Lesser Known Aspects of the APA
If you asked an attorney who the major actor is within Florida’s administrative procedure process, the response would likely be the Division of Administrative Hearings (DOAH)1. There are other lesser-known agencies of which all attorneys should be aware, such as the Administration Commission, the Joint Administrative Procedures Committee (JAPC), and the Department of State. These agencies act in accordance with the Florida Administrative Procedure Act (APA).2 This article is not a procedural manual, but an explanation of some of the important sources of information regarding the APA.
The Florida Legislature created the Administration Commission,3 which consists of the governor and cabinet.4 For administrative purposes, it is situated within the executive office of the governor.5 The governor is the chair of the commission, and affirmative action requires the approval of the governor and at least two other members of the commission.6 The commission’s statement of agency organization and operation7 lists the following duties pursuant to the APA:
• Adopt uniform rules of procedure to comply with requirements of the Administrative Procedures Act;8
• Adopt rules for granting or denying petitions for variances and waivers to requirements of the uniform rules;9
• Consider agency applications for exemptions from the processes or proceedings governed by the APA;10
• Appoint the [d]irector of DOAH and receive annual reports and hear appeals of Executive Office of Governor actions that affect amendments to DOAH’s approved operating budget or any personnel actions;11
• Appoint an attorney to serve as administrative law judge in hearings in which DOAH is a party;12
The statement of agency organization and operation13 shows the commission’s myriad duties and also provides contact information for the commission’s clerk and other useful information. An additional resource available online is the final orders of the commission issued since July 1, 2015, which may be accessed through the consolidated database maintained by DOAH.14
The commission maintains machine-readable, yearly subject-matter indexes of all final orders required by F.S. §120.53, although they are not accessible online. The individual year indexes are available for download in PDF format upon request from the clerk of the commission. However, the indexes only cover final orders issued since 1989.15 This severely impacts research of commission decisions made during the early days of the APA, including those regarding time-limited exemptions considered under F.S. §120.63.16
The agendas, minutes, videos, and transcripts of the meetings of the cabinet for the current year are online, as are the videos and transcripts of the precursor meetings of the cabinet aides.17 Savvy practitioners know to attend the cabinet aides’ meeting whenever a matter affecting one of their clients is on the cabinet’s agenda. Attending the meetings provides an avenue to ensure that the issues are fairly presented and will be understood by the individual cabinet members. Agendas, minutes, and other documents dating back to 1995 are also available online,18 although further back in time, there is less and less detailed material available.
The Joint Administrative Procedures Committee (JAPC) is a joint standing committee of the Florida Legislature.19 It is currently composed of five senators appointed by the president of the Senate and six representatives appointed by the speaker of the House.20
The primary function of the JAPC is to review agency action pursuant to the operation of the APA, particularly as these actions relate to the rulemaking process. The JAPC is responsible for ensuring that the rules promulgated by agencies do not create new law, but rather stay within the authority specifically delegated by the legislature as relayed by the governing statute(s).21 To that end, the JAPC is specifically directed to:
• “Maintain a continuous review of the statutory authority on which each administrative rule is based and, whenever such authority is eliminated or significantly changed by repeal, amendment, holding by a court of last resort, or other factor, advise the agency concerned of the fact.”22
• “Maintain a continuous review of administrative rules and identify and request an agency to repeal any rule or any provision of any rule that reiterates or paraphrases any statute or for which the statutory authority has been repealed.”23
• “Review administrative rules and advise the agencies concerned of its findings.”24
• “Exercise the duties prescribed by [Ch.] 120, Florida Statutes, concerning the adoption and promulgation of rules.”25
• “Generally review agency action pursuant to the operation of APA.”26
• “Report to the president of the Senate and the speaker of the House of Representatives at least annually, no later than the first week of the regular session, and recommend needed legislation or other appropriate action. Such report shall include the number of objections voted by the committee, the number of suspensions recommended by the committee, the number of administrative determinations filed on the invalidity of a proposed or existing rule, the number of petitions for judicial review filed on the invalidity of a proposed or existing rule, and the outcomes of such actions. Such report shall also include any recommendations provided to the standing committees during the preceding year under subsection (11).”27
• “Consult regularly with legislative standing committees that have jurisdiction over the subject areas addressed in agency proposed rules regarding legislative authority for the proposed rules and other matters relating to legislative authority for agency action.”28
• “Subject to the approval of the [p]resident of the Senate and the [s]peaker of the House of Representatives, have standing to seek judicial review, on behalf of the [l]egislature or the citizens of this state, of the validity or invalidity of any administrative rule to which the committee has voted an objection and that has not been withdrawn, modified, repealed, or amended to meet the objection. Judicial review under this subsection may not be initiated until the [g]overnor and the head of the agency making the rule to which the committee has objected have been notified of the committee’s proposed action and have been given a reasonable opportunity, not to exceed 60 days, for consultation with the committee. The committee may expend public funds from its appropriation for the purpose of seeking judicial review.”29
• “Maintain a continuous review of the administrative rulemaking process, including a review of agency procedure and of complaints based on such agency procedure.”30
• “Establish measurement criteria to evaluate whether agencies are complying with the delegation of legislative authority in adopting and implementing rules.”31
• “Maintain a continuous review of statutes that authorize agencies to adopt rules and shall make recommendations to the appropriate standing committees of the Senate and the House of Representatives as to the advisability of considering changes to the delegated legislative authority to adopt rules in specific circumstances.”32
Important sources of information regarding the operation and findings of the JAPC are found in the annual reports prepared by the committee. Every annual report since 2005 is online, but it appears the committee deletes older reports when new ones are added.33 Earlier reports are available for download in PDF format upon request. The reports detail the changes made to the APA in the just-ended legislative session; statistical information on the committee’s review of rules; emergency rules; and details of any administrative determinations and petitions for judicial review. The reports also show the types of objections raised by the committee to newly proposed rules and can be a valuable source of ideas with which to challenge older rules. The committee’s meeting records, and the meeting packet for its next scheduled meeting can also be found online.34
Additional legal research tools on various topics, including the 1974 reporter’s comments on the proposed APA are also available on the JAPC website.35 The comments are a valuable source of information and analysis regarding original intent of the APA’s provisions. For those unfamiliar with the APA, the committee has published an online primer on Florida’s Administrative Procedure Act.36 Although geared to the average citizen, the primer provides an excellent overview of the APA and its various procedures.
Like the JAPC, DOAH also produces annual reports regarding its operations, all of which are online. Through the efforts of Claudia Llado, clerk of the division,37 all of their annual reports are now available online.38
The Uniform Rules of Procedure required to be promulgated by the Administration Commission39 can be found in Florida Administrative Code Ch. 28 and also on the DOAH website.40
Final orders in rule challenge cases and recommended orders to agencies in referred cases can be searched via the DOAH website.41
Beginning on July 1, 2015, agencies were required to send copies of their final orders to DOAH for inclusion in a consolidated database for indexing.42 A different search page is used for this from the one used to search DOAH’s own orders.43 When searching for orders issued by the Administration Commission, select “Office of the Governor” in the agency field from the drop-down menu. Unfortunately, according to page 13 of the 2017 DOAH annual report, only 88 percent of the agencies required to file their orders with DOAH within 15 days of their entry had done so during the prior year.44 The Florida Legislature will, it is hoped, seek to improve upon this performance by the recalcitrant agencies.
Department of State
The Department of State’s Administrative Code and Register Section is the filing point for rules promulgated by state regulatory agencies.45 The department’s own rules,46 in conjunction with the requirements of the APA, govern how this is done. Individuals can register for free to receive email notification of notices submitted by agencies.47
The department’s own rules, again in conjunction with the requirements of the APA, govern how agency final orders are indexed,48 including those in the consolidated database.49
Finally, the department publishes the Florida Administrative Code and the Florida Administrative Register (formerly known as the Florida Administrative Weekly). The print version of the Register ceased with the September 28, 2012, issue.50 The online code can be searched, as can the Register, although only the Register editions since 1999 are available online.51 There is an option to conduct a basic52 or an advanced search.53 The advanced search allows a more narrowly focused inquiry, as opposed to the broader basic search.
The above matters may be common knowledge to those who practice Florida administrative law, but may not be to those who do not. There is a great amount of information and resources available and, hopefully, the above provides a way to find it.
1 DOAH was created by Fla. Stat. §20.22(2)(f) under the Department of Management Services. A link to the DOAH Statement of Agency Organization and Operation can be found on the agency’s website, https://www.doah.state.fl.us/ALJ/.
2 Fla. Stat. Ch. 120.
3 Fla. Stat. §14.202.
4 The cabinet consists of the attorney general, chief financial officer, and commissioner of agriculture. Fla. Const. art IV, §4(a).
5 Fla. Stat. §14.202.
7 The Administration Commission, Statement of Agency Organization and Operation (Nov. 7, 2017), available at http://www.myflorida.com/myflorida/cabinet/adcom/adcom.pdf [hereinafter Statement of Agency Org. and Oper.].
8 Fla. Stat. §120.54(5). These are the Uniform Rules of Procedure in F.A.C. Ch. 28.
9 Fla. Stat. §120.542(3). This is F.A.C. Ch. 28-108.
10 Fla. Stat. §120.63.
11 Fla. Stat. §120.65.
12 Fla. Stat. §120.80(1)(a).
13 See Statement of Agency Org. and Oper.
14 See note 43.
15 For some reason the commission elected not to maintain the subject-matter index of agency final orders for the earlier years, even though the statutory requirement was well known. See Belz, Agency Practice and Procedure: What Are They Up To, How Do You Know, and What Can You Do About It?, 56 Fla. B. J. 652 (July/Aug. 1982).
16 The Florida Legislature, Joint Administrative Procedures Committee, 2005 Annual Report 32 (2005) available at http://www.japc.state.fl.us/Documents/Publications/2005%20Annual%20Report.pdf. The commission had, by then, granted various exemptions (all of which had since expired) to the Department of Business Regulation; Marion and Lee county school boards; Public Employees Relations Commission; School Boards and Community Colleges; Department of Banking and Finance; Department of Offender Rehabilitation; Department of Business Regulation, Division of Pari-Mutual Wagering; Department of Health and Rehabilitative Services; Parole and Probation Commission; and Florida State Board of Community Colleges. What the specific exemptions were was not identified.
17 State of Florida, The Governor and Cabinet, 2017 Meetings of the Governor and Cabinet (2017), http://www.myflorida.com/myflorida/cabinet/mart.html.
18 State of Florida, The Governor and Cabinet, Cabinet Meeting Archive (1995-2016), http://www.myflorida.com/myflorida/cabinet/archive.html.
19 Fla. J. Legis. Rule 4.1.
20 Id.; The Florida Legislature, Joint Administrative Procedures Committee, http://www.leg.state.fl.us/cgi-bin/View_Page.pl?File=index_css.html&Tab=committees&Directory=committees/joint/JAPC/.
21 Fla. Stat. §120.545; Joint R. of the Fla. Leg. 4.6.
22 Joint R. of the Fla. Leg. 4.6(1).
23 Joint R. of the Fla. Leg. 4.6(2).
24 Joint R. of the Fla. Leg. 4.6(3).
25 Joint R. of the Fla. Leg. 4.6(4).
26 Joint R. of the Fla. Leg. 4.6(5).
27 Joint R. of the Fla. Leg. 4.6(6).
28 Joint R. of the Fla. Leg. 4.6(7).
29 Joint R. of the Fla. Leg. 4.6(8).
30 Joint R. of the Fla. Leg. 4.6(9).
31 Joint R. of the Fla. Leg. 4.6(10).
32 Joint R. of the Fla. Leg. 4.6(11).
33 The Florida Legislature, Joint Administrative Procedures Committee, Annual Report 32 (2005).
34 JAPC, Committee Meeting Records, http://www.japc.state.fl.us/.
35 JAPC, Legal Research Tools, http://www.japc.state.fl.us/Pages/Research.aspx.
36 JAPC, A Primer on Florida’s Administrative Procedure Act, available at http://www.japc.state.fl.us/Documents/Publications/PocketGuideFloridaAPA.pdf.
37 The author thanks Ms. Llado for providing online access to all of the DOAH annual reports.
38 Florida Public Documents Collection, Div. of Admin. Hearings, Annual Report 1-43 (1975-2017), available at http://edocs.dlis.state.fl.us/fldocs/dah/ar/index.htm.
39 See notes 8 and 9.
40 The Uniform Rules of Procedure; F.A.C.R. 28-101-112, available at https://www.doah.state.fl.us/ALJ/Rules/UniformRules.pdf.
41 Florida Division of Administrative Hearings, Case Search, https://www.doah.state.fl.us/ALJ/searchDOAH/.
42 Fla. Stat. §120.53(1). For an overview of the process that led to the creation of the central repository at DOAH, see Richard J. Shoup, The Move Toward a Single Repository for Agency Final Orders: An Update from the Ad Hoc Orders Access Committee, 36 Fla. Admin. Law Section Newsletter 1 (Mar. 2015), available at http://www.flaadminlaw.org/pdf/ALS%20Newsletter%20-%20March%202015%20Final.pdf; Richard J. Shoup, Final Order Indexing in the Electronic Age: The 2015 Amendments to F.S. §120.53 Finally Fulfills the Purpose of the Original Statute 40 Years Later, 90 Fla. Bar. J. 54 (Jan. 2016), available at /news/tfb-journal/?durl=/DIVCOM/JN/jnjournal01.nsf/Articles/E5081D0E2B42680C85257F29005796E4.
43 DOAH, Florida Agency Indexed Orders Search, https://www.doah.state.fl.us/FLAIO/.
44 Division of Admin. Hearings, Forty-Third Annual Report (Jan. 31, 2017), available at https://www.doah.state.fl.us/ALJ/Reports/43rdAnnualReport.pdf. The printed page number is 13, but it is page 14 on the website.
45 Florida Department of State, Administrative Code and Register, http://dos.myflorida.com/offices/administrative-code-and-register/.
46 F.A.C. Ch. 1-1 (Rulemaking).
47 Florida Administrative Code and Register, Notification Sign-Up, https://www.flrules.org/subscriber/signup.asp.
48 Fla. Stat. §120.533; F.A.C. Ch. 1B-32 (Indexing, Management, and Availability of Final Orders).
49 F.A.C.R. 1B-32.003 (Maintenance of Agency Final Orders).
50 University of Florida Libraries Catalog, http://uf.catalog.fcla.edu/uf.jsp?st=020451994&ix=pm&I=0&V=D&pm=1&fl=ba.
51 Florida Administrative Code and Register, Register Issues, https://www.flrules.org/bigdoc/default.asp.
52 Florida Administrative Code and Register, Basic Search, https://www.flrules.org/default.asp?strh=NC.
53 Florida Administrative Code and Register, Advanced Search, https://www.flrules.org/gateway/search.asp.
Richard A. Belz is a retired attorney and former U.S. magistrate judge. His previous practice areas included Florida administrative law. He received his J.D. from the University of Florida Levin College of Law in 1975.
This column is submitted on behalf of the Administrative Law Section, Robert H. Hosay, chair, and Stephen Emmanuel, editor.