The evolution of declaratory statements.

• Author: Ansbacher, Sidney F.
• Position: Florida Administrative Procedure Act

The Florida Administrative Procedure Act contains a seemingly straightforward remedy for persons in need of state agency guidance regarding interpretation of an agency's regulatory response to a particular fact pattern. A declaratory statement may be requested pursuant to F.S. [section] 120.565, which reads: "(1)Any substantially affected person may seek a declaratory statement regarding an agency's opinion as to the applicability of a statutory provision, or of any rule or order of the agency, as it applies to the petitioner's particular set of circumstances." This article reviews three areas of significant change with respect to the availability and scope of declaratory statements: 1) the requirement for a present case or controversy; 2) the requirement that the statement not be a rule; and 3) the requirement that the petitioner have standing. The unfortunate conclusion is that no one--agencies, petitioners, no one--knows the proper scope of a declaratory statement at present.

Present Case or Controversy

Declaratory statements have been authorized by the Florida Administrative Procedure Act since its enactment in 1974. (1) Early on, appellate decisions construing the availability of declaratory statements looked to the declaratory judgment statute for guidance. (2) In 1979, in Couch v. State, 377 So. 2d 32, 33 (Fla. 1st DCA 1979), the court stated:

Owing to the similarity of declaratory statement proceedings under the Administrative Procedures Act and declaratory judgments under Chapter 86, Florida Statutes, we are of the opinion that in determining the availability and scope of the remedies under the former, we may be guided by decisions under the declaratory judgments statute. It appears that the applicable guiding principle here is that an actual, present and practical need for a declaratory judgment must be shown. (3)

This holding was echoed in 1982 in Law v. Florida Parole and Probation Commission, 411 So. 2d 1329, 1331 (Fla. 1st DCA 1982): "In the area of declaratory judgments and declaratory statements, two applicable principals must be considered: judicial restraint and a showing of'actual, present and practical need for a declaratory judgment."

In 1986, however, Professor Patricia Dore wrote an article, "Access to Florida Administrative Proceedings," in which she discussed the relationship between declaratory statements and declaratory judgments. (4) She explained:

The procedure was developed to meet the perceived inadequacies of declaratory judgment actions. It was developed to provide a less costly, less lengthy, less complicated, and less technical nonjudicial mechanism for members of the public to secure "binding advice where it is necessary or helpful for them to conduct their affairs in accordance with law.' (5)

She cautioned both courts and agencies not to treat declaratory statements as "masquerading declaratory judgment" actions. (6)

Apparently, Professor Dore's guidance went unheeded for some time. In 1995, in Sutton v. Department of Environmental Protection, 654 So. 2d 1047, 1048 (Fla. 5th DCA 1995), the court stated that the purpose of a declaratory statement is

to afford relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal relations. Individuals seeking declaratory relief must show that there is a bona fide, actual, present, and practical need for the declaration ... [and that] the declaration deals with a ... present controversy as to a state of facts.

In 1998, though, the requirement for a "present controversy as to a state of facts" for a declaratory statement was judicially dissolved. In Chiles v. Department of State, Division of Elections, 711 So. 2d 151, 154 (Fla. 1st DCA 1998), the court characterized the benefit of declaratory statements as avoiding "costly administrative litigation by selecting the proper course of action in advance." In 2002, Nouick v. Department of Health, Bd. of Medicine, 816 So. 2d 1287 (Fla. 5th DCA 2002), was decided in which the court explained: "Although there may be valid exceptions, a petition for a declaratory statement which seeks approval or disapproval of conduct which has already occurred is properly denied. The purpose of a declaratory statement is to allow a petitioner to select a proper course of action in advance." (citations omitted) Contrast these holdings with the well accepted doctrine that

Florida courts will not render, in the form of a declaratory judgment, what amounts to an advisory opinion at the instance of parties who show merely the possibility of legal injury on the basis of a hypothetical state of facts which have not arisen and are only contingent, uncertain, [and] rest in the future." (7)

Thus, there can be no question that no longer are declaratory statements simply the agency equivalent of a declaratory judgment. Declaratory statements are generally based upon conduct that has not occurred and are for avoiding litigation, while declaratory judgments adjudicate rights and obligations based upon present, ascertainable, nonhypothetical facts. (8) While it is possible to construct factual scenarios under which either form of relief is proper, declaratory statements are now available in situations in which declaratory judgments most assuredly are not.

Declaratory Statement or Rule?

The distinction between agency declaratory statements and agency rules was, for approximately 25 years, a point of conflict and debate in administrative law. The source of the conflict was the judicial doctrine that a declaratory statement could not be issued if the statement would not be limited to petitioner's particular set of circumstances but would instead result in a "rule." (9) An agency "rule" is defined as an "agency statement of general applicability that implements, interprets, or prescribes law or policy or de scribes the organization, procedure, or practice requirements of an agency," (10)

The distinction between a declaratory statement and a rule was not always obvious. As explained in 1990 in Florida Optometric Ass'n v. Department of Professional Regulation, Bd. of Opticianry, 567 So. 2d 928,937 (Fla. 1st DCA 1990):

We do observe, however, that declaratory statements and rules serve clearly...