The 2003 amendments to the Florida APA.

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

A noted administrative law scholar once characterized the quest for an administrative procedure as a "hardy perennial. (1) This certainly appears to be the case in Florida, for during the 2003 Regular Session, the Florida Legislature enacted yet another measure that amends Florida's Administrative Procedure Act (APA). (2) This bill, CS/ CS/SB 1584, (3) generally is designed to minimize unnecessary delays in the administrative hearing process and to address several recent court decisions interpreting earlier amendments to the APA. The bill is somewhat similar to bills that were considered in prior years, (4) but, unlike some of the prior versions, it does not affect who may request an administrative hearing. (5) This article summarizes some of the key provisions.

Clarifies Grounds for Challenging Rules. The bill clarifies the grounds for challenging rules by revising the definition of "invalid exercise of delegated legislative authority" in [section] 120.52(8) in two related respects.

A rule is an invalid exercise of delegated legislative authority if it is, among other things, "arbitrary or capricious. (6) The bill defines the terms "arbitrary" and "capricious" as follows: A rule is "arbitrary" if it is not supported by logic or the necessary facts; a rule is "capricious" if it is adopted without thought or reason or is irrational. (7)

Significantly, the new definition makes clear that a rule is "arbitrary"--and therefore invalid--if it is not supported by "the necessary facts. (8) This change is designed to retain the requirement that the factual predicate, if any, for a rule must be established, (9) and to allow the elimination of the existing, but apparently confusing, language that provides that a rule is invalid if it is not supported by "competent substantial evidence." (10) In particular, the elimination of this "competent substantial evidence" language is aimed at resolving the confusion recognized by the court in Florida Board of Medicine v. Florida Academy of Cosmetic Surgery, Inc., 808 So. 2d 243,256 (Fla. 1st DCA 2002), regarding whether "competent substantial evidence" is a standard of proof or a standard of review. (11)

The bill also makes identical changes to [section] 120.57(1)(e), which describes what an agency must "prove up" when it applies an unadopted rule. (12)

Confirms De Novo Nature of Rule Challenge Proceedings. Likewise, the bill amends [section] 120.56(1) to make clear that proceedings before the administrative law judge (ALJ) are de nova, (13) and the bill thereby addresses the Florida Board of Medicine decision to the extent that it suggests otherwise. (14) The bill also confirms that the standard of proof in all rule challenge proceedings is a preponderance of the evidence. (15) Taken together, it seems clear that these changes do not in any way lessen the grounds for determining a rule to be invalid; indeed, they may well make it easier for a petitioner to successfully challenge a rule and more difficult for an agency to defend the challenged rule. In some cases, de novo review will benefit the agency, because the agency is not constrained by the evidence that it can demonstrate was actually before it during rulemaking (or included in the rulemaking record (16)), but is free to offer new evidence that supports the rule before the ALJ, even if not initially considered.

Revises Contents of Petition. The bill makes minor changes to the contents of a petition for hearing so that the other parties are better informed at an early date of the petitioner's objections. Specifically, the bill amends [section] 120.54(5) to require that the petition also include an explanation of how the alleged facts relate to the cited rules or statutes. (17)

Confirms Burden of Proof in Challenges to Existing Rules. The bill revises [section] 120.56 to provide that the petitioner has the burden of proof in cases involving challenges to existing rules. (18) This is consistent with prior court rulings, including SJRWMD v. Consolidated-Tomoka Land Co., 717 So. 2d 72,76 (Fla. 1st DCA 1998). (19) The agency retains the burden of proof in challenges to proposed rules. (20)

Clarifies Challenges to Agency Statements. The bill amends [section] 120.56(4) to clarify procedures for administrative challenges to an agency statement that is defined as a rule. (21) The bill affirmatively establishes a clear presumption that the agency is acting expeditiously and in good faith if the agency publishes a proposed rule prior to the final hearing. The bill also requires the ALJ to hold in abeyance the challenge to an agency statement while the agency seeks to adopt a proposed rule addressing the challenged agency statement. Finally, the bill makes clear that, if the proposed rule addressing a challenged agency statement is determined to be invalid, then the agency must immediately discontinue reliance on the challenged agency statement. Some of these changes address issues raised by the court's decision in Osceola Fish Farmers Association, Inc. v. SFWMD, 830 So. 2d 932 (Fla. 4th DCA 2002). (22)

Requires Initial Scheduling Order. The bill amends [section] 120.569 to require the ALJ, upon request, to enter an initial scheduling order to facilitate the just, speedy and inexpensive determination of the proceeding. (23) It has been DOAH's practice to routinely enter initial orders in all cases, but the amended statute expressly requires the ALJ to enter such an order upon the request of any party, and it expressly requires the order to establish a discovery period, including a deadline by which all discovery shall be completed, and the date by which the parties shall identify expert witnesses and their opinions. The initial scheduling order also may require the parties to meet and file a joint report (or pre-hearing stipulation) by a date certain.

Authorizes Motion to Relinquish Jurisdiction. The bill makes minor changes to [section] 120.57(1)(i), which authorizes the ALJ to relinquish jurisdiction to the agency when it appears there is no genuine issue as to any material fact. (24) This is somewhat akin to a motion for summary judgment in that it is designed to expedite administrative proceedings by avoiding unnecessary formal (fact-finding) hearings. For example, in one recent case, the ALJ relied on this provision to enter an order closing file and relinquishing jurisdiction because there no longer was any factual dispute as to the petitioner's standing. (25)

Rulings on Exceptions. The bill amends [section] 120.57 to authorize the agency to decline to rule on exceptions that do not clearly identify the disputed portion of the recommended order, that do not identify the legal basis for the exception, or that do not include specific citations to the record. (26) Heretofore, agencies were expected to rule on each exception, regardless of how clearly written or supported in the record. (27)

Restores "Default" Language. The bill effectively restores to [section] 120.60 the pre-1996 language that provides that a license application is considered approved without further action by the agency if the agency fails to act on the application within the prescribed time periods, thus avoiding unnecessary judicial proceedings to compel the agency to issue the license. (28) However, the new language expressly authorizes the "default" permit to include such...