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Administrative Procedure for the Generalist

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Illustration by Barbara Kelley

Illustration by Barbara Kelley

For many attorneys, the prospect of a case governed by the Administrative Procedure Act[1] (APA) is a source of fear: fear of a thicket of laws and rules with a complexity comparable to the Internal Revenue Code. And yet, given the ubiquity of matters that the APA touches — from professional licenses (for professions as different as teachers, engineers, and daycares) to environmental permitting to exceptional student educational plans — fear of the APA must be conquered. Just as various practice areas have their own rules — such as the Florida Rules of Criminal Procedure, Florida Family Law Rules, and so forth — administrative practice has its own rules as well. It turns out that the rules are neither as complicated nor as onerous as the generalist might fear.

This article serves a two-fold purpose: 1) to provide an overview of administrative practice in Florida, or at least so much as addresses substantial interests; and 2) to provide a research skeleton so that a generalist might rely on this article as a starting point. While almost every subject addressed below is worthy of its own extended article, this article likely does not address many nuances and subtleties.

This article briefly describes the process of administrative litigation under Florida law where agency action triggers a request for an administrative hearing. The legislature has defined “agency action” as “the whole or part of a rule or order, or the equivalent, or the denial of a petition to adopt a rule or issue an order. The term also includes any denial of a request made under §120.54(7).”[2] However, there are some areas this article does not discuss: rulemaking, including challenges to adopted (or unadopted) rules, standing issues, and judicial review. The article presupposes a situation in which a client is given a letter or other notice from an agency announcing that the agency is doing something to the client. In this article, there is no question about whether the client has standing to request an administrative hearing.

Structure of Administrative Adjudication in Florida

The APA “presumptively governs the exercise of all authority statutorily vested in the executive branch of state government.”[3] Other statutes are to be construed in pari materia with the APA, and not as legislative repeals by implication as to the APA.[4]

In Florida, F.S. Ch. 120 governs proceedings across state agencies unless exempted by the legislature.[5] The Florida Constitution has always prohibited as broad delegations of substantive powers to state agencies as Congress might delegate to federal agencies.[6] The legislature has and does closely monitor and control administrative agencies and procedure.[7]

Administrative proceedings are conducted by “presiding officers.”[8] The legislature has created a pool of administrative law judges (ALJ) serving in the Division of Administrative Hearings (DOAH) within the Department of Management Services.[9] Administrative law judges generally, but not always, conduct hearings that resolve contested issues of fact. These proceedings are equivalent to bench trials under the civil rules.[10] The legislature has defined those proceedings involving contested issues of material fact where ALJ’s are not required to preside.[11] In those instances an agency may appoint its own hearing officer to serve as a presiding officer.[12] All ALJ’s are presiding officers but not every presiding officer is an ALJ.

The legislature has also established units of specialized presiding officers outside of DOAH. Some examples include, but are not limited to, hearing officers within the Department of Children and Families or Agency for Health Care Administration who conduct fair hearings regarding disputes arising under public assistance programs or Medicaid;[13] hearing officers appointed by the Public Employee Relations Commission (PERC);[14] and re-employment appeals referees within the Department of Economic Opportunity.[15]

Even within DOAH, there have historically been efforts to specialize. Prior to 2018, DOAH organized its ALJ’s into four groups.[16] Three groups were based on geography (Northern, Middle, and Southern) but the fourth was a specialized group for medical and environmental matters.[17] After July 1, 2018, the medical and environmental unit was dispersed into the three geographic groups.[18] Cases involving medical and environmental matters continued to be assigned to the ALJ’s with the most experience in those matters within the geographic grouping.[19]

The legislature directed the Administration Commission[20] to adopt uniform rules of procedure to implement the APA not later than July 1, 1997,[21] setting out a list of subjects the rules must govern.[22] Prior to the adoption of Uniform Rules of Procedure, various agencies promulgated multiple duplicative rules of procedure in the administrative code.[23] The uniform rules replace the prior duplicative rules of procedure.[24]

The Administration Commission complied with legislative mandate and adopted the uniform rules.[25] The uniform rules govern every agency[26] subject to Ch. 120, except where the Administration Commission grants an exemption or the legislature itself provides otherwise by statute.[27] These uniform rules cover a wide array of matters, including, to name but three examples, agency organization,[28] agency rulemaking,[29] and bid protests.[30]

Also included within the uniform rules are “rules of procedure for filing of petitions for administrative hearings pursuant to s. 120.569 or 120.57.”[31] The uniform rules also include rules for the “filing of request for administrative hearing by a respondent in agency enforcement and disciplinary actions.”[32] The uniform rules relevant here are found in Florida Administrative Code Ch. 28-106, “Decisions Determining Substantial Interests.”[33] This chapter is as close as there is to an APA equivalent of rules of civil procedure.

Points of Entry and Timeliness

Florida law is well settled that “an agency must grant affected parties a clear point of entry, within a specified time after some recognizable event in investigatory or other free-form proceedings, to formal or informal proceedings.”[34] An agency must afford the persons or entities an opportunity to question, challenge, or contest the agency action that they believe affects them.[35] The point of entry is obvious in those proceedings described in statute, such as licensing or permitting statutes.[36] A point of entry may be less obvious without an express statutory framework, such as free form proceedings.[37] Agency rules must clearly signal when the agency’s free form decisional process is completed or at a point when it is appropriate for an affected party to file a request.

The APA requires agencies to provide notice regarding the rights a person or entity has to a point of entry: “Each notice shall inform the recipient of any administrative hearing or judicial review that is available under this section, s. 120.57, or s. 120.68; shall indicate the procedure which must be followed to obtain the hearing or judicial review; and shall state the time limits which apply.”[38] A point of entry is exercised when a person or entity affected by the agency action submits a request for hearing to the agency whose action is substantially affecting their interests.

Practitioners must be aware of the strict penalties for untimely filed requests for hearing. The APA requires that untimely filed petitions or requests for hearing be dismissed.[39] Although the APA itself does not specify deadlines that divide the timely from the untimely, the uniform rules require that the hearing request be filed within 21 days of the receipt of written notice of the agency action.[40] Some statutes, however, do provide specificity.[41] Practitioners must be keenly aware of the timeframes controlling their points of entry.

Administrative practice is not easily forgiving for late filings.[42] The legislature has eliminated the defense of excusable neglect for late filings.[43] The only equitable defense to an untimely filing in a proceeding under Ch. 120 is that a deadline has been equitably tolled.[44] Section 120.569 expressly provides: “This paragraph does not eliminate the availability of equitable tolling as a defense to the untimely filing of a petition. ”[45] Untimely petitions must, therefore, be dismissed unless equitable tolling applies. Requests for relief filed even one day late have been dismissed as having waived the right to a hearing.[46]

Equitable tolling is, therefore, worth discussion. “Equitable tolling” is generally applied when a plaintiff has been “misled or lulled into inaction, has in some extraordinary way been prevented from asserting his or her rights, or has timely asserted his or her rights mistakenly in the wrong forum.”[47] Equitable tolling has allowed claims to survive where, for example, an agency agreed to propose a settlement to a matter but failed to deliver a proposed settlement agreement for over a year;[48] where an agency published contradictory deadlines for filing, and petitioner complied with one deadline but not the other;[49] filing a bid protest with a security guard who did not allow the filer access to the office where the filing was due, resulting in the bid protest not being deemed received until the following day;[50] or where a petitioner believed a deadline was waived by the cancellation of a conference without rescheduling the conference.[51] These examples all share the characteristic that some action or omission by the agency led the petitioner to believe that the petitioner was in compliance with filing deadlines, thus, missing the actual deadline.

In contrast, courts have not allowed “excusable neglect” to dilute the standards of equitable tolling.[52] Almost universally, errors by counsel are not considered “equitable tolling” even though such errors may have drastic consequences for clients.[53] Practitioners must, therefore, pay particular attention to the deadlines by which to file a request for hearing with an agency.

Hearings and Non-Jury Trials Under Ch. 120

The APA provides instructions for “decisions which affect substantial interests”[54] and “hearings involving disputed issues of material fact.”[55] Attorneys used to operating under the rules of civil procedure will immediately recognize the latter hearings as trials. Hearings under the APA share many characteristics with non-jury trials under the rules of civil procedure. This section discusses a few of those similarities as well as some important differences.

Discovery — Discovery is available in many, but not all, administrative proceedings. The APA authorizes a presiding officer “to effect discovery on the written request of any party by any means available to the courts and in the manner provided in the Florida Rules of Civil Procedure, including the imposition of sanctions, except contempt.”[56] This section has been construed to import discovery rules from the Florida Rules of Civil Procedure into administrative proceedings, and generally to apply the same limits on discovery in civil proceedings to administrative proceedings.[57] In addition to the subpoena power, the APA confers upon presiding officers the power to quash subpoenas.[58] The APA also expressly authorizes an action in circuit court to enforce a subpoena, an order mandating discovery, or sanctions.[59]

The uniform rules likewise authorize discovery.[60] The uniform rules expressly incorporate discovery provisions from the rules of civil procedure.[61] This includes an authorization for the presiding officer to impose discovery sanctions provided in the rules of civil procedure, except for contempt.[62]

Practitioners should also be aware that the availability of discovery may be limited in certain proceedings. For example, in proceedings before the Public Employee Relations Commission, the legislature has provided that:

Discovery may be granted only upon a showing of extraordinary circumstances. A party requesting discovery shall demonstrate a substantial need for the information requested and an inability to obtain relevant information by other means. To the extent that chapter 120 is inconsistent with these provisions, the procedures contained in this section shall govern.[63]

Similarly, the Reemployment Assistance Appeals Commission has by rule authorized its appeals referees to shorten the time limits on responding to discovery.[64]

The Hearing and Burdens of Proof — The APA prescribes standards for a hearing involving disputed issues of material fact:

All parties shall have an opportunity to respond, to present evidence and argument on all issues involved, to conduct cross-examination and submit rebuttal evidence, to submit proposed findings of facts and orders, to file exceptions to the presiding officer’s recommended order, and to be represented by counsel or other qualified representative. When appropriate, the general public may be given an opportunity to present oral or written communications. If the agency proposes to consider such material, then all parties shall be given an opportunity to cross-examine or challenge or rebut the material.[65]

At such hearing, the presiding officer assesses the weight and credibility to be given the evidence presented by the parties.[66] The presiding officer then weighs such evidence in relation to each party’s burden of proof.[67]

The APA specifies that the burden of proof in making factual findings is that of preponderance of evidence: “Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute, and shall be based exclusively on the evidence of record and on matters officially recognized.”[68] “Penal” proceedings are those in which an agency seeks to impose sanctions or penalties against a professional license.[69]

In proceedings to revoke a professional license[70] or to impose administrative fines for violating a statute governing a professional license,[71] courts have required clear and convincing evidence. “Clear and convincing” evidence is a heavier burden of proof than “preponderance of the evidence.”[72] The higher burden of proof is based on the potential disruption of the license holder’s property interest in the license.[73] When the issue is the denial of an initial application for a license, a preponderance of evidence suffices, because no property interest has yet been created.[74] Similarly, only the preponderance of evidence standard applies where a statute expressly disclaims the creation of property interest in a particular license, such as licenses to operate foster homes.[75] In licensing proceedings, therefore, practitioners must know which burden of proof applies to the particular issue before them.

The uniform rules require that the agency that referred the matter to DOAH or assigned a presiding officer has the responsibility for recording the testimony.[76] However, parties wishing to obtain a copy of the recordation, i.e., the transcript, must pay for the transcription themselves.[77]

Evidence — The interplay between the APA and the Florida Evidence Code[78] determines evidentiary issues. In addition to statutory provisions in the APA, the legislature has authorized the Administration Commission to adopt rules regarding taking evidence, testimony, and argument.[79] The rules of evidence under the APA are also less defined than in the Florida Evidence Code. In issues involving disputed facts, the ALJ is to consider the evidence and make findings of fact based on competent substantial evidence.[80]

The APA provides, in pertinent part:

Irrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of Florida.[81]

The Florida Supreme Court has held that this provision does not incorporate the Florida Evidence Code[82] into the APA, and that the evidence code does not “strictly” apply to proceeding under the APA.[83] Rules of statutory construction, however, suggest that those parts of the evidence code dealing with relevance, materiality, or unduly repetitious evidence should be construed in pari materia with the evidentiary provisions of the APA.[84] “Relevant evidence” that might not be admissible under the evidence code[85] might nevertheless be admissible under the APA.[86]

The APA also provides for examination of documents.[87] Both the APA and the uniform rules provide for judicial notice by presiding officers, called here “official recognition.”[88] The APA restates the evidence code as to the admissibility of other bad acts, changing only the word “crimes” in §90.404 in the evidence code[89] to “violations” in the APA.[90] The APA is silent as to questions of privilege. The Uniform Rules, however, incorporate by reference the same rules of privilege as govern civil actions.[91] Both the APA and the uniform rules authorize cross examination.[92] Presumably the evidence code might also apply to cross examination.

Findings of fact, if set forth in a manner that is no more than mere tracking of the statutory language, must be accompanied by a concise and explicit statement of the underlying facts of record that support the findings.[93] “Facts of record” have been construed to be the record evidence supporting findings of fact.[94] Note the subtle but important difference between “findings of fact” and “facts of record.” To be upheld upon judicial review, such findings of fact must be supported by competent substantial evidence.[95] A standard definition of competent substantial evidence, set out by the First District Court of Appeal, declares:

Competent, substantial evidence is such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred or such evidence as is sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached. (citations omitted).[96]

Absent from this judicial definition is any reference to “facts of record” or other reference to §120.57. In context, and absent a statutory definition, “facts of record” must be considered synonymous with “competent substantial evidence.” Practitioners should not lose sight of the fact that at the end of the day, they will need to have introduced competent substantial evidence to support the positions they advance. At the same time, they will want to cast doubt on the competence and substantiality of their opponents’ evidence.

Hearsay — The APA provides: “Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.”[97] Similarly, the uniform rules provide:

Hearsay evidence, whether received in evidence over objection or not, may be used to supplement or explain other evidence, but shall not be sufficient in itself to support a finding unless the evidence falls within an exception to the hearsay rule as found in Sections 90.801-805, F.S.[98]

“Uncorroborated hearsay” is not legally sufficient evidence on which to base findings of fact.[99] This exception has been used to admit into evidence documents or other writings that would be inadmissible hearsay in court but that fortify admissible testimony.[100] Nevertheless, for hearsay to be used to support competent substantial evidence (a “fact of record”) the hearsay must itself be supported by a factual predicate, such admissible evidence that the hearsay evidence is to supplement or explain.[101] Practitioners must, therefore, build their argument for admissibility or hearsay upon having admissible evidence to be supplemented or explained.

After the Hearing: Post-Hearing Filings

Post Hearing Submissions — After the conclusion of the hearing, parties may submit their proposed findings of fact, conclusions of law, and other arguments (“proposed recommended orders”) within a time period set by the presiding officer.[102] For counsel, such a document might appear to be what counsel believes should be the presiding officer’s recommended order, and counsel certainly hopes that it will be adopted as is. For pro se litigants, such document may be only their closing argument restating why they should prevail.

The authority of the presiding officer to designate such a date is circumscribed by other rules. The presiding officer is required to submit his or her recommended order within 30 days after the hearing or receipt of the transcript.[103] The parties must file their own proposed recommended orders within 10 days of the end of the hearing or within 10 days of the filing of the transcript, or the requirement for the presiding officer to file a recommended order within 30 days is waived.[104] As a practical matter, parties may, by stipulation, modify these deadlines.

Recommended Order and Exceptions — After receipt of the parties’ proposed recommended orders, the presiding officer must file a recommended order. The recommended order shall consist “of findings of fact, conclusions of law, and recommended disposition or penalty, if applicable, and any other information required by law to be contained in the agency’s final order.”[105]

After the ALJ issues a recommended order, each party has 15 days to file exceptions to the recommended order.[106] Exceptions are disagreements with the recommended order regarding the presiding officer’s 1) findings of fact or 2) conclusions of law.[107] Exceptions are not appeals; they are disagreements. Exceptions must identify the disputed portion of the recommended order by page number or paragraph, must identify the legal basis for the exception, and must include any appropriate and specific citations to the record.[108] The agency’s final order must include an explicit ruling on each exception, but an agency need not rule on an exception that does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record.[109] The uniform rules allow 10 days for an adverse party to respond to exceptions filed by a different party.[110]

Final Order — Having received and considered the presiding officer’s recommended order, exceptions, and any response to the exceptions, the agency now must enter a final order. The agency may adopt the recommended order as the final order of the agency. 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.[111] When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons 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.[112] Some cases still quote the proposition that an agency may reject a conclusion of law without limitation,[113] but that proposition is inconsistent with the APA as amended in 1999.[114]

The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the final 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.[115] However, the agency may not try to convert rejections of conclusions of law into different findings of fact.[116]

That is a difficult standard. When ruling on factual findings in a recommended order, 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.[117] The agency is limited to determining whether the findings are supported by competent substantial evidence.[118]

Judicial Review — Judicial review must be sought in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law. All proceedings must be instituted by filing a notice of appeal or petition for review in accordance with the Florida Rules of Appellate Procedure[119] within 30 days after the rendition of the order being appealed.[120] Judicial review, however, is beyond the scope of this article.

Conclusion

Administrative law provides the mechanics for practitioners in a wide array of substantive regulatory areas. The purpose of administrative procedure is to provide an opportunity for a person or entities affected by agency action to have meaningful opportunities to challenge and test the vailidity of those agency actions. Such proceedings enhance accountability of agencies to the public at large. The processes outlined in this article equip a practitioner unfamiliar with administrative procedure with sufficient tools to represent clients substantially affected by agency actions.

[1] Fla. Stat. Ch. 120. Both the federal government and Florida have Administrative Procedure Acts, but the acts themselves are very different. As used in this article, the term “APA,” will refer to the provisions of Fla. Stat. Ch. 120.

[2] Fla. Stat. §120.52(2); see Friends of the Hatchineha, Inc. v. Dept. of Environmental Reg., 580 So. 2d 267, 269 (Fla. 1st DCA 1991) (granting agricultural exemption to unpermitted driveway was final agency action sufficient to allow request for formal hearing by affected third party). Requests made under §120.54(7) are petitions to initiate rulemaking.

[3] Gopman v. Dept. of Education, 908 So. 2d 1118, 1120 (Fla. 1st DCA 2005).

[4] Id.

[5] School Board of Palm Beach County v. Survivors Charter Schools, Inc., 3 So. 3d 1220, 1232 (Fla. 2012).

[6] Askew v. Cross Key Waterways, 372 So. 2d 913 (Fla. 1979).

[7] See, e.g., Barfield v. Dept. of Health, 805 So. 2d 1008, 1011 (Fla. 1st DCA 2002) (discussing legislative response to concurring opinion in Dept. of Children & Families v. Morman, 715 So. 2d 1076, 1077 (Fla. 1st DCA 1998) (Ervin, J., concurring)); Dan R. Stengle and James P. Rhea, Putting the Genie Back in the Bottle: The Legislative Struggle to Contain Rulemaking by Executive Agencies, 21 Fla. St. U. L. Rev. 415 (1993).

[8] “Presiding officer” is an agency head, or member thereof, who conducts a hearing or proceeding on behalf of the agency, an administrative law judge assigned by the Division of Administrative Hearings, or any other person authorized by law to conduct administrative hearings or proceedings who is qualified to resolve the legal issues and procedural questions which may arise. Fla. Admin. Code R. 28-106.102.

[9] Fla. Stat. §120.65; Gopman, 908 So. 2d at 1123.

[10] Fla. Stat. §120.57(1)(a).

[11] Fla. Stat. §§120.80, 120.81.

[12] Fla. Stat. §120.57(2).

[13] Fla. Stat. §120.80(7), Fla. Stat. §409.285.

[14] Fla. Stat. §120.80(12), Fla. Stat. §447.207(8).

[15] Fla. Stat. §120.80(10); Fla. Stat. §443.151(4).

[16] Division of Administrative Hearings, Forty-Fifth Annual Report 6 (Jan. 31, 2019), available at https://www.doah.state.fl.us/ALJ/Reports/45thAnnualReport.pdf.

[17] Id.

[18] Id.

[19] Id. Note that Fla. Stat. §120.651 requires that DOAH designate at least two ALJ’s to preside over actions involving the Department of Health or boards within the department.

[20] Governor and Cabinet, Fla. Stat. §14.202.

[21] Fla. Stat. §120.54(5).

[22] Fla. Stat. §120.545(5)(b).

[23] Florida Public Employees Council 79 v. Jacksonville Employees Together, 738 So. 2d 489, 491 (Fla. 1st DCA 1999).

[24] Jacksonville Employees Together, 738 So. 2d at 489.

[25] Fla. Admin. Code R. 28-101-28-112.

[26] “Agency” is defined in Fla. Stat. §120.52(1).

[27] Fla. Stat. §12_0.54(5)(a)3; See, e.g., Fla. Stat. §120.80(10), §409.285(2)(b).

[28] Fla. Admin. Code R. 28-101.

[29] Fla. Admin. Code R. 28-103.

[30] Fla. Admin. Code R. 28-110.

[31] Fla. Stat. §120.54(5)(b)4.

[32] Fla. Stat. §120.54(5)(b)5. The statute also calls for similar rules for filing requests for declaratory statements and bid protests.

[33] Fla. Admin. Code R. 28-106.

[34] Capeletti Brothers, Inc. v. State Dept. of Trans., 362 So. 2d 346, 348 (Fla. 1st DCA 1978).

[35] Id.

[36] See, e.g., Fla. Stat. §§120.60(3); 403.0876.

[37] Capeletti Bros., 362 So. 2d at 348.

[38] Fla. Stat. §120.569(1).

[39] Fla. Stat. §120.569(2)(c).

[40] Fla. Admin. Code R. 28-106.111(2).

[41] See, e.g., Fla. Stat. §760.11(7) (Florida Commission on Human Relations); Fla. Stat. §110.227(5) (Public Employee Relations Commission).

[42] In judicial proceedings, Florida Rule of Civil Procedure 1.500 provides that a clerk of court may enter a default without notice where no papers have been served. Courts recognize “excusable neglect” warranting relief from judgment of default where a party’s inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir. Defaults and final judgments entered after default may also be set aside for the grounds such as mistakes, inadvertence, surprise, excusable neglect, newly discovered evidence, and fraud. Such is not the case for filings to request hearings in administrative proceedings.

[43] Laws of Fla. Ch. §4, 98-200; Aleong v. Dept. of Bus. and Prof. Reg, 963 So. 2d 799, 801 (Fla. 4th DCA 2007); Patz v. Dept. of Health, 864 So. 2d 79, 81 (Fla. 3d DCA 2003) (quoting Cann, noting that the 1998 amendment to the APA overruled Unimed and no longer recognized excusable neglect as a valid reason for a late filing).

[44] Cann, 813 So. 2d at 239.

[45] Laws of Fla. Ch. 2006-82.

[46] Cann, 813 So. 2d at 238.

[47] Seavor v. Dept. of Fin. Svcs., 32 So. 3d 722, 723 n.1 (Fla. 1st DCA 2010). Claims of equitable tolling have generally been unsuccessful outside the context of administrative practice. HCA Health Servs. of Fla. v. Hillman, 906 So. 2d 1094 (Fla. 2d DCA 2004); but see In re: Engle Cases, 45 F. Supp. 2d 1351 (M.D. Fla. 2014). In the reported decisions, courts have not always been clear whether equitable tolling is inapplicable categorically, or whether it is applicable, but the presented facts do not satisfy its requirements.

[48] Garcia v. Dept. of Bus. and Prof. Reg., 988 So. 2d 1199 (Fla. 3d DCA 2008).

[49] Madison Highlands, LLC v. Florida Housing Finance Corp., 220 So. 3d 467 (Fla. 5th DCA 2017).

[50] Pro Tech Monitoring v. Dept. of Corrections, 72 So. 3d 277 (Fla. 1st DCA 2011).

[51] Abusalameh v. Dept. of Bus. Reg., 627 So. 2d 560 (Fla. 4th DCA 1993).

[52] Aleong, 963 So. 2d at 799; see note 51.

[53] Williams v. Albertson’s, Inc., 879 So. 2d 657 (Fla. 5th DCA 2004); Cann, 813 So. 2d at 239.

[54] Fla. Stat. §120.569.

[55] Fla. Stat. §120.57(1).

[56] Fla. Stat. §120.569(2)(f); see also Fla. Admin. Code R. 28-106.206.

[57] Menke v. Broward County School Bd., 916 So. 2d 8, 10 (Fla. 4th DCA 2005).

[58] Fla. Stat. §120.569(2)(k)1.

[59] Fla. Stat. §120.569((2)(k)2.

[60] Fla. Admin. Code R. 28-106.206.

[61] Id. It is worth noting the rule applies the discovery provisions in Fla. R. Civ. P. 1.280-1.400. However, the Supreme Court repealed Rule 1.400 in 1992. Although deposition subpoenas appear to be outside the range of the discovery rules (Fla. R. Civ. P. 1.410), that rule is cited by reference by Fla. R. Civ. P. 1.310(a) and, thus, still applies.

[62] Id.

[63] Fla. Stat. §447.208(1).

[64] Fla. Admin. Code R. 73B-20.018.

[65] Fla. Stat. §120.57(1)(b).

[66] Hamilton Downs Horsetrack LLC v. Dept. of Bus. And Prof. Reg., 226 So. 3d 1046, 1050 (Fla. 1st DCA 2017).

[67] Haines v. Dept. of Children and Fams., 983 So. 2d 602, 608 (Fla. 1st DCA 2008).

[68] Fla. Stat. §120.57(1)(j).

[69] Galvan v. Dept. of Health, 285 So. 3d 975, 979 (Fla. 3d DCA 2019); Beckett v. Dept. Fin. Servs., 982 So. 2d 94, 100 (Fla. 1st DCA 2008).

[70] Ferris v. Turlington, 510 So. 2d 292, 293 (Fla. 1987).

[71] Dept. of Banking and Fin. v. Osborne Stern and Co., 670 So. 2d 932, 935 (Fla. 1996).

[72] In re Graziano, 696 So. 2d 744, 753 (Fla. 1997).

[73] Id.

[74] Id. at 934; Dept. of Children and Fams. v. Davis Family Day Care Home, 160 So. 3d 854, 856 (Fla. 2015).

[75] Haines, 983 So. 2d at 603; See, e.g., Fla. Stat. §409.175(2)(f).

[76] Fla. Admin. Code R. 28-106.214(1).

[77] Fla. Admin. Code R. 28-106.214(2).

[78] Fla. Stat. §§90-101-90.955.

[79] Fla. Stat. §120.54(5)(b)2.

[80] See Gross v. Dept. of Health, 819 So. 2d 997, 1001-1004 (Fla. 5th DCA 2002).

[81] Fla. Stat. §120.569(1)(g).

[82] Fla. Stat. Ch. 90.

[83] Florida Industrial Power Users Group v. Graham, 209 So. 3d 1142, 1145 (Fla. 2017). Proceedings under the APA are not the only proceedings to which the evidence code does not strictly apply. C. Ehrhardt, Florida Evidence §103.1 (2012 ed.).

[84] Statutes may be read in pari materia without such being specifically directed, because “(l)aws should be construed with reference to the constitution and the purpose designed to be accomplished, and in connection with other laws in pari materia, though they contain no reference to each other.” Miami Dolphins, Ltd. v. Metropolitan Dade County, 394 So. 2d 981, 988 (Fla. 1981).

[85] Fla. Stat. §90.402: “All relevant evidence is admissible, except as provided by law.” (emphasis added).

[86] Jackson v. Fla. Birth-Related Neurological, etc., 932 So. 2d 1125, 1129-1130 (Fla. 5th DCA 2006).

[87] Fla. Stat. §120.569(2)(h).

[88] Fla. Stat. §120.569((2)(i); Fla. Admin. Code R. 28-106.213(6); see “Order Granting Official Recognition,” Dept. of Bus. and Prof. Reg. v. Walk, Case No. 18-3505PL, 2018 WL 5281856 (Fla. Div. Admin. Hrgs. July 19, 2018)); “Order Granting Official Recognition,” St. Johns Riverkeeper et al. v. Sleepy Creek Lands, LLC, Case No. 2017 WL 5998774 (Fla. Div. Admin. Hrgs. Aug. 14, 2017).

[89] Fla. Stat. §90.404(2).

[90] Fla. Stat. §120.57(1)(d).

[91] Fla. Admin. Code R. 28-106.231(4).

[92] Fla. Stat. §120.569(2)(j); Fla. Admin. Code R. 28-106.213(2) (conferring the right to impeach any witness).

[93] Fla. Stat. §120.569(2)(m).

[94] Community Health Charities of Fla. v. Dept. of Mgmt. Svcs., 7 So. 3d 570, 571-572 (Fla. 1st DCA 2009).

[95] Fla. Stat. §120.68(7)(b); Fla. Stat. §120.68(10).

[96] Mobley v. Agency for Health Care Admin., 181 So. 3d 1233, 1235 (Fla. 1st DCA 2015).

[97] Fla. Stat. §120.57(1)(c).

[98] Fla. Admin. Code R. 28-106.213(3).

[99] Forehand v. School Bd. Of Gulf County, 600 So. 2d 1187, 1191-1193 (Fla. 1st DCA 1992).

[100] Orasan v. Agency for Health Care Admin., 668 So. 2d 1062, 1063 (Fla. 1st DCA 1996).

[101] Wark v. Home Shopping Club, 715 So. 2d 323, 324 (Fla. 2d DCA 1998).

[102] Fla. Admin. Code R. 28-106.215.

[103] Fla. Admin. Code R. 280-106.216.

[104] Fla. Admin. Code R. 28-106.216(2).

[105] Fla. Stat. §120.57(1)(k).

[106] Fla. Admin. Code R. 28-106.217(1).

[107] Id.

[108] Id.

[109] Fla. Stat. §120.57(1)(k).

[110] Fla. Admin. Code R. 28-106.217(3).

[111] Fla. Stat. §120.57(1)(l); Barfield v. Dept. of Health, 805 So. 2d at 1011 (overturning an agency’s rejection of a conclusion of law that made a determination about admissibility of evidence).

[112] Id. See, e.g., Cuenca v. Bd of Administration, 259 So. 3d 253, 259 (Fla. 3d DCA 2018) (determination of nexus between criminal acts and public employment within agency jurisdiction sufficient to reject ALJ conclusion of law to the contrary).

[113] See, e.g., Ogle v. Fla. Unemployment Appeals Com’n, 87 So. 3d 1264, 1267 (Fla. 1st DCA 2012).

[114] Barfield, 805 So. 2d at 1008; See Laws of Fla. §6, 99-379.

[115] Fla. Stat. §120.57(1)(l).

[116] Dept. of Labor and Emplmt. Security v. Little, 588 So. 2d 281, 282 (Fla. 1st DCA 1991).

[117] Castella v. Stewart, 285 So. 3d 980, 987 (Fla. 3d DCA 2019).

[118] Id.

[119] Fla. R. App. P. 9.190.

[120] Fla. Stat. §120.68.

 

David G. TuckerDavid G. Tucker is regional counsel for the Northeast Region of the Florida Department of Children and Families. He is board certified in state and federal government and administrative practice and holds a Martindale-Hubbell A/V rating. Tucker is a past president of the Florida Association of County Attorneys. He earned his A.B. from the University of Michigan, his J.D. from the University of Florida, and his M.Sc. from the University of London.

The views expressed in this article are solely those of the author and do not necessarily reflect the views or opinions of the Florida Department of Children and Families, the secretary of the department, or any person or entity other than the author.