Florida Administrative Procedures Act Remedies Survey
“In theory, there is no difference between theory and practice. But, in practice, there is.”
The Florida Administrative Procedure Act (APA), F.S. Ch.120, to an almost exclusive extent, contains the procedures by which Florida government agency “actions” are formulated and can be challenged and litigated. While the APA itself does not contain any statement of the law’s purpose or legislative intent, one major purpose has generally been described as an “expansion of public access to the activities of governmental agencies.”1 T hat is the theory. Within the APA resides a multitude of approaches to such challenges, and in some instances multiple remedies may be available. That is the practice.
Since its enactment in 1974 in its “modern” form, there have been periodic adjustments to the APA by the Florida courts and the legislature as to how much public access there should be. In theory, agency action that impacts substantial interests should be subject to some level of independent review. In practice, having every single step a Florida government agency takes be made subject to an APA challenge by anybody would be too time consuming, and both the legislature2 a nd the courts3 h ave adjusted the reach of the APA. What has evolved is a set of remedies that are in some instances fairly generic and in others very specialized. The purpose here is to briefly explain what these remedies are designed to accomplish relative to agency action.
The basic APA procedures and remedies applicable to agency actions are shown in the matrix on the next page. Referring to the matrix headings, the “remedy” is the agency action to be challenged or requested, the “authority” and “grounds” are the bases to request the remedy, the “petition contents” are both the statutory and Uniform Rules of Procedure pleading requirements, and the “type of hearing” is formal or informal. Attorneys’ fees may also be available.
Rule-making and Rule Challenges
Agency rules are the backbone of the APA, and, therefore, the backbone of state agency action in Florida. The meaning of a “rule” includes “each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency.”4 O nce upon a time, agencies were broadly authorized to conduct business using incipient policy, or unwritten rules, but not any more.5 T oday, rule-making is “not a matter of agency discretion” and it is presumed to be feasible and practicable.6
Rules come into existence in several ways. Agencies may initiate rule-making of their own accord or in response to a legislative pronouncement requiring rule-making,7 i nterested persons may request that agencies initiate rule-making,8 o r interested persons can challenge an unadopted agency statement defined as a rule spurs an agency to initiate rule-making.9
Existing rules, proposed rules, emergency rules, and unadopted agency statements defined as rules are all subject to APA challenges. Section 120.56 is entitled “Challenges to rules” and contains the “general procedures for challenging the validity of a rule or a proposed rule” as well as specific provisions for challenges to existing, proposed, emergency, and unadopted rules. For discussion purposes herein, “rule challenge” encompasses any of these four categories, unless otherwise specified.
A rule challenge petition “must state with particularity the provisions alleged to be invalid with sufficient explanation of the facts or grounds for the alleged invalidity and facts sufficient to show that the person challenging a rule is substantially affected by it, or that the person challenging a proposed rule would be substantially affected by it.”10 F or a proposed rule, the petitioner has the burden of “going forward.” Then, the agency has the burden to prove by a preponderance of the evidence that the proposed rule is not invalid.11 F or an existing rule, the petitioner has the burden of persuasion by the preponderance standard.12 I n a challenge to an agency statement defined as a rule, “the petition shall include the text of the statement or a description of the statement and shall state with particularity facts sufficient to show that the statement constitutes a rule under s. 120.52 and that the agency has not adopted the statement by the rulemaking procedure provided by s. 120.54.”13
- 1
Sections 57.105 and 57.111 may also apply.
2
If petition is denied, challenge may lie to existing, proposed, or unadopted rule.
3
Attorneys’ fees provisions apply in subsequent challenge to existing, proposed, or unadopted rule.
4
After agency decision, hearing process would begin as a challenge to a decision under 120.569 and 120.57(1) or (2).
5
Attorneys’ fees provision applies if agency decision is challenged through formal hearing process.
6 See H.B. 7183, §11.
All rule challenges are filed at the Division of Administrative Hearings (DOAH) and are assigned to an administrative law judge (ALJ) for a formal evidentiary hearing. A hearing is essentially a nonjury trial. Following the hearing, the ALJ will issue the final order, which may be appealed to the appropriate district court of appeal. Generally, a rule can be challenged on three basic grounds, or any combination thereof: procedural errors, lack of authority, and substantive deficiencies. These grounds collectively are referred to as “invalid exercises of delegated legislative authority.”
• Procedural Errors — The allegation is that the agency has materially failed to follow the applicable rule-making procedures or requirements. In terms of procedure, §120.54 contains provisions for rule-making for all types of rules. Either an agency, a person regulated by an agency, or a person with a substantial interest in an agency rule may initate the rule-making process.14 O nce begun, there are timetables and notice requirements that agencies must keep or else run the risk of having the rule be invalidated.15 H owever, once a rule has been adopted and the time to challenge the proposed rule has passed, persons with notice have waived the right to later raise procedural deficiencies.
• Lack of Authority — Section 120.536 contains limitations on agency authority to create rules: “An agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute.” Where once agencies were free to enact rules under a general grant of authority to make rules as long as the rules were rationally related to the legislation being implemented, today if an agency has acted to create a rule without a specific grant of rule-making authority: “The Administrative Procedures Committee or any substantially affected person may petition an agency to repeal any rule, or portion thereof, because it exceeds the rulemaking authority permitted by this section.”16 V ery often, legislation is necessary to cure violations of rule-making authority.
• Substantive Deficiencies — Rule challenges based upon what a rule actually says are by and large brought for one or more of the following reasons: The rule contradicts the statute being implemented; the rule is vague, illogical, or irrational; or less costly alternatives to the rule exist.17 H ow a rule is interpreted and applied by an agency can also factor in to the challenge of an existing rule. Further, as discussed more fully below, an agency rule can be challenged in conjunction with a challenge to the agency decision or order where that rule was applied.
Order Challenges
far, the most common type of APA procedure is the request for a hearing to contest an agency decision, or “order,” relative to a particular application, license, permit, etc. An agency will provide notice of the intended decision to substantially affected persons, and such notice must contain a statement of the right to challenge the intended decision. Unless challenged, the preliminary agency decision becomes final 21 days from the point of notice to persons with standing to contest the action.
The APA contemplates three basic types of hearings to contest agency decisions: formal, informal, and bid protests. Section 120.569 contains provisions applicable to all three types of hearings. Section 120.57(1) contains additional procedures for hearings that involve disputed issues of material fact, or formal hearings. Section 120.57(2) applies to hearings without material factual disputes, or informal hearings. Section 120.57(3) applies to contract solicitation or award protests, both formal and informal.
Petitions for hearings to contest agency decisions must contain specific information required by statute and the Uniform Rules of Procedure.18 A ll such petitions requesting hearings are filed with the agency, and those requests that contain material fact disputes are referred to DOAH, while those that do not are heard by agency personnel assigned as hearing officers. A petition heard at DOAH is assigned to an ALJ who issues a recommended order at the conclusion of the hearing. The case is then returned to the agency for entry of a final order. Hearing officers also issue recommended orders and the agency head typically issues the final order. All final orders are subject to appeal to district courts of appeal.19
Formal and informal hearings are conducted de novo, which results in agency action being formulated through the hearings, rather than simply being reviewed. Like rule challenges, a formal hearing at DOAH before an ALJ is essentially a nonjury trial. Evidence is offered and the factual findings of an ALJ are based upon the record. Informal hearings vary somewhat by agency, but generally are not “informal” in the normal sense of the word. “Informal” refers to material facts not being in dispute, so there is usually no evidence offered other than what is already in the record via admission or stipulation. Rather than a trial-like proceeding, the parties make presentations similar to oral arguments on appeal. If a material fact dispute arises during an informal hearing, the case should be referred by the agency to DOAH for formal hearing.
As mentioned previously, agency decisions and an agency rule which supplied the criteria for the decision can be challenged at the same time. In such a situation, the petition challenging the decision is filed with the agency and the rule challenge is filed with DOAH. Once the agency refers the challenged decision to DOAH, the cases may then be consolidated for hearing upon motion or by the ALJ sua sponte. Post hearing, the ALJ issues a recommended order in the case challenging the decision itself and a final order in the case challenging the rule. A party can also challenge an unadopted rule along with an agency decision in the same fashion.
Bid protests to challenge agencies’ awards of contracts are somewhat unique in that hearings are for the purpose of reviewing the agency decision rather than formulating the decision, and different standards of review apply for situations in which the agency opts to reject all bids or proposals versus selecting one. Bid protests can be formal or informal. Bid specifications can be challenged only before submission of actual bids or proposals, and specification deficiencies cannot be raised within a bid protest.
Other Remedies
The APA has codified other avenues of relief that persons affected by agency action can seek declaratory statement, variance or waiver, and appeal. These remedies are, for the most part, designed to avoid the need for formal or informal hearing. Declaratory statements represent a cross between a legal opinion and a declaratory judgment. Variances and waivers apply to an agency’s application of rules and allow greater flexibility.
• Draw Out Proceedings — During rule-making pursuant to F.S. §120.54, a person can assert that his or her substantial interests will be affected by rule-making and has the opportunity to affirmatively demonstrate to the agency that the rule-making process will not provide adequate protection for those interests.20 I f the agency finds that the rule-making process will not be adequate to protect those interests, the agency can “convene a separate proceeding under the provisions of ss. 120.569 and 120.57.”21 F ollowing this hearing, rule-making resumes.
• Declaratory Statements — F.S. §120.565 states that a person with standing may ask an agency for an “opinion” as to the applicability of statute, rule, or order to the person’s particular circumstances. F.A.C. Rule 28-105 contains the petition content requirements for initiating such an action. The declaratory statement is an odd remedy in that it is essentially “a means for resolving a controversy or answering questions or doubts concerning the applicability of statutory provisions, rules, or orders over which the agency has authority.”22 I t should be noted that “[a] declaratory statement is not the appropriate means for determining the conduct of another person.”23
Rather than just state an opinion, though, an agency may actually have an informal hearing and allow other parties to participate. Once concluded, the actual declaratory statement is final agency action and may, therefore, be appealed. Thus, this remedy presents the unique opportunity to ask an agency for a guidance opinion, argue for a particular outcome, and then appeal to a higher authority if that outcome is not achieved.
• Variance and Waiver — F.S. §120.542 contains the process applicable to requesting a variance or waiver of an agency rule, and F.A.C. Rule 28-104 contains additional procedural requirements. A variance or waiver must be granted when the petitioner proves that strict application of a rule will result in a substantial hardship or violate principles of fairness, and the purpose of the underlying statute will still be met.24 A gencies have no authority to waive or vary statutory requirements, though. Section 120.542 contains the requirement for a variance or waiver request. Agencies must act on a request within 90 days, and a request not ruled upon in that time frame is deemed granted. Whether the agency opts to grant or deny the request, the decision is subject to challenge by persons with standing in either a formal or informal hearing.
• Mediation — Notice of intended agency action may provide an option for mediation pursuant to F.S. §120.573. If so, the affected person may request mediation prior to initiating a formal or informal hearing to contest the agency action. F.A.C. Rule 28-106.111 also contains provisions regarding mediation. If mediation fails, the affected person may then begin the hearing process pursuant to F.S. §§120.569 and 120.57.
• Appeal — F.S. §120.68 provides for the appeal of final agency action, either through rule-making or decisions. Appellate review is dependent upon the type of agency action being appealed.25
• Attorneys’ Fees — F.S. §120.595 contains most of the provisions for attorneys’ fees and costs in administrative cases. Fees may be awarded in challenges to proposed, existing, or unadopted rules, and challenges to agency decisions. Fees may also be available in appellate matters.
Conclusion
Agency action comes in various shapes and sizes, and so do the APA remedies for persons affected by agency action. The APA contains processes to attempt to avoid litigation and to resolve it if necessary. When determining the best course of action, both in theory and in practice, it is always important to have all potential options on the table.
1 Florida Home Builders Ass’n v. Department of Labor and Employment Sec., 412 So. 2d 351, 352 (Fla. 1982) (“The principal purpose for the adoption of a wholly-revised administrative procedure act for Florida is to remedy massive definitional, procedural and substantive deficiencies in existing law. .. by broadening public access to the precedents and activities of agencies. …” Reporter’s Comments on Proposed Administrative Procedure Act for the State of Florida 3 (March 9, 1974), reprinted in 3 A. England & L. Levinson, Florida Administrative Practice Manual at 79 (1979)).
2 A s an example, consider agencies purchasing goods. The APA provides a remedy for disappointed vendors to contest agency decisions to buy from this supplier or that, but the legislature has set dollar thresholds below which agencies do not need to engage in competitive bidding. Thus, in some instances the APA remedy normally applicable to the contract solicitation process will not apply.
3 C ourts have also limited the reach of the APA by requiring interested persons to have standing to contest agency action. Being a resident of Florida is generally not enough to confer sufficient “substantial interests” for such standing: A party seeking to show a substantial injury must demonstrate 1) that he or she will suffer an injury which is of sufficient immediacy to entitle the party to a §120.57 hearing, and 2) that his or her substantial injury is of the type or nature which the proceeding is designed to protect. Agrico Chemical Co. v. Department of Environmental Regulation, 406 So. 2d 478 (Fla. 2d D.C.A. 1981).
4 Fla. Stat. §120.52(16) (2007).
5 McDonald v. Department of Banking and Finance, 368 So. 2d 1370 (Fla. 1979).
6 Fla. Stat. §120.54(1) (2007).
7 Fla. Stat. §120.54(2) (2007).
8 Fla. Stat. §120.54(7) (2007).
9 Fla. Stat. §120.56(4) (2007).
10 Fla. Stat. §120.56(1)(b) (2007).
11 Fla. Stat. §120.56(2)(a) (2007).
12 Fla. Stat. §120.56(3)(a) (2007).
13 Fla. Stat. §120.56(4)(a) (2007).
14 Fla. Stat. §120.54(3), (7) (2007).
15 Fla. Stat. §120.56(3) (2007).
16 Fla. Stat. §120.536(2) (2007).
17 Fla. Stat. §120.52(8) (2007). For challenges based solely upon lower cost alternatives being available, see Fla. Stat. §120.541 (2007).
18 Fla. Stat. §§120.569(2)(c) and 120.54(5)(b)(4) (2007). See F.A.C. Rule 28-106.201 (formal hearing request), Rule 28-106.301 (informal hearing request), and Rule 28-110.004 (bid protests).
19 Fla. Stat. §120.68.
20 Fla. Stat. §120.54(3)(c)2 (2007).
21 Id.
22 F. A.C. Rule 28-105.001.
23 F. A.C. Rule 28-105.001.
24 Fla. Stat. §120.542(2) (2007).
25 F or a discussion of appellate standards of review, see Donna Blanton, Standards of Review Under the Florida Administrative Procedure Act, 81 Fla. Bar J. 50 (April 2007).
Robert C. Downie II is a shareholder with Carlton Fields, P.A., office in Tallahassee and practices administrative law primarily in matters related to environmental, land use, and transportation. He received his J.D. in 1989 from the Florida State University College of Law. Mr. Downie expresses his appreciation to Martha Chumbler and Matthew Bernier for their assistance with this article.
This column is submitted on behalf of the Administrative Law Section, James A. Bertron, Jr., chair, and Deborah K. Kearney, editor.
