Excuse me? The courts suggest the legislature amend APA provisions governing requests for hearing.

• Author: Sellers, Lawrence E., Jr.
• Position: Florida Administrative Procedure Act

Much has been written about legislative changes to the Florida Administrative Procedure Act (APA) (1) that were designed to undo the judicial construction of various provisions? In a somewhat different twist, at least two appellate courts recently have suggested that the legislature amend provisions in the APA dealing with requests for administrative hearing. (3) This article discusses the provisions in the APA that require dismissal of a request for administrative hearing if the request is untimely or not in substantial compliance with the requirements of the Uniform Rules of Procedure. The article also identifies recent judicial decisions suggesting that these provisions should be amended.

Background: The Citizen-Friendly APA?

One of the purposes of the "new" APA as enacted in 1974 (4) was to give citizens better access (5) to governmental agencies and administrative proceedings. (6) To this end, the APA provides that any person whose substantial interests are to be determined by an agency action may institute proceedings by filing a petition or request for hearing with the agency responsible for making the determination. The courts generally have made it relatively easy for a substantially affected person to invoke a hearing. (7) Likewise, the courts consistently have refused to allow an agency to determine that a party had waived its right to request a hearing unless the agency had provided the party with a clear point of entry. (8) In addition, the courts frequently have employed equitable doctrines such as excusable neglect (9) and equitable tolling (10) to find that a party had filed a timely request for hearing.

The 1998 APA Amendments

These interpretations of the APA provided citizens with considerable access to contest agency decisions. However, some became concerned that Florida and its citizens were missing important economic development opportunities because of the substantial delays that often result from administrative litigation associated with third-party challenges to agency decisions proposing to grant necessary regulatory approvals. To address this concern, Representative Joe Spratt (11) filed legislation in 1997 that was initially designed to eliminate unsubstantiated or otherwise frivolous challenges to environmental permits. (12) This legislation proved to be very controversial and was substantially revised before being approved in 1998. (13)

The 1998 legislation seeks to strike a fair balance between retaining broad access to administrative proceedings for those persons with legitimate objections while eliminating significant delays caused by unnecessary administrative hearings when there are no genuine disputes. The 1998 legislation sought to accomplish this by revising provisions in the APA governing requests for hearing in two respects. (14)

First, the 1998 legislation amended the APA to expressly require the adoption of uniform rules of procedure for the filing of petitions for administrative hearings pursuant to [section] 120.569 or [section] 120.57. (15) The 1998 legislation provided that these rules must require the petition to include:

(a) The identification of the petitioner.

(b) A statement of when and how the petitioner received notice of the agency's action or proposed action.

(c) An explanation of how the petitioner's substantial interests are or will be affected by the action or proposed action.

(d) A statement of all material facts asserted by the petitioner or a statement that there are no disputed facts.

(e) A statement of the ultimate facts alleged, including a statement of the specific facts that petitioner contends warrant reversal or modification of the agency's proposed action.

(f) A statement of the specific rules or statutes that the petitioner contends require reversal or modification of the agency's proposed action.

(g) A statement of the relief sought by the petitioner, stating precisely the action petitioner wishes the agency to take with respect to the proposed action. (16)

These requirements were taken directly from and were very similar to Uniform Rule 28-106.201(2) as it existed at that time. (17) As such, this change merely incorporated existing provisions of the uniform rules directly into the APA.

The second change enacted in 1998 was more significant. It expressly requires that, unless otherwise provided by law, a petition or request for hearing must include those items required by the uniform rules. It also requires that, upon the receipt of a petition or request for hearing, the agency must "carefully review" the petition to determine if it contains all the required information, and that a petition "shall" (18) be dismissed if it is not in substantial compliance with these requirements or it has been untimely filed. (19) Dismissal of a petition shall, at least once, be without prejudice to the petitioner's filing of a timely amended petition curing the defect, unless it conclusively appears from the face of the petition that the defect cannot be cured. (20) The agency may refer a petition to the Division of Administrative Hearings for the assignment of an administrative law judge only if the petition is in substantial compliance with these requirements. (21)

The Courts Interpret the 1998 Amendments

Although they initially were little noticed by commentators and scholars, (22) the 1998 amendments recently have received considerable attention from the courts in cases involving agency final orders dismissing petitions because they are untimely or insufficient.

Timeliness of the Petition

As noted, courts previously have invoked equitable doctrines such as excusable neglect and equitable tolling to find that a party had filed a timely request for hearing.

* Excusable Neglect

Prior to 1998, an untimely request for an administrative hearing was granted if the petitioner demonstrated that the request was filed late due to excusable neglect. (23) However, in...