The 21-day battle in administrative actions.

• Author: Persaud, Shiv Narayan

In its recent revisions to the Uniform Rules of Procedure, the Administration Commission made significant improvements to F.A.C. Rule Ch. 28-106. (1) These include changes to accommodate facsimile transmission and publication on an agency's Web site, as well as amendments relating to notice and disposition of agency declaratory statements, the procedure for emergency action against a licensee, and modifications for bid protest petitions and procedures. The commission also incorporated into the rules recent case law interpreting the limitation period under the Administrative Procedure Act (APA) within which a party may exercise the right to hearing.

Streamlining the Code

One issue at the forefront of the rule involves the responsive pleading to an administrative complaint. An "election of rights" notice normally accompanies an agency's notice of intended action or administrative complaint. This statement informs the affected party of his or her right to request either a formal or informal proceeding under the APA. The notice may also specify the timeframe for a response and the penalty for the party's failure to respond timely. The APA outlines two avenues through which agency action may be contested--proceedings that involve disputed issues of material fact (commonly "formal proceedings") and proceedings that do not involve disputed issues of material fact (commonly "informal proceedings").

The rules on initiation of proceedings presume the petitioner in an action is the person or entity contesting the agency action. (2) However, in cases involving an agency's complaint against a license holder, the agency is the petitioner. Newly adopted Rule 28-106.2015 rectifies this confusion by creating a unique section relating specifically to disciplinary actions against a licensee.

The new rule defines an administrative complaint in the context of actions against a license as an exercise in the agency's enforcement authority which prompts disciplinary action against a licensee. In clearly defining an administrative complaint and creating requirements for the petition, the rule notifies affected parties of their obligations and focuses on the requirements of the administrative complaint and the written information necessary for a response. In its request for an administrative hearing, the respondent is required to file a statement identifying those material facts that are in dispute or indicating that there are no facts in dispute. The respondent is also required to state when the administrative complaint was served, a matter of significance when considering a limitation period and the consequences against an affected party for failure to file a response timely with the agency.

In establishing the applicability of a limitation period, proper service of the notice of agency action or administrative complaint must be accomplished against the affected party. Pursuant to F.S. [section] 120.569(1), agency action notices "shall inform the recipient of any administrative hearing or judicial review that is available under [the APA and] shall indicate the procedure which must be followed to obtain the hearing or judicial review; and shall state the time limits which apply." The requirement of proper service entails giving the affected parties notice which on its face is "readily apparent [that if they fail] to exercise [their] rights to seek administrative review within the time specified in the notice, the consequence [is] that such relief [will be] considered waived." (3)

The First District has looked at whether delivery by certified mail was sufficient to initiate the administrative process in Shelley v. Dep't of Financial Svs., 846 So. 2d 577 (Fla. 1st DCA 2003). In finding that the mailed notice met state and federal due process requirements, the court stated that the "[s]tate must attempt to provide actual notice, not that it must provide actual notice," and that "the notice [should be] reasonably calculated, under all the circumstances, to apprise interested parties of the action and afford them an opportunity to present their objections." (4) Consistent with this methodology, F.S. [section] 120.60(5) states that service of an administrative complaint against a licensee must be accomplished by personal service or certified mail. In the event this is ineffectual, then service may be accomplished constructively by publication over a four-week period.

Limitation Time Frame

Another significant issue that the rule changes address is the limitation period in which to respond to intended agency action or an administrative complaint. Under F.A.C. Rule 28-106.111(4), "[a]ny person who receives written notice of an agency decision and who fails to file a written request for a hearing within 21 days waives the right to request a hearing on such matters."

Unless another more specific rule or statute applies, an affected party has this 21-day period in which to respond to the intended agency action or administrative complaint. After proper service, the agency may verify whether a...