By the way, more APA.

• Author: Rigot, Linda M.
• Position: Florida

The 1996 Legislature substantially revised the Administrative Procedure Act (APA), F.S. Chapter 120, which governs the relationship between state agencies and Florida's citizens. The new APA was the subject of the March 1997 special issue of this Florida Bar Journal. Since that time, the 1997 Legislature passed a "glitch bill" clarifying certain portions of the new APA, and the new Uniform Rules of Procedure for all agencies became effective. This article reviews the 1997 changes to the new APA, discusses the status of the new uniform rules, and includes a copy of the Uniform Rules of Procedure for administrative proceedings as a pull-out in the center of this issue of the Bar Journal.

The Polished APA

The revised APA became effective on October 1, 1996. In January 1997 the Governor appointed a working group to formulate an APA "glitch bill" for the 1997 legislative session. Key staff in the Governor's office led the working group composed of officers of the Administrative Law Section of The Florida Bar, legislative staff, agency representatives, and administrative law practitioners.[1]

The working group's final draft was approved by the executive council of the Administrative Law Section on March 12, 1997. That draft was subsequently amended, and CS/SB 1066 was passed by the legislature on April 29. It was presented to the Governor on May 14 and became law without the Governor's signature on May 29. It is codified in Chapter 97-176, Laws of Florida. CS/ SB 1066 made clarifying changes to the APA in the areas of agency rulemaking, the scope of coverage of the APA, and the framework for administrative hearings. The material changes are reviewed herein.

Agency Rulemaking

Some relief from the notice and filing requirements of rulemaking has been given to educational units and other local agencies. F.S. [section] 120.54(2)(C)2 now provides that local agencies need not hold public workshops for rule development in various regions of the state but only, if at all, in the agency's service area. Similarly, educational units and local units of government need not publish their rules or notices in the Florida Administrative Weekly or file them with the Joint Administrative Procedures Committee (JAPC). F.S. [section] 120.81(1) and (2).

When an agency intends to repeal a rule, it need not publish a notice of rule development. F.S. [section] 120.54(2)(a). Further, the notice of rule adoption need not include a reference to the notice of rule development. F.S. [section] 120.54(3)(a).

When an agency intends to adopt a rule, it must publish in the notice of rule development either the preliminary text of the proposed rule or a statement of how the preliminary draft may be obtained without cost. F. S. [section] 120.54(2)(a). The 1997 amendments also specify that the agency's decision to engage in negotiated rulemaking and the various steps in that process are not agency action subject to challenge. F.S. [section] 120.54(2)(d)3.

The 90-day deadline for completing the rulemaking process is extended by publication of a required notice of change or notice of public hearing. F.S. [section] 120.54(3)(e)2. The deadline is also extended if any substantially affected person timely submits a good faith written proposal for a lower-cost regulatory alternative to a proposed rule. F.S. [section] 120.541(1)(a). Finally, [section] 120.54(3)(b) adds a deadline for the small business ombudsman's submittal of any regulatory alternative and extends the agency's deadline for completing the rule-making process when such alternatives are timely submitted.

Scope of Coverage

Under F. S. [section] 120.52(1)(b) educational units are listed specifically as agencies subject to the APA. The exemption from [subsections] 120.569 and 120.57 applicable proceedings to involving the substantial interests of students in the state university system has been expanded to cover community college districts. F. S. [section] 120.81(1)(f).

An award of attorneys' fees and costs is now precluded under F.S. [section] 120.595(4) against an agency that uses an agency statement not adopted as a rule if the agency can demonstrate "the statement is required by the Federal Government to implement or retain a delegated or approved program or to meet a condition to receipt of federal funds."

F.S. [section] 120.66, which prohibits a presiding officer who is involved in the decisional process from receiving and not reporting an ex parte communication, now specifies that an agency head or designee is included within the term "presiding officer."

A number of changes were made to Florida's unique waiver and variance provision, which became effective October 1, 1996. A public employee cannot obtain a variance from or waiver of a rule affecting him or her as a public employee. F.S. [section] 120.542(1). Similarly, a student cannot obtain a variance from or waiver of a rule of an educational unit. F.S. [section] 120.81(1)(j). An agency also is precluded from granting variances or waivers to rules required by the...