Standards of review under the Florida Administrative Procedure Act.

• Author: Blanton, Donna E.

Determining the appropriate appellate standard of review under the Florida Administrative Procedure Act (APA) always begins with F.S. [section] 120.68 (2006), which governs judicial review of APA proceedings. Although the statute provides guidance on the appropriate standard of review in some detail, reading the statutory language should be only the beginning for an appellate practitioner because numerous appellate court decisions interpret [section] 120.68. These opinions always should be considered before drafting the "standard of review" section of the initial brief in an APA appeal. (1)

This article first addresses the requirements of [section] 120.68 and then considers the interpretations of those requirements by Florida's appellate courts. Some of the court decisions have proved to be controversial among administrative law practitioners; thus, references to commentary on some opinions are included in the endnotes. (2)

Statutory Requirements

Section 120.68(7) establishes different levels of review for issues of fact, procedure, law, and policy. It provides:

The court shall remand a case to the agency for further proceedings consistent with the court's decision or set aside agency action, as appropriate, when it finds that:

(a) There has been no hearing prior to agency action and the reviewing court finds that the validity of the action depends upon disputed facts;

(b) The agency's action depends on any finding of fact that is not supported by competent, substantial evidence in the record of a hearing conducted pursuant to ss. 120.569 and 120.57; however, the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact;

(c) The fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure;

(d) The agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action; or

(e) The agency's exercise of discretion was:

1. Outside the range of discretion delegated to the agency by law;

2. Inconsistent with agency rule;

3. Inconsistent with officially stated agency policy or a prior agency practice, if deviation there from is not explained by the agency; or

4. Otherwise in violation of a constitutional or statutory provision; but the court shall not substitute its judgment for that of the agency on an issue of discretion. Section 120.68 further provides that unless the court finds a ground for setting aside, modifying, remanding, or ordering agency action or ancillary relief under a specified provision of [section] 120.68, it must affirm the agency's action. (3)

Section 120.68 itself, thus, establishes different levels of deference for different agency actions, those of which depending on fact require some deference under the plain language of the statute. The statute provides that the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact. If there has been no hearing prior to the agency action and the court finds that the validity of the action depends upon disputed facts, the court must remand or set aside the action. The court examines the record, but it must set aside the action or remand only if the action depends on a finding of fact not supported by competent, substantial evidence. (4)

The plain language of [section] 120.68 requires no deference to agency actions with respect to procedure. The statute provides the court must review the procedures and determine whether a material error either impaired the fairness of the proceedings or the correctness of the action. If so, the court is to remand the case. The statute suggests that the court must make its own independent determination. Similarly, no deference is required concerning questions of law under the plain language of [section] 120.68.

However, much deference is required by a reviewing court in the area of policy. The statute states that a court shall not substitute its judgment for that of the agency on an issue of discretion. Thus, as one commentator has noted, the APA "requires strict review of the way an agency makes a decision, strict review over whether it is lawful, less strict review over whether it is right, and virtually no review over whether it is smart." (5)

Section 120.68(7) does not distinguish among the various forms agency action may take, such as final orders arising from adjudicatory proceedings under [section] 120.569 and [section] 120.57, rule adoptions, and declaratory statements. Under the plain language of the statute, all agency action is to be reviewed pursuant to standards outlined in [section] 120.68.

Appellate Court Decisions (6)

* Findings of Fact and Agency Policy Considerations--As the statute requires and numerous courts have noted, findings of fact must be supported by competent substantial evidence. (7) Competent substantial evidence is defined in De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957), a case that is frequently quoted by the courts. (8)

The First District Court of Appeal has described competent evidence as evidence admissible over objection in civil actions and has concluded that any type of competent evidence may support a finding of fact so long as it is substantial in light of the record as a whole. (9) The court explained that in considering the "substantiality" of evidence, it takes into account whatever in the record fairly detracts from its weight. (10)

In most adjudicatory cases involving disputed issues of material fact that are subject to [section] 120.569 and [section] 120.57 of the APA, an administrative law judge employed by the Division of Administrative...