Florida Administrative Procedures Act remedies survey.

• Author: Downie, II, Robert C.

"In theory, there is no difference between theory and practice. But, in practice, there is."

--Jan L. A. van de Snepscheut/Yogi Berra

The Florida Administrative Procedure Act (APA), F.S. Ch.120, to an almost exclusive extent, contains the procedures by which Florida government agency "actions" are formulated and can be challenged and litigated. While the APA itself does not contain any statement of the law's purpose or legislative intent, one major purpose has generally been described as an "expansion of public access to the activities of governmental agencies." (1) That is the theory. Within the APA resides a multitude of approaches to such challenges, and in some instances multiple remedies may be available. That is the practice.

Since its enactment in 1974 in its "modern" form, there have been periodic adjustments to the APA by the Florida courts and the legislature as to how much public access there should be. In theory, agency action that impacts substantial interests should be subject to some level of independent review. In practice, having every single step a Florida government agency takes be made subject to an APA challenge by anybody would be too time consuming, and both the legislature (2) and the courts (3) have adjusted the reach of the APA. What has evolved is a set of remedies that are in some instances fairly generic and in others very specialized. The purpose here is to briefly explain what these remedies are designed to accomplish relative to agency action.

The basic APA procedures and remedies applicable to agency actions are shown in the matrix on the next page. Referring to the matrix headings, the "remedy" is the agency action to be challenged or requested, the "authority" and "grounds" are the bases to request the remedy, the "petition contents" are both the statutory and Uniform Rules of Procedure pleading requirements, and the "type of hearing" is formal or informal. Attorneys' fees may also be available.

Rule-making and Rule Challenges

Agency rules are the backbone of the APA, and, therefore, the backbone of state agency action in Florida. The meaning of a "rule" includes "each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency." (4) Once upon a time, agencies were broadly authorized to conduct business using incipient policy, or unwritten rules, but not any more. (5) Today, rule-making is "not a matter of agency discretion" and it is presumed to be feasible and practicable. (6)

Rules come into existence in several ways. Agencies may initiate rule-making of their own accord or in response to a legislative pronouncement requiring rule-making, (7) interested persons may request that agencies initiate rule-making, (8) or interested persons can challenge an unadopted agency statement defined as a rule spurs an agency to initiate rule-making. (9)

Existing rules, proposed rules, emergency rules, and unadopted agency statements defined as rules are all subject to APA challenges. Section 120.56 is entitled "Challenges to rules" and contains the "general procedures for challenging the validity of a rule or a proposed rule" as well as specific provisions for challenges to existing, proposed, emergency, and unadopted rules. For discussion purposes herein, "rule challenge" encompasses any of these four categories, unless otherwise specified.

A rule challenge petition "must state with particularity the provisions alleged to be invalid with sufficient explanation of the facts or grounds for the alleged invalidity and facts sufficient to show that the person challenging a rule is substantially affected by it, or that the person challenging a proposed rule would be substantially affected by it." (10) For a proposed rule, the petitioner has the burden of "going forward." Then, the agency has the burden to prove by a preponderance of the evidence that the proposed rule is not invalid. (11) For an existing rule, the petitioner has the burden of persuasion by the preponderance standard. (12) In a challenge to an agency statement defined as a rule, "the petition shall include the text of the statement or a description of the statement and shall state with particularity facts sufficient to show that the statement constitutes a rule under s. 120.52 and that the agency has not adopted the statement by the rulemaking procedure provided by s. 120.54." (13)

All rule challenges are filed at the Division of Administrative...