Excuse Me? The Courts Suggest the Legislature Amend APA Provisions Governing Requests for Hearing
Much has been written about legislative changes to the Florida Administrative Procedure Act (APA)1 that were designed to undo the judicial construction of various provisions.2 In a somewhat different twist, at least two appellate courts recently have suggested that the legislature amend provisions in the APA dealing with requests for administrative hearing.3 This article discusses the provisions in the APA that require dismissal of a request for administrative hearing if the request is untimely or not in substantial compliance with the requirements of the Uniform Rules of Procedure. The article also identifies recent judicial decisions suggesting that these provisions should be amended.
Background: The Citizen-Friendly APA?
One of the purposes of the “new” APA as enacted in 19744 was to give citizens better access5 to governmental agencies and administrative proceedings.6 To this end, the APA provides that any person whose substantial interests are to be determined by an agency action may institute proceedings by filing a petition or request for hearing with the agency responsible for making the determination. The courts generally have made it relatively easy for a substantially affected person to invoke a hearing.7 Likewise, the courts consistently have refused to allow an agency to determine that a party had waived its right to request a hearing unless the agency had provided the party with a clear point of entry.8 In addition, the courts frequently have employed equitable doctrines such as excusable neglect9 and equitable tolling10 to find that a party had filed a timely request for hearing.
The 1998 APA Amendments
These interpretations of the APA provided citizens with considerable access to contest agency decisions. However, some became concerned that Florida and its citizens were missing important economic development opportunities because of the substantial delays that often result from administrative litigation associated with third-party challenges to agency decisions proposing to grant necessary regulatory approvals. To address this concern, Representative Joe Spratt11 filed legislation in 1997 that was initially designed to eliminate unsubstantiated or otherwise frivolous challenges to environmental permits.12 This legislation proved to be very controversial and was substantially revised before being approved in 1998.13
The 1998 legislation seeks to strike a fair balance between retaining broad access to administrative proceedings for those persons with legitimate objections while eliminating significant delays caused by unnecessary administrative hearings when there are no genuine disputes. The 1998 legislation sought to accomplish this by revising provisions in the APA governing requests for hearing in two respects.14
First, the 1998 legislation amended the APA to expressly require the adoption of uniform rules of procedure for the filing of petitions for administrative hearings pursuant to §120.569 or §120.57.15 The 1998 legislation provided that these rules must require the petition to include:
(a) The identification of the petitioner.
(b) A statement of when and how the petitioner received notice of the agency’s action or proposed action.
(c) An explanation of how the petitioner’s substantial interests are or will be affected by the action or proposed action.
(d) A statement of all material facts asserted by the petitioner or a statement that there are no disputed facts.
(e) A statement of the ultimate facts alleged, including a statement of the specific facts that petitioner contends warrant reversal or modification of the agency’s proposed action.
(f) A statement of the specific rules or statutes that the petitioner contends require reversal or modification of the agency’s proposed action.
(g) A statement of the relief sought by the petitioner, stating precisely the action petitioner wishes the agency to take with respect to the proposed action.16
These requirements were taken directly from and were very similar to Uniform Rule 28-106.201(2) as it existed at that time.17 As such, this change merely incorporated existing provisions of the uniform rules directly into the APA.
The second change enacted in 1998 was more significant. It expressly requires that, unless otherwise provided by law, a petition or request for hearing must include those items required by the uniform rules. It also requires that, upon the receipt of a petition or request for hearing, the agency must “carefully review” the petition to determine if it contains all the required information, and that a petition “shall”18 be dismissed if it is not in substantial compliance with these requirements or it has been untimely filed.19 Dismissal of a petition shall, at least once, be without prejudice to the petitioner’s filing of a timely amended petition curing the defect, unless it conclusively appears from the face of the petition that the defect cannot be cured.20 The agency may refer a petition to the Division of Administrative Hearings for the assignment of an administrative law judge only if the petition is in substantial compliance with these requirements.21
The Courts Interpret the 1998 Amendments
Although they initially were little noticed by commentators and scholars,22 the 1998 amendments recently have received considerable attention from the courts in cases involving agency final orders dismissing petitions because they are untimely or insufficient.
Timeliness of the Petition
As noted, courts previously have invoked equitable doctrines such as excusable neglect and equitable tolling to find that a party had filed a timely request for hearing.
Prior to 1998, an untimely request for an administrative hearing was granted if the petitioner demonstrated that the request was filed late due to excusable neglect.23 However, in Cann v. Department of Children and Family Services, 813 So. 2d 237 (Fla. 2d DCA 2002), the Second District held that the 1998 amendments expressly require that untimely petitions shall be dismissed and therefore essentially overruled prior cases in which courts had allowed untimely requests for hearing to be granted based on a demonstration of excusable neglect.24 The court therefore held that the Canns were not entitled to a hearing on the agency’s refusal to renew their license for a medical foster home since the request for hearing was received one day past the deadline.
However, the court stated that, with respect to administrative matters affecting substantial interests, adopting an excusable neglect standard would promote the general public policy of having disputes decided on their merits rather than on procedural technicalities,25 and Chief Judge Blue in a concurring opinion asked the legislature to consider providing this equitable relief for those citizens of the state who are required to have their personal and property rights decided in the administrative arena.26
In Patz v. Department Health, 864 So. 2d 79 (Fla. 3d DCA 2003), the Third District also relied on the 1998 amendments and the decision in Cann to affirm the Board of Medicine’s discipline of a doctor whose request for hearing was filed 43 days late. Judge Ramirez wrote separately to express his agreement with Chief Judge Blue’s suggestion that the legislature should allow the doctrine of excusable neglect to be applied in administrative proceedings. Id. at 82.
• Equitable Tolling
In contrast, courts have held that the late filing of a request for administrative hearing is not a jurisdictional defect and that the doctrine of equitable tolling therefore may be applied to extend the administrative time limit when the petitioner has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum.27
In Cann, the Second District stated that it was “not inclined to believe” that the 1998 amendments overruled these decisions holding that a late request for an administrative hearing is not a jurisdictional defect that cannot be excused by application of the doctrine of equitable tolling. However, the court did not resolve the issue because the requirements for equitable tolling were not met in that case.28 Similarly, the Third District in Patz concluded that equitable tolling did not apply in that case.29
In Whiting v. Florida Department of Law Enforcement, 849 So. 2d 1149 (Fla. 5th DCA 2003), the Fifth District concluded that the facts were insufficient to support a claim of equitable tolling, thus apparently assuming—although not directly deciding—that the doctrine survives the 1998 amendments.
While these three courts have suggested that equitable tolling was unaffected by the 1998 amendments, at least two commentators have questioned the application of equitable principles in light of the legislature’s clear expression that untimely petitions for hearing should not be considered.30
Sufficiency of the Petition
The 1998 amendments to the APA also require the agency to dismiss a petition for hearing if the petition is not in substantial compliance with the requirements of the uniform rules that describe the required contents of a petition.31 In several recent cases, the appellate courts have upheld final orders dismissing requests for hearing where the petitions were legally insufficient32 because, for example, the request for hearing failed to provide “a concise statement of the ultimate facts alleged, including the specific facts that the petitioner contends warrant reversal or modification of the agency’s proposed action.”33 Judge Cope of the Third District has recommended that the legislature should amend the statute, particularly when the administrative action is initiated by the filing of an administrative complaint by the agency. In such cases, he suggested that it should be sufficient for the respondent to submit a document that sets forth those paragraphs of the administrative complaint that are admitted, denied or as to which the respondent is without knowledge, along the lines allowed by Florida Rule of Civil Procedure 1.110(c).34
DOAH Report to Legislature
In a report issued just prior to the 2004 legislative session, the Division of Administrative Hearings noted the decisions in Cann and Patz had specifically requested that the legislature consider whether to make the doctrine of excusable neglect applicable to administrative proceedings once again.35 The legislature took no action on this request during the 2004 Regular Session.
The 1998 amendments to the APA require the agency to dismiss a petition for hearing if the petition is legally insufficient (i.e., not in substantial compliance with the requirements of the uniform rules) or is untimely filed. The purpose of these amendments was to strike a fair balance between retaining broad access to administrative proceedings for those persons with legitimate objections while eliminating significant delays caused by unnecessary administrative hearings where there are no genuine disputes. The appellate courts generally have interpreted these amendments as requiring strict adherence to the pleading requirements and as not permitting excusable neglect. However, two courts have suggested that these provisions should be amended to provide equitable relief to prevent the dismissal of potentially meritorious claims for technical defects. To date, the legislature has not enacted any changes. It will be interesting to see if it will do so.
1 The APA is codified in Fla. Stat. Ch. 120.
2 E.g., Lawrence E. Sellers, Jr., The 2003 Amendments to the Florida APA, 77 Fla. B.J. 74 (October 2003); Lawrence E. Sellers, Jr., More APA Reform: The 1999 Amendments to Florida’s Administrative Procedure Act, 73 Fla. B.J. 78 (July/August 1999); Kent Wetherell, Sour Grapes Make Sweet Wine: The Impact of the 1999 Amendments to the Administrative Procedure Act on the Water Management Districts’ Basin-Specific Permitting Rules, Environmental and Land Use Law Section Reporter (Dec. 1999).
3 Cann v. Department of Children and Family Services, 813 So. 2d 237 (Fla. 1st D.C.A. 2002); Patz v. Department of Health, 864 So. 2d 79 (Fla. 3d D.C.A. 2003); Brookwood Extended Care Center of Homestead, LLP v. Agency for Health Care Administration, 870 So. 2d 834 (Fla. 3d D.C.A. 2003).
4 Complete revision of the 1961 APA was undertaken by the Florida Law Revision Council in 1973, and enacted in 1974. See L. Harold Levenson, The Florida Administrative Procedure Act: 1974 Revision and 1975 Amendments, 29 U. Miami L. Rev. 617 (1975).
5 One noted scholar on Florida’s APA preferred the use of the term “access” when speaking of the right to initiate any executive branch proceeding. Patricia A. Dore, Access to Florida Administrative Proceedings, 13 Fla. St. L. Rev. 965 (1986).
6 E.g., Roberson v. Florida Parole & Probation Commission, 444 So. 2d 917 (Fla. 1983) (recognizing that the APA presented a more streamlined means whereby individuals who felt that their substantial interests were being affected by agency action could challenge the agency action in administrative proceedings). Subsequent amendments to the APA also were designed to make the act more citizen-friendly. E.g., Lawrence E. Sellers, Jr., More APA Reform: The 1999 Amendments to Florida’s Administrative Procedure Act, 73 Fla. B.J. 78 (July/Aug. 1999) (describing the 1999 amendments as designed, in part, to “level the playing field” in disputes between citizens and their government); Lawrence E. Sellers, Jr., The Third Time’s the Charm: Florida Finally Enacts Rulemaking Reform, 48 Fla. L. Rev. 93 (1996) (describing the 1996 changes as designed to provide meaningful opportunities for additional public participation and to provide citizens with new and revised remedies for challenging objectionable rules).
7 In one of the early decisions interpreting the 1974 APA, the court said the proper way for a substantially affected person to invoke a formal or informal hearing is simplicity itself: he asks the agency for it. Department of General Services v. Willis, 344 So. 2d580, 592 (Fla. 1st D.C.A. 1977).
8 E.g., Henry v. Department of Administration, Division of Retirement, 431 So. 2d 677 (Fla. 1st D.C.A. 1983). See also Scott Shirley, In Search of a Clear Point of Entry, 68 Fla. B.J. 61 (May 1994).
9 E.g., Unimed Lab., Inc. v. Agency for Health Care Admin., 715 So. 2d 1036 (Fla. 3d D.C.A. 1996); Rothblatt v. Department of Health and Rehabilitative Services, 520 So. 2d 644 (Fla. 4th D.C.A. 1988).
10 E.g., Machules v. Department of Admin., 523 So. 2d 1132 at 1134 (Fla. 1988); Stewart v. Department of Corrections, 561 So. 2d 15 (Fla. 4th D.C.A. 1990); Castillo v. Department of Admin., Div. of Retirement, 593 So. 2d 1116 (Fla. 2d D.C.A. 1992); Environmental Resource Associates of Florida, Inc. v. Department of General Services, 624 So. 2d 330 (Fla. 1st D.C.A. 1993); Abusalameh v. Department of Business Regulation, 627 So. 2d 560 (Fla. 4th D.C.A. 1993); Phillips v. University of Florida, 680 So. 2d 508 (Fla. 1st D.C.A. 1996); Vantage Health Care Corp. v. Agency for Health Care Admin., 687 So. 2d 306 (Fla. 1st D.C.A. 1997); Haynes v. Public Employees Relations Comm’n, 694 So. 2d 821 (Fla. 4th D.C.A. 1991); Avante, Inc. v. Agency for Health Care Admin., 722 So. 2d 965 (Fla. 1st D.C.A. 1998); Mathis v. Florida Department of Corrections, 726 So. 2d 389 (Fla. 1st D.C.A. 1999).
11 R-Sebring. More recently, Representative Spratt sponsored the House version of the amendments to the APA that were enacted in 2003. See Lawrence E. Sellers, Jr., The 2003 Amendments to the Florida APA, 77 Fla. B.J. 74, 76 n.3 (Oct. 2003).
12 As originally introduced, HB 1509 (1997) provided that “In addition to the provisions of Chapters 120, 373 and 403, Florida Statutes, any person who files or intends to file any objection, raise any issue of fact, or allege any violation of any provision of Chapter 373 or Chapter 403, Florida Statutes, or any rule adopted under such chapters, relating to any project for which a permit is required under Chapter 373 or Chapter 403, Florida Statutes, shall, concurrently with such action or activity, submit technical or scientific information which support such objection, contention, or allegation. A person who fails to comply with the requirements of this section shall not have standing to bring any administrative or judicial action under Chapter 120, Florida Statutes, or under any provision of Chapter 373 or Chapter 403, Florida Statutes, relating to such project.”
13 HB 1509 was filed during the 1997 legislative session, and was carried over to the 1998 session pursuant to House Rule 96. During the 1998 session, it was withdrawn from the Committee on Environmental Protection on March 12; approved as a committee substitute by the Committee on Governmental Rules and Regulations on March 24; reported unanimously favorable with one amendment by the Committee on General Government Appropriations on April 14; read and amended in the House on April 24; and read a third time and passed the House on April 28. See 1998 House Journal 1456 (April 28, 2998). The substance of CS/HB 1509 was amended onto CS/SB 1440 on the House floor on April 29. See 1998 House Journal 1591 (April 29, 1998). The Senate adopted an amendment to the House amendment, and then concurred in the House amendment as amended on May 1. See 1998 Senate Journal 1608 (May 1, 1998). The bill as amended then was approved by the House later than same day. See 1998 House Journal 2203 (May 1, 1998). CS/SB 1440 became law without the Governor’s signature and is found in 1998 Fla. Laws ch. 200.
14 The 1998 legislation also revised the APA to provide that, after the petition has been assigned to an administrative law judge, any party (including the petitioner) may request that the judge determine that there are no disputed issues of material fact and enter an order relinquishing jurisdiction to the agency, so that the agency may enter an appropriate final order. 1998 Fla. Laws ch. 200, §5 (1998), amending Fla. Stat. §120.57(1)(h) and (i). Such requests are intended to be similar to motions for summary judgment that may be filed in the civil courts, and they are designed to allow for the expeditious resolution of administrative proceedings.
15 The APA initially required the Administration Commission to promulgate “model” rules of procedure. The model rules applied only if the agency did not have its own specific rule governing the subject. The 1996 amendments to the APA required the Administration Commission to adopt “uniform” rules of procedure and eliminated the authorization for agencies’ specific rules of procedure, except under certain circumstances. Patrick L. “Booter” Imhoff and James Parker Rhea, Legislative Oversight, 71 Fla. B.J. 28 (March 1997); Donna E. Blanton and Robert M. Rhodes, Florida’s Revised Administrative Procedure Act, 70 Fla. B.J. 30 (July/August 1996). A copy of the uniform rules was published in the October 1997 issue of The Florida Bar Journal. These rules became effective on April 1, 1997. For a brief summary of these rules, see Linda M. Rigot and Ralph A. DeMeo, the Way, More APA, 71 Fla. B.J. 32, 36 (October 1997).
16 1998 Fla. Laws ch. 200, §3, amending Fla. Stat. §120.54(5)(b)4. In 2003, this provision was amended to require that the petition also include an explanation of how the alleged facts relate to the cited rules or statutes. See 2003 Fla. Laws ch. 94, §2, amending Fla. Stat. §120.54(5)(B)4.
17 Rule 28-106.201(2) specified that all petitions contain:
“(a) The name and address of each agency affected and each agency’s file or identification number, if known;
“(b) The name, address, and telephone number of the petitioner; the name, address, and telephone number of the petitioner’s representative, if any, which shall be the address for service purposes during the course of the proceedings; and an explanation of how the petitioner’s substantial interests will be affected by the agency determination;
“(c) A statement of when and how the petitioner received notice of the agency decision;
“(d) A statement of all disputed issues of material fact. If there are none, the petition must so indicate;
“(e) A concise statement of the ultimate facts alleged, as well as the rules and statutes which entitle the petitioner to relief; and
“(f) A demand for relief.”
18 In this respect, the 1998 legislation differed from Uniform Rule 28-106.201(4), which then provided a petition “may” be dismissed if it is not in substantial compliance with Subsection (2) of this rule or has been untimely filed.
19 Rule 28-106.111 required persons seeking a hearing to file a petition for hearing with the agency within 21 days of receipt of written notice of the decision, unless otherwise provided by law. The rule also provided that any person who receives written notice and fails to file a written request for hearing within 21 days waives the right to request a hearing on such matters. Rule 28-106.111(4).
20 1998 Fla. Laws ch. 200, §4, amending Fla. Stat. §120.569(2)(c).
21 Id., amending Fla. Stat. §120.569(2)(d).
22 Much has been written about the changes to the APA enacted in 1996 and 1999, but there appears to be no published journal or law review articles discussing the 1998 amendments.
23 There is no precise definition of the term “excusable neglect” in the rules or the case law. Carter v. Lake County, 840 So. 2d 1153 (Fla. 5th D.C.A. 2003) (generally, the courts do not find excusable neglect in the attorney’s misunderstanding or ignorance of the law or rules of procedure; on the other hand, the courts are much more inclined to find excusable neglect when the error occurs due to a breakdown in the mechanical or operational practices or procedures of the attorney’s office equipment or staff). “Excusable neglect” is defined by one legal dictionary as follows: “A legitimate excuse for the failure of a party or his/her lawyer to take required action (like filing an answer to a complaint) on time. This is usually claimed to set aside a default judgment for failure to answer (or otherwise respond) in the period set by law. Illness, press of business by the lawyer (but not necessarily the defendant), or an understandable oversight by a lawyer’s staff (“just blame the secretary”) are common excuses which the courts will often accept. However, if the defendant loses the complaint or fails to call his/her attorney, the courts will be less lenient. In any event, the defendant must also show he/she has some worthwhile defense.” Law.com Dictionary.
24 Cann, 813 So. 2d at 239. The court concluded that the 1998 amendments overruled Unimed Lab., Inc. v. Agency for Health Care Administration, 715 So. 2d 1036 (Fla. 3d D.C.A. 1998), and Rothblatt v. Department of Health and Rehabilitative Services, 520 So. 2d 644 (Fla. 4th D.C.A. 1988).
25 813 So. 2d at 239.
26 Id. (Blue, C.J., concurring).
27 E.g., Machules v. Department of Administration, 523 So. 2d 1132 (Fla. 1988); Appel v. Florida Department of State, Division of Licensing, 734 So. 2d 1180 (Fla. 2d D.C.A. 1999).
28 Cann, 813 So. 2d at 239.
29 Patz, 864 So. 2d at 80-81 n.3.
30 Ross Stafford Burnaman, Equitable Tolling in Florida Administrative Proceedings, 74 Fla. B.J. 60 (Feb. 2000); John S. Yudin, Equitable Tolling in Administrative Proceedings: Where is the Authority?, XXIV Administrative Law Section Newsletter 3 (September 2002).
31 See Fla. Stat. §120.569(2)(c).
32 Brookwood Extended Care Center v. Agency for Health Care Administration, 870 So. 2d 834 (Fla. 3d D.C.A. 2003); Blackwood v. Agency for Health Care Administration, 869 So. 2d 656 (Fla. 4th D.C.A. 2004). For an excellent discussion of the Brookwood decision, see Samuel J. Morley, Brookwood Extended Care Center of Homestead, LLP v. Agency for Health Care Administration, Responding to Administrative Complaints (or How Not To), XXV Administrative Law Section Newsletter 1 (Dec. 2003).
33 Blackwood, 869 So. 2d at 657 (citing Rule 28-106.201(2)(e)). But see Accardi v. Department of Environmental Protection, 824 So. 2d 992, 996 (Fla. 4th D.C.A. 202) (the rule does not specifically require that a petition state the statutory section numbers or rule provision numbers that are allegedly being violated).
34 Brookwood, 870 So. 2d at 843-44. It has been suggested that this issue could be addressed by revising the Uniform Rules of Procedure to authorize a request for hearing filed by a respondent in such cases to include only minimal information, and to specifically authorize the agency to provide an abbreviated election of rights form for the respondent’s use in requesting a hearing.
35 Division of Administrative Hearings, Thirtieth Annual Report (February 1, 2004). DOAH is required to issue an annual report to the Joint Administrative Procedures Committee and the Administration Commission, and the report is required to include recommendations for change or improvement in the APA. See Fla. Stat. §120.65(10).
Lawrence E. Sellers, Jr., is a partner in the Tallahassee office of Holland & Knight LLP, where he practices environmental and administrative law. He received his J.D. in 1979, with honors, from the University of Florida.
This column is submitted on behalf of the Administrative Law Section, Robert C. Downie II, chair, and Seann M. Frazier, editor.