic groups. (18) Cases involving medical and environmental matters continued to be assigned to the ALJ's with the most experience in those matters within the geographic grouping. (19)

The legislature directed the Administration Commission (20) to adopt uniform rules of procedure to implement the APA not later than July 1, 1997, (21) setting out a list of subjects the rules must govern. (22) Prior to the adoption of Uniform Rules of Procedure, various agencies promulgated multiple duplicative rules of procedure in the administrative code. (23) The uniform rules replace the prior duplicative rules of procedure. (24)

The Administration Commission complied with legislative mandate and adopted the uniform rules. (25) The uniform rules govern every agency (26) subject to Ch. 120, except where the Administration Commission grants an exemption or the legislature itself provides otherwise by statute. (27) These uniform rules cover a wide array of matters, including, to name but three examples, agency organization, (28) agency rulemaking, (29) and bid protests. (30)

Also included within the uniform rules are "rules of procedure for filing of petitions for administrative hearings pursuant to s. 120.569 or 120.57." (31) The uniform rules also include rules for the "filing of request for administrative hearing by a respondent in agency enforcement and disciplinary actions." (32) The uniform rules relevant here are found in Florida Administrative Code Ch. 28-106, "Decisions Determining Substantial Interests." (33) This chapter is as close as there is to an APA equivalent of rules of civil procedure.

Points of Entry and Timeliness

Florida law is well settled that "an agency must grant affected parties a clear point of entry, within a specified time after some recognizable event in investigatory or other free-form proceedings, to formal or informal proceedings." (34) An agency must afford the persons or entities an opportunity to question, challenge, or contest the agency action that they believe affects them. (35) The point of entry is obvious in those proceedings described in statute, such as licensing or permitting statutes. (36) A point of entry may be less obvious without an express statutory framework, such as free form proceedings. (37) Agency rules must clearly signal when the agency's free form decisional process is completed or at a point when it is appropriate for an affected party to file a request.

The APA requires agencies to provide notice regarding the rights a person or entity has to a point of entry: "Each notice shall inform the recipient of any administrative hearing or judicial review that is available under this section, s. 120.57, or s. 120.68; shall indicate the procedure which must be followed to obtain the hearing or judicial review; and shall state the time limits which apply." (38) A point of entry is exercised when a person or entity affected by the agency action submits a request for hearing to the agency whose action is substantially affecting their interests.

Practitioners must be aware of the strict penalties for untimely filed requests for hearing. The APA requires that untimely filed petitions or requests for hearing be dismissed. (39) Although the APA itself does not specify deadlines that divide the timely from the untimely, the uniform rules require that the hearing request be filed within 21 days of the receipt of written notice of the agency action. (40) Some statutes, however, do provide specificity. (41) Practitioners must be keenly aware of the timeframes controlling their points of entry.

Administrative practice is not easily forgiving for late filings. (42) The legislature has eliminated the defense of excusable neglect for late filings. (43) The only equitable defense to an untimely filing in a proceeding under Ch. 120 is that a deadline has been equitably tolled. (44) Section 120.569 expressly provides: "This paragraph does not eliminate the availability of equitable tolling as a defense to the untimely filing of a petition. " (45) Untimely petitions must, therefore, be dismissed unless equitable tolling applies. Requests for relief filed even one day late have been dismissed as having waived the right to a hearing. (46)

Equitable tolling is, therefore, worth discussion. "Equitable tolling" is generally applied when a plaintiff has been "misled or lulled into inaction...

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