by Garnett Chisenhall
Those versed in administrative law know that the Division of Administrative Hearings (DOAH) adjudicates disputes between Florida state agencies and those they regulate. The scope of cases heard by DOAH ranges from cases impacting a single individual to those impacting the entire state. However, current practitioners of administrative law may be unaware of the circumstances that led to DOAH’s creation in 1975. The purpose of this article is to describe 1) why DOAH was created; 2) DOAH’s organizational structure; 3) DOAH’s role in the system of checks and balances; and 4) how Floridians are receiving a substantial value for the taxpayer funds invested in DOAH.
The Historical Context Surrounding DOAH’s Creation
In order to fully appreciate DOAH’s mission, one must be familiar with the historical context associated with its creation in the mid-1970s. Floridians have a longstanding distrust of executive power, evidenced in part by the Reconstruction Era Constitution of 1885, which limited the governor to a single four-year term. Even today’s modern Florida Constitution does not vest all executive authority with the governor. Instead, several important executive functions are jointly controlled by the governor and three members of the cabinet,1 and each of the cabinet members individually oversees a significant government agency.2
While the current version of the Administrative Procedure Act (APA) requires agencies to formulate and publish a rule for any practice generally applicable to those being regulated, agencies in existence prior to 1975 largely operated without published policies. As a result, there was a great deal of potential for agencies to act inconsistently. Therefore, someone seeking to challenge an agency would be motivated to hire an attorney with inside information as to which bureaucrat would render the decision or which one had the unpublished policies in his or her desk drawer.
Just as agencies’ use of unpublished rules did the public a disservice and created an environment in which agencies could act inconsistently, the method by which agencies conducted “formal” administrative hearings did nothing to inspire confidence that individuals and businesses would receive a fair and impartial hearing. Prior to the enactment of the 1975 APA, a party seeking to challenge an agency’s proposed action would have a hearing before a hearing officer employed by the very agency against whom that party was litigating. In fact, it was not uncommon for those hearing officers to be attorneys employed by that agency. Thus, it was quite possible (if not inevitable) that an agency employee presiding over a case could have been good friends with the agency’s prosecutor. Or, it was certainly conceivable that the agency employee presiding over the case could have been subordinate to the prosecutor.
One commentator described the inherent potential for bias in such a system:
“Consider, for example, the unavoidable appearance of bias when an administrative law judge, attached to an agency, is presiding in litigation by that agency against a private party. One can fill the pages of the United States Code with legislation intended to guarantee the independence of the administrative law judge; but so long as that judge has offices in the same building as the agency staff, so long as the seal of the agency adorns the bench on which that judge sits, so long as that judge’s assignment to the case is by the very agency whose actions or contentions that judge is being called on to review, it is extremely difficult, if not impossible, for that judge to convey the image of being an impartial fact finder.”3
Furthermore, individuals and businesses were treated differently by different agencies, because the hearing procedures varied from one agency to another.4 Judge William Sherrill, Jr., described the aforementioned process as follows:
“The beginnings of administrative due process were modest. An agency simply assigned an employee to make a factual record for the agency head. Other than the lack of another system, it was thought that agencies have internal policies known only to agency officials, and that an independent adjudicator would not be sufficiently sensitive to such policies. Yet, except for dedication of an employee to create a written record of what was said, this is little different than an informal meeting with a member of the agency’s staff. While it might be an inexpensive way to achieve fair accommodation between agency purpose and a citizen’s interests, this is not a model an average citizen has reason to trust; nor is it consistent with Florida’s tradition of government in the sunshine in which agency policies are thought to be improved by exposure to public critique.”5
In the article, “Florida ALJs: Maintaining a Different Balance” published in the Journal of the National Association of Administrative Law Judiciary, Judge F. Scott Boyd (who was executive director and general counsel of the Florida Legislature’s Joint Administrative Procedures Committee at the time he wrote the article) described the consequences associated with Florida having a system of administrative adjudication lacking transparency, accountability, and the appearance of impartiality:
“Pressures increased in the early 1970s, and the Florida Legislature was receiving numerous complaints about agency actions from citizens and interest groups. Specific examples of executive agency abuses compiled by a [l]egislative [c]ommittee included unlawful tax assessments, adoption of rules without statutory authority, and expansion of permitting requirements in direct contravention of expressed legislative intent. From the legislative perspective, such complaints evidenced not routine failures of administration, but a fundamental systemic problem. A committee report described such agency actions as a threat to constitutional government and legislative power, ‘Related to these practical problems of concern to the average citizen, is a bedrock issue of constitutional government: To the extent that administrative agencies ignore or flout standards laid down by the legislature in the law, they breach the constitution.’6
“Complaints that agencies were adopting rules and regulations contrary to expressed legislative intent were particularly disturbing to the [l]egislature. The Senate [p]resident began a publicity campaign to call attention to the problem by requesting an [a]ttorney [g]eneral’s [o]pinion. Use of the term “phantom government,” as an epithet to describe the perception of “out of control” executive agencies became common, and public support for the [l]egislature to more closely review executive branch exercise of delegated legislative and judicial power grew.”7
Finally, Arthur England, the reporter for the 1975 APA, commented that the prior version of the APA fell:
“far short of providing due process minima in connection with the actions of state agencies. Practices have been developed by several agencies which provide even less fairness than the act would seem to require. The notions of basic fairness which should surround all governmental activity, such as the opportunity for adequate and full notice of agency activities, the right to present viewpoints and to challenge the view of others, the right to develop a record which is capable of court review, the right to locate precedent and have it applied, and the right to know the factual bases and policy reasons for agency action, are neither uniformly nor universally applied in Florida.”8
In light of the substantial deficiencies described above, the Florida Law Revision Council elected to make a complete revision of Florida’s APA its principal project for the 1974 Legislative Session. The council had been created by Ch. 67-472, Laws of Fla., and tasked with 1) examining the laws of Florida for defects and anachronisms; and 2) recommending reforms/changes necessary to harmonize Florida law with modern conditions.9 In partnership with an ad hoc task force of prominent administrative law scholars and practitioners from around the United States assembled by the American Bar Association’s Center for Administrative Justice, the council wrote a first draft of a revised APA.10
At the same time, the Florida House of Representatives’ Committee on Governmental Operations was conducting its own review of administrative procedures. A task force from the council and the committee traveled to California in December of 1973 to study that state’s central panel system.11 In its report to the council, the task force concluded that “the centralized hearing officer system had worked with remarkable success since its inception in California, efficiently serving a large number of agencies while strongly enforcing the impression of impartiality.”12
Ultimately, the legislature passed a revised APA bill that the governor signed into law on June 25, 1974,13 and DOAH began operations on January 1, 1975, with a small handful of hearing officers.14
DOAH was substantially modeled after the central panel system utilized in California in the early 1970s and was the primary component of a revised APA intended to give those regulated by state agencies a viable means of challenging agency action:
“Several advantages of the central panel have been suggested, perhaps the most prominent of which has been that it fosters the perception of fairness. While due process and essential fairness can arguably be achieved without a central panel by careful attention to the separation of investigatory and prosecutorial functions, on the one hand, from adjudicatory ones, on the other, it is less clear that the appearance of impartiality can be similarly achieved. In any event, procedural fairness was clearly one of Florida’s objectives in creating its central panel, ‘It is ludicrous to think that an agency that sits as prosecutor, judge, and jury is not tainted with some prejudice that has to spill over into its decision-making at the various stages.’”15
DOAH’s Current Structure and Role in Administrative Adjudication
The Administration Commission, consisting of the governor and the cabinet, appoints a director to head DOAH, and the appointee must be confirmed by the Senate. The director serves as DOAH’s chief judge and can appoint a deputy chief judge.16 The chief judge and the deputy chief judge have administrative duties and (just as their “line judge” co-workers) conduct formal hearings.
The chief judge is charged with the duty to hire the ALJs responsible for hearing the remainder of DOAH’s caseload. F.S. §120.65 (2017)17 requires that all ALJs be members of The Florida Bar with a minimum of five years of experience practicing law. The minimum qualifications for ALJs established by §120.65 are identical to the minimum requirements for circuit court judges established by Fla. Const. art. V, §8. However, as discussed in more detail in a subsequent section, the qualifications of DOAH’s current ALJs far exceed the statutory minimums.
Much like the federal court system in Florida, DOAH’s internal organization is based on geography. DOAH’s Northern District covers all of North Florida and a substantial portion of Central Florida. The Middle District’s jurisdiction covers the remainder of Central Florida and much of Southwest Florida. The Southern District includes Palm Beach, Broward, Dade, and Monroe Counties. Each district is managed by a senior judge responsible for assigning cases and conducting performance evaluations of the ALJs assigned to his or her district. Each senior judge is also responsible for reviewing every recommended and final order from his or her district prior to that order’s publication.
DOAH often considers cases that impact the entire state of Florida or one or more regions thereof.18 For instance, a DOAH judge may hear a case involving approval of a nuclear power plant or whether a new hospital will be built in a particular city. In addition, ALJs hear disputes regarding multi-million dollar contracts issued by state agencies, such as the Department of Transportation, the Department of Lottery, and the Department of Corrections.
DOAH also hears cases that can substantially impact the lives of particular individuals. For example, ALJs preside over employment discrimination cases and licensure disciplinary cases involving numerous professions, such as doctors, nurses, contractors, daycare facilities, teachers, restaurants, and nursing homes. ALJs hear cases affecting the environment and land use. ALJs also hear Baker Act cases and evaluate whether an individual can be released from involuntary confinement because he or she is no longer a threat to himself or others. In addition, ALJs travel to all parts of Florida every month in order to preside over child support cases.
However, the most impactful cases heard by DOAH may very well be those in which an ALJ considers the validity of agency rules and proposed rules. When the Florida Legislature uses statutes to establish broad policies to govern complex subject matters, it often empowers administrative agencies with expertise in that subject matter to flesh out the regulatory details through the adoption of administrative rules that have the force and effect of law. Those administrative rules are collected in the Florida Administrative Code. Because of the code’s sheer size and comprehensive nature, the average Floridian would be hard-pressed to live out a single day not impacted in some way by rules within the code. For example, administrative rules regulate the placement of trauma centers, the allocation of benefits to mentally challenged individuals, whether certain health-care services will be covered by Medicaid, the function of slot machines, the testing of race horses for performance-enhancing drugs, and the requirements for obtaining a professional license.19 If a person or business challenges a rule, then an ALJ determines whether that rule is valid, (i.e., contravenes the statutes directing the agency to adopt that particular rule).20
Ensuring DOAH Is an Effective Part of Florida’s Checks and Balances
All of the cases described in the previous section involve an exercise of authority by an agency within the executive branch, and the scope of that authority underscores the need for an effective check on the executive branch. As explained below, the Florida Statutes reflect the legislature’s intent that DOAH be one of those checks.
For many cases heard at DOAH, an ALJ makes findings of fact in a recommended order, and the agency in question (which is also acting as a party in the proceeding) then issues a final order. Although the agency appearing as a party before the ALJ has the ability to make the ultimate determination, F.S. §120.57(1)(l) prohibits an agency from rejecting or modifying an ALJ’s findings of fact “unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.” If an ALJ’s findings of fact are supported by competent, substantial evidence, then an agency cannot reject those findings.21 Also, an agency is prohibited from reweighing the evidence in order to make findings of fact that support the agency’s preferred outcome.22 In fact, all evidentiary matters are outside the agency’s purview.23 These limitations ensure that the party opposing the agency has a fair opportunity to prevail.
The legislature’s resolve to have DOAH act as a check on the executive branch was tested when agencies disregarded the clear language of §120.57(1)(l) by rejecting an ALJ’s findings of fact that were supported by competent, substantial evidence. The legislature responded by enacting F.S. §120.595(5) and empowering appellate courts to award attorneys’ fees for the underlying DOAH proceeding and the subsequent appeal if the agency in question rejected or modified findings of fact supported by competent, substantial evidence.24 By not limiting the fees awardable under§120.595(5), the legislature sent a strong signal that agencies would pay a heavy monetary price for rejecting proper factual findings.
In addition to findings of fact, an ALJ’s recommended order also contains conclusions of law, and the Florida Legislature mandated that an agency can only reject an ALJ’s conclusions of law when that agency has special expertise in that area, and the agency’s conclusions are at least as reasonable as the ALJ’s.25
Given an agency’s limited ability to reject the findings of fact and conclusions of law in an ALJ’s recommended order, the legislature made DOAH a significant part of Florida’s system of checks and balances. An agency will usually have to accept an ALJ’s ultimate recommendation even when the agency disagrees with that outcome. In other words, even though an agency has final order authority in a case in which it is an active litigant, Florida law restricts the agency’s ability to reject an ALJ’s recommendation in order to achieve the agency’s preferred result. Therefore, the party opposing the agency has a fair chance of ultimately prevailing.
While many ALJ rulings are set forth in recommended orders that are transmitted to an agency for entry of a final order, it is significant that the legislature chose to give ALJs final order authority in rule challenges. As discussed above, some of the most significant cases heard at DOAH are those that determine whether rules adopted by a state agency are valid. Barring an appeal to one of Florida’s five district courts of appeal, an ALJ will have the final say with regard to whether a rule is valid. Accordingly, because rulemaking is a legislative function that has been delegated from the legislature to administrative agencies,26 the legislature has essentially empowered DOAH to act as its “watchdog” to ensure that agencies do not misuse their rulemaking authority.
The legislature’s intent to establish DOAH as a part of the system of checks and balances is further illustrated by the measures taken to keep DOAH free from improper influences or any appearance of partiality toward agencies. First, §120.65’s requirement that the governor and the cabinet appoint DOAH’s chief judge, subject to confirmation by the Senate, limits the chances the appointment will reflect a single person’s agenda. Second and unlike the situation prior to 1975 when agencies decided cases in which they were parties, DOAH is independent from all other agencies. While DOAH is organized under the Department of Management Services (DMS) for administrative purposes, DMS has no control over DOAH.27 DOAH submits its budgetary requests to the presiding officer of each legislative chamber just like all other agencies. Third, Florida law prohibits ex parte communications between an ALJ and any party to a proceeding before that ALJ.28 This situation is very similar to the prohibition against a party in circuit court communicating with the judge outside the presence of the opposing party. As a result, neither the governor nor any official associated with a particular agency can contact an ALJ and lobby for that ALJ to issue a ruling favorable to that agency.
DOAH Is an Unqualified Success
By any thoughtful measure, DOAH has been an unqualified success since its inception on January 1, 1975. Because Floridians and businesses are entitled to an administrative hearing at DOAH in order to contest any proposed or preliminary action contemplated by a state agency that impacts their substantial interests and involves disputed issues of material fact, agencies cannot take action without having legal and factual justification for that action. In other words, DOAH’s existence forces agencies to critically examine their contemplated actions and evaluate whether those actions could survive the scrutiny associated with an administrative hearing.
A strong argument could be made that DOAH makes Florida more “business friendly.” Because rulings by ALJs are public records, and easily obtainable through the same software used to research judicial opinions, business interests can better determine the potential consequences of their actions and plan accordingly. In addition, because administrative law cases are no longer decided by an employee of the agency involved in the dispute, businesses know that they will have a fair opportunity to successfully oppose the agency in question. Also, in cases that are complex or in which a great deal of money is at stake, a business entity can rest assured its arguments will be thoroughly and objectively considered prior to the ALJ issuing his or her ruling.
Floridians and businesses also benefit from the fact that DOAH handles its caseload in a timely and efficient manner. According to DOAH’s 43rd Annual Report issued on January 31, 2017, state agencies and other governmental entities referred 7,293 cases to DOAH during the 2015-16 fiscal year. Nevertheless, the annual report indicates that DOAH closed 88 percent of its cases within 120 days of filing during the 2015-16 fiscal year. As stated in the annual report, DOAH “continues to supply high-quality adjudication of disputes pursuant to the Administrative Procedure Act, and cases move through [DOAH] at a far faster rate than through the state court system.”29
The value that Floridians and businesses derive from DOAH is further exemplified by the fact that ALJs operate with a small and economically efficient support staff. Each ALJ shares an administrative assistant with one to three other ALJs. In contrast to appellate courts and many circuit courts, DOAH does not employ law clerks or staff attorneys to assist ALJs with drafting substantive orders or with conducting legal research.30 Moreover, unlike the abbreviated orders that are often issued by circuit court judges, even the simplest DOAH case often requires detailed findings of fact and conclusions of law that can be 20 or more pages in length. In fact, it is common for an ALJ to write a detailed and comprehensive 75-page order for cases involving a certificate of need or a complex environmental law issue.
DOAH also employs administrative staff not directly involved with resolving cases, but it is still a very lean organization. The annual report states that DOAH had no more than 65 positions as of June 30, 2016.
While the foregoing discussion demonstrates that DOAH disposes of cases much faster and more efficiently than a typical civil court, DOAH also has certain characteristics that make it accessible and less expensive in comparison to a typical civil court.
For instance, even though DOAH is headquartered in Tallahassee and its jurisdiction encompasses the entire state, a party litigating against a state agency is almost never required to travel to Tallahassee to have its case heard. ALJs frequently travel to the private party’s city or county of residence if that private litigant does not (or cannot) travel to Tallahassee for the final hearing. Moreover, if it is not practical or convenient to convene the hearing in the city or county where the private party resides, then DOAH has many remote locations throughout the state that enable ALJs to hold hearings via a secure video teleconference between that remote location and Tallahassee.
In addition to geography, accessibility for the average Floridian can be compromised by the cost of litigation. However, and unlike county, circuit, and appellate courts, DOAH has no filing fee, with the exception of a $15.00 filing fee for birth-related neurological injury cases.
DOAH is also more accessible to the average Floridian in the sense that the procedures utilized during the typical DOAH hearing are more relaxed than those usually employed during a circuit court proceeding. While it is advisable to retain an attorney for representation during a DOAH hearing, many individuals are able to competently represent themselves and avoid the expense associated with an attorney.31
DOAH’s accessibility is also enhanced by the fact that DOAH is quick to adopt new technologies. The docket for every nonconfidential DOAH case can be accessed through the internet, and every document filed in a nonconfidential DOAH case can be viewed as a PDF document. Also, rather than filing a document via mail or facsimile, a party can simply go online, visit DOAH’s website, and upload a particular document to an electronic filing system, which is accessible 24 hours a day, seven days a week. In fact, Florida’s five district courts of appeal utilize an electronic filing system modeled on DOAH’s system.
While one could certainly make a strong argument that DOAH is the most efficient dispute resolution entity in Florida, ALJs earn significantly less than their counterparts in the judiciary. The most recent general appropriations act from the Florida Legislature indicates that, on an annual basis, county court judges earn $138,020, circuit court judges earn $146,080, district court of appeal judges earn $154,140, and the justices on the Florida Supreme Court earn $162,200. In contrast, ALJs other than the chief judge and the deputy chief judge earned $121,445.24 in 2016, and both the chief judge and the deputy chief judge’s salaries are well below that of a county court judge. Furthermore, ALJs’ retirement percentage of 1.6 percent is the same as other career service employees, as opposed to the multiplier of 3 percent used for members of the art. V judiciary.
Despite the disparity in pay, DOAH attracts exceptionally well-qualified attorneys to serve as ALJs. The 32 ALJs currently serving at DOAH come from a wide variety of backgrounds in the private and public sectors. They have an average of approximately 31 years of legal experience and 11 years of experience as ALJs. Many current and former ALJs gave up lucrative private sector practices in order to serve as ALJs, and 12 of the current ALJs hold board certifications indicating they are experts in a particular field of law. Accordingly, Floridians can rest assured that administrative law cases in this state are decided by highly qualified individuals.
DOAH’s efficiency is further exemplified by the fact that numerous local and regional governmental entities throughout Florida have contracted with DOAH to conduct quasijudicial proceedings in employment, land use, and many other types of cases.32
In sum, Floridians are receiving a substantial return on taxpayer funds invested in DOAH given DOAH’s lean support staff, the speed with which cases are decided, the qualifications of those serving as ALJs, and the reasonable compensation paid to ALJs. The Florida Legislature has recognized DOAH’s skill and efficiency by periodically expanding DOAH’s reach beyond the typical administrative law case. For example, DOAH now hears exceptional education33 cases, Baker Act cases, birth-related neurological injury cases, medical malpractice arbitration proceedings, and child support.34
For over 40 years, DOAH has successfully fulfilled its role in addressing the problems in administrative law that existed prior to January 1, 1975. Private litigants ranging from lone individuals to large corporations have gone to DOAH knowing they would have a fair opportunity to present their case to an impartial finder of fact.
1 The cabinet consists of the attorney general, the chief financial officer, and the commissioner of agriculture. Fla. Const. art. IV, §4.
2 William R. Dorsey, Florida’s Continuing Experiment with the Central Panel Process: The Division of Administrative Hearings, 15 J. Nat. Ass’n of Admin. Law Judiciary 76, 78 (1995).
3 Bernard Segal, The Administrative Law Judge: Thirty Years of Progress and the Road Ahead, 62 A.B.A. 1424, 1426 (1976).
4 The shortcomings in administrative procedures prior to 1975 are further exemplified by the fact that agencies could issue oral orders that were inherently subject to change. In addition, agencies would reportedly delay or withhold decisions associated with embarrassing or controversial cases. F. Scott Boyd, 24 Florida’s ALJs: Maintaining a Different Balance, J. Nat’l. Ass’n of Admin. L. Judiciary 175, 205 (2004).
5 William C. Sherrill, Jr., The Florida Division of Administrative Hearings, 75 Fla. B. J. 22 (Jan. 2001).
6 Memorandum from Committee on Rules and Calendar, Memorandum Outlining Problems with Administrative Governance 1 (on file at the Joint Administrative Procedures Committee). Although undated, references to specific incidents in the body of the report indicate it was prepared for consideration in conjunction with legislation during the 1974 session).
7 F. Scott Boyd, 24 Florida’s ALJs: Maintaining a Different Balance, J. Nat. Ass’n of Admin. Law Judiciary 175, 205-06 (2004).
8 Arthur J. England, Jr. & L. Harold Levinson, Reporter’s Comments on Proposed Administrative Procedure Act for the State of Florida, 3 Fla. Administrative Practice Manual 75, 81 (1995).
9 Arthur J. England, Memorandum, Analysis of New Administrative Procedure Act CS/SB 892 (on file at the Florida State Archives; Department of State; R.A. Gray Building; Tallahassee).
11 Dorsey, Florida’s Continuing Experiment with the Central Panel Process: The Division of Administrative Hearings, 15 J. Nat. Ass’n of Admin. Law Judiciary at 79.
12 California created the first central panel in 1945. James F. Flanagan, Redefining the Role of the State Administrative Law Judge: Central Panels and Their Impact on State ALJ Authority and Standards of Agency Review, 54 Admin. L. Rev. 1355, 1356 (Fall 2002) (“A central panel of ALJs is a cadre of professional adjudicators who are administratively independent of the agencies whose cases they hear, and thus, they are removed from agency influence.”).
13 Boyd, 24 Florida’s ALJs: Maintaining a Different Balance, J. Nat’l. Ass’n of Admin. L. Judiciary at 2010.
14 Initially, ALJs were referred to as “hearing officers.” However, the current designation has been in place for over 20 years. Laws of Fla. Ch. 96-150, §31.
15 F. Scott Boyd, Florida’s ALJs: Maintaining a Different Balance, 24 J. Nat. Ass’n of Admin. Law Judiciary 175, 208-09 & 213-14 (2004); Memorandum from Representative Curtis Kiser, Memorandum on Trip to Sacramento, California to Review the California Administrative Procedure Act 10 (Dec. 1973) (on file at the Florida Joint Administrative Procedures Committee, Tallahassee).
16 See Fla. Stat. §§14.202 & 120.65(1) (2017).
17 All statutory references will be to the 2017 version of the Florida Statutes.
18 Fla. Stat. §120.569 (DOAH considers cases “in which the substantial interests of a party are determined by an agency....”).
19 Fla. Stat. §120.52(8) sets forth the grounds on which a rule or a proposed rule can be declared an invalid exercise of delegated legislative authority. Fla. Stat. §120.56 sets forth the procedures by which a rule or a proposed rule can be challenged.
20 In State Department of Administration v. Stevens, 344 So. 2d 290 (Fla. 1st DCA 1977), the First District Court of Appeal rejected an argument that DOAH lacked the authority to determine whether a rule was valid or invalid.
21 City of Hialeah Gardens v. Miami-Dade Charter Foundation, 857 So. 2d 202, 204 (Fla. 3d DCA 2003) (describes “competent evidence” as evidence “sufficiently relevant and material to the ultimate determination that a reasonable mind would accept it as adequate to support the conclusion reached.” The opinion describes “substantial evidence” as “evidence that provides a factual basis from which a fact at issue may be reasonably inferred.”).
22 See Heifetz v. Dep’t of Bus. Regulation, Div. of Alcoholic Beverages & Tobacco, 475 So. 2d 1281-82 (Fla. 1st DCA 1985) (“The agency is not authorized to weigh the evidence presented, judge credibility of witnesses, or otherwise interpret the evidence to fit its desired ultimate conclusion. We recognize the temptation for agencies, viewing the evidence as a whole, to change findings made by a hearing officer that the agency does not agree with. As an appellate court, we are sometimes faced with affirming lower tribunal rulings because they are supported by competent, substantial evidence even though, had we been the trier of fact, we might have reached an opposite conclusion. As we must, and do, resist this temptation because we are not the trier of fact, so too must an agency resist this temptation since it is not the trier of ordinary factual issues not requiring agency expertise.”).
23 Id. (It is an ALJ’s “function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence.”).
24 Fla. Stat. §120.595(5) provides in pertinent part that “[u]pon review of agency action that precipitates an appeal, if the court finds that the agency improperly rejected or modified findings of fact in a recommended order, the court shall award reasonable attorney’s fees and reasonable costs to a prevailing appellant for the administrative proceeding and the appellate proceeding.”
25 See Fla. Stat. §120.57(1)(l) (“The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact.”).
26 As explained by the Florida Supreme Court in Whiley v. Scott, 79 So. 3d 702, 711 (Fla. 2011), “[r]ulemaking is a derivative of lawmaking. An agency is empowered to adopt rules if two requirements are satisfied. First, there must be a statutory grant of rulemaking authority, and second, there must be a specific law to be implemented. §120.536(1), Fla. Stat. (2010). ‘Rulemaking authority’ is statutory language that explicitly authorizes or requires an agency to adopt rules. §120.52(17), Fla. Stat. (2010). ‘Rules’ are ‘statement[s] of general applicability that implement, interpret, or prescribe law or policy or describe the procedure or practice requirements of an agency.’ §120.52(16), Fla. Stat. (2010). Accordingly, ‘[w]hen an agency promulgates a rule having the force of law, it acts in place of the legislature.’ Dep’t of Revenue v. Novoa, 745 So. 2d 378, 380 (Fla. 1st DCA 1999); cf. Gen. Tel. Co. of Fla. v. Fla. Pub. Serv. Comm’n, 446 So. 2d 1063, 1066 (Fla. 1984) (‘This Court has recognized that agency rulemaking pursuant to statutory authorization, such as the PSC rulemaking in this case, is a quasi-legislative function.’).”
27 Fla. Stat. §120.65(1) states “[t]he Department of Management Services shall provide administrative support and service to the division to the extent requested by the director. The division shall not be subject to control, supervision, or direction by the Department of Management Services in any manner, including, but not limited to, personnel, purchasing, transactions involving real or personal property, and budgetary matters.”
28 See Fla. Stat. §120.66(1).
29 There is no doubt that DOAH is much faster than a typical circuit court in resolving cases. Indeed, while a complex circuit court case can remain pending for
several months before it is scheduled to be heard by a circuit court judge, Florida law requires that DOAH convene a final hearing for bid protests and rule challenges within 30 days of the case being referred to DOAH. After the conclusion of the hearing, the ALJ typically has approximately one month to issue a ruling.
30 DOAH occasionally has one to four law students working as part-time externs every semester. Unlike appellate courts, which typically have two full-time law clerks for each judge, DOAH usually has one part-time law student for every eight ALJs.
31 F.A.C.R. 28-106.106 provides for a party to be represented by a “qualified representative” at DOAH. A “qualified representative” is not a member of The Florida Bar but “has the necessary qualifications to responsibly represent the party’s interests in a manner which will not impair the fairness of the proceeding or the correctness of the action to be taken.”
32 Those entities include organizations such as Citizens Property Insurance Corporation, the City of Miami, the Florida Housing Finance Corporation, Florida State University, the Southwest Florida Water Management District, and the University of Florida.
33 Exceptional education cases are disputes that occur when a school system and the parents of a handicapped or gifted child disagree about the services to be provided to that child.
34 Judge Linda M. Rigot, Administrative Law: A Meaningful Alternative to Circuit Court Litigation, 75 Fla. B. J. 14 (Jan. 2001).
Garnett (“Gar”) Chisenhall is an administrative law judge with the Division of Administrative Hearings. Prior to becoming an ALJ, he was the chief appellate counsel for the Department of Business and Professional Regulation and the Agency for Health Care Administration. He also worked in the administrative law section of the attorney general’s office.
The author thanks his coworkers who provided invaluable assistance with the writing of this article. In addition, the author thanks Curt Kiser and former ALJs Chris Bentley, Bill Williams, Chad Adams, Diane Tremor, and Linda Rigot for being very generous with their time and providing information regarding the historical context behind DOAH’s creation.
This column is submitted on behalf of the Administrative Law Section, Robert H. Hosay, chair, and Stephen Emmanuel, editor.