Prompt judicial review of administrative decisions: providing due process in unsure waters.

• Author: Brody, Carl E., Jr.

Any administrative licensing procedure regulating First Amendment-protected activity must bear a "heavy presumption against its constitutionality" (1) and, therefore, must provide adequate procedural safeguards; otherwise, the procedure will constitute an unconstitutional prior restraint. (2) The initial analysis provided by the U.S. Supreme Court in Freedman v. Maryland, 380 U.S. 51 (1965), known as the Freedman standard, required that lower courts determine whether the decision to issue a license was made within a "specified brief period" and, when judicial review was sought, whether the status quo was maintained pending a final determination on the merits; (3) whether the licensing procedures assure "a prompt final denial of a license;" (4) and whether the procedures place the burden of instituting judicial proceedings and proving that the expression is unprotected on the censor rather than the exhibitor. (5) Subsequent to Freedman, the Supreme Court refined this standard in the context of administrative licensing decisions, holding that such procedures need only assure that the licensor make the decision of whether to issue the license within a specified and reasonable time period, during which time the status quo is maintained, (6) and assure that the possibility for prompt judicial review exists in the event that the license is erroneously denied. (7) The Court altered its view on the applicable standard based on distinguishing the third prior restraint factor, since it does not apply where the government does not pass judgment on the content of speech when it makes its licensing decision. (8)

These matters of constitutional law and federal procedure retain great practical significance for the attorney representing state and local governments because civil rights liability may arise based on failure to provide sufficient administrative process. (9) Therefore, it is important to comply with these due process rights in order to protect the interests of governmental clients.

Administrative Licensing Decisions

Administrative laws, rules, and decisions that limit or circumscribe First Amendment-protected activity must avoid the prohibitions against prior restraint. The prior restraint concern may arise from one of two scenarios: when an applicant is denied a license or permit to operate, or when a license or permit holder is prohibited from continuing its operation based on an agency suspension or revocation. In either case, the local government agency must provide adequate judicial review of the administrative decision.

Under the first--when determining whether to grant a license or permit--the local government must avoid giving the decision maker unbridled administrative discretion, a situation that arises where the controlling ordinance or statute does not provide a specifically limited set of standards for the decision maker to follow when making the determination of whether to grant the license application. (10) Under the second--when an administrative agency is taking away a right that has previously been granted--the decision to revoke or suspend must be based on the license or permit holder having violated some law or rule specifically designated in the ordinance or rule. These predicate violations are what trigger the suspension mechanism.

The administrative authority must provide a sufficiently clear set of standards for applicants and licensees to follow in order to comply with their responsibilities. These clear standards are to be expressed through the applicable ordinance or rule employed for regulation of the licensed activity. Constitutionally valid standards put applicants on notice of the requirements for granting a license or permit and inform licensees or permit holders of the predicate acts that will result in administrative action taking that right away. Such administrative provisions will pass constitutional muster if the standards are adequately limited. (11)

Administrative licensing is necessary in order to provide a practical incentive for compliance with regulatory provisions. Negative licensing decisions must, therefore, focus on the licensee's inability to comply with these regulations, as it is the license and the interest in the license that receives the court's protection in both the denial and suspension scenarios.

Judicial review of local government administrative decisions depends on whether the administrative action is quasi-judicial or quasi-legislative. The decision on whether to grant or deny a license or permit is quasi-legislative, while suspension or revocation is quasi-judicial, assuming the applicable ordinances provide for administrative review with notice and a right to a hearing. The circuit courts have certiorari jurisdiction over quasi-judicial action, but have no such jurisdiction over quasi-legislative action. This split is based on the fact that certiorari is a record-based review limited to the face of the record presented to the court. Therefore, only those administrative matters requiring notice and a hearing are proper for judicial appellate review. (12) Judicial review of quasi-legislative actions is obtained through declaratory judgment pursuant to F.S. [section] 86.021. (13)

Under certiorari, the court is limited to examining whether procedural due process was accorded by the agency, whether the agency observed the essential requirements of law, and whether the agency's judgment is supported by competent, substantial evidence. (14) This standard places an explicit responsibility on the circuit courts to provide at least a perfunctory review of a petition for writ of certiorari. If that review is not provided, an aggrieved plaintiff may petition the district court of appeal based on a failure to receive procedural due process...