Standing in Florida administrative proceedings.

• Author: Ellis, Richard M.

"Standing" to sue in court is generally defined as a "sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy."(1) Standing in Florida administrative proceedings generally requires a similar stake in the outcome. The more particular nature of that stake, as defined in the Florida Statutes and interpreted in case law, is the subject of this article.(2)

Decisions Which Affect "Substantial Interests," and "Party" Who May Contest

Statutory construction--F.S. [sections] 120.569 ("Decisions which affect substantial interests") is the provision by which an individual or entity, aggrieved by an unfavorable agency determination, may petition for an administrative hearing.(3) Section 120.569(1) states that "[t]he provisions of this section apply in all proceedings in which the substantial interests of a party are determined by an agency, unless the parties are proceeding under [sections] 120.573 or [sections] 120.574." (emphasis added). Thus, in considering whether [sections] 120.569 applies to an individual or entity, allowing them to pursue an administrative hearing, it must first be asked who a "party" is, and what their "substantial interests" may be.

"Party" is defined in F.S. [sections] 120.52(12). The most significant provisions are in [sections] 120.52(12)(a), referring to "[s]pecifically named persons whose substantial interests are being determined in the proceeding," and [sections] 120.52(12)(b), referring to "[a]ny other person who, as a matter of constitutional right, provision of statute, or provision of agency regulation, is entitled to participate in whole or in part in the proceeding, or whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party."(4)

Section 120.52(12)(a)'s reference to "[s]pecifically named persons whose substantial interests are being determined in the proceeding" is, as a practical matter, somewhat redundant of the due process already given by [sections] 120.60 for persons who are directly subject to licensing/permitting and enforcement determinations.(5) These "specifically named" parties would, for example, include the petitioner challenging the denial of an application for licensure, and would include the named respondent in an agency's administrative complaint. However, [sections] 120.52(12)(a) does have independent significance: It can, in a given instance, be used to "join" a co-respondent in the midst of an administrative proceeding,(6) somewhat similarly to adding a defendant in civil proceedings.

Section 120.52(12)(b) may best be analyzed by parsing its significant phrases, beginning with "any other person." Read together with [sections] 120.52(12)(a), [sections] 120.52(12)(b)'s "any other person" is a reference to what we may loosely call "third parties" to the administrative process. These third parties may, but do not always, appear in administrative litigation in the form of a petitioner seeking to intervene in pending proceedings between the agency and a first party. The third party may in fact commence the administrative proceedings, filing a petition alleging that its "substantial interests" have been affected by an agency's determination in favor of a first party, and naming the agency and the first party as co-respondents.(7)

Construing [sections] 120.52(12)(b) further, it might be asked whether a showing of "substantial interests" is always necessary for third-party standing. That is, [sections] 120.52(12)(b) provides for "Any other person who, as a matter of constitutional right, provision of statute, or provision of agency regulation, is entitled to participate in whole or in part in the proceeding, or whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party." (Emphasis added.) The disjunctive "or" in [sections] 120.52(12)(b) implies that "any other person" could conceivably be a "party" (and thus participate in administrative proceedings) if entitled to do so by, for example, a provision of agency regulation, regardless of "substantial interests." However, when the terms of [sections] 120.569(1) are read in pari materia with [sections] 120.52(12)(b), it appears that "any other person" who is a "party" by way of the constitution, a statute, or an agency regulation must nevertheless demonstrate "substantial interests" to participate in administrative proceedings.(8)

Section 120.52(12)(b) uses the term "substantial interests," which is also found in [sections] 120.569(1). "Substantial interests" is not defined in the Administrative Procedure Act. The meaning of "substantial interests" is found in case law, interpreting both [sections] 120.52(12)(b) and, relatedly, [sections] 120.569(1).

Agrico Chemical Company and "Substantial Interests"

Agrico Chemical Company v. DER, 406 So. 2d 478 (Fla. 2d DCA 1981), is the seminal case concerning the meaning of "substantial interests" and standing to challenge decisions which affect them. The case involved two entities, Freeport Sulphur Company and Sulphur Terminal Company, which filed petitions to contest the Department of Environmental Regulation's grant of construction permits to Agrico Chemical Company. Freeport and Sulphur Terminal each had a distinct business interest in the sale and handling of liquid sulphur: Freeport supplied it to Agrico, and Sulphur Terminal handled it at its own Tampa facility. Agrico sought the construction permits to build its own terminal facility in Tampa, in order to handle less expensive, solid sulphur. Neither Freeport nor Sulphur Terminal could be said to be entitled to participate in the administrative determination "as a matter of constitutional right, provision of statute, or provision of agency regulation."(9) This left the Second District Court of Appeal to determine whether either of the petitioners had "substantial interests" which would "be affected by proposed agency action."(10)

In adjudicating the issue, the court stated, "We believe that before one can be considered to have a substantial interest in the outcome of the proceeding he must show 1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a [sections] 120.57 hearing, and 2) that his substantial injury is of a type or...